Criminal Law 2 Lecture Notes Part II

(Lecture Notes of Justice Florenz Regalado – continued)

TITLE FIVE CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS Arts. 190-194. (Repealed by R.A. 6425, March 30, 1972, thereafter, by R.A. 9165). 1. The provisions of this Title have been the subject of amendments even before and after they were adopted as Articles 190 and 194 thereof. As more sophisticated drugs were concocted and variant criminal offenses evolved therefrom, Articles 190 to 194 were expressly repealed on March 30, 1972 by R.A. 6425, known as the Dangerous Drugs Act of 1972, with its broader scope and more stringent provisions. R.A. 6425 itself also underwent a series of amendment by P.D. 44, P.D. 1675 and P.D. 1683, B.P. 179 and R.A 7659 to cope with more problems in the growing drug menace. For virtually the same reasons, Congress was again constrained to repeal R.A. 6425, as amended, to give way to R.A. 9165, known as the Comprehensive Dangerous Drugs Act of 2002, which, after due publication on June 19, 2002, took effect on July 4, 2002. 2. R.A. 9165 is at present the primary law on dangerous drugs and, quite significantly, provides for limited applicability of the Code’s provisions, thus: “Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death” (Sec. 98). 3. Some of the salient provisions of R.A. 9165, which entailed the deletion of some former provisions and the adoption of new or amended versions of prior legislation, are as follows: a. The former classification of dangerous drugs into either prohibited or regulated drugs has been discontinued. Dangerous drugs now included those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances Controlled precursors and essentials, 1998 UN Convention Against Illicit Traffic in Narcotic and Psychotropic Substances. b. The unlawful acts now involve both dangerous drugs and controlled precursors and essential chemicals, and are virtually the same as those in R.A. 6425, i.e., importation, sale, administration, delivery, distribution and transportation; maintenance of employment in or knowingly visiting a drug den; manufacture, possession or use of said drugs; possession of equipment and paraphernalia for using the same; cultivation of plants or sources of drugs. Additionally, also punishable are trading and dispensation thereof, illegal diversion of any controlled precursor and essential chemical and manufacturing and delivery of equipment and paraphernalia for creating or concocting any dangerous drug or controlled precursor or essential chemical. c. The penalty of life imprisonment to death, with ½ to ten million pesos fine, shall be imposed on any person who, without authority, possess any dangerous drug in the following reduced quantities: 500 grams or more marijuana; 50 grams or more of methamphetamine hydrochloride, or “shabu”; and 10 grams or more of opium, morphine, heroin cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, and other dangerous drugs such as, but not limited to, methlenedioxymethamphetamine (MDMA), or “ecstasy”, paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamide (LSD), gamma hydroxybutyrate (GHB), and those similarly designed or newly introduced drugs and their derivatives. d. Planting evidence to incriminate as innocent party and acting as protector/coddler are duly defined and correspondingly punished. e. More specific regulatory procedures are provided for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, plant sources thereof and controlled precursors or essential chemicals therefore, as well as instruments and/or laboratory equipment and paraphernalia used in connection therewith. Specific time frames are provided for compliance with the steps required for the disposition of the drugs and aforesaid items. f. Plea bargaining for those charged under any provision of the Acts, and regardless of the imposable penalty, shall not be allowed. Convicted drug traffickers and pushers cannot avail of probation, regardless of the penalty imposed. g. The grant of immunity to an accused who testifies against violators of the Act, under circumstances similar to a state witness is provided for with the corresponding requirements thereof and the limitations thereto. h. Drug testing, consisting of screening and confirmatory tests shall be required of applicants for driver’s license; applicants for driver’s license; applicants for firearm’s license and permit to carry outside residence; students of secondary and tertiary schools on a random testing; officers and employees of public and private offices, likewise on a random basis; officers and members of the military, police and other law enforcement agencies, to be conducted annually; persons charged before the prosecutor’s office with a crime having an imposable penalty of 6 years and 1 day or higher; and all candidates for office, whether appointed or elected, in both the national or local governments.

i. The Philippine Drug Enforcement Agency (PDEA) is created as the implementing arm of the Dangerous Drugs Board in the enforcement of the provisions of the Act, with provisions for its officers, organization, powers and duties. j. The Supreme Court shall designate special courts, from among the existing Regional Trial Courts in each judicial region, to exclusively try and hear cases involving violation of the Act. Provisions are made for special prosecutors, the conduct of preliminary investigation and trial with time limits, and sanctions for non-compliance. 4. As in other offenses involving illegal possession, constructive possession of dangerous drugs is sufficient, but there must be animus possidendi on the part of the offender and/or the person in the constructive possession of the drugs for him. This doctrine laid down in the old case of U.S. vs. Juan (23 Phil. 105) is suggested as being of continuing validity. 5. Other old doctrines laid down under the aegis of the old opium law are believed to still be applicable case law. The absorption theory adopted in U.S. vs. Poh Chi (20 Phil. 140) holds that the offenses of possession of opium and an opium pipe are absorbed in the crime of smoking opium with the use thereof. However, possession of particular tins of opium is not absorbed in illegal importation of other amounts of opium (U.S. vs. Jose, 34 Phil. 840). Similarly, illegal possession and sale of opium is only one crime if the same opium possessed were also all sold to an illegal buyer (U.S. vs. Look Chaw, 18 Phil. 573), but if only a part thereof was sold, the other part remaining in the possession of the offender would still hold him liable therefor (People vs. Salamat, G.R. No. 103295, Au. 20, 1993).

TITLE SIX CRIMES AGAINST PUBLIC MORALS Chapter One GAMBLING Art. 195-199. Skip this.

Chapter Two OFFENSES AGAINST DECENCYAND GOOD CUSTOMS Art. 200. Grave scandal. 1. This is one of the catchall provisions in the Code, the express purpose of which is to penalize any grave scandal not specifically falling within any other article thereof. Hence, where the act of the offender could also be considered as mischief falling under Article 329, this article was not applied (People vs. Dumlao, CA, 38 O.G. 3715). The other catchall provision is estafa under Article 318, which punishes any other deceit not mentioned in the specific articles of the law on estafa. 2. The offense punished here must be a highly scandalous conduct in a public place or within public knowledge or public view that gives rise to public scandal to persons who have incidentally witnessed the same (U.S. vs. Catajay, 6 Phil. 398). Art. 201. Immoral doctrines, obscene publications and exhibition, and indecent shows. 1. The mere possession of obscene literature is not punishable. There must be publishing, selling, exhibiting or giving away (meaning, distribution) of such literature. Since distribution is contemplated by this article, it was held that the act of giving a copy of the obscene literature to only one person is not punishable under this article (People vs. Tempongko, 1 CA Rep. 317), as distinguished from the case of a magazine dealer who was caught in possession of several copies of immoral publications and was consequently convicted (People vs. Tablao, CA, G.R. No. 16703-R, Jan. 28, 1958). 2. The authors of obscene literature are liable only if the same were published with their knowledge. As amended by P.D. 969, editors publishing such obscene literature, as well as owners or operators of establishments selling the same are liable. If anonymously published or the real printer’s name is not divulged, the offender will be further liable for illegal publication (Art. 154[4]). 3. P.D. 969 further directs the forfeiture and destruction of the prohibited article. Any offender who is a government official or employee shall be punished with the maximum period of the prescribed penalty, with the accessory penalties in the Revised Penal Code (Sec. 4). 4. Sec. 9 of R.A. 7610 imposes specific penalties upon any person who shall hire, employ, use, persuade, induce or coerce a minor (under 18 years of age) to perform in obscene exhibitions and indecent shows, whether live or on video, pose or model in obscene publications or pornographic materials or sell or distribute the said materials. Art. 202. Vagrants and prostitutes.

1. The offenders mentioned in paragraphs 1 and 2 of this Article will be liable only if they have no apparent means of subsistence or visible means of support. There is no such requirement for the other offenders enumerated in this article. In this connection, P.D. 1563 (Mendicancy Law of 1978) requires, in addition to the provisions in paragraph 1, that the offender “uses begging as a means of living”, in order to be punishable. 2. Only female prostitutes are covered by this provision and to be liable thereunder it is required that she engages in sexual intercourse or lascivious conduct, that it be for a consideration, and that such misconduct be habitual. 3. Vagrancy, just like prostitution, requires habitually in the acts punishable under paragraph 2. Where the accused was apprehended while loitering in a university gymnasium gallery with no other apparent purpose, but there was no evidence that he did so habitually, he was acquitted of the charge of vagrancy (People vs. Morales, CA, 56 O.G. No. 1,p.34).

TITLE SEVEN CRIMES COMMITED BY PUBLIC OFFICERS Chapter One PRELIMINARY PROVISIONS Art. 203. Who are public officers. 1. For purposes of the Revised Penal Code, there is no distinction between a public officer and a public employee, although these terms are used seemingly in the alternative in several articles of the Code. Any person who takes part in the performance of public functions or performs public duties in the Government under authority of the law, popular election or valid appointment is a public officer, and this includes every public servant from the highest to the lowest (Maniego vs. People, 88 Phil. 494). a. While a person appointed as a laborer may be excluded from the aforesaid definition as he does not necessarily perform public functions, it is not however the nature of the appointment but of the duties he performs that is determinative. Accordingly, a person appointed as a laborer in the Bureau of Posts but actually assigned and working as a sorter and filer of money orders (Maniego vs. People, supra; cf. People vs. Paloma, 40 O.G, Supp. No. 10, p 2087), and an emergency helper in the Bureau of Treasury entrusted with the custody of official documents (People vs. Irineo, CA, 53 O.G. 2827) were considered as public officers. b. In Agbayani, et al. vs. Sayo, etc., et al. (G.R. No. L-47880, April 30, 1979), a prosecution for libel, it was held that a GSIS branch manager is a public officer in view of the accountability of public officers (Sec. 1[1], Art. XII-B and Sec. 5, Art XII, Constitution) in relation to Sec. 2 (a) and (b) of R.A. 30191 which includes and applies to government-owned or controlled corporations. In the afore-cited case of Irineo, his work was that of a janitor and messenger of official communications, hence he performed governmental functions. 2. While for purposes of political law or administrative law, the distinction between a public office and an employee is determined by the delineation between their respective discretionary and ministerial functions, it is no moment for purposes of criminal liability in the Code. What is of more importance here is to determine whether the offender is a public officer, an accountable public officer, a person in authority, or agent of a person in authority.

Chapter two MALFEASANCE AND MISFEASANCE IN OFFICE Section One. - Dereliction of duty Art. 204. Knowingly rendering unjust judgment. Art.205. Judgment rendered though negligence. Art. 206. Unjust interlocutory order. Art. 207. Malicious delay in the administration of justice. Art. 208. Prosecution of offenses; negligence and tolerance. Art. 209. Betrayal of trust by an attorney or solicitor-Revelation of secret. 1. The article in this section punishes felonies, which in Spanish law fall within the concept of “prevarication,” or betrayal of trust. The offender here commits a dereliction of duty imposed on him by acts of malfeasance (unlawful act), misfeasance (performing a lawful act but in an unlawful manner), and nonfeasance (non-performance of a required act). 2. Articles 204 to 207 are offenses committed by a judge in his capacity as such, and are punished therein without prejudice to administrative sanctions and penalties under the pertinent laws or rules of the Supreme Court. a. Art. 204 requires that there be adequate poof that the judge was unjust, and not that the judge merely committed an error of judgment or took the unpopular side of a controversial point of law. This is reinforced by the requirement that he must have known that his judgment was indeed unjust.

b. In U.S. vs. Gacutan (28 Phil. 100), the judge who was charged with knowingly rendering an unjust judgment in exchange for a bribe was convicted only of bribery as there was no convincing showing that his judgment was really unjust. Had there been proof of such injustice, the judge would have been liable under Art. 204, in addition to his liability for bribery. c. The offense in Art. 204 refer only to a judgment of an individual judge in his court, and not to the judgment render in a collegial court by the members thereof (In Re: Wenceslao Laureta, Mar. 12, 1987). d. Before a criminal action against a judge for violation of Art. 204 or Art. 205 can be entertained, there must be a trial and authoritative judicial declaration that his decision or order is really unjust. That pronouncement thereon must result from either an action of certiorari or prohibition in a higher court impugning the validity of such judgment or order from an administrative proceeding in the Supreme Court against the judge precisely for promulgating the unjust judgment or order (De Vera vs. Pelayo, etc., et al., G.R. No. 137354, July 6, 2000). e. In Art. 206, the unjust interlocutory order must have been issued by the judge with deliberate intent to cause damage to the party concerned (Magdamu vs. Pahimulin, Adm. Case No. 662-MJ, Sept. 30, 1976). f. For Art. 207, the delay in the administrative of justice must have been through the malicious acts or intent of the judge. If the undue delay was not malicious but through gross negligence, this would be covered by Sec. 3(e), R.A. 3019. G. Art. 208 applies to a public officer whose official duties involve the initiation of prosecution for the punishment of violators of the law. Malice on the part or the offender is required for liability as so provided in the stated in its title. A similar offense is punished by Sec. 1 (q) of P.D. 1829. Officers or agents of the Bureau of Internal Revenue who fail to report to their superiors violations of the Tax Code are punishable thereunder. See also the relevant provisions of Art. 211-A on qualified bribery. h. The guilt of the alleged violator of the law, whose offense was not prosecuted or was tolerated by the aforesaid public officer, is a pre-judicial question and must be established before the latter can be prosecuted under Art. 208 (U.S. vs. Mendoza, 23 Phil. 194). i. Art. 209 is now limited to an attorney-at-law as there is no more procurador judicial and, unlike other countries, a licensed attorney here can both act as a barrister and a solicitor. (1) For the attorney’s acts of revealing the secrets of the client or undertaking the defense of the opposing party in the same case without the client’s consent, damage to the client is not required to hold the attorney criminally liable. On the other hand, shifting to the other party with the consent of the original client is not punishable. In fact, representing the conflicting interests of all the parties in the case with their consent is allowable (Canon VI, Canons of Professional Ethics; Rule 15.03, Canon 15, Code of Professional Responsibility). (2) Where the attorney is guilty of malicious breach of duty or inexcusable negligence or ignorance, damage to the client is required for criminal liability, absent which administrative or civil actions will be the client’s remedies. (3) A submission has been made that, contrary to the foregoing provisions, this type of prevaricacion can be committed by a lawyer only if he knowingly and voluntarily violates a duty, in view of the phrase “faltar a sabiendas y voluntariamente a la obligacion” as noted by a Spanish commentator (II Viada 533). However at p. 555 of that work, Viada points out in his comments on then Art. 371 that there was a deliberate change from the Code of 1850 by the Code of 1870 to make the mode of committing the offense by attorneys the same as that for judges in then Art. 366. Definitely, therefore, negligence and ignorance of an attorney to the damage of his client is punishable as prevaricacion.

Section Two. – Bribery Art. 210. Direct bribery. 1. Worthy of attention is the last paragraph of this article which makes the provisions on direct bribery applicable not only to public officers but also to the persons specified therein. Also, it must be recalled that bribery cannot be complexed with or absorbed by other crimes as the penalty for bribery is in addition to the penalties for those other crimes. 2. Under R.A. 3019, a public officer charged with bribery cannot retire or resign pending the investigation of that crime (Sec. 12). After a pre-suspension hearing, he shall be suspended if such action is warranted; and if he is thereafter convicted, he shall lose all his retirement or gratuity benefits (Sec. 13). 3. While bribery is sometimes referred to as extortion, there is no crime of extortion in the Code. Other crimes with the character of extortion are (1) robbery, (2) kidnapping for ransom, (3) grave threats with a demand for money, and (4) blackmail

(although there is no crime so denominated here, the felony being “threatening to publish a libel or offer to prevent such publication for a consideration”). 4. As a rule, both the giver and the recipient of the briber are liable, although it is also possible that only one of the parties to the illegal transaction will incur criminal liability. a. In bribery through entrapment, only the officer who takes the bribe will be liable (People vs. Galicia, 40 O.G. No. 23, p. 4476, cited in Trias vs. Gatmaitan, etc., CA, 52 O.G. 2047). b. Conversely, in s attempted corruption, only the offeror of the bribe is liable (Art. 212). c. See P.D. 749 on immunity in bribery cases. 5. It is submitted that bribery is always consummated. The doctrine of frustrated bribery (People vs. Quing Lee, 62 Phil. 959 [Unpub.]) which was in conflict with the rule in U.S. vs. Te Tong (26 Phil. 453) was also at odds with People vs. Elago (CA-G.R. No. 3-R, Oct. 11, 1947). At any rate and as a matter of strict law, if the public officer refuses to be bribed, the offeror alone is liable and not for attempted bribery (Art. 210) but for attempted corruption of a public official (Art. 212; see also Pozar vs. CA, et al., G.R. No. 62439, Oct 23, 1984). 6. For direct bribery, it is essential that the act desired by the briber to be done by the public officer is in connection with the performance of the latter’s official duties. If not, it will be indirect bribery for receiving gifts by reason of his office (Art. 211; People vs. Pamplona, CA, 51 O.G. 4116). 7. The penalty in direct bribery depends on whether the act which the public officer is asked to do is a criminal act or not, or whether he is asked to refrain from performing a duty. However, if the act of refraining from the performance of a duty is in itself a crime, as in prevarication under Art. 207, then the bribery is punishable under the first paragraph of this article, unless the circumstances will bring it within the category of qualified bribery in Art. 211-A. 8. In direct bribery under the second paragraph of Art. 201, a mere promise or agreement by the public officer to execute an act which does not constitute a crime does not amount to that type of direct bribery. The penalty provided in that paragraph depends on whether the act desired was accomplished or not, both of which presuppose an overt act by the public officer for that purpose. Accordingly, a mere agreement or promise without such overt act does not violate that paragraph. For the same reason, the mere promise to give the gift or bribe is likewise not punishable (People vs. Abesamis, 93 Phil. 712). 9. The distinction between bribery and robbery has often been made confusing due to oversimplification. The real determining factor is not whether the one who gave the bribe had performed a criminal act or not. The correct basis of the distinction is whether the giver of the bribe did so voluntary, in which case it is bribery, or that he gave the sum or gift by reason of force or intimidation, in which case it is robbery (People vs. Francisco, 45 Phil. 819). a. In the aforesaid case of Francisco, the Chinese store owner had committed a crime in connection with his sale of lard, but it was nonetheless held to be robbery because he was forced to give the amount due to threats made on him by the public officer. b. In the other case of U.S vs. Flores (19 Phil. 178) where the apprehending officers pretended that they had found opium in the victims, and in People vs. Sope, et al. (75 Phil. 810) where the victim was falsely charged to be unlawfully dealing in U.S. Army goods, it is true that the victims had not committed any crime, but the accused officers were also convicted of robbery because the victims gave the money and gifts due to the threats and intimidation employed by said accused. 10. The accused fiscal, for receiving money in consideration of his dismissal of case under preliminary investigation, was charged under Sec. 3(b) of R.A. 3019. It was held that the crime was direct bribery because a preliminary investigation is not the prohibited “contract or transaction” contemplated in the anti-graft law (Soriano, Jr. vs. Sandiganbayan, et al., G.R. No. 65952, July 31, 1984). Art. 211. Indirect bribery. Art. 211-A. Qualified bribery. 1. In indirect bribery, it is necessary that the public officer actually receives the gifts offered to him by reason of his office. Mere promises or offers are not sufficient, unlike the general rule in direct bribery. This should be so since in indirect bribery, the public officer has not yet done anything not called for by his functions and what is sought to be prevented is future misconduct on his part in anticipation and purposes of which the gift is given. Hence, there must be tangible proof that he actually received the gift and treated it as his own property (Formilleza vs. Sandiganbayan, et al., G.R. No. 75160, Mar. 18, 1988). 2. A permutation has been introduced in the law on bribery by Art. 211-A defining and punishing qualified bribery. This is basically founded on the crime of prevaricacion under Art. 208 committed by a public officer charged with law enforcement who

refrains from doing so but the penalties in Art. 211-A are more severe in view of the gravity of the offenses which that public officer refuses to prosecute. a. It will be noted that it is sufficient that the recalcitrant public officer acted in consideration of any offer or promise, and it is not required that he actually received the bribe. b. On the same premise discussed in Art. 208, it is submitted that the guilt of the person who allegedly committed the crime, on which no prosecutory action was taken, is also a pre-judicial question to be resolved for purposes of the charge of qualified bribery against the public officer. Art. 212. Corruption of public officials. 1. While corruption of public officials is in effect the obverse side of a bribery transaction, it is actually a crime different from bribery, not only because they are treated upon and punished in different articles but, more so, since they pertain to and are committed by different parties. What is also significant is that they need not necessarily concur in the same event or be conjointly dealt with in the same event or be conjointly dealt with in the same case, since they do not have to coexist in all instances. 2. As earlier discussed, bribery being legally taken from the standpoint of the public officer can only exist in the consummated stage if he accepts the bribe, but is non-existent in either the attempted or frustrated stage if he rejects the offer. In corruption however, being from the punitive side of the offeror of the bribe, there will be attempted corruption even if the public officer refuses to consummated corruption if he accepts it from the offeror. 3.Art. 212 is, therefore, concerned only with the liability of the person who shall have made the offers or promises or given the gifts to the public officer, although the action of the latter will affect or determine the liability of the former. Chapter Three FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Art. 213. Frauds against the public treasury and similar offenses. 1. Par. 1 punishes a public officer who in his official capacity enters into agreements or schemes to defraud the public treasury. It is not required that he did succeed in such defraudation or that damage was sustained by the Government, it being sufficient that his stratagem was intended to defraud the Government. 2. Par. 2 refers to illegal exaction and being a malum prohibitum, no fraud or intent to defraud should be required since the mere voluntary performance of the acts enumerated therein would suffice. No damage is necessary as the mere act of demanding or collecting sums or objects different from or larger that those provided by law or the mere voluntary failure to issue a receipt for official collections consummates the crime (see Ganaden vs. Bolasco, A.M. No. P-124, May 16, 1975). 3. It would appear, therefore, that the offender here is held to a higher and more stringent degree of accountability but that is justified and required by the nature of his official functions. In illegal exaction, as in malversation (Art. 217), the offender, is not just an ordinary public officer but an accountable public officer, that is, he is entrusted with the custody of public funds and property under the duty to disburse and account for the same in accordance with law. On top of that, in illegal exaction, the accountable public officer is further charged with the collection of taxes, licenses, fees and other imposts which exposes him to more temptations and opportunities for corrupt practices. 4. Any other public officer or even a private individual who acts in conspiracy with said accountable public officer in the commission of illegal exaction will also be liable for the crime under the rationale adopted in U.S. vs. Ponte (20 Phil. 379), People vs. Caluag, et al. (94 Phil. 457) and People vs. Sendaydiego, et al. (G.R. Nos. L-32252-54, Jan. 20, 1978). It should be noted, however, that internal revenue and customs officers are not covered by this but by other legal provisions. 5. If in addition to illegal exaction the offender misappropriates the entire amount which he collected, it has been posited that he be additionally liable for malversation or estafa, or both, depending on the character of the funds consequent to his misappropriation. a. Thus, it is suggested that if the money he collected was more than what is authorized by law and he misappropriated the entire amount for his own benefit, he is guilty of illegal exaction for the unauthorized collection; for malvesation of the portion corresponding to the amount due to the Government which are in the nature of public funds; and for estafa for the excess amount, which remains as private funds of which the taxpayer was swindled by deceit and did not become public funds as the same was not legally paid to or considered as such by the Government. b. There is substantial merit in the foregoing view since Par. 1 which specifies that the felon must have acted with intent to defraud, there is no such requirement for the acts committed by him in Par. 2. They would constitute illegal exaction even if he acted

with an indeterminate or undeterminable criminal intent, which effectively dispenses with a showing of criminal intent, hence this offense is in the nature of a malum prohibitum. The ramifications on his liability for the subsequent acts of misappropriation of the amount illegally exacted can, however, stand some clarification. It is submitted that if from the start the offender acted with animo felonico and the illegal exaction was the necessary means employed to obtain the amounts and the peculation thereof, then he would be liable for the complex crime of malversation and/or estafa through illegal exaction (delito complejo). On the other hand, if the intent to misappropriate only arose as an afterthought or subsequent to illegal exaction, these would be separate crimes. 6. If the accused who collected the amount was not an accountable public officer but merely pretended to be such, the crime is only estafa, as both illegal exaction and malversation required the status of an accountable public officer as the offender. Art. 214. Other frauds. 1. This provision should properly be taken in connection with estafa as this is with regard to the penalties in Chapter Six, Title Ten, of this Book. 2. This article imposes the additional penalty of special disqualification on a public officer who commits estafa, as a special aggravating circumstance thereof. Art. 215. Prohibited transactions. 1. This provision prohibits any transaction of exchange or speculation by an appointed public office, but is limited to any such transaction within the territory subject to his jurisdiction, presumably to avoid his using undue influence in his favor. Art. 216. Possession of prohibited interest by a public officer. 1. What is prohibited by this provision is the participation by the public officer virtute officii in a contract in which it is his official duty to intervene. Thus, where the accused, although he was the secretary and executive officer of the Pension Board, assumed the mortgage involved in a transaction with that office but did so in his private capacity, it was held that this article was not violated (People vs. Meneses, CA, 40 O.G., Supp. No. 11, p. 134). It is believed, however, that now such participation would be violative of Sec. 3(i), R.A. 3019. 2. Actual fraud is not necessary in the commission of this offense, but the act is punished because of the possibility that the officer may commit fraud or place his own interest above that of the Government (U.S. vs. Udarbe, 28 Phil. 382). 3. Even private persons, such as experts, arbitrators, private accountants, guardians and executors or administrators are covered by this article for the same reason. Chapter Four MALVERSATION OF PUBLIC FUNDS OR PROPERTY Art. 217. Malversation of public funds or property-Presumption of malversation. 1. The felony of malversation requires that (a) the offender is an accountable public officer; (b) he is responsible for the misappropriation of public funds or property through intent or negligence: (c) he has custody and received such funds and property by reason of his office. In the absence of any of these elements, the crime may be estafa (U.S. Radaza, 17 Phil. 286) or theft. 2. A private individual may also be guilt of malversation (a) if he has charge of public funds or property deposited with him by government authority, or (b) if acts in conspiracy or cooperates with, or aids and induces, an accountable public officer to commit malversation (People vs. Sendaydiego, et al., G.R. Nos. L-32252- 54, Jan. 20, 1978, and cases cited therein). 3. While, as a rule, only public funds or property may be the subject of malversation, private funds declared by law as impressed with a public character can also be the subject of this crime. Accordingly, the status of public funds is determined by the following criteria: a. The source of the fund, whether national, provincial, municipal and so forth; or b. Whether it is in the custody of an officer for a public purpose such as Red Cross and Anti-TB funds (People vs. Velasquez, 72 Phil. 98); or c. If it is in the custody of an officer under the duty to account for the same, as in the case of a depository of funds or property under attachment (Art. 222), proceeds of Philippine Charity Sweepstakes tickets entrusted to its traveling sales agent (People vs. Angco, 103 Phil. 33), or money received by the sheriff as redemption price (People vs. Benito, CA, 36 O.G. 27).

4. Malversation is principally distinguished from estafa through misappropriation or conversion by (a) the public or private capacity of the accused, (b) the nature of the funds, (c) the fact that unlike in conversion, demand is not required in malversation (People vs. Tolentino, 69 Phil. 715), malversation (U.S. vs. Reyes, 14 Phil. 718). 5. The presumption of malversation where the funds were not duly forthcoming may be rebutted by the accused. Where the shortage in the cash account of the money order teller was fully reimbursed by him within 3 days after the audit which disclosed such deficiency, and there was no poof that he pocketed the amount but it was shown that the same was covered by “vales” of his coemployees, the accused was declared not guilty of malversation (Quizo vs. Sandiganbayan, et al., G.R. No. 77120, April 6, 1987). 6. Where the amount of P1,000 was deposited as evidence in a case, and the same was peculated by the cashier, the crime was held to be infidelity in the custody of public documents (Art. 226). Since the same were considered as documentary exhibits and not money, it was not malversation (People vs. Abraham, G.R. No. L-17628, Feb. 17, 1922). If the case was already terminated and the money was no longer needed as evidence and was directed to be released to the proper party, the crime would be malversation if misappropriated by the custodian. 7. In the crime of malversation, the same penalty is imposed regardless of whether it was committed by dolo or culpa. However, if it is committed by negligence, it must be in the nature of reckless negligence (Arias vs. Sandiganbayan, et al., G.R. No. 101545. Jan. 3, 1995). 8. Where the audit clerks, through their reckless negligence in the preparation of the payrolls, made it possible for the paymaster to misappropriate the public funds in their government office, said clerks were considered as principals by indispensable cooperation in the crime of malversation (People vs. Rodis, et al., 105 Phil. 1294). 9. The return by the offender of the amount malversed is only a mitigating circumstance, analogous to voluntary surrender, and does not exculpate him from criminal liability (People vs. Velasquez, supra). However, the penalty shall be based on the total amount malversed, even if the same or a part thereof was subsequently returned or recovered (Bacsarpa, et al. vs. CA, 99 Phil. 112). Art. 218. Failure of accountable officer to render accounts. 1. What is punished here is the failure of an accountable public officer to render his accounts within 2 months from the time set by law or regulation for him to do so. 2. Misappropriation of the funds is not required but if there was malversation by the public officer, he will be further liable therefor separately from his liability under this article (U.S. vs. Saberon, 19 Phil. 391). Art. 219. Failure of a responsible public officer to render accounts before leaving the country. 1. This provision applies to any public officer, not necessarily a regular accountable public officer, as long as he has certain accounts to be finally settled. The gist of the offense is his failure to secure a certificate of clearance from the responsible authorities for his pending accounts before unlawfully leaving the country. 2. If the accused is an accountable public officer and he has also violated Art. 217 and 218, his liability under this article will be in addition thereto. 3. His act of leaving the country “unlawfully” connotes that his departure is against the law or was unauthorized. Even his mere attempt to leave under such circumstances is punishable under this article. Art. 220. Illegal use of public funds or property. 1. This offense is also known as technical malversation or, more descriptively, the juggling of funds by using the same for any public purpose other than that for which they were specially appropriated. There must be no personal conversion by the public officer, otherwise he will be liable for malversation under Art. 217. 2. This felony can be committed by any public officer who has any public funds or property under his administration earmarked for a particular purpose. His diversion of the same is punishable whether or not damage resulted to the public service. Art. 221. Failure to make delivery of public funds or property. 1. This article punishes a public officer who, having public funds or property under his administration or in his custody, fails to make payment despite his obligation to do so or to deliver the property although he was so ordered by competent authority. 2. The failure or refusal must be malicious and must have resulted in damage to public interest. Where an official stenographer retained some stenographic notes and failed to turn over the same upon demand as he was still going to transcribe the same, he was held not have violated this article (People vs. Jubila, CA, 38 O.G. 1796).

Art. 222. Officers included in the preceding provisions. 1. These are the instances where a private individual may be liable for any of the offenses in Art. 217 to 221. The offender must have been given charge of and responsibility for government funds or property. With regard to the depository or administrator, the property must have been attached, seized or deposited with him by public authority and such property may be of public or private ownership. 2. See, in connection with this chapter, R.A. 7080 on the crime of plunder which was declared constitutional in Estrada vs. Sandiganbayan, et al. (G.R. No. 148560, Nov. 19, 2001), and the discussion in Note 26 under Art. 48. Chapter Five INFEDILITY OF PUBLIC OFFICES Section One. Infidelity in the custody of prisoners. Art. 223. Conniving with or consenting to evasion. Art. 224. Evasion through negligence. Art. 225. Escape of prisoner under the custody of a person not a public office. 1. The felonies under this section are committed by a public officer who has custody or charge of a prisoner, or by a private individual under the special circumstances in Art. 225. The escapee may be a prisoner by final judgment or a detention prisoner, and his escape may have been with the consent or though the negligence of his custodian. The public or private character of the custodian, the status of the prisoner who escapes, and the circumstances under which he was able to escape affect the penalty to be imposed by the court for the offense. 2. While these articles refer to the “escape” of the prisoner, any act of unjustifiable leniency or special treatment extended by his custodians, as would permit the prisoner to avoid the rigors consequent to his imprisonment, would constitute a violation of said articles (People vs. Evangelista, CA, 38 O.G. 158; U.S. vs. Bandino, 29 Phil. 459). 3. In People vs. Revilla (CA, 37 O.G. 1896), the guard who allowed the prisoner to sleep and eat in his own house just because the municipality had no appropriation for the food of the prisoners was held liable under Art. 223. However, in People vs. Lancanan (95 Phil. 375), where the chief of police released the detention prisoners because he could not file a complaint against them within the period required by Art. 125 due to the absence of the municipal judge, it was held that there was no infidelity on his part. The Revilla case may be distinguished from Lancanan because in the former there was no compelling necessity to allow the prisoner to eat and sleep in his house without seeking any alternative remedy for the problem; whereas in the latter, there was a lawful and insuperable cause, that is, to avoid a violation of Art. 125. Section Two. - Infidelity in the custody of documents Art. 226. Removal, conceal or destruction of documents. Art. 227. Office breaking seal. Art. 228. Opening of closed documents. 1. Infidelity in the custody to documents by a public officer is committed by (a) removal, concealment or destruction of documents officially entrusted to him (Art. 226); (b) breaking the seals of papers or property in his custody (Art. 277); and (c) opening such closed papers, documents or objects (Art. 228), all such acts being without proper authority or justifiable cause. 2. The liability of the accused under this article is in addition to any falsification which may have been committed by him, and his infidelity must have resulted in damage to public interest or to a third party. 3. Books, pamphlets or periodicals sent through the mail for commercial purposes are not considered as documents for purposes of these offenses (People vs. Agnis, 47 Phil. 945), but letters are so considered (Dulpo vs. Sandiganbayan, et al., G.R. No. 74652, May 21, 1987). 4. If the afore-stated acts are committed by private individuals, the crime is estafa if with the intent to defraud (Par. 3 [c], Art. 315); otherwise, it may only be malicious mischief (Art. 327). Section Three.-Revelation of Secrets Art. 229. Revelation of secrets by an officer. Art. 230. Public office revealing secrets of private individual.

1. The subject matter of the offenses in these articles may be secrets (a) affecting and causing damage to the public interest (Art. 229), or (b) affecting private interest (Art. 230). 2. Art. 229 applies to secrets affecting public interest of minor consequence which are not specially punished, hence: a. If what are revealed are secrets of the State and the crime is committed in connivance with foreign agents, the crime is espionage (C.A. 616). b. If the offense is committed by private individuals, it would be unlawful publication (Art. 154[3]). The same is true if the secrets revealed by the public officer were not acquired by him virtute officii, since he would be acting as a private individual. c. Damage to public interest is required, as in the case of a public prosecutor revealing the evidence for the prosecution. Nevertheless, even if no damage to public interest is caused, but the information is confidential, the offense is punishable under Sec. 3 (c) of R.A. 3019, and the private individual who induced such revelation would likewise be liable. 3. Art. 230 refers to secrets affecting private interest which the public officer learned of by reason of his office, hence: a. If the offender is a private individual the offense would be covered by Art. 290 or Art. 291 depending on whether the crime entailed the seizure of correspondence or industrial secrets, and whether the accused was a manager, employee, servant and so forth. b. If done by an attorney with regard to his client’s secrets, it would be prevaricacion under Art. 209. c. If the offense affects only private interest, damage is not a necessary element (II Cuello Calon 376). Chapter Six OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS Section One. - Disobedience, refusal of assistance and maltreatment of prisoners Art. 231. Open disobedience. Art. 232. Disobedience to order of superior officer, when said order was suspended by inferior officer. 1. Art. 231 defines and punishes open inceptive disobedience, while Art. 232 refers to disobedience to a countermanding order of a superior authority. 2. Open disobedience can be committed only by judicial and executive officers, with legislative officers being exempted from liability. This is similar to the so-called inter-departmental usurpation in Art. 239 to 243 where legislative officers are likewise excluded from liability, unlike their judicial and executive counterparts. However, disobedience to a countermanding order as provided in Art. 232 applies to all public officers. Art. 233. Refusal of assistance. 1. This crime is committed only by public officers and the penalty depends on whether serious or slight damage was caused to the public interest or a third party. 2. This is exemplified by a chief of police who refused to cause service of a subpoena issued by a public prosecutor (U.S. vs. De Castro, G.R. No. L-19273, Mar. 16, 1923), and a government employee who refused to comply with a prosecutor’s subpoena requiring him to testify as a prosecution witness (People vs. Valleno, CA-G.R. No. 1990, Sept. 30, 1938). If the witness was a private individual, he is not covered by the foregoing rule, but he can be cited for contempt upon application by the prosecutor to the proper court. Art. 234. Refusal to discharge elective office. 1. This provision would apply to a duly elected public officer only if his refusal to serve is “without legal motive,” that is, without valid justification which may be due to legal considerations or supervening factual developments. Art. 235. Maltreatment of prisoners. 1. This article sets out the different ways by which a public officer can commit maltreatment of a prisoner. It is also worth recalling that this crime cannot be complexed with the resultant injuries or damage sustained by the prisoner, as the liability for this offense is in addition to the physical injuries or damage caused.

2. For this crime to legally exist, it is essential that: a. The arrested person must have been confined in jail, even for a short time, since the Spanish text calls this crime “maltratos de los incarcerados” (People vs. Baring, CA, 37 O.G. 1367). b. The officer who maltreated him must be in chare or in custody of the prisoner (Punzalan vs. People, 99 Phil. 259), and such custody must be actual and not merely a fiction of law (People vs. Javier, 54 O.G. 6622). c. The punishment is not authorized by law or regulations, or was cruel and humiliating, or for the purpose of extorting a confession or admission (People vs. Javier, supra). 3. The victim may be a prisoner by final judgment or a detention prisoner. The public officer may be any officer who has actual custody of and is responsible for the prisoner. 4. Where public officers are involved in the maltreatment of the prisoner, the various legal consequences are as follows: a. if the victim was not an incarcerated prisoner, the crime is physical injuries (People vs. Baring, supra). b. If the victim was not incarcerated and the purpose of the maltreatment was to extort a confession from him, the crime is coercion under Art. 286 (U.S vs. Cusi, 10 Phil. 413). c. If the victim was an incarcerated prisoner and he was maltreated by the person having custody of him, then that would be the maltreatment punished by this article. d. If the victim was incarcerated and was maltreated by his custodian to extort a confession, the penalty is increased by the second paragraph of this article. e. If the victim was incarcerated and was maltreated by a person who was not in custody of him, the crime is physical injuries. f. If the victim was incarcerated and was maltreated by a person who was not his custodian to extort a confession from him, the crime is coercion (Punzalan vs. People, ante). g. If the custodian did not maltreat the prisoner but allowed a third person to commit the maltreatment, the custodian could be liable for prevaricacion under Art. 208 for tolerating the commission of an offense. 5. A private individual cannot commit maltreatment even if the custody of the prisoner was entrusted to him but he will be liable for physical injuries or coercion. However, that private individual can commit infidelity in the custody of prisoners because of the specific provisions of Art. 225. Section Two. - Anticipation, prolongation and abandonment of the duties and powers of public office. Art. 236. Anticipation of duties of a public office. Art. 237. Prolonging performance of duties and powers. Art. 238. Abandonment of office or position. 1. The requirements for abandonment of office or position are that (a) the offender is a public officer, (b) he submits his resignation, (c) his resignation has not yet been accepted, and (d) he abandons his office. Prolonged absence without leave (AWOL) or refusal to report for duty, without submitting a resignation, is not covered by Art. 238. The public officer will only be administratively liable (People vs. Santos, CA, 55 O.G. 5564). Section Three. - Usurpation of Powers and unlawful appointments Art. 239. Usurpation of legislative powers. Art. 240. Usurpation of executive functions. Art. 241. Usurpation of judicial functions. While executive or judicial officers can usurp legislative powers (Art. 239), only judicial officers can usurp executive powers (Art. 240), and only executive officers can usurp judicial powers (Art. 241). Art. 242. Disobeying request for disqualification. Art. 243. Orders or requests by executive officers to any judicial authority.

Art. 244. Unlawful appointments. 1. The offense in Art. 242 may be committed only by a judicial or other authorized officer before whom a judicial, quasijudicial or administrative proceeding is pending and the issue of jurisdiction is raised therein. If in connection with the injunctive relief sought, a court order was issued and disregarded, the offender may be held liable for contempt. 2. The violation in Art. 244 can be committed by any public officer and consists of nominating or appointing to any office a person whom he knows does not have the legal qualifications therefor. However, the mere act of recommending such unqualified person is not covered by this article. Nominating a person implies that the nominator vouches for his legal qualifications, while recommending is only an act or presenting a person for possible consideration. Section Four. - Abuse against chastity Art. 245. Abuse against chastity. 1. The offenses in this article are not considered as crimes against chastity wherein a sworn written complaint is required, hence the same be prosecuted de oficio as abuses against chastity. 2. The mere solicitation made by the offender consummates the crime even if nothing results therefrom. If, however, the offender succeeds in committing a crime against chastity as a consequence of his solicitation, the latter act will be absorbed either as a preparatory act or as the means employed to commit that crime against chastity, with the offender’s public position being taken into account as an aggravating or special qualifying circumstance as the case may be. 3. The solicitation, to be punishable under this article, requires some degree of earnestness and persistence and consists of immoral or indecent advances. There must be proof of such facts as, to repeat, the mere solicitation made by the offender constitutes a consummated felony. 4. It is essential, further, that the accused is (a) charged with matters in which the offended woman has an interest in the successful conclusion thereof, or (b) in custody of the offended woman who is a prisoner or under arrest and he makes immoral or indecent or advances to her, or if the detainee is a male person, he solicits the latter’s wife, daughter, sister or relative by relative by affinity within the same degree. The mother of the prisoner is not included in the enumeration, but solicitations or advances made against her virtue also constitute acts of lasciviousness for possible prosecution. 5. See also R.A, 7877, the “Anti-Sexual Harassment Act of 1995” which applies where the accused demands, requests or otherwise requires any sexual favors (Jacutin vs. People, G.R. No. 140604, Mar. 6, 2002, cited in Note 7 under Art. 336). TITLE EIGHT CRIMES AGAINST PERSONS Chapter One DESTRUCTION OF LIFE Section One. – Parricide, murder, homicide Art. 246. Parricide. 1. If the victim is the father, mother or child of the accused, it is immaterial whether they are legitimate or illegitimate; but if the victim is the offender’s spouse or any other ascendants (“cualquier otro de sus ascendientes o descendientes”), their legitimacy is required. The child, furthermore, must not be less than 3 days old, otherwise the crime is infanticide (Art. 255). Where the accused killed his common-law wife and their 4-year old daughter, he was convicted of homicide for the death of said common-law wife and of parricide for the death of their illegitimate daughter (People vs. Berang, 69 Phil. 83). 2. With regard to the spouse, proof of legal marriage with the accused was formerly required, and the legal presumption of marriage arising from their cohabitation was insufficient (People vs. Berang, supra). This rule was subsequently relaxed in People vs. Aling (G.R. No. L-38833, Mar. 12, 1980) where it was held that there was sufficient proof of marriage since the accused testified that he was married to the victim, as that is an admission against penal interest, and the record shows that the accused bitterly resented the victim’s infidelity, her failure to visit him in prison, and her neglect of their children. The maxim semper praesumitur pro matrimonio, as well as the presumption of marriage under the Rules of Court, were declared applicable. a. Presaging that doctrine, the Supreme Court had earlier ruled that while the best proof in a parricide case of the marital relationship between the parties is the marriage certificate, if the oral evidence to prove that fact is not objected to, that evidence may be considered by the court (People vs. Cruz, 109 Phil. 288). Subsequently, it was also held that the marriage was presumed even if there was no registration thereof, especially if the fact of marriage was admitted by the accused (People vs. Borromeo, G.R. No. 61873, Oct. 31, 1984).

3. It has been held that a Muslim who killed his third wife was not guilty of parricide (People vs. Subano, 73 Phil. 692). This rule was considered not to have been affected by Art. 78 of the Civil Code (now, Art. 33 of the Family Code) which merely permits Muslims contracting marriage to comply with the formalities thereof in accordance with their customs, rites and practices, but does not authorize polygamy. It is suggested that this decisional rule be re-examined as the Muslim Code of Personal Laws, which took effect on Feb. 14, 1977, authorizes a Muslim to validly contract marriage with not more than four wives (Art. 27, P.D. 1083). 4. The relationship, between the accused and the victim, with the exception of the spouse, must be by consanguinity in the direct line. This would rule out relationship by affinity or adoptive relationship except where, in the latter case, the child victim has been adopted by his parents by nature. 5. Parricide can also be committed by reckless imprudence but it must be by any of the persons enumerated in Art. 246 (People vs. Recote, 96 Phil. 980[Unrep.]). If the killing is intentionally committed by a stranger or by relatives not included therein, the crime may be murder or homicide (People vs. Echaluce, et al., G.R. No. L-29776, Aug. 27, 1975). 6. Where the marital relationship was not alleged in the information charging the wife for killing her husband in conspiracy with her father and brothers, although such relationship was proved in count, the wife and her co-accused were convicted only of murder qualified by abuse of superior strength, and not of parricide; but her relationship with the victim was considered to aggravate her liability (People vs. Jumawan, et al., G.R. No. No. 50905. Sept. 23, 1982). Art. 247. Death or physical injuries inflicted under exceptional circumstances. 1. While the municipal trial courts have jurisdiction over felonies punishable by destierro, Art. 247 does not define a crime but grants a singular mitigating circumstance specifically for the crimes of parricide, homicide or serious physical injuries which may have been committed under the exceptional situation therein. Hence, it is the Regional Trial Court which has jurisdiction over the crime committed under the factual scenario in that article (People vs. Araquel, 106 Phil. 677). If only less serious or slight physical injuries were inflicted, Art. 247 shall operate as an absolutely cause to exculpate the accused from any criminal liability. 2. The sexual intercourse must be voluntary on the part of the offending spouse who was, therefore, in the act of adultery. Otherwise, if she was being raped by the third person and her husband kills him, that could be under the justifying circumstance of acting in defense of a relative. This article, and the observations thereon, apply to either spouse provided they are legally married (People vs. Zamora de Cortez, 59 Phil. 568). With regard to the offending daughters, the same rules apply, but it is immaterial whether they are legitimate or illegitimate, provided they are living with their offended parents. 3. There must be no unnecessary interruption from the discovery of the illicit act of the offending couple and the killing of their or both of them by the accused (U.S. vs. Vargas, 2 Phil. 194; People vs. Lusod, 8 ACR 119) and the killing must have been specifically because of that infidelity (People vs. Rabandaban, 85 Phil. 636). While the Code states “in the act or immediately thereafter,” it was held that a one-hour interval is still within the ambit of the law and the husband was not liable was not liable for killing the paramour (People vs. Abarca, G.R. No. 74433, Sept. 14. 1987). This is a more pragmatic approach since, after all “immediately” may refer to the interval of time or the direct connection or relation between two events, unlike “instantly” which is only time-related. Art. 248. Murder. 1. With the exception of outraging or scoffing at the person or corpse of the victim, all the foregoing qualifying circumstances are also aggravating circumstances. a. Kicking the corpse of the victim to see if he was really dead was held as not outraging or scoffing at the corpse because of the purpose of the accused in doing so (People vs. Mil, G.R. No. L-28104-05, July 30, 1979). b. The act of the accused in weighting down the corpse of the victims with cement boulders and other heavy objects before throwing them into the river was held to be an act of outrage on their corpses, as distinguished from cruelty under Art. 14, hence qualifying the killing to murder (People vs. Maguddatu, et al., G.R. No. L-36446, Sept. 9, 1983). c. Dismembering the corpse of the deceased by cutting off the head and limbs and further eviscerating the body constitutes the qualifying circumstances of outraging, hence the accused was guilty for murder (People vs. Carmina, et al., G.R. No. 81404, Jan. 28, 1991; see also People vs. Whisenhunt, G.R. No. 14, 2001; People vs. Guerrero, G.R. No. 134759, Sept. 19, 2002). 2. Where several qualifying circumstances are attendant to the crime, only one of them can be used to qualify the killing and the others can be utilized as aggravating circumstances (People vs. Dueño, et al., G.R. No. L-3102, May 5, 1979), except those which are absorbed by the qualifying circumstances. Thus, the qualifying circumstance of treachery will absorb the aggravating circumstances of abuse of superior strength and aid of armed men (People vs. Sespeñe, et al., Phil. 199).

3. To qualify a killing to murder by alevosia, it is necessary, among others, to prove the treacherous means employed to kill the victim, except if that victim is a child of tender years where it is not required to do so for obvious reason (People vs. Valerio, Jr., et al., G.R. No.L-4116, Feb. 1982). While treachery qualifies the crime just like the aid of armed men (People vs. Enriquez, 58. Phil. 536), the accused can still invoke in either case the mitigating circumstance that he had intent to commit so grave a wrong, as where his intent was only to main the victim. 4. Formerly, the use of fire in the arson of a house qualifies the killing of an occupant thereof if the burning was specifically or deliberately used as the means to cause his death (see U.S. vs. Burns, 41 Phil. 418). This situation is now governed by P.D. 1613 which imposes the penalty of reclusion perpetua to death, if by reason or on the occasion of arson, death results. Nevertheless, this does not mean that the use of fire is no longer a qualifying circumstance for murder, since the accused may, without committing arson by not burning any building, put the victim to death by burning his person alone, as by throwing him into a fire. 5. There is no crime of murder, in any stage, through negligence, as the qualifying circumstances are means deliberately employed by the accused to effect the killing. While there is consummated homicide thru negligence there can be no crime of attempted or frustrated homicide thru negligence, as it thereby becomes physical injuries only (People vs. Castillo, 76 Phil. 72). 6. The lack intent to commit so grave a wrong is mitigating in both homicide and murder; but lack of intent to kill is not mitigating in the attempted or frustrated stages thereof because it reduces such felonies to physical injuries (People vs. Galacgac, CA, 54 O.G. No. 4, p. 1027). Administering cantharides not to kill but to sexually stimulate the victim, who died as a consequence, constitutes homicide, not murder. While it is possible for cantharides to contain some poisonous substances, nevertheless, murder requires that the accused must have deliberately administered the poison to kill the victim (People vs. Galura, CA, 68 O.G.3159). 7. Under Sec. 10(e) of R.A. 7610, approved on June 17, 1992, the penalty for the crime of murder and homicide, inter alia, shall be reclusion perpetua if the victim is under 12 years of age. It is submitted, however, that this general provision is subject to the specific provisions of the Revised Penal Code if higher penalties are or shall be provided in the latter. 8. The use of poison to kill the victim qualifies the crime to murder. The penalty for murder used to be reclusion temporal in its maximum period to death, but R.A. 7659 increased the penalty to reclusion perpetua to death. However, in the absence of any other attendant modifying circumstance, such amendment has not affected the imposable penalty for murder. The former penalty for murder was a divisible penalty consisting of three period, with reclusion temporal in its maximum period as the minimum, reclusion perpetua as the medium, and death as the maximum period of the sentence. Absent any other modify circumstance since poison was used as the qualifying circumstance, the penalty shall be imposed in its medium period (Art. 64[1]), that is, reclusion perpetua. That penalty for murder now consists of two indivisible penalties, reclusion perpetua to death. However, in the absence of any other attendant modifying circumstance, such amendment has not affected the imposable penalty for murder. The former penalty for murder was a divisible penalty consisting of three periods, with reclusion temporal in its maximum period as the minimum, reclusion perpetua as the medium, and death as the maximum period of the sentence. Absent any other modifying circumstance since poison was used as the qualifying circumstance, the penalty shall be imposed in its medium period (Art. 64[1]) that is, reclusion perpetua. The penalty for murder now consists of two indivisible penalties, reclusion perpetua to death, and this calls for the application of Art. 63. There being no other modifying circumstance, the lesser penalty shall be applied (second par., subpa. 2), that is, reclusion perpetua. In fine, the change brought about by R.A. 7659 to this particular legal aspect is only in the applicable article but with the same result in the imposable penalty. 9. In the present state of the law, since the penalties for both parricide and murder are now composed of the two indivisible penalties of reclusion perpetua to death, the imposition of their penalty for these crimes is determined by the same rules in Art. 63. There is, however, a difference in the appreciation of the circumstances to be considered for the application of Art. 63. The generative element of parricide is the relationship between the accused and his victim, as spelled out in Art. 246. If the killing was committed with treachery that circumstance will be treated as an aggravating circumstance (People vs. Bucsit, 43 Phil. 184) which, if not offset, will warrant the imposition of the death penalty. On the other hand, if the accused and the victim are not so related, that treacherous act becomes the qualifying circumstance for the crime of murder. To impose thereon the death penalty under Art. 63, there must at least one other aggravating circumstance, which is neither absorbed by treachery nor offset by a mitigating circumstance; otherwise, the imposable penalty will be reclusion perpetua, as already explained. Art. 250. Penalty for frustrated parricide, murder or homicide. 1. This is an act of grace by the law in authorizing the courts to reduce by one degree the imposable penalties for attempted and frustrated parricide, murder or homicide. This allowable reduction of penalties is addressed to the sound discretion of the court in light of the established facts of the case.

Art. 251. Death caused in a tumultuous affray. Art. 252. Physical injuries inflicted in a tumultuous affray. 1. The “several persons” stated in Art. 251, and as applied to Art. 252, means that there are more than two in each contending group. If there are only two in a group they will each be liable for the killing or injuries that may result from the affray (People vs. Abiog, 37 Phil. 137), especially if it cannot be determined who inflicted the fatal injury. 2. It is essential that the groups were not organized to mutually assault or fight each other, otherwise the hostilities would not be considered as a tumultuous affray (U.S. vs. Tandoc, 40 Phil. 945; People vs. Rapadas, et al., 52 O.G. 3973). If the groups or one of them had been organized to assault their opponents, all its members who had an appreciable participation therein will be liable as coconspirators (People vs. Ribadajo, et al., G.R. No. L-40294, July 11, 1986). 3. If only one group attacked one or two opponents and the victims died, the crime would be murder qualified by abuse of superior strength. If the victims did not die, abuse of superior strength is aggravating. 4. In the situation contemplated by Art. 252, all those who inflicted serious physical injuries will be liable, but if it is not known who did so, anyone who used violence will incur liability therefor. The term “violence” includes any degree of severity thereof employed by the accused. Those who inflicted injuries of a “less serious nature,” according to the second paragraph, shall suffer arresto from 5 to 15 days. It is conjectured that slight physical injuries is not included here since Art. 251 and 252 purportedly intend that the penalties should be one degree lower than those not committed in a tumultuous affray; and it would be logical that slight physical injuries being punished by arresto menor, the lowered penalty should be public censure. This theory is plausible except that it would distinguish where the law does not (by merely using a generic phrase in categorizing the injuries), thus disregarding the rule against judicial legislation. Art. 253. Giving assistance to suicide. 1. Committing suicide is not a crime and the person who attempted suicide is not liable for the act or its consequences. If in the suicide act an innocent party is hurt or killed or property is damaged, the would-be suicide is not liable therefor since Art. 4 holds a person criminally liable for the unintended consequences of his act if he was committing a felony. The one who would be criminally liable is the one who assisted the other to commit suicide and if he did so to the extent of doing the killing, he is in effect guilty of homicide. Hence, the penalty therefor is imposed on him (U.S. vs. Gavarlan, 18 Phil. 510), and he would be liable for all consequences as contemplated in Art. 4. 2. This article cannot be equated with euthanasia as even the concept thereof is not well-defined or statutorily formulated in this country at present nor, for that matter, in most countries. Mercy killing is more of a medical concern as it aims to end the life usually of terminally ill persons in a relatively painless manner, and that practice was not yet well recognized or legally considered when this Code was under deliberation. For now, the argument based on the practice of euthanasia does not appear to be a defense to the liability under this article. Art. 254. Discharge of Firearms. 1. The felony in this article presupposes that the offender had no intent to kill the victim but fired at the latter for undisclosed reasons of his own. This is deducible from the proviso that the offense is illegal discharge of firearms unless the act can be held to constitute frustrated or attempted parricide, murder, homicide or any other crime with a higher penalty. These latter crimes will be the charges against the accused if he fired the gun with intent to kill. 2. The shots must be directed against the victim or in his general direction (U.S. vs. Addison, 10 Phil. 230). If the shots were not so aimed or directed, the crime would only be alarm (Art.155) even if they were directed at a house occupied by the victim (People vs. Hinolan, CA, 47 O.G. 5396: People vs. Cupin, CA, 40 O.G., Supp. No. 11, p. 21). Where the distance to the victim was obviously so great as to be beyond the range of the gun, the crime is only illegal discharge of a firearm as the patent impossibility of hitting the victim negatives any supposed intent to kill (People vs. Agbuya, 57 Phil. 238). 3. Discharge of firearm can be complexed with serious or less serious physical injuries (U.S. vs. Arquiza, 62 Phil.. 611: People vs. Seriña, 57 Phil. 1000 [Unpub.]; People vs. Opeña, CA, 51 O.G. 4071), but not with slight injuries which will have to be prosecuted as a separate crime. Art. 255. Infanticide. 1. Regardless of who kills a child less than three days of age, the crime is infanticide, but the penalty shall be that for parricide if committed by the parents or other legitimate ascendants, or for murder if committed by any third person (U.S. vs. Aquino, et al., 34 Phil. 813; People vs. Jaca, et al., 55 Phil. 950). In the present posture of our law, however, the distinction with regard to the imposable

penalty has been rendered academic by statutory amendment as both parricide and murder are now punished by reclusion perpetua to death. 2. In the crime of infanticide, it is necessary that the child be born alive and be viable, that is, capable of independent existence (U.S. vs. Vedra, 12 Phil.96). a. If the child was expelled prematurely and deliberately, the offense is abortion even if it be alive at birth, due to the fact that, in that case, a fetus with an intrauterine life of six (6) months is not viable (People vs. Detablan, CA, 40 O.G., Supp. No. 5, p. 30). b. If the child was born dead, but the offender unknowingly tried to kill it, he will be guilty of the impossible crime of infanticide. 3. If the accused had no intent to kill the child but he had the intent to harm or disfigure it, and the child died, the offender may claim the mitigating circumstance that he had no intent to commit so grave a wrong if under the facts, the death of the child could not have been probable or anticipated. If the death resulted from negligence, the penalty may be reduced under Art. 365. 4. If the purpose of committing the crime was to conceal the dishonor of the mother, that fact is a mitigating circumstance for both the mother and the maternal grandparents of the victim. This is slightly different from the rule in abortion as that circumstance is available only to the mother of the victim. In either case, the mother must be of good reputation since concealment of dishonor is anathema where the mother is disreputable and is not honorable as a virtuous person in the community. 5. Treachery is inherent in infanticide (U.S. vs. Oro, 19 Phil. 548) as any person who kills a child less than 3 days old has necessarily adopted the means that would afford impunity due to the defenseless state of the victim. This circumstance, therefore, cannot be used to aggravate the offender’s liability. Art. 256. Intentional abortion. Art. 257. Unintentional abortion. Art. 258. Abortion practiced by the woman herself or by her parents. Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. 1. Abortion may be committed by (a) any third, person (Art. 256), (b) the pregnant woman or her parents (Art. 258), and (c) a physician or midwife (Art. 259). The liability of the third person for causing an abortion depends upon the means used, or whether it was with or without the woman’s consent (Art. 256), and whether it was intentional or unintentional (Art. 257). 2. As in infanticide, if the purpose of the pregnant woman was to conceal her dishonor, that fact is mitigating, but this circumstance does not apply to her parents as what determines their penalty is whether or not their daughter consented to the abortion (Art. 258). 3. Unintentional abortion can be committed only through physical or corporal violence (Art. 257), even if the violence was inflicted through reckless imprudence (People vs. Manglicmot, CA, 57 O.G. 8668), except in the case of pharmacists whose unauthorized acts may result in unintentional abortion even without violence. 4. Physicians or midwives can commit abortion under Art. 259, without violence, but only if it was intentional on their part “by taking advantage of their scientific knowledge or skill,” unless it was caused by their negligence in which case Art. 365 will apply. a. In the case of pharmacists, their liability arises from the act of dispensing abortives without the proper prescription of a physician which per se is punishable. If unintentional abortion results, the pharmacist may further be liable therefor, although no violence was employed. b. In the United States, there have been holdings that abortion induced by a physician through therapeutic means in order to save the life of the mother is justified and not punishable (People vs. Johnson, 53 Colo. 224; People vs. Beasley, 89 Ill. 572). While no case on this point has yet been decided in the Philippines, the same resolution may be applied in accordance with Par. 4, Art. 11 on acts committed in a state of necessity. 5. In People vs. Carnaso (CA, 61 O.G. 3420), it was held that knowledge of the accused regarding the woman’s pregnancy is essential, but in U.S. vs. Jeffrey (15 Phil. 391), it was ruled that knowledge of such pregnancy was not necessary for purposes of unintentional abortion. In fact, unintentional abortion may be committed by violence through reckless imprudence (People vs. Ang Eng, 64 Phil. 1057 [Unpub.]; People vs. Jose, CA, 50 O.G. 705), without any knowledge of the pregnancy of the woman. 6 Abortion can be complexed with homicide by killing a pregnant mother (People vs. Genoves, 33 O.G. 2201), regardless of whether the homicide was intentional or through reckless imprudence (People vs. Ang Eng, supra). But in order to complex homicide with unintentional abortion, the accused (a) must have committed acts of violence as required by Art. 257, or (b) is a pharmacist who dispensed an abortive without a medical prescription, wherein no violence is necessary and intent is immaterial.

7. In People vs. Gaspar (86 Phil. 413), the accused was convicted of murder only, although the victim was 8 months pregnant, because he was indicted for murder alone. Subsequently, in People vs. Martin (89 Phil. 18), the accused was convicted of the complex crime of parricide with abortion as charged. A more recent conviction handed down by the Supreme Court also punished the accused for the complex crime of parricide with unintentional abortion (People vs. Salufranio, G.R. No. 50884, Mar. 30, 1988). 8. Under our present law and jurisprudence, the resolution is as follows: a. Where the accused threatens a woman and her fright resulted in an abortion, the crime will only be threats as there can be no unintended abortion without violence. If grave threats, however, were resorted to precisely to cause abortion through fear and shock, it will be a complex crime of grave threats and intentional abortion. If under the same facts, only light threats were employed, they will be separate crimes. b. If abortives were taken by the woman or administered to her to cause an abortion, when in fact she was not really pregnant, it will be an impossible crime of abortion. The same offense is committed if the abortives were inherently inadequate or ineffectual to induce abortion. If, however, the woman was actually pregnant and the abortive was chemically adequate and effectual, but abortion was prevented by medical intervention, the crime is frustrated abortion. c. Where the wife suffered an abortion due to an injurious drug administered to her by her husband by mistake, no crime was committed as the giving of the drug was through innocent error and under Art. 264, to be punishable, the substance must have been knowingly given. Furthermore, while physical injuries may be caused by the administration of injurious substances under the said article, such physical injuries do not amount to the physical or corporal violence required by Art. 257 for unintentional abortion. Section Three. – Duel Art. 260. Responsibility of participants in a duel. Art. 261. Challenging to a duel. 1. A duel, as provided in these article, is not a mere agreement to fight but a formal combat agreed upon by the parties, with their seconds who arrange for the arms to be used, the place and time, as well as other conditions of the fight. Hence, even if there was an agreement to fight but there was no participation or intervention of seconds, the crime is not dueling (U.S. vs. Navarro, 7 Phil. 713). 2. The penalty for death in a duel is the same as that for homicide. It is submitted that the physical injuries mentioned in the second paragraph of Art. 260 should include only serious or less serious, but not slight, physical injuries. If only slight physical injuries are inflicted, Par. 3 should apply with a higher penalty of arresto mayor, as it would be absurd to impose arresto menor when arresto mayor is the penalty even if no injuries have been inflicted. 3. Self-defense cannot be invoked if there was a pre-concerted agreement to fight, but if the attack was made by the accused against his opponent before the appointed place and time, there is an unlawful aggression, can be claimed (Justo vs. CA, 99 Phil. 453). It is believed that although this case did not actually involve a duel as here understood, the principle would have more reason to apply to a formal duel. 4. Challenging, or inciting another to give or accept a challenge to duel, or scoffing at another for not accepting a challenge (Art. 261) are punishable only if no actual duel results therefrom. If a duel takes place, challenging to and acceptance of that challenge to a duel are absorbed therein as the preparatory acts and the inciters may be principals by inducement or accomplices in the crime. 5. If the aggressive words spoken by the accused were not intended to be accepted as a challenge to a duel, but were only made in the heat of anger, they only constitute other light threats Art. 285 (2) (People vs. Tacamoy, G.R. No L-4798, July 16, 1951 [Resolution]). Chapter Two PHYSICAL INJURIES Art. 262. Mutilation. 1. The different kinds of physical injuries punishable under the Code are (a) mutilation (Art. 262), (b) serious physical injuries (Art. 263), (c) less serious physical injuries (Art. 265), and (d) slight physical injuries and maltreatment. 2. These physical injuries are inflicted by mutilating, wounding, beating, assaulting or administering injurious substances to the victim. If the victim dies, these acts are absorbed in the act of killing, except where the injuries were already separately inflicted by the accused acting alone and death resulted from the subsequent fatal injuries inflicted by others, in which case the accused will be liable only for the injuries he inflicted but which did not cause the death. 3. In mutilation, the acts consist of:

a. Intentionally depriving the victim of his reproductive organs, which need not involve the cutting off of the organ or any part thereof as long as it is rendered useless, such as by castration (“castrar o capar,” per III Viada 70; 4 Groizard 525). If the act was unintentional, the offender will liable for serious physical injuries resulting in impotence (Art. 263[1]). Sterility, being caused by various other factors, may be included here if it can be proved that it actually resulted from the acts committed by the accused. b. Intentionally lopping off (‘cercenar’) any part of the victim’s not necessarily his organs of generation. If the act was unintentional, the crime will be serious physical injuries under Pars. 2 or 3 of Art. 263, providing for the loss of an organ specified therein or any part of the anatomy. 4. Cruelty, as understood in Art. 14(12), is inherent in mutilation and, in fact, that is only felony where said circumstance is an integral part and is absorbed therein. If the victim dies, the crime is murder qualified by cruelty, but the offender may still claim and prove that he had no intent to commit so grave a wrong. Art. 263. Serious physical injuries. Art. 264. Administering injurious substances or beverages. 1. Par. 1 of Art. 263 refers to total blindness, and not only the loss of an eye or partial loss of vision in both eyes. It is believed that the same totality requirement applies to impotence and it is not sufficient that there may only be periodic sexual dysfunctions. The loss of one eye is covered by Par. 2. 2. Par. 2 also requires the total loss of hearing, and if the auditory defect is only in one ear a consequence of the physical injuries sustained the case will fall under Par. 3 as embraced in the loss of the use of any other part of the body (People vs. Hernandez, 94 Phil. 49). 3. Pars. 2 and 3 refer to incapacity for labor in which the victim is habitually engaged. Par. 4 extends to the victim’s incapacity for any kind of labor. In either instance, such incapacity must be the consequence of the injuries sustained. 4. The deformity or disfigurement in Par. 3 of Art. 263 must be exposed to view and cannot be healed by nature. The phrase regarding the loss of any other part of his body should read “any other member of his body” (cualquier otro miembro) other than the eye, hand, foot, arm or leg which are mentioned in Par. 2. Thus, if the victim’s nose or ear is cut off, it is mutilation if intentionally committed, and deformity if unintentional. 5. If the physical injuries are inflicted upon the persons stated in Art. 246 or under the circumstances mentioned in Art. 248, the penalties are increased. This does not apply to excessive chastisement by a parent of his child resulting in physical injuries which will be punished only as provided in Pars. 1 to 4 of Art. 263. However, even if the child did not sustain any injuries, but cruel and unusual punishment was used or the child was subjected to indignities that embarrassed or humiliated him, the offense is punishable under Art. 59(8), P.D. 603. See also Sec. 10 of R.A. 7610. 6. The severity of the injuries and the offender’s liability therefore, except for mutilation, are determined by the duration of the victim’s incapacity (People vs. Obia, CA, 45 O.G. 2568) or by the medical attendance entailed thereby, whichever is longer. If no incapacity or medical attendance was involved, it will only be slight physical injuries even if the victim was cured after 20 days (People vs. Amurao, CA, 36 O.G. 3462; U.S. vs. Trinidad, 4 Phil. 152). Art. 265. Less serious physical injuries. Art. 266. Slight physical injuries; maltreatment. 1. Where the incapacity of the victim or the medical attendance was for less than 10 days, it will be slight physical injuries; 10 to 30 days would make it less serious physical injuries; and more than 30 days, it would be serious physical injuries. In mutilation, the period of incapacity or medical attendance is immaterial. 2. In slight physical injuries, Par. 1 provides for 1 to 9 days, but it applies even if the period in question is less than a day since Par. 2 applies where no incapacity or medical attendance results. a. Slapping another, but without entailing incapacity or medical attendance, is slight injuries; but if the purpose or result is to humiliate the victim, as where the affront was made in the presence of others, the offense is slander by deed Art. 359 (People vs. Bancolo, CA, 52 O.G. 6982). b. Regarding the offender’s intent to insult or humiliate the victim, if the crime is serious physical injuries, the offender’s intent will constitute the ordinary aggravating circumstance of ignominy. If the crime is less serious physical injuries, the offender’s liability is aggravated and an additional penalty of fine is imposed (Art. 265). If slight physical injuries are involved, the crime will become slander by deed, as just pointed out.

Chapter Three RAPE Art. 266-A. Rape; when and how committed. Art. 266-B. Penalties. Art. 266-C. Effect of Pardon. Art. 266-D. Presumptions. 1. Art. 355 has initially been our substantive law on the crime of rape and was first amended by R.A. 2632 and R.A. 4111. The original article punished only simple rape but the two amendatory acts added four paragraphs, the first two were in the nature of qualified rape, while the next two created the special complex crimes of rape with attempted, frustrated, or consummated homicide. 2. On June 17, 1992, Congress enacted R.A. 7610, the “Special Protection of Children Against Child Abuse Exploitation and Discrimination Act” with the following provisions which are pertinent to the present discussion: Sec. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit or any other consideration or due to the coercion of influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 366 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim is under 12 years of age shall be reclusion temporal in its medium period; x x x 3. Interpreting this section, the Supreme Court held: “The said law in fact provides that if the child is below 12 years old, the accused must be prosecuted under Article 335 of the Revised Penal Code. Conversely, if the child is above 12 years old but below 18 years old, then the accused must be prosecuted under Republic Act 7610 for the so-called “child abuse” (People vs. Optana, G.R. No. 133922, Feb. 12 2001; see also People vs. Jimerez, G.R. Nos. 127790-91, April 16, 2001 and People vs. Jalosjos, G.R. Nos. 132875-76, Nov. 16, 2001). It should be observed, however, that since the accused shall be proceeded against for rape if the child is below 12 years of age, the child abuse law applies if the child is 12 years old or over but under 18, otherwise there would be a gap in the law if the victim was 12 years old when the crime was committed. 4. R.A. 8353, “The Anti-Rape Law of 1997,” was subsequently enacted and, after due publication, took effect on October 22, 1997. It expanded the definition of the crime of rape and reclassified the same as a crime against persons as it now appears in this work. Although it amended Art. 335 and all laws, acts or other issuances contrary to or inconsistent with its provisions, it retained virtually all the original provisions of Art. 335 and the amendments introduced by R.A. 2632 and R.A. 4111, except as shall hereinafter be noted. The concept of rape has, however, been broadly expanded and its reclassification in the taxonomy of felonies, from the crime against chastity to one against persons, has consequently produced not only substantive but also procedural effects on the related provisions of the Code and the Rules of Court; set aside jurisprudence based on the repealed provisions of the former law; and provided for a different governance in rape cases committed and filed after its effectivity. 5. Par. 1 of Art. 266-A contains two amendments to the original provisions by adding, as a fourth mode of commission, fraudulent machination or grave abuse of authority; and, on the provision for statutory rape, by adding the alternative situation of the victim being a demented girl thus equating her status with one who is less than 12 years age. In these two alternative situations of statutory rape, the crime is committed without need for any of the other circumstances required in rape. a. On the first mode in this paragraph, any degree of force or intimidation sufficient to compel the victim’s submission to the offender suffices for the crime of rape (People vs. Momo, 56 Phil. 86; People vs. Savellano, G.R. No. L-31227, May 31, 1984). On the part of the victim, there must be tenacious resistance and not mere initial reluctance (People vs. Lago, CA, 46 O.G. 1356). However, where the offender is the victim’s father whose will subjugates that of the daughter, no resistance is necessary (People vs. Alinea, CA, 46 O.G., Supp. No. 5,p. 1940; People vs. Erardo, G.R. No. L-32861, Jan. 31, 1984), nor is sufficient resistance required (People vs. Navarette, G.R. No. L-43883, Nov. 28, 1980; People vs. Franco, G.R. No. L-40183, June 29, 1982). Apropos to the foregoing is the caveat that the crime of rape is committed even if there was subsequent consent (People vs. Dayo, 51 Phil. 102). b. Regarding the second mode of commission, partial deprivation of the victim’s reason will suffice. The cause thereof may be organic, or due to lack of sleep or induced by drugs. For instance, an accused has been convicted of rape by depriving the victim of the full exercise of her reason by making her take “Ormacol,” a cough medicine which is also a strong depressant (People vs. Lintang, G.R.

No. 62324, Dec. 27, 1983). Incidental to this doctrine, there is a foreign authority that where drugs containing cantharides were used to incite the victim’s passion, there is no depreciation of reason, hence physical access to the victim does not constitute rape (State vs. Lung, 37 Am. St. Rep. 505). The crime may be seduction, the use of such drugs being the deceitful means resorted to by the offender. c. If the offended woman is below 12 years of age, the crime is always rape. Her mental, and not only the chronological, age are considered, as shown by convictions for rapes on this account. Among the established victims have been a feeble-minded girls of 14 (People vs. Daing, CA, 46 O.G. 2331); a 13-year old girl with the mental capacity of a 5-years old (People vs. Manlapaz, G.R. No. L41819, Feb. 28, 1978); a 31-year old mental retardate with the mental level of a 7-year old child (People vs. Gallano, G.R. No. L-40494, July 30, 1982); a girl of 14 years but whose mental level was 5 years (People vs. Munar, G.R. No. L-40462, July 31, 1984); a 17-year old mental retardate with the mental age of 7 years (People vs. Asturias, G.R. No. 61126, Jan. 31, 1985); and a woman of 23 whose mental age was 8 and 9 years (People vs. Sunga G.R. No. L-45083, June 24, 1985). On the same ratiocination, the amendatory law has added the more glaring and unfortunate situation of a demented girl. d. On a different basis, but to avoid fallacious defenses, is the ruling that the character of the victim is immaterial in the crime of rape committed by force or intimidation (People vs. Blanca, 45 Phil. 113). Even without such acts of compulsion but by the other modes, there is no reason why women of ill repute or prostitute cannot be the victims of rape, which is a heinous crime even to immoral victims. If at all, the bad repute or immorality of the victim should primarily affect her credibility on the theory that women who sell their virtue just as probably would be willing to sell their testimony, but not that a woman of loose morals would always agree to the rape. 6. Par. 2 has introduced a new and broadened concept of rape which, unlike its conventional meaning, is an act of sexual assault committed by the offender who inserts his penis into victim’s mouth or anal orifice, or any instrument or object into the latter’s genital or anal orifice. The first two modes of commission respectively correspond to the Western concept of fellatio and sodomy or pederasty. The gravity of the penalties are justified since these are crimes against nature or “crime in nomination,’ that is, carnal copulation against the order of nature. Based solely on its formulation, it has been suggested that a man may be the victim of this kind of sexual assault, in view of the phraseology on penile or other insertions by any person “into another person’s mouth or anal office,” in contrast to Par. 1 which specifies that the rape therein is committed by a man against a woman. The penalty for simple rape in Par. 1 has been maintained at reclusion perpetua; that in Par. 2 is punished with the lower penalty of prision mayor: The circumstances in the latter are the same as those in simple rape. 7. Art. 266-B has adopted the amendments formerly introduced by R.A. 4111, with the following changes: (a) the penalty for rape resulting in the victim’s insanity has been reduced to reclusion perpetua to death, and (b) the special complex crimes are now limited to attempted or consummated rape with homicide, with the former reference to frustrated rape having been deleted, and the penalty for attempted rape with homicide being reduced to reclusion perpetua to death. a. Where the rape has been committed either with the use of a deadly weapon or by two or more persons, or where the victim became insane, this was considered as a form of qualified rape, hence the accompanying circumstances must be alleged in the indictment. b. Where it was alleged and proved that rape was committed with a deadly weapon and by two persons, it was held to be qualified rape due to the use of a weapon, with the aggravating circumstances of abuse of superior strength, there being two rapists acting in concert (People vs. Amiscua, G.R. No. L-31238, Feb. 27, 1971). c. Where, in the charge for rape, the use of a deadly weapon was not alleged but proved without objection, the use thereof was considered as aggravating (People vs. Entes, G.R. No. 50632, Feb. 24, 1981). d. However, it was held in a subsequent rape case that where the use of a deadly weapon was alleged and proved, but the participation of two persons was not alleged although it was proved, the circumstance of the deadly weapon qualified the rape, but the circumstance regarding the two offenders cannot be aggravating as it is not considered as such in Art. 14. It is only a qualifying, and not an aggravating, circumstance and has to be alleged to be considered in the case (People vs. Gracia, et al., G.R. Nos. L-45280-81, June 11, 1981; People vs. Lamberte, G.R. No. 65153, July 11, 1986). e. Lastly, as earlier discussed, the present rule is that in order to be considered as such, not only qualifying but also aggravating circumstances must be alleged in the information or complaint in view of the amendment to that effect of Secs. 8 and 9, Rule 110 of the 2000 Rules of Court (People vs. Legaspi, G.R. Nos. 136164-65, April 20, 2001). The foregoing amendatory dictum was subsequently clarified in the sense that it refers to the criminal aspect of the case, that is, the qualifying and aggravating circumstances shall determine the nature of the rape and the imposable penalty only if said circumstances are alleged in the indictment and proved by the requisite evidence. On the civil aspect, however, the rule with regard to aggravating circumstances has been liberalized in the matter of exemplary damages. Art. 2230 of the Civil Code authorizes the award of exemplary damages if the crime was committed with one or more

aggravating circumstances. The Supreme Court held that, although aggravating circumstances not alleged cannot be appreciated for purposes of imposing a heavier penalty on the accused, such aggravating circumstances can be the bases for an award of exemplary damages even if they were not alleged but were duly proved (People vs. Catubig, G.R. No. 137842, Aug. 23, 2001; People vs. Duruhom, G.R. No. 146276, Nov. 21, 2002). f. Where the rape was attempted and the homicide was consummated, the penalty for this special complex crime, as already stated, is reclusion perpetua to death. It is in the special complex crime of consummated rape and consummated homicide where the sole penalty of death is imposed. In either of these instances, however, if the homicide was not consummated, there can be no special complex crimes, nor is there a complex crime as contemplated in Art. 48. The crimes committed by the accused will be punished separately. 8. Art. 266-B further enumerates ten additional aggravating/qualifying circumstances consequent to the amendments by R.A. 8353, any of which circumstance, if duly alleged and proved, will warrant the imposition of the single indivisible penalty of death when present in a rape committed under Par. 1 of Art. 266-A. a. The first circumstance refers mainly to the offenders being the relatives of the victim who is under 18 years of age, but also includes her guardian. In a recent case where the young girl who was living with her aunt and her common-law husband was left in the aunt’s house, with financial support and her meals or personal needs being provided by her other relatives when her aforementioned aunt went to work abroad, and she was raped by her aunt’s common-law husband, it was held that this first circumstance was not applicable. The offender could not qualify or be considered as her guardian as he was more of a hanger-on and freeloader in the house of the victim’s aunt and he did not exercise any act or responsibility consequent to the authority of a guardian (People vs. Garcia, G.R. No. 120093, Nov. 6, 1997). b. Where the accused was alleged to be the stepfather of the victim, it is necessary that he was married to the victim’s mother, and such fact of marriage was deemed proved by the testimony of the victim, her mother and the accused himself. Where the alleged stepfather was not legally married to but was only a common-law spouse of the victim’s mother, that relationship also qualifies the rape provided it is likewise alleged and proved (People vs. Baring, G.R. Nos. 130515 & 147090, Mar. 14, 2001(. c. Regarding the fifth circumstance, the age of the victim here must be correlated with that stated in Art. 266-A(1)(d) and that in the first circumstances of this article. Under this circumstance in Art. 266-B(5), if the victim is below 7 years old, it is qualified statutory rape punishable by death without any other requisite. If the victim is 7 years old or over but is under 12 years of age, it is simple statutory rape under Art.266-A(1)(d) punishable by reclusion perpetua (Art. 266-B). However, if said victim is over 7 years of age but less than 18, and the rape is committed by any of the offenders enumerated in Art. 266-B(1), this will be qualified rape punishable by death under that article. d. For statutory rape, and especially as an element of qualified rape, the minority of the victim must be alleged and proved. The fact of its allegation in the information or complaint is but a visual matter, but it is the means of proving the age at the time of the rape that has presented the Supreme Court with evidential problems. As early as People vs. Balgos (G.R. No. 126115, Jan. 26, 2000) and reinforced by People vs. Dela Cruz (G.R. Nos. 131167-68, Aug. 23, 2000), and even prior thereto, the Supreme Court had relied on the testimony of the victim’s mother to prove her daughter’s age. However, in a number of cases, some decisions either cryptically declared or loosely implied that only a birth certificate could suffice for the purpose, such that the death penalty had perforce to be withheld in favor of reclusion perpetua as the imposable penalty. Thus, for instance, in People vs. Javier(G.R. No. 126096, July 26, 1999) since no birth certificate was presented and the victim who was allegedly 16 years old could pass for an 18-years old, testimony on her alleged minority was rejected, although that fact was not contested by the accused. The same ruling was laid down in People vs. Brigildo (G.R. No. 124129, Jan. 24, 2000), since there was a disparity in the age appearing in the information and that stated by the victim’s mother, hence a birth certificate was required. In People vs. Cula (G.R. No. 133146, Mar. 28, 2000) and People vs. Tipay (G.R. No. 131472, Mar. 28, 2000), the Supreme Court required the presentation of birth certificates; in the first, because the complainant was 16 and there was no categorical finding by the trial court as to her age; and in the second, because at 15, she was between the “crucial years” of 15 to 17 which makes a claim as to her real age dubitable. The cases were subsequently discussed in People vs. Velasco (G.R. No. 135231-33, Feb. 28, 2001) which adopted the rule that a birth certificate was desirable to prove the victim’s age but its presentation was not always indispensable, and the minority of the victim was declared based on the unchallenged testimony of her mother, the victim’s declaration, the admission by the accused, and the categorical finding of the trial court. In People vs. Llandelar (G.R. Nos. 123138-39, Nov. 8, 2001), the Supreme Court held that the victim’s minority may be proved not only by the birth certificate but also by other documentary evidence, such as her baptismal certificate, school records or similar records, and by credible testimonial evidence. The same ruling was laid down in People vs. Jalosjos, supra, which added as admissible evidence of age, the entries in the Master List of Live Births and the Cord Dressing Room Book which hospitals are required by law to keep as official registers. e. In People vs. Fruna (G.R. No. 138471, Oct. 10, 2002), the Supreme Court set the following guidelines in appreciating age, either as an element of a crime or as a qualifying circumstance, viz; (1) The best evidence to prove the age of the offended party is the original or a certified true copy of her certificate of live birth; (2) In the absence thereof, similar authentic documents, such as her

baptismal certificate or school records showing her date of birth, would suffice; (3) If all of the foregoing documents have been lost, destroyed or are unavailable, the clear and credible testimony of her mother or a family member by consanguinity or affinity qualified to testify on her pedigree under Sec. 40, Rule 130, shall be sufficient if the victim is alleged to be [a] below 3 years and it is sought to prove that she is less than 7 years old, [b] below 7 years and it is sought to prove that she is less than 12 years old, or [c] below 12 years and it is sought to prove that she is less than 18 years old; (4) In the absence of any of the foregoing documentary or testimonial evidence, her testimony will suffice if expressly and clearly admitted by the accused; (5) The prosecution has the burden of proving the age of the victim, and the failure of the accused to object to the testimonial evidence shall not be taken against him; and (6) The trial court shall make a categorical finding on the age of the victim. f. Reconciling the tenth circumstance with Par. 1 (d) of Art. 266-A, the logical result would appear to be that if the victim was a demented girl and the accused did not know of that fact, the crime is simple rape punishable by reclusion perpetua; however, if he knew of her mental affliction as provided in this Par. 10, the death penalty shall be imposed. 9. As earlier observed, rape consisting of sexual assault as provided in Par. 2 of Art. 266-A has a lower penalty even if qualified by the original circumstances provided by R.A. 4111, or complexed with attempted or consummated homicide, or committed with any of the ten aggravating/qualifying circumstances added by R.A. 8353. 10. In this jurisdiction, the rule has always been that rape can be committed only a man, as a principal by direct participation, since the law contemplates that in the conventional concept of rape only a woman can be the offended party. However, a woman can be guilty of rape as a principal by inducement, by indispensable cooperation, or as a co-conspirator (People vs. Villamala, et al., G.R. No. L-41312, July 28, 1977; People vs. Banzales, et al., G.R. No. 63260, Mar. 20, 1987). 11. A husband can also be guilty of rape of his wife as a principal by inducement (44 Am. Jur. 919), by indispensable cooperation, or as a conspirator. There are, however, conflicting views on whether he can commit rape of his own wife as a principal by direct participation. a. The early Spanish commentators posited a negative answer based on the marital union which maintains the husband’s right to physical access to his wife. If she has a justifiable reason to refuse and the husband disregards her objection, he could be guilty of coercion or physical injuries, but not of rape. b. There is authority to the same effect in the United States, on the theory that the husband cannot incur such criminal liability because of the matrimonial consent which the wife gave when she assumed the matrimonial relations (States vs. Haines, 51 L.A. 731, 26 So. 372, 441 RA 837). c. In the Philippines; it is submitted that the husband can be a principal by direct participation in the rape of his wife. It is true that he has the right to insist on sexual relations but only if he has the right of consortium with his wife arising from their connubial relations. If, however, they are legally separated, although the marital bonds are not severed and in law they remain as husband and wife, the husband no longer has the right of consortium and if he forces his wife to submit to him, he could be liable for rape. Also, Art. 266-C on the effects of pardon in the crime of rape contemplates, as one of the situations governed thereby, the case where it is legal husband who is the offender and without making reference to the mode of participation on his part or to any decree of legal separation between the spouses. Hence, there is reason to maintain the foregoing affirmative position. 12. Abuse of confidence which facilitates the commission of rape is aggravating (People vs. Ballaran, CA, 51 O.G. 4109). This ruling was reiterated in People vs. Guy (CA, 64 O.G. 13557) where the offender’s liability was held aggravated by both abuse of confidence and the use of means to weaken the defense of the victim. 13. Where several acts of rape were committed on the same woman by the same offender on one occasion, there is only one crime of rape (People vs. Anabon. CA-G.R. No. 577-R, April 28, 1951). Hence, where the same woman was raped by the same offender but on different occasions, there would be as many crimes of rape as the occasions on which they were committed. Where several women were raped by the same offender on the same occasion, there are as many crimes of rape as there are victims. On the other hand, if the same woman was raped by several persons and if all the rapist cooperated with each other in committing the multiple rapes, they will each be liable for as many rapes as were committed personally by them and those committed by their co-accused with their cooperation (People vs. Villa, 81 Phil. 193; People vs. Alfaro, et al., 91 Phil. 404). It is suggested that the phrase “on the same occasion” should be understood to mean that the sexual assault should not be separated by appreciable intervals of time or supervening events, but denotes substantial continuity of the criminal act. If the crimes are serially committed with unrelated periods of time in between, they may not be said to have been committed on the same occasion even if similarly perpetrated in the same place. In American case law, an occasion is that which provides an opportunity for the causal agency to act (Weinberg vs. Richardson, 29 Ill. App. 618 10 N.E. 2d 893), meaning not only the particular time but further carrying the idea of opportunity or a juncture affording ground or reason for something (Ridout vs. State, 161 Tenn. S.W. 2d 255, 71 ALR 830).

14. The Supreme Court has repeatedly laid down these principles that should guide a court in deciding a rape case, viz: (a) a rape charge can be made with facility, is difficult to prove but more difficult for the accused, though innocent, to disprove; (b) in view of the intrinsic nature of the crime of rape where generally only two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its merits and cannot draw strength from the weakness of the evidence for the defense (People vs. Aldana, G.R. No. 81817, July 27, 1989). 15. The Court has further laid down new doctrines and clarifications on the civil liability of a rapist. The indemnity for simple rape, which corresponds to actual or compensatory damages, shall be P50,000 (People vs. Gementiza, G.R. No. 123151, Jan. 29, 1998), but if rape is effectively qualified by any of the circumstances which authorize the imposition of the death penalty, the indemnity shall be increased to P75,000 ( People vs. Victor, G.R. NO. 127093, July 9, 1998; People vs. Llanita, G.R. No. 134101, Sept. 5, 2001; People, G.R. Nos. 135522-23, Oct. 2, 2001). This is aside from the moral damages in such amount as the court deems just, and which shall be awarded; hence, the need for pleading or proof of the basis thereof (People vs. Prades, G.R. No. 1275569, July 30, 1998). 16. In subsequent cases, doctrinal rules on civil liability in rape cases have evolved, as follows: a. The rules on indemnity in simple and qualified rape in the amount assessed in Gementiza and Victor have been maintained. The rules in Prades that moral damages shall be awarded without the need for proof has likewise been adopted, but with the supplemental provision that the same shall be in the amount of P50,000. b. Although there have been a few variant awards in some cases, by oversight or otherwise, jurisprudential guidelines place the amounts of damages to be awarded in rape cases at P50,000 or P75,000 as indemnity, P50,000 as moral damages, and P25,000 as exemplary damages (People vs. Elpedes, G.R. Nos. 137106-07, Jan. 31, 2001;People vs. Dizon, G.R. Nos. 134522-24, April 3, 2001; People vs. Palabrica, G.R. No. 129285, May 7, 2001; People vs. Nuevo, G.R. No. 132169, Oct. 28, 2001; People vs. Llandelar, supra; People vs. Laciste, G.R. No. 135853-54, Nov. 22, 2001; People vs. Viernes, G.R. Nos. 136733-35, Dec. 13, 2001). c. Present case law has further clarified that in consummated simple rape, the indemnity shall be P50,000, with moral damages of P50,000; and if the rape is only attempted the identity shall be P30,000, with moral damages of P15,000 (People vs. Mendoza, G.R. Nos. 143844-46, Nov. 19, 2002, citing cases). d. In the special complex crime of rape with homicide, the Supreme Court imposed civil indemnity of P100,000 and P50,000 as moral damages. It observed that the individual cases of rape and homicide each carried a civil indemnity of at least P50,000, hence when both offense are involved in the case it is but proper to impose the increased civil indemnity (People vs. Robles, G.R. No. 124300, Mar. 25, 1999; People vs. Tahop, G.R. No. 125330, Sept. 29, 1999; People vs. Vallejo, G.R. No. 144656, May 9, 2002). e. The foregoing aspects of case law in rape have been accepted and applied in murder and, inferentially, in homicide or other instances of unlawful killing, that is, the grant of death indemnity of P50,000 and moral damages of P50,000 as a matter of course and without need of evidence (People vs. Panada, et al., G.R. No. 133439, Dec. 26, 2001; People vs. Latupan, G.R. Nos. 112453-56, June 18, 2001). There is, after all, a common rationale since rape is now a crime against persons. f. In the gruesome case of People vs. Whisenhunt (G.R. No. 123819, No. 14, 2001), the accused murdered his girlfriend, decapitated and eviscerated her, cut off her limbs, and then put her dismembered remains in a plastic bag which he thereafter dumped along a provincial road. The Supreme Court considered the extraordinary grief and outrage of her heirs caused by the horrifying and revolting acts of the accused, and awarded moral damages in the amount of P1, 000,000 and exemplary damages likewise in the amount of P1,000,000 in addition to the other items of damages. TITLE NINE CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Chapter One CRIMES AGAINST LIBERTY Section One. – Illegal detention Art. 267. Kidnapping and serious illegal detention 1. While kidnapping and illegal detention of a victim usually complement each other and are considered and punished conjointly, there is a technical difference between these crimes in American law from which we got the concepts. Their judicial doctrines thereon are accordingly entitled to due weight in our jurisdiction. a. While in common law, kidnapping entailed the carrying away of a person from his own country to another, sending the victim out of the country is not required in American law which only calls for imprisonment plus the removal of the person to another place (2 Bish. Crim. Law, Sec. 671). It means the asportation of the victim without authority of law, or carrying away a person from his place of residence, forcibly or fraudulently (Black’s Law Dictionary, 4th Ed., 1009; citations omitted). Detention, on the other hand, does not require the taking away of a person from a place to another, as he may even be detained right in his own home. Furthermore,

kidnapping may not necessarily be followed by detention, as where the taking was only to briefly restrain the victim elsewhere in order to kill him, hence the complex crime of kidnapping with murder but without illegal detention. b. This article provides that the crimes of kidnapping and serious illegal detention are committed by private individuals obviously because if the offender is a public officer, the crime is arbitrary detention under Art. 124, but passing sub silentio on the matter of kidnapping. It should be understood, however, that the public officer who unlawfully detains another and is punishable under Art. 124 is one who has the duty to apprehend a person with the correlative power to detain him. If he is only an employee with clerical or postal functions, although the Code considers him as a public officer; his detention of the victim is illegal detention under this article since he is acting in a private, and not in an official, capacity. If a policeman kidnaps the victim, except when legally authorized as part of police operations, he cannot also be said to be acting in an official capacity, hence he is to be treated as a private individual liable under this article. 2. From the purpose and formulation of R.A. 18 and R.A. 1084, it can be deduced that the legislative intendment was to put all forms of kidnapping under Art. 267 when Congress amended it together with Art. 270. There appears to have been some oversight, however, in the related articles and these will be discussed at the proper juncture. 3. The presence of any of the circumstances in this article constitutes the offense into serious illegal detention, absent which the crime shall be slight illegal detention in Art. 268. R.A. 7659 has amended the duration in Par. 1 of this article to more than 3 days, instead of more than 5 days in the original ext; and with regard to a minor victim, it excluded his parents from those who would fall under this article. a. An important and welcome amendment also by R.A. 7659 is the last paragraph added to this article regarding the consequences when the victim is killed or dies, or is raped, or is subjected to torture or dehumanizing acts. This has produced, as a consequence, the new special complex crimes of kidnapping and illegal detention with murder or homicide, or with rape, or with physical injuries. Just as importantly, it has resolved and eliminated from our jurisprudence the oscillating decisions, from U.S. vs. Ancheta in 1902 (1 Phil. 165) through Parulan vs. Rodas, etc., et al. (78 Phil. 855) up to the present, as to whether, when the victim is kidnapped and killed, the crime is complex, or there is only one, or there are two separate crimes, depending on the offender’s original intent or afterthought, and so forth. b. In the fairly recent case of People vs. Ramos (G.R. No. 118570, Oct. 12, 1998) where the accused kidnapped the female victim for ransom and later killed her, the Supreme Court held that the kidnapping for ransom and murder should not be treated as separate crimes as the details of the offenses took place in one continuous episode. Taking Art. 267 in light of the amendment of R.A. 7659, the accused was convicted of the special complex crime of kidnapping for ransom with murder and sentenced to death. 4. In kidnapping for ransom, it is not necessary that the offender demanded, much less received, ransom from the victim, it being sufficient that his intent or purpose was to extort ransom. As ramified in People vs. Kamd Akiran, et al. (G.R. No. L-18760, Sept. 29, 1966), the penultimate paragraph of this article was taken from American statutes and under the rulings there, ransom is the money, price or consideration paid or demanded for the redemption of a captured person or persons, or a payment that releases him from captivity. 5. For illegal detention, there must be the intent to detain or deprive the victim of liberty, hence the temporary restraint employed by robbers to prevent assistance to the victim (U.S. vs. Sol, 9 Phil. 265), or a short period of temporary restraint in order to effect the killing (U.S. vs. De Leon, 1 Phil. 188; People vs. Guerrero, 103 Phil. 1136 [Unrep.]) is not illegal detention. Where the victim was taken 40 meters away from his house, then killed, there is no kidnapping and the crime is solely murder (People vs. Sacayanan, 110 Phil. 589). There is also no kidnapping even if the victim was transferred from place to place as the purpose was only to elude the authorities (People vs. Ty Sui Wong, et al., G.R. No. L-32529, May 12, 1978). 6. The person who furnished the place of detention, but who was not in conspiracy with the kidnappers, is an accomplice. However, in slight illegal detention, his penalty shall be the same as that of the principals, but in kidnapping or serious illegal detention, his penalty will be one degree lower. 7. There are certain crimes similar to or wherein the elements partake of some of those of illegal detention, hence the distinguishing features must be noted. a. Where there was no intent to detain but the victim was forced to go to the offender’s house, the crime is only coercion (U.S. vs. Quevengco, 2 Phil. 412). Where the girl was taken around 3 meters away against her will, and then released because of her remonstrations, it was only grave coercion (People vs. Marasigan, CA, 55 O,G, 8297) b. If the woman was taken with lewd designs against her will to another place where she was raped that will be a complex crime of forcible abduction with rape. If there were no lewd designs at the outset, but she was raped while in the custody of the offender in the place to which she was asported, it was held to be kidnapping with rape (People vs. Quitan, 99 Phil. 226) and which, under the present law, constitutes a special complex crime.

c. Where a boy was detained without food for one day for stealing sugar cane, it was held to be unjust vexation as the restraint was partly justified (U.S. vs. Tamorro, G.R. No. 25373, June 11, 1925); but in a similar case, it was held to be slight illegal detention as the boy was held on mere suspicion (U.S. vs. Mendoza, 3 Phil. 468). Now, provided there was intent to deliver him to the authorities but there was no lawful cause, for his apprehension the offense would be unlawful arrest (Art. 269). 8. Where the complainants were prevented from leaving the premises by pickets which blocked the entrances thereto, the picketers are not liable for illegal detention as they were then in the exercise of a legal right to strike (People vs. Barba, et al., G.R. Nos. L-27615-16, Sept. 30, 1969). 9. Illegal detention of the wife by her husband is possible if such restraint is unjustified and unlawful in the means adopted, as his spousal right does not extend to illegal restraint of those who are mentally sound and physically capable. Parents, however, cannot be guilty of such an offense over their minor children as long as they have patria potestas over them and the qualification to exercise the same. Art. 268. Slight illegal detention. 1. The voluntary release by the offender of the victim within 3 days from the start of the detention, without the former’s accomplishment of his purpose, and before the institution of criminal proceedings against him, is a special mitigating circumstance in slight illegal detention but not in serious illegal detention. This circumstance was at one time held applicable although the victim was a woman and that fact would have made the crime serious illegal detention. However, in the later case of Asistio vs. San Dego, etc. (G.R. No. L-21991, Mar. 31, 1964), where the victim was a woman who was released from illegal detention under the circumstances provided in this article, it was held that the case of the victim was covered by Art. 267, hence the circumstances surrounding her release could not yield this mitigating circumstances in Art. 268. 2. While the epigraph or title of this article mentions only slight illegal detention, kidnapping committed in connection with this lesser crime or as an adjunct thereto is also covered by Art. 268. It imposes the specific lower penalty reclusion temporal when a private individual commits “the crimes in the next proceeding article” but without the circumstances enumerated therein, and the second paragraph refers to a person “so kidnapped or detained.” Art. 269. Unlawful arrest. 1. This crime can be committed by either private individuals or public officers who apprehend the victim without legal grounds for arrest but with the intent to turn him over to the judicial authorities (People vs. Malasugui, 63 Phil. 221). 2. The duration of the detention of the victim by the person who arrested him does not affect the consequences of this crime, provided the accused had all along and in good faith intended to deliver him to the authorities. It is only when there was no intent to make such delivery where, coupled with lack of lawful cause, the crime becomes illegal or arbitrary detention as the case may be, in which cases the length of the victim’s detention is taken into account. Section Two. Kidnapping of minors. Art. 270. Kidnapping and failure to return a minor. 1. This article does not cover or include the kidnapping of a minor. The word “kidnapping” now appears only in the title of the article but its textual substance is limited only to the failure of the person entrusted with the custody of the minor to restore him to his parents. The same oversight was also committed in Art. 272 on slavery which also uses the word “kidnapping”. 2. An early textwriter comments that the word “kidnapping” appears in the title of this article because if a person fails to restore the minor, it gives rise to a strong suspicion that he has kidnapped him or aided in his kidnapping. There really used to be a distinction between alleged kidnapping and failure to return a minor (U.S. vs. Peralta, et al., 8 Phil. 200), but the same was eliminated by the amendments to Art. 267. Before the enactment and effectively of R.A. 18 on Sept. 25, 1946, Art. 270 was entitled the same, but it contained a first paragraph which punished the kidnapping of a child for the purpose of permanently separated him from his parents or guardian. R.A. 18 deleted that first paragraph of Art. 270 and transposed it to and as part of Par. 4 of Art. 267. However, the Legislature forgot to erase “kidnapping” from the title of Art. 270, with the result that while said title still refers to both kidnapping and failure to return a minor, only the second paragraph on failure to return that minor remained in Art. 270. 3. As likewise noted, Congress also forgot to delete the word “kidnap” in Art. 272 on slavery, although the vowed purpose of R.A. 18 was to penalize all forms of kidnapping in Art. 267. Quite recently a person charged with kidnapping and failure to return a minor, under Art. 270, as amended by R.A. 18 and punishable with reclusion perpetua, was convicted under Art. 267 (4). The Supreme

Court noted that Art. 270 may have been superseded in this regard by Art. 267 (4), since the latter provision necessarily includes the former offense of kidnapping of a minor in Art. 270 (People vs. Jo, et al., G.R. No. 69236, Aug. 19, 1986). Art. 271. Inducing a minor to abandon his home. 1. To be punishable under this provision, the inducement must be actual, committed with criminal intent, and determined by a will to cause damage (People vs. Suela Paalam, CA, 54 O.G. 8263). 2. If the offender induces a child to abandon his home to engage in dangerous feats or to accompany a vagrant or beggar, the offense is exploitation of a minor (Art. 278[5]). Section Three. Slavery and servitude Art. 272. Slavery. 1. As already stated, form the phrase “purchase, sell kidnap or detain,” the word “kidnap” should be deleted in view of the purpose and effect of the amendments intended by Congress in R.A. 18. 2. If the purpose of the offender is to enslave the victim, the first paragraph of this article governs. If the purpose is to assign the victim to immoral traffic, that is, prostitution, it will be punishable under the second paragraph. If neither of such purposes is present under the facts of the case, the crime will be illegal detention under either Art. Art. 267 or Art. 268. 3. The illogical denouement, however, is if the intent of the accused was only detain the woman; the penalty will range from reclusion perpetua to death, as serious illegal detention under Art. 267; but if the intent was to sell the woman into slavery or prostitution, either of which would also illegal detention, the penalty is reduced to prision mayor 4. In People vs. Licop (94 Phil. 839), for lack of proof that the accused was a member of a sex gang, although there were such indications, she was convicted and punished under Art. 267. Had it been proved that she belonged to the notorious groups which kidnapped young women and sold them to white slavery operators, she would ironically have been punished with only prision mayor under this article. Art. 273. Exploitation of child labor. Art. 274. Services rendered under compulsion in payment of debts. 1. These two articles punish the two forms of criminal peonage, both of which involve involuntary servitude in payment of a debt. Art. 273 penalize a creditor who resorts to forced labor of a child to pay the debts of his ascendants or guardian. This purpose distinguishes it from exploitation of minors (Art. 278) which among others, compels the child to performs dangerous or acrobatic feats. See, in this connection, Art. III R.A. 7610). 2. In Art. 274, the debtor himself is compelled by his creditor to work for him in payment of his debt. The debtor is required to work as a servant or a farm laborer. If the victim is forced to work in other capacities but for the same purpose, the creditor could be held liable for coercion. Chapter Two CRIMES AGAINST SECURITY Section One. Abandonment of helpless persons and exploitation of minors Art. 275. Abandonment of persons in danger and abandonment of one’s own victim. 1. Par. 1 punishes any person who abandons one who is wounded or in danger of death in an uninhabited place, “unless such omission shall constitute a more serious offense.” Deliberate abandonment is actually an act of commission, and not of omission, and if the helpless person dies, this would be homicide by abandonment, with the offender being liable pursuant to Art. 4 as his act of abandonment constitutes a felony in itself. 2. In Par. 2, the offender abandons his own victim whom he has accidentally injured, so he is not punishable for the victim’s injuries. With abandonment being punished as a felony and the fact that the victim may have been injured under different circumstances, it is best to set out the liability of the offender depending on how the injuries were inflicted by him on the victim whom he abandoned. a. Where the injuries were inflicted intentionally and the victim is then abandoned, if that victim lives, the crime may be physical injuries or attempted or frustrated homicide, murder, parricide or infanticide. If the victim dies, it will be homicide, murder, parricide or infanticide (Art. 4), as the case may be.

b. Where the injuries were inflicted accidentally and the victim is abandoned, if he lives, the crime is abandonment (Art. 275[2]); if he dies, it may be homicide, parricide or infanticide (Art. 4). c. Where the injuries were inflicted thru negligence and the victim is abandoned, if he lives, the crime is physical injuries thru negligence with a penalty one degree higher (Art. 365, as amended by R.A. 1790). If he dies, it will be either homicide, parricide or infanticide thru negligence with the penalty also one degree higher (id.). Art. 276. Abandoning a minor. Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents. 1. What is punished under Art. 276 is the abandonment of a child below 7 years of age by the person entrusted with the general custody of the former. If such person was not so entrusted with custody, he will still be liable under Art. 59(2), P.D. 603. See also Sec. 10(a), R.A. 7610. 2. If a minor was abandoned by delivering him to a public institution without the consent of the person who entrusted the child to the offender, the crime will be punishable under the first paragraph of Art. 277. 3. If the purpose of the abandonment is to cause a legitimate child to lose his civil status, this is punishable under Art. 347. 4. If the deliberate purpose of the abandonment is to cause the death of the child, the crime may either be homicide, murder, parricide or infanticide. If there was no intent to kill, but the child dies, the offender will still be liable for his death under the third paragraph of this article. It must, however, be noted that the abandonment here must be conscious and deliberate with the intent to deprive the child of the offender’s care and protection, and not where it was unintended and beyond the offender’s control (People vs. Bandian, 63 Phil. 530). 5. The crime of indifference of parents the essence of which is the failure to provide the child with appropriate education is punished under this article and is also penalized by Art. 59(4) of P.D. 603. Art. 278. Exploitation of minors. Art. 279. Additional penalties for other offenses. 1. Par. 4 of Art. 278 punishes the act of causing the child to beg by delivering him gratuitously to a habitual vagrant or beggar. Under the Code, that child must be less than 16 years old; if he is 16 years or older but still a minor, the punitive counterpart is Art. 59(7), P.D. 603, which imposes a lower penalty but does not include the act of delivering the child to a vagrant or beggar. See further Sec. 10(e) and Sec. 12 of R.A. 7610. Section Two. Trespass to dwelling Art. 280. Qualified trespass to dwelling. Art. 281. Other forms of trespass. 1. Unlike violation of domicile in Art.128, trespass to dwelling is committed only in one way, that is by entry into the dwelling against the express or implied will of the dweller thereof. With the requirement of being against the will of the dweller, it is not sufficient that it be without his consent but it must be with his express or implied prohibition. Parenthetically, express prohibition is required only if the dweller is in a position and has the opportunity to make the same under the circumstances. 2. The following instances have been held to be indicative of implied prohibition, viz: (a) where the door was ajar and unlocked but the sole occupant of the room was asleep (People vs. Clemente, CA, G.R. No. 43907, Nov. 19, 1936); that the door was tied with a string (U.S. vs. Silvano, 31 Phil. 509); (c) it was already at a late hour of the night and family had already gone to sleep (U.S. vs. Panes, 25 Phil. 292); and (d) the entry was made thru an opening not intended for that purpose (People vs. Tecson, CA-G.R. No. 13, Feb 26, 1939). 3. There is no trespass even if the consent to enter did not come from the owner of the house as long as such consent was given by a person of sufficient discretion living therein, such as a minor who was 12 years old (U.S. vs. Dulfo, 11 Phil. 75), or by a boarder in that house who was the mistress of the accused (U.S. vs. Agas, 4 Phil. 129). However, if any entry had been expressly prohibited by the master of the house and the accused later entered at the invitation of a servant there who was his fiancée, he and the servant are both guilty of trespass (Cuello Calon, Derecho Penal, 7th Ed., p. 722). 4. The objection to the entry of the accused must be in existence or made prior to or at the time he attempts to enter the dwelling (U.S. vs. Dionisio, et al., 12 Phil. 283). If the entrance, however, was effected by violence or intimidation used by the offender at any time before, during or immediately after his entry, there is trespass even if the door was open at the time (U.S. vs. Abanto, 15 Phil. 223) since the occupant was not in a position to prohibit such entry.

5. The word “violence” in Par. 2 refers to both violence against persons and force upon things (People vs. Tayag, et al., 59 Phil. 606). Loosening the door bar with the use of a bolo and a screwdriver (People vs. Tayag, supra) or cutting the string tying the door shut (People vs. Silvano, supra) have been held to be acts of violence as contemplated in this article. The contrary dicta in People vs. Abling (CA-G.R. No. 4040, Mar. 12, 1940) and People vs. Medina, infra, cannot override the Supreme Court pronouncements. 6. The owner of a house may commit trespass to dwelling if his house is then lawfully occupied by a tenant and who duly objected to the former’s entry (People vs. Uy Almeda, 75 Phil. 476). Trespass as a crime is not necessarily to be anchored upon the ownership of the house but also upon valid rights of possession thereover by its dweller, as well as the validity and timeliness of his objection to the entry of any person not otherwise authorized to do so by specific provision of law or judicial process. 7. “Dwelling’ includes a “tapahan” or a store of cheap goods (People vs. Lamahang, 61 Phil.703; People vs. Mallari, CA, 47 O.G. 1856), or an office which is also used in part as a “residence” (U.S. vs. De Peralta, 42 Phil. 69), or a rented room exclusively occupied by the tenant even if it is an integral part of a house (U.S. vs. Silvano, supra). Any habitable structure which is devoted to bonafide living quarters by an authorized occupant falls within the term, even if in part or at certain times it is used for other purposes which do not however divest it of the nature of a human abode. That is why the Code speaks not of a house or building, but of trespass to dwelling. 8. Where the accused had no intent to kill anyone when he clandestinely entered a dwelling house but he committed homicide only when he was discovered inside the house by an occupant who raised the alarm about his presence, he is guilty of separate crimes of trespass to dwelling and homicide (People vs. Medina, 59 Phil. 134). Contrarily, if his intent from the start was to surreptitiously enter the house to kill an occupant thereof and which he committed once inside the house, the crime is only homicide, with dwelling and unlawful entry as aggravating circumstances (People vs. Abedosa, 53 Phil. 788). Since trespass was not deliberately adopted as a necessary means, but was incidental to the purpose of the accused to kill the victim, the two offenses cannot be complexed. 9. Regarding simple trespass in Art. 281, the subject matter is either the closed premises or fenced estate of another who has not given permission to the offender to intrude upon the same and whereon the prohibition against entry is manifest. Repeated violations of this provision may have been a primary cause for the issuance of P.D. 772 penalizing squatting and similar acts. However, that decree was repealed by R.A. 8368 on Oct. 27, 1997, decriminalizing acts of squatting, except by professional squatters and squatting syndicates as provided in Sec. 27 of R.A. 7279. Section Three. – Threats Art. 282. Grave threats. Art. 283. Light threats. Art. 284. Bond for good behavior Art. 285. Other light threats. 1. Grave threats to commit a crime subject to a condition, whether for money or otherwise, is punishable under Par. 1, Art. 282. The penalty is based on the crime threatened and the success or failure of the offender. If the purpose of the offender is attained, the penalty will be one degree lower than that for the threatened crime; and if it was not attained, two degrees lower. The use of a written threat or a middleman aggravates the crime. 2. If under the same circumstances of being subject to a condition but the act threatened is not a crime, it will be light threats under Art. 283. For instance, a threat to report another to the authorities for tax evasion is only a light threat as the act threatened is not a crime (People vs. Chao, CA, 54 O.G. 5334). 3. These provisions may be simplified and clarified as follows: a. If the act threatened is a crime: (1) It will always be a grave threat under Art. 282, with Par. 1 to be applied if the threat was subject to a condition, and Par. 2 if not subject to a condition, except where the threat was made in the heat of anger and the offender did not persist, in which case it is a light threat under Par. 2, Art. 285. (2) There is an error in Par. 2 of Art. 285 in the phrase “shall orally threaten another with some harm not constituting a crime.” The word “not” should be deleted (People vs. Untalan, CA, 57 O.G. No. 46, p. 8309). b. If the act threatened is not a crime: (1) It will always be a light threat under Art. 283 if subject to a condition, and under Par. 3, Art. 285 if not subject to a condition.

(2) No bond can be required for threats in Art. 285. Bail (or bond) can be required only in threats in Art. 282 (grave threats) and Art. 283 (light threats), and is merely conditioned upon the accused undertaking not to molest the person he threatened. 4. Under the old Penal Code, a threat was distinguished from coercion in that a threat was committed by intimidation while coercion could be committed by violence. The Supreme Court, however, subsequently laid down rulings showing that coercion can be committed both by violence or intimidation, hence the only plausible distinctions in the present application of the law are: a. If the act desired was not immediately consummated, it would be a grave threat; if the desired purpose was correspondingly achieved, it is grave coercion (see People vs. Picunada, CA, 43 O.G. 2222; People vs. Camat, CAG.R. No. 13777-R, Sept. 22, 1959). b. In threats, the harm which the offender threatens to commit is in the future; in coercion, the threatened harm is immediate and impending in a present confrontation. c. In threats, the harm is directed against the victim’s person, honor, property or those of his family; in coercion, the injury is threatened to be inflicted on the person of the victim. 5. A threat is also distinguished from robbery, in that a threat menaces a victim with a future harm; it may refer to the person, honor, property or family of the victim; it may be made thru an intermediary; and the gain in threats is not derived immediately. 6. If the threat was made in connection with another crime or as a complementary means to commit the latter, it is absorbed therein and shall not be prosecuted separately. Where the accused uttered threats in order to commit rape, while at the same time performing lascivious acts on the victim, the threats are absorbed as means employed to achieve his purpose, hence he is liable only for the crime he has already committed, that is, acts of lasciviousness (People vs. Timbol, CA, 47 O.G. 1868). 7. Where the threat was made in order to prevent a person from appearing or participating in official proceedings in a criminal case, this is specially punishable under Sec. 1(h) of P.D. 1829. Art. 286. Grave coercions. 1. In this article, as amended by R.A. 7890, now specifically provides that coercion may be committed through violence, threats or intimidation. Also, as earlier explained, the accused must have immediately succeeded in or achieved his purpose. From its nature, and as the Code provides, it is assumed that the desired compulsion or prevention must have been consummated. However, in People vs. Ang Cho Kio (95 Phil. 475), the Supreme Court held the accused Chinese liable for separate crimes of murder and frustrated coercion, the latter crime being based on the fact that the accused did not succeed in compelling the pilot to land in the Chinese mainland, hence he killed the latter. But, in the latter case of Punzalan vs. People (99 Phil. 259), it held the accused guilty of consummated coercion even if, despite the violence he employed for that purpose, the accused failed to secure the desired confession from the victim. 2. If the purpose of the accused is to compel the victim to do something against her will, the crime is coercion even if the act desired is right or wrong; if his purpose is to forcibly prevent the victim from doing something, the act sought to be prevented must be lawful. In either case, the accused must be acting without authority of law. Also, grave coercion does not always require violence. Threats, intimidation or even compulsion by moral force will suffice (People vs. Banzon, et al., CA, 66 O.G. No. 47, p. 10533). 3. Grave coercion is distinguished from robbery or usurpation of realty or real rights by the fact that the latter two crimes require the element of animus lucrandi. Accordingly, if the accused gets the property through violence but under a bona fide claim of ownership, the crime is coercion. If through the same means, a co-owner pro indiviso takes over the property, it will also be coercion, unless he got more than his proportionate share and, depending on whether the property is personalty or realty, he will be liable for robbery or usurpation for the excess. Of course, if his claim of ownership is patently flimsy or only a ruse, or he gets the property without any claim of ownership, he will be liable for robbery or usurpation of the entire property depending on its nature. Art. 287. Light coercions. 1. Regarding the first paragraph, the seizure of the property with violence must be for the purpose of applying it or its value to the payment of a debt of the owner thereof, otherwise the taking would constitute robbery. 2. If the taking of said property to apply the same to a debt is without violence as contemplated in the second paragraph, such as through deceit or misrepresentation, this will constitute only unjust vexation (People vs. Reyes, 98 Phil. 646). The purpose of applying the property to a debt of its owner takes the crime out of the purview of estafa. 3. Unjust vexation is distinguished from acts of lasciviousness by the fact that the latter requires lewd designs (People vs. Japitana, CA, G.R.. No. 10122, Sept. 2, 1953; People vs. Cantong, CA, 50 O.G. 5899). But in the latter case, if the act of the accused in

embracing the victim in public, even if without lewd designs, had been for the purpose of humiliating her, the crime would have been slander by deed (Art. 359). 4. For coercion, the accused must have exercised violence prior to or at the time the victim was doing the act desired by the accused to be done. If the victim had already performed the compelled act, but the accused thereafter still employed such violence, the crime would be unjust vexation (People vs. Madrid, 53 O.G. 711), or an additional crime of physical injuries if caused by such violence. 5. There is no crime of attempted or frustrated unjust vexation as, being a light felony which is not a crime against persons or property, it is only punishable when it is consummated (People vs. Calaguas, CA-G.R. No. 04721-CR, Sept. 30, 1964). The reasoning of the court in this case is anchored upon the policy which takes into account that the crime is so minor and is punished by only arresto menor. Even without that policy, the very nature of the crime of unjust vexation is such that to be punishable it must be consummated. It is difficult and strained to realistically conceive of it in merely the attempted or frustrated stage. On such latter consideration, the present rule is that coercion is also punishable only as a consummated offense. Art. 288. Other similar coercions – (Compulsory purchase of merchandise and payment of wages by means of tokens) Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. 1. The provisions of these articles have been pro tanto superseded or impliedly repealed by the Labor Code and other related labor laws, and the acts of violence or compulsion mentioned therein are consequently proceeded against under the corresponding provisions of general application in this Code. Chapter Three DISCOVERY AND REVELATION OF SECRETS Art. 290. Discovering secrets through seizure of correspondence. Art. 291. Revealing secrets with abuse of office. Art. 292. Revelation of industrial secrets. 1. These felonies consisting of the unlawful discovery and revelation of the secrets of a person or entity are committed only by private individuals in the following manner: a. By the accused seizing the papers or letters of the victim in order to discover his secrets regardless of whether or not he reveals the contents thereof (Art. 290), but the penalty depends on whether or not he makes the revelation. Parents, guardians, or persons who are in custody of minors are excluded since it is believed that such parental authority will enhance the guidance and protection of the youth. Spouses are also excluded because of the theoretic identity of their interests. b. By the managers, employees or servants who in such capacity learned of the secrets of their principal or master and revealed the same (Art. 291), unless the revelation is required by law. c. By the person in charge or the personnel of a manufacturing or industrial firm who reveal its industrial secrets to the prejudice of the owner. 2. In People vs. Singh (CA, 40 O.G., Supp. No. 5, p.35), it was held that where the telegram addressed to the offended party was taken by the accused (a) to discover the secrets of the former, it would be punishable under Art. 290; (b) to cause damage to the former, it would be estafa (Art. 315); or (c) to harass or annoy the victim, it would be unjust vexation (Art. 287). 3. The other prohibited and punishable acts of revelation of another’s secrets have heretofore been discussed, namely, prevaricacion by a lawyer who reveals his client’s secrets (Art. 209), and revelation of secrets of a private individual by a public officer (Art. 230). TITLE TEN CRIMES AGAINST PROPERTY Chapter One ROBBERY IN GENERAL Art. 293. Who are guilty of robbery. 1. Since the first three elements of robbery are the same as those for theft, that is, (a) intent to gain (animus lucrandi), (b) unlawful taking (apoderamiento or asportacion), and (c) personal property as the subject matter (bienes muebles), the discussion here of those elements shall apply to both crimes.

The difference being in the mode of taking, that for robbery being violence against or intimidation of persons or force upon things, and that for theft being stealth or strategy, this fourth element of these felonies will be separately discussed under the corresponding articles. 2. The element of the offender’s animus lucrandi is what principally distinguishes robbery from coercion. However, in the crime of cattle rustling which was introduced into our criminal justice by P.D. 533, the accused is liable for the unlawful taking of the animals “whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things” (Sec. 2[c]). a. It is worth reiterating here that a claim of ownership in good faith, even if the claim is untenable, destroys the element of animus lucrandi (U.S. vs. Manluco, 28 Phil. 360). Conversely, where the claim of ownership is patently a mere ploy or was made in bad faith, animus lucrandi exists (People vs. Garlitos, CA, 36 O.G. 1119). b. Intent to gain is presumed juris tantum the moment there is apoderamiento (U.S. vs. Adiao, 38 Phil. 754; People vs. Sia Teb Ban, 54 Phil. 52). The culprit is criminally liable even if he did not make use of the property he stole but gave it to third persons, as his appropriation and disposition thereof constitutes his personal gain. c. Mere intent to gain is sufficient even if no actual gain resulted, as mere temporary disturbance of property rights is generally sufficient in crimes against property (U.S. vs. Goyenechea, 8 Phil. 117). 3. The second element, unlawful taking or apoderamiento, at one time had a controversial interpretation and application but has now more or less achieved a settled understanding. a. Mere physical taking is not sufficient and does not constitute the legal concept of apoderamiento in its Spanish law origin. Such physical taking of the personalty must be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing. b. The controversy then arose as to whether or not such appropriation must be with the intent of the offender to permanently deprive the owner of the property subject of the crime. (1) In one robbery case, it was held that there must be permanency in the taking, or in the intent for the asportation, of the stolen property (People vs. Kho Choc, CA, 50 O.G. 1667). (2) In several theft cases, there were divided opinions, one line of cases holding that the intent of the taking was to permanently deprive the owner thereof (People vs. Galang, CA, 43 O.G. 577; People vs. Rico, CA, 50 O.G. 3103, cf. People vs. Roxas, CA-G.R. No. 14953, Oct. 31, 1956). The contrary group of cases argued that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the propriety rights of the owner was already apoderamiento (People vs. Fernandez, CA, 38 O.G. 985; People vs. Martisano, CA, 48 O.G. 4417). (3) The second line of cases holding that there need be no intent to permanently deprive the owner of his property was later adopted by the Supreme Court, in construing the theft clause in an insurance policy, and ruling that there was criminal liability for theft even if the car was taken out only for a joyride but without the owner’s knowledge or consent (Villacorta vs. Insurance Comm., et al., G.R. No. 54171, Oct. 28, 1980; Ass’n of Baptists for World Evangelism vs. Fieldmen’s Ins. Co., Inc., G.R. No. L-28772, Sept. 21, 1983). c. To constitute apoderamiento, it is sufficient that the subject that the object was taken and held by the offender in a manner sufficient to enable him to dispose of it as he intended, even if his possession thereof be merely temporary or even transitory (U.S. vs. Adiao, supra). This is to be determined from the factual scenario on a case-to-case basis. 4. The subject of the crime, according to the Code, is any personal property belonging to another. Hence, as long as it 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. a. The classification of personal property under Arts. 415 and 416 of the Civil Code is for civil law purposes and does not apply to the subject matter of robbery and theft. Thus, it will be noted that in the Civil Code, even fruits on trees and fish in fishponds, inter alia, are considered as real property, but under the Revised Penal Code, coconuts in a plantation and fish in a fishpond can be subjects of qualified theft as they are considered personal property. b. A plausible test that may be advanced for purposes of this Code, to declare the property as personalty in crimes of robbery or theft, is whether or not the object is susceptible of appropriation and transportation or transfer from place to place without altering its nature or essence. If so, it will thereby constitute the third element of these felonies requiring that the object should be personalty. 5. The fourth element is the mode of commission of robbery, as distinguished from theft, hence the discussion hereon will not apply to the latter, except tangentially only where proper. Robbery is committed by violence against or intimidation of persons, or by the use of force upon things.

a. All other elements being present, the moment there is violence against or intimidation of persons, the unlawful taking is robbery. However, the violence need not be present from the commencement of the felony. As long as violence is employed before the asportation is complete, the crime is simple robbery. b. With respect to robbery through the use of force upon things, some qualifications are called for, since it will be robbery only if the force is as described in Art. 299. 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 (People vs. Adorno, CA, 40 O.G. 567). On the other hand, even if no physical force is used, there may be constructive force which makes the offense robbery. Thus, unlawful entry through an open window, use of fictitious name, or simulation of public authority do not entail physical force but they will make the crime robbery as these are considered as constructive force upon things. c. As just stated, if violence is employed at any time before the asportation is complete, the crime is robbery. The same is true in robbery through the use of force upon things which also converts the crime into robbery if used at any time before the unlawful taking is completed. The first is illustrated by the case of a thief who employed violence against the victim when the latter became aware that his pocket was being picked. Although it would only have been theft at the outset, since violence was used before the unlawful taking was completed, the crime became robbery (People vs. Omambong, CA-G.R. No. 44645, June 3, 1936). In the second instance of robbery through force upon things, if the entry was though an open door, but sealed receptacles are broken inside or taken to be broken outside, there was no force on things at the outset, but the crime is robbery because force upon things was employed before the apoderamiento was complete. 6. In robbery with violence against or intimidation of persons, the value of the property stolen is immaterial and the penalty is determined by the effects or results of the violence employed, as illustrated by Art. 294. In robbery through the use of force upon things, the penalty is based on the value of the property taken and whether the offender was armed if the crime was committed in an inhabited house, public building, or place devoted to religious worship; or based only on the value of the stolen property, if committed in an uninhabited house. 7. Where robbery was committed with violence against or intimidation of persons, and force upon things was also present and employed by the offender, it has been held that the crime should be categorized and punished under the first mode, that is, through violence or intimidation under Art. 294 and not under the second mode under Art. 299. This was justified on theory that violence or intimidation should supply the controlling qualification since it is graver than robbery through force upon things and produces greater disturbance to social order and the security of the individual (People vs. Sebastian, et al., 85 Phil. 601, and cases therein cited). A modification of this rule appears to have been later introduced by the Napolis and Disney cases which are discussed in Note 1 under Art. 294. 8. As earlier pointed out, robbery, like theft, is committed even if the person from whom the personal property was taken by the offender is only a lessee or bailee thereof. If, however, it is the owner who forcibly takes the personalty from its lawful possessor, the crime is estafa under Art. 316(3) since the former cannot commit robbery of his own property even if he uses violence or intimidation. Nevertheless, he thereby wrongfully deprives the victim of the latter’s right of possession and the lawful possessory or other rights flowing therefrom to the latter’s prejudice and damage. 9. Under Art. 302, the penalty for robbery of mail matter and large cattle is one degree higher but, as already stated, the applicability of that article appears to be limited to mail matter because of P.D. 533, the anti-cattle rustling law, which has taken over the matter of robbery or theft of large cattle (Canta vs. People, G.R. No. 140937, Feb. 28, 2001). Section One. – Robbery with violence against or intimidation of persons. Art. 294. – Robbery with violence against or intimidation of persons. 1. Art. 294 applies only where robbery with violence against or intimidation of persons takes place without entering an inhabited house under the circumstances in Art. 299. When both circumstances are present, the offense shall be considered as a complex crime under Art. 48, and the penalty shall be for the graver offense in the maximum period. Otherwise, if without violence, the penalty is reclusion temporal under Art. 299, yet if in addition thereto the robber lays hands on the occupants but without inflicting the injuries in Pars. 1 to 4 of Art. 294, the penalty would be very much lower (Napolis vs. CA, et al., G.R. No. L-28865, Feb. 28, 1972; People vs. Disney, et al., G.R. No. L-41336, Feb. 18, 1983). 2. Art. 294 refers to and punishes robbery with either homicide, rape, mutilation, arson, serious physical injuries or with clearly unnecessary violence, while Art. 297 deals with attempted or frustrated robbery with homicide. These offenses with their respective components re punished as single crimes, and have become known as “special complex crimes,” or composite crimes,” or sometimes “special indivisible crimes” (see People vs. Carandang, et al., G.R. No. L-31012, Aug. 15, 1973). In Art. 294, the robbery and homicide must be consummated, and in Art. 297, the homicide must likewise be consummated.

3. Accordingly, if the offenses committed on the same occasion are (a) consummated robbery with attempted or frustrated homicide, (b) consummated robbery with slight serious physical injuries, or (c) attempted or frustrated robbery with attempted or frustrated homicide, those crimes are not covered by either Art. 294 or Art. 297; but they may be complexed if attempted or frustrated homicide is the means to commit robbery, and the physical injuries are absorbed if only slight or less serious, or will be separate crimes depending on the circumstances. See, in this connection, Art. 48. 4. The rape mentioned here must also be consummated. Robbery with attempted rape does no fall under either Art. 48 or Art. 294 but are distinct crimes (People vs. Cariaga, CA, 54 O.G. 4307). 5. It has repeatedly been held that where the crime is robbery with homicide, rape committed on the occasion thereof is an aggravating circumstance (People vs. Ganal, 85 Phil. 743; People vs. Bacsa, 104 Phil. 136; People vs. Mongado, et al., G.R No. L24877, June 30, 1969; People vs. Villa, et al., G.R. No. L-31401, Oct. 30, 1979; People vs. Aspili, G.R. Nos. 89418-19, Nov. 21, 1990; People vs. Timple, et al., Nos. 100391-92, Sept. 26, 1994; People vs. Fabon, G.R. No. 133226, Mar. 16, 2000). 6. When the accused committed robbery with rape and the victim is killed, the crime is robbery with homicide and the rape is ignominy, unless there is no direct connection between the robbery and the killing, in which case they will separate crimes of robbery with rape apart from homicide. Where robbery was committed at Jones Bridge in Manila and the victim was killed by the offender who thereafter took the victim’s female companion to Quezon City where he raped her, it was held that the crime was robbery with homicide aggravated by rape. The rape committed in Quezon City was directly connected with the robbery with homicide in Manila, despite the time interval between and the different places of commission of the two offenses (People vs. Tapales, et al., G.R. No. L-35281, Sept. 10, 1979). 7. The term “homicide” in Art. 294 is used in its generic sense and includes any kind of killing, whether of parricide or murder or where several persons are killed (People vs. Cabuena, 98 Phil. 919) and the name of this special complex crime shall remain as robbery with homicide. The treachery, if it was murder (People vs. Repato, G.R. No. L-23431, July 20, 1979; People vs. Macabales, et al, G.R. No. 111102, Dec. 8, 2000); the relationship, if it was parricide; the cruelty, if multiple killings were involved (People vs. Mabilangan, G.R. NO. L-48217, Jan. 30, 1982) will only become aggravating circumstances, but not separate offenses (People vs. Bacsa, supra). 8. In People vs. Genoguin, et al. (G.R. No. L-233019, Mar. 28, 1974), the serious physical injuries inflicted by the accused were deemed integrated into the crime of robbery with homicide. The same holding was reiterated in People vs. Mendoza (G.R. No. L34290, Mar. 28, 1980) with regard to serious physical injuries inflicted on other victims at the crime scene. In People vs. Gatcho (G.R. No. L-27251, Feb. 26, 1981), the three other cases of frustrated homicide were not considered anymore, presumably because of the fact that the accused was nonetheless sentenced to death due to the presence of three other generic aggravating circumstances. 8. In the more recent case of People vs. Sultan (G.R. No. 132470, April 27, 2000), the Supreme Court handed down what appears to be a revisory doctrine on the matter of robbery with homicide and rape, or involving multiple homicides and/or multiple rapes, in this wise: x x x In this regard, this Court had declared in some cases that the additional rapes committed on the same occasion of robbery would not increase the penalty. There were also cases, however, where this Court ruled that the multiplicity of rapes committed could be appropriated as an aggravating circumstance. Finally, in the recent case of People vs. Regala (G.R. No. 130508, April 5, 2000), the Court held the additional rapes committed should not be appreciated as an aggravating circumstance despite a resultant “anomalous situation” wherein robbery with rape would be on the same level as robbery with multiple rapes in terms of gravity. The Court realized that there was no law providing for the additional rape/s or homicide/s for that matter to be considered as aggravating circumstance. It further observed that the enumeration of aggravating circumstances under Art. 14 of the Revised Penal Code is exclusive, unlike in Art. 13 of the same Code which enumerates the mitigating circumstances where analogous circumstances may be considered, hence, the remedy lies with the legislature. Consequently, unless and until a law is passed providing that the additional rape/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. Under this view the additional rape committed by accused-appellant is not considered an aggravating circumstance. x x x (Other citations omitted). The rationale therein adverts to the fact that while Par. 10, Art. 13 of the Code on mitigating circumstances provides for other circumstances analogous and similar to those enumerated in that article, there is no such provision in Art. 14 on aggravating circumstances. This theory was foreshadowed by the ruling in People vs. Garcia, et al. L-42580-81, June 11, 1981) where the victim was raped by two felons. The Supreme Court held that rape was committed by two or more persons is a qualifying circumstance as specified in then Art. 335, as amended, emphasizing that such fact is not among the aggravating circumstances in Art. 14 of the Code. Now, in the Sultan case, the Supreme Court suggested that the problem created by the conflicting decisions on the same issue should be addressed by the legislature and that until a law is passed providing that the additional rape/s or homicide/s may be considered aggravating, the courts should construe the penal law in favor of the accused by not aggravating his liability. This proposal is reminiscent of the amendment of the last paragraph of Art. 267 on kidnapping and serious illegal detention when the victim is killed, due to the fact that the original provision gave two conflicting decisions variantly holding that the crime was complex, or there was only

one crime, or there were two separate crimes. Regrettably, however, pending such projected congressional action the “anomalous situation” lamented in one line of cases cited in Sultan will continue to the benefit of the accused but with injustice to his additional victims of rape and homicide. It is accordingly submitted that a more perceptive view of this controversy would yield a reasoned conclusion that, without disregarding the textual differences between Art. 13 and Art. 14, the additional rapes or homicides should aggravate the liability of the accused in the scenario subject of the conflicting holding under Art. 294. Par. 10 of Art. 13 adopts as extenuating circumstances such other situations similar and analogous to any of the generic mitigating circumstances enumerated therein. This means that it would be sufficient if those additional circumstances are analogous and similar in character to, and not necessarily identical with constitutive of, the factual and legal nature of the circumstances in Art. 13. Thus, for instance, among the cases under said article, ante, even the mere outrage of an unpaid creditor was considered akin to passion and obfuscation, and the restitution of malversed funds was deemed equivalent to voluntary surrender. In the special complex crime of robbery with homicide or robbery with rape, the additional crimes of homicide and rape can be considered as aggravating circumstances of cruelty and ignominy, respectively, not because they are merely analogous and similar to these aggravating circumstances. Such additional crime of homicide actually constitutes and is itself the very act of cruelty, while the additional crime of rape is by itself constitutive of the circumstance of ignominy which is even inherent in the crime. Consequently, the absence of a provision in Art. 14 concerning analogous and similar circumstances is unnecessary and of no consequence in order that additional rapes or homicides committed by the accused may aggravate his liability. Notably, these additional offenses cannot be independently considered or integrated into the special complex crime under Art. 294 as components thereof; hence, the rule in Art. 62 (1) against their being treated as aggravating circumstances does not apply. Yet, the deplorable end resulted of the present dictum is that the additional homicides and rapes can neither increase the penalties to be imposed on the accused nor be prosecuted separately. They are merely to be disregarded as if such crimes were never committed and their victims never existed. Further, in certain instances, the same act punished as a felony, considered as an element thereof, can validly constitute an aggravating circumstance. For instance, the use of fire is the principal element in the crime of arson (P.D. 1613), the use of poison for spreading cattle infection is a special case of malicious mischief (Art. 328), and damage to railways and the derailment of vehicles are punished as such offense (Art. 330), but these are also considered as aggravating circumstances (Art. 14[12]). 9. “Homicide” in Art. 297 is also used in its generic sense, to include any other unlawful killing ( People vs. Manuel, 44 Phil. 333; People vs. Dagundong, et al., 108 Phil. 682). However, if the killing legally constituted murder or parricide, the offense will continue to be covered by Art. 297 with the technical name stated therein but the penalty shall be for murder or parricide (People vs. Molijon, 99 Phil. 58; cf. People vs. Morados, 70 Phil. 558) because Art. 297 states, “unless the homicide (killing) committed shall deserve a higher penalty under this Code.” Also, if on the occasion of an attempted robbery, homicide and slight physical injuries are committed, they will only constitute one single special complex crime, the physical injuries being absorbed in line with the accepted rule thereon heretofore cited (People vs. Casalme, et al., 101 Phil. 1249[Unrep.]). 10. The homicide in both Arts. 294 and 297, and the rapes or serious physical injuries may be complexed although they were committed before or after the robbery, or even if they took place in different places or after several hours had intervened, as long as those other crimes were “by reason or on the occasion” of the robbery (U.S. vs. Ibañez, 19 Phil. 463; People vs. Hernandez, 46 Phil. 48; People vs. Bernardino, 92 Phil. 1070[Unrep.]; People vs. Libre, 93 Phil. 5). Where, after the robbery was consummated, the robbers killed one of the rescuers who came to the aid of the victim this, situation is covered by Art. 294 (People vs. Barut, G.R. No. L-42666, Mar. 13, 1979; cf. People vs. Puesca, et al., G.R. No. L-27909, Dec. 5, 1978). It is indispensable, however, that the killing must be directly connected with the robbery. Hence, where long after the robbery, one of the robbers realized that they had left the door of the building open and the robbery would easily discovered, whereupon he returned to close that door but he had to kill the janitor who also arrived at the scene, it was held that the killing was separate crime as it was only indirectly connected with the robbery (DSCS, May 23, 1889; see People vs. Maribung, et al., G.R. No. L-47500, April 29, 1987). 11. On the other hand, it is also settled that the offender must have had the intent from the outset to commit robbery. If the taking of the victim’s property was only an afterthought (People vs. Toling, et al., G.R. No. L-28548, July 13, 1979), as where the felon returned much later to get the property, he is liable for separated crimes of homicide and theft (People vs. Elizaga, et al, 86 Phil. 364). Where the accused killed the victim, and forthwith took the latter’s money from his wallet, it was evident that robbery was the primary motivation, hence the crime was robbery with homicide (U.S vs. Vllarente et al., 30 Phil. 59; People vs. Hernandez, supra; People vs. Verdad, G.R. No. 51797, May 16, 1983). The latter cases were distinguished form People vs. Elizaga, supra, and the reiterative doctrine in People vs. Glore, et al., (87 Phil. 739), wherein the accused first killed the victim not for purposes of robbery but due to personal grievances and returned after a

considerable lapse of time to get the victim’s personal effects which he appropriated; hence, he was convicted of separate crimes of homicide and theft (People vs. Aquino, et, al., G.R No. 50523, Sept. 29, 1983). The same rules and rationale apply to robbery with rape. The rape must have been committed by reason or on the occasion of the robbery, that is, the intent to gain must have preceded the intent to have illegal intercourse. If it was the other way around, the offenses shall constitute two distinct felonies (People vs. Tamayo, G.R. No. 137586, July 20, 2002). 12. There is no regular or special complex crime of theft with homicide as they will always be separate crimes. Where the accused stole roosters from a coop under the house and, much later while he was still in flight from the house, he killed a policeman who sought to apprehend him, he committed two separate crimes of theft and homicide. Although the homicide may be said to have been committed on the occasion of the unlawful taking of the roosters, that fact is inconsequential since the unlawful taking, not being accompanied by violence against or intimidation of persons nor of force upon things, was only simple theft (People vs. Jaranilla, et al., G.R No. L-28547, Feb. 22, 1974). This is different from People vs. Mabassa (65 Phil. 568) since the taking of the chicken from a coop under the house was robbery, it having been accompanied by violence against the owner when he came down and confronted the robber. 13. If robbery was accompanied by killing, it will be within the purview of Art. 294(1) even if the decedent was himself one of the robbers who was killed by his co-robbers, since the law makes no distinction. This is also true even if the killing was not intended or merely accidental, as the Spanish text shows the applicability of Art. 294(1) as long as a homicide takes place during the robbery (“cuando con occasion del robo resultare homicidio”) which was defectively translated into English as “homicide shall have been committed” (People vs. Mangulabnan, et al., 99 Phil. 992). The rule is equally applicable if an innocent bystander was killed (People vs. Disimban, 88 Phil. 120; People vs. Magbanua, 88 Phil. 498; People vs. Gardon, CA, 56 O.G. 3404), or where it could not be determined whether the shots that killed the victim were fired by the accused or the pursuing constabulary troopers (People vs. Ombao, G.R. No. L-30492, Feb. 26, 1981). 14. 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. The same is true if that gang committed homicide, mutilation or inflicted injuries penalized in Pars. 1 and 2 of Art. 263 on any of their co-robbers. 15. In People vs. Cabural, et al. (G.R. No. L-34105, Feb. 4, 1983) and reiterated in People vs. Porcare, et al. (G.R. No. L37235, Feb. 5, 1983), the Supreme Court held that robbery with multiple rapes was punishable under Art. 335 which was then under the title of crimes against chastity, after reviewing the different cases on the controversy. There were indeed previous contrary views holding that said crime should be punishable under Art. 335 (People vs. Carandang G.R. No. L-31012, Aug. 15, 1973; People vs. Perello, Jr., et al., G.R. No. L-33064, Jan. 27, 1982). Thereafter, in People vs. Carias, et al. (G.R. No. L-35853, June 24, 1983), the Court in effect put an end to the controversy by pointing out that the same had definitely been resolved in Cabural (see also People vs. Patola, et al., G.R. No. L-41265, Feb. 27, 1986). 16. Regarding, Par. 4, if during the robbery one of the robbers inflicted on his co-robber any of the injuries defined in Pars. 3 and 4 of Art. 263 (deformity, loss of a non-member part of the body, incapacity for more than 90 or 30 days, or clearly unnecessary violence), this situation will not be punishable under this paragraph of Art. 294 as it specifies that such injuries are inflicted on a “person not responsible for its commission,” that is, the robbery. These injuries inflicted by that robber are punishable separately from his liability for robbery. 17. Par. 5 is known as simple robbery, because the injuries inflicted do not fall within the categories contemplated in Pars. 1 and 4 or, more specifically, they only involve slight or less serious physical injuries, which are absorbed in the crime or robbery as an element thereof. 18. On the matter of wristwatch or bag snatching, it has been held that if the offense was committed with violence or intimidation, the crime is robbery (People vs. Mallari, 60 Phil. 400; People vs. Castillo, CA-G.R. No. 4096-R, May 19, 1950; People vs. Cruz, CA-G.R. No. 10889-R, Feb. 5, 1954; People vs. Teñoso, CA, 66 O.G. No. 42, p. 9637); if without violence or intimidation, it will be theft (People vs. Villar, CA-G.R. No. 14289-R, July 29, 1955). 19. In People vs. SPO1 Lobitania (G.R. No. 142380, Sept. 5, 2002), the Supreme Court explained that carnapping, as punished in R.A. 6536, is essentially the robbery or theft of a motorized vehicle and it is considered as qualified or aggravated when, in the course of the commission or on the occasion of the carnapping, the owner, driver or occupant is killed or raped. In People vs. Barquit, et al. (G.R. No. 122733, Oct. 2, 2000), it was earlier declared that, if attended by a killing, it is similar to the special complex crime of robbery with homicide. Accordingly, it was ruled that “qualified carnapping or carnapping in an aggravated form” is deemed to be a crime against property and the jurisprudence on robbery with homicide and/ or rape, particularly the appreciation of aggravating circumstances, is generally applicable to said special crime. 20. Where a group of armed men tried to flag down a passenger bus, but the driver surmising an ambush or hold up refused to stop and sped on, whereupon the group fired at the speeding bus killing and injuring some passenger, it was held that the accused were liable for killing and the injuries. They could not be held liable for robbery or any of its stages, as there was no discernible overt act to rob the passengers, and their act of signaling the bus to stop was vague and indeterminate as to their intent (People vs. Olaes, 105 Phil. 502).

21. Where the robbers detained some persons when the police arrived and surrounded the scene of the robbery, it was held that the detention was only an act of temporary restraint by the robbers in order to delay their arrest or the pursuit by the police. The detention was only incidental to the robbery and was absorbed by the latter (People vs. Astor, et al., G.R. Nos. 71765-66, April 29, 1987). Art. 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley. 1. This article provides four special aggravating circumstances which, because they impose the penalty in the maximum period and cannot be offset, are also considered as qualifying circumstances (People vs. Salip Manla, G.R. No. L-21688, Nov. 28, 1969), namely, (a) despoblado, (b) en cuadrilla, (c) attacking a moving vehicle or airship or entering the passengers’ compartments in a train, and (d) intimidating the passengers in their conveyances with firearms or using the same on a street, road, highway or alley. Regarding despoblado and cuadrilla, they are to be considered separately since, although R.A. 12 mentioned them disjunctively, the title of this article states them conjunctively, but this is corrected by the text of the article which states “in an uninhabited place or by a band.” 2. It is, therefore, to be noted that for robbery with violence or intimidation in Art. 294, despoblado and cuadrilla need not concur, but in robbery through force upon things (Art. 302), these two circumstances have to concur in order to be considered as and to have the effect of a special aggravating circumstance. 3. The circumstances in Art. 295 apply to and aggravate the robbery described in Pars. 3, 4, and 5 of Art. 294. Hence, if the crime committed is robbery with homicide, rape, mutilation or arson (Par. 1), or with physical injuries under subdivision 1 of Art. 263 [impotence, imbecility, insanity or blindness] (Par. 2), despoblado and cuadrilla will each be considered only as a generic aggravating circumstance (People vs. Apduhan, Jr., G.R. No. L-19491, Aug. 30, 1968; People vs. Marquez, et al., G.R. Nos. L-24373-74, Nov. 28, 1969; People vs. Cruz, G.R. No. L-37173, Nov. 29, 1984). If band is present in the robbery under Pars. 1 and 2 of Art. 294, it is a generic aggravating circumstance which can be offset; but if it is present in pars. 3, 4 and 5 thereof, it will be an “inherent or qualifying” circumstance which will impose the penalty in the maximum period and cannot be offset (People vs. Puesca, supra). 4. On the matter of firearms in Art. 295, whether the same are licensed or unlicensed, if used on streets, etc., they become special aggravating circumstances. If the firearms is not so used or is merely possessed without intimidating any body, it cannot aggravate the offender’s liability, except that if it is unlicensed, he will be liable for illegal possession thereof. 5. In the case of Art. 296 on robbery in band, the firearm must be unlicensed and must be coupled with the presence of a band in order to be a special aggravating circumstance, in which case the penalty for the robbery in band will be the maximum of the maximum period of the penalty for the crime (People vs. Valeriano, et al., 90 Phil. 15). If the firearm is unlicensed but the there is no band, the additional liability will only be for such illegal possession. If only band is present but there is no firearm or an unlicensed firearm, band is only a special aggravating circumstance under Art. 295. Art. 296. Definition of a band and penalty incurred by the members thereof. 1. This article gives the definition of a band (en cuadrilla) as consisting of at least four armed malefactors, just as in Art. 14(6). As already explained, “arms” may consist of any weapon capable of inflicting appreciable injury, and stones or clubs have been considered as arms for purposes of this definition. The matter of firearms comes into play here not only for the role it plays as arms with a band may be equipped, but further as an aggravating circumstance in the law on robbery in band. 2. To repeat, cuadrilla by itself is only a generic aggravating circumstance, but if a member thereof uses an unlicensed firearm, it becomes a special aggravating circumstance, without prejudice to the liability for illegal possession of the firearm. Art. 296, just like Art. 295, also applies only to robbery under Pars. 3, 4, and 5 of Art. 294, and not to robbery with homicide, rape, intentional mutilation, arson or the physical injuries in Par. 1 of Art. 263. Also, the afore-stated doctrines in Apduhan, Marquez and Cruz have been reiterated in People vs. Onting Biruar, et al. (G.R. Nos. L-32202-04, July 25, 1984). 3. Liability of a member of the band without the interplay of the rules on conspiracy as explained in Art. 48, are as follows: a. If both robbery and homicide or physical injuries were the object of the band, all the members thereof are liable for the resultant crimes without qualification (People vs. Lingad, 98 Phil. 5). b. If only robbery was the object of the band, all are liable for robbery; and for the homicide, rape and physical injuries, only those who were present during the assault and did not attempt to prevent the same will be liable as principals in those additional offenses (People vs. Evangelista, et al., 86 Phil. 112).

4. Where three houses were robbed successively by a band, there are three crimes of robbery in band for which the offender must respond (People vs. Esquero, et al., 100 Phil. 1001), unless the robberies were committed under one general plan which therefore constitutes the depredation into a single crime of robbery in band (U.S. vs. De la Cruz, 4 Phil. 430). Art. 297. Attempted and frustrated robbery committed under certain circumstances. 1. As in Art. 294, the “homicide” here is used in a generic sense, it must have been committed by reason or on the occasion of a frustrated or attempted robbery and it must have been consummated. The penalty for this special complex crime is not affected by whether the robbery was either in the attempted or frustrated stage but whether the killing deserves a penalty higher than reclusion temporal in its maximum period to reclusion perpetua because of attendant circumstances. Thus, if the killing actually constitutes parricide, murder or infanticide, the imposable penalty is reclusion perpetua to death. 2. If physical injuries were inflicted on the victim, but no intent to kill was proved and the victim did not die, the liability of the offender may be as follows: a. If the physical injuries were by reason of the attempted or frustrated robbery as the means for the commission of the latter, the injuries are absorbed by the latter and the crime shall only be attempted or frustrated robbery (People vs. Villanueva, CA-G.R. No. 2676, May 31, 1939). b. If the physical injuries were inflicted only on the occasion of the aborted robbery but not employed as a means of committing the latter, these will be separate crimes of attempted or frustrated robbery and physical injuries. If, however, a killing and physical injuries were committed on that occasion, the crime be penalized in accordance with this article but the physical injures will be absorbed (People vs. Casalme, et al., supra). 3. When the victim had no money when he was treacherously killed and the crime could not fall under Art. 297 which requires at least an attempted robbery (here, there was an impossible crime of robbery), but since homicide under that article is used in its generic sense, it was held that the accused was guilty of murder (People vs. Andaya, G.R. No. L-48735, Jan. 19, 1981). 4. Where the accused demanded that the victim’s money be brought out and on being refused, he killed the victim, the crime was held to be attempted robbery with homicide since there was an overt act to rob (People vs. Carunungan, 109 Phil. 534). Art. 298. Execution of deeds by mans of violence or intimidation. 1. This is a special form or mode of committing robbery, hence it is categorized and punished as such. 2. It is essential that the document is capable of producing legal effects and the victim was under a lawful obligation to execute and deliver the same. If the document is void, it cannot be said that the offender had intended to defraud the victim. However, even if the foregoing two conditions do not obtain, the offender will be liable for coercion, for compelling another by violence or intimidation to perform an act whether right or wrong. Section Two. - Robbery by the use of force upon things Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship. Art. 300. Robbery in an uninhabited place and by a band. Art. 301. What is an inhabited house, public building dedicated to religious and their dependencies. 1. The second mode of committing robbery is through the use of force upon things which may be employed in an inhabited house, public building or edifice devoted to religious worship (Art. 299) or in an uninhabited house or private building (Art. 302). In either instance, the use of force must have been for the purpose of entry or to actually enable the offender to enter the building. 2. The acts of commission in both Arts. 299 and 302, as well as the meaning of terms are the same, such as the meaning of force which can be physical or constructive force. In fact, for purposes of entry, it is only the breaking of any wall or other parts of the house which involves actual physical force, the other means of entry being merely constructive force. The only difference between the aforesaid two articles is that the use of fictitious name or simulation of public authority can be used only in Art. 299 which refers to inhabited building and not in Art. 302 which involves uninhabited or other places. 3. Art. 301 provides that an inhabited house includes any shelter, ship or vessel constituting the dwelling of one or more persons. It is suggested that this should not encompass ships that are actually being operated in transporting passengers or freight from one port to another, for then acts which would ordinarily be robbery would be piracy which can now be committed in Philippine waters, and considering that passengers and crew members are not dweller of the ship but mere transient occupants.

a. The definition therein of dependencies, as those which are contiguous to and with interior entrances connected with the house, excludes orchards and lands for cultivation which are not considered as dependencies even if close, contiguous to and connected with the building. 4. Although Art. 299 mentions armed robbery for the purpose of determining the penalty, if those arms are used by the accused against persons or are used to intimidate them, this form of robbery will fall under Art. 294 or 297. 5. In line with Par. (a) of Art. 299, the unlawful entry, breaking of exterior walls or parts of walls or parts of the house, the use of false keys, and employing fictitious names or simulating public authority must be used to enter the building. Hence, if the offender had theretofore entered through an open door and then avails of the foregoing acts to get out of the building with his loot, the crimes is theft, unless what he is bringing out are locked or sealed receptacles and/or their contents which he broke inside or are intended to be broken outside the house. a. The breaking of the shell of a window to open it will constitute robbery if followed by the unlawful entry of the robber (U.S. vs. Acacio, 37 Phil. 70), but it will be theft if not so followed by unlawful entry (II Hidalgo 610, citing DSCS, Dec. 27, 1882). b. Prying the main door out of its groove does not constitute the breaking provided in Par. (a)[2] of this article, hence the subsequent apoderamiento is only theft (People vs. Fernandez, 58 Phil. 674). Breaking an interior door is also not embraced in the aforesaid paragraph which requires that it be the main door to “enter the house”, while the door in Par. (b)[1] is that of wardrobes, chests, and so forth (People vs. Puzon, CA, 48 O.G. 4878). c. If false keys were used not to effect entry, the subsequent taking will be theft even if those false keys were also used to open the interior doors or locked receptacles inside. If the keys were taken at gunpoint, the crime will be robbery, not because of the false keys but due to the intimidation against the victim (U.S. vs. Macamay, 36 Phil. 893). d. Where the servant stole the keys to the downstairs bodega, then opened the front door thereof and stone some article, he crime is theft as the offender was already inside the house and the bodega is not a separate building (People vs. Fernandez, 58 Phil. 674). However, it would be robbery if to have access to the contents of the bodega, he would have to open the door of and enter a separate building which is not a dependency of the house. e. If the padlock of the main entrance door was broken, it is robbery according to the Supreme Court, as the padlock is an integral part of the door (People vs. Mesias, 38 O.G. 23), although in one case, the Court of Appeals held that, under the same circumstances, the crime was theft (People vs. Puzon, supra). f. The following circumstances affect the penalty of the accused for robbery in an inhabited house: (1) If committed in a dependency, one degree lower (Art. 299): (2) If of mail matter or large cattle, unless charged under P.D. 533 for the latter, one degree higher (Art. 302); (3) If of seedlings (not cereals), fruits or firewood, one degree lower; (4) If with despoblado and cuadrilla, the penalty shall be imposed in the maximum period (Art. 300). These two circumstances must concur, unlike in Art. 295 (U.S. vs. Morada, 23 Phil. 477). If only despoblado is present, it is a generic aggravating circumstances; if coupled with cuadrilla, it is a special aggravating circumstance. Art. 302. Robbery in an uninhabited place or in a private building. Art. 303. Robbery of cereals, fruit or firewood in an uninhabited place or private building. 1. While Art. 302 provides for robbery in an “uninhabited place,” it actually means an uninhabited house, as the Spanish text states “lugar no habitado” and not despoblado. This observation is bolstered by the fact that in the modes of commission set out in this article, Pars. 1 and 3 speak of “entrance” which necessarily connotes a building (People vs. Jaranilla, et al., G.R. No. L-28547, Feb. 22, 1974). 2. The circumstances affecting the robber’s liability for robbery in an uninhabited house are as follows: (a) if of mail matter or large cattle, unless prosecuted under P.D. 533 for the latter, one degree higher (Art. 302); and (b) if of seedlings (not cereals), one degree lower (Art. 303). As clarified Supreme Court, the word “cereals” in Art. 303 is not the correct translation of the Spanish text which refers to “semilla alimenticia” and means seedlings or unhulled grain in its original state (People vs. Mesias, 65 Phil. 267; People vs. Roda, G.R. No. L-16988, Dec. 30, 1961). 3. For both robbery and theft, large cattle as referred to in Art. 302 should be a horse, bull, mule, ass, carabao, or other domesticated members of the bovine family, as provided in Sec. 511 of the Revised Administrative Code (U.S. vs. Javier, 37 Phil. 449). Goats are “cattle” but not large cattle for purposes of Art. 302 (People vs. Nazaeno, etc., et al., G.R. No. L-40037, April 30, 1976).

Art. 304. Possession of picklocks or similar tools. Art. 305. False keys. 1. A master key is a picklock and its possession is punishable (People vs. Lopez, G.R. No. L-18766, May 20, 1965). In the definition of false keys in Art. 305, picklocks are considered as false keys (Par. 1), but it is the illegal possession only of such picklocks and similar tools which are punished and not that of other false keys which are not picklocks or similar thereto. 2. Par. 2 also considers as false keys the genuine keys stolen from their owner. Even if the keys were not stolen but were lost or misplaced by the owner and they were found by another who did not return the same to the owner although he was in a position to do so, that constitutes theft under Art. 308. That key is, therefore, a stolen, hence a false, key; and if used to enter a house from which article were thereafter unlawfully taken by the offender, the crime is robbery. 3. Under Par. 3, where the key was not intended by the owner for use in the lock to the house but it was used by the offender to manipulate the lock and to enter and steal something inside the house, it would be robbery. If, on the other hand, the house owner entrusted the key to his confidential secretary for safekeeping, but the latter used it to commit unlawful acts of entry and abstractions, the crime is qualified theft through grave abuse of confidence (Art. 310). Chapter Two BRIGANDAGE Art. 306. Who are brigands. 1. P.D. 532 was issued on Aug. 8, 1974 defining and punishing the crime of “highway robbery/brigandage,” repealing or modifying pertinent portions of this Code insofar as they are inconsistent with said decree. From the text thereof, in relation to these two articles of the Code, highway robbery and brigandage are synonymous terms for the same crime, and where P.D. 532 differs from the provisions of the Code on brigandage will be discussed hereunder. 2. Brigandage is indiscriminate highway robbery, kidnapping or for other purpose which may be attained by force and violence, as provided in this Code. P.D. 532 makes no specifications but merely states in general that the purpose of the offenders is unlawful and indiscriminate depredations committed on any highway. 3. Also, while the Code contemplates a band of more than three armed persons in order to be considered as brigands, there are no such requirements in P.D 532. The presumption that if the band has an unlicensed firearm they are brigands is not reproduced in P.D 532. However, the presumption in the Code that if aid is given to the brigands, it is knowingly given and that whosoever aids or abets or receives property from brigands shall be meted a penalty equivalent to a principal, is adopted in P.D. 532. 4. If the purpose of the band is only a particular robbery, the crime committed shall only robbery in band (U.S vs. Feliciano, 3 Phil. 422). If the charge is brigandage, the accused may still be convicted of robbery in band if there are at least four armed persons, as the latter offense is included in the former (U.S vs. De la Cruz. 4 Phil. 430) but not theft which is not included therein (U.S. vs. Manique, 3 Phil. 675). 5. In the unusual case of People vs. Puno, et al. (G.R. No. 97471, Feb, 17, 1993), the accused was able to extort P100,000 in checks from the employer by refusing to let her out of her car which he kept driving around on the highways of Metro Manila for quite some time until she gave the check. The Supreme Court held that the crime was simple robbery under Par. 5 of Art. 294. It could not be a violation of P.D. 532 as this refers to indiscriminate unlawful acts committed on Philippine highways but not a particular robbery. The mere fact that the car being on highway while the accused was pressuring the victim to give the amount was purely an incidental fact. Much less does it constitute kidnapping for ransom, as postulated by the Solicitor General, as the taking of the victim was merely to commit robbery and not to transport her to another place for purposes of detention and ransom. Chapter Three THEFT Art. 308. Who are liable for theft. Art. 309. Penalties. 1. The first three elements of theft have been discussed under Arts. 293 and 294 with the equivalent three elements of robbery. It is on the fourth element regarding the mode of taking where these two felonies differ, since in theft, the property is taken by the offender from the owner “without the latter’s consent,” that is, by stealth or strategy. The owner’s consent to the taking must be knowingly given, so even if he knew that his property was being surreptitiously appropriated, the accused is still liable. 2. Regarding Par. 1 of Art. 308, the finder has the duty under Art. 719 of the Civil Code to return the lost property to the owner or, if this is not feasible, to deposit the same with the mayor.

3. With regard to Par. 2 of Art. 308, the malicious or intentional destruction of the property is adsorbed in the unlawful taking, hence the crime is only theft. This is similar to Par. 3 of the same article wherein the act of trespass in entering the enclosed estate is absorbed in the crime of theft consisting of the offender’s subsequent acts of hunting, fishing or gathering farm products in that field. 4. Some illustrations of the stages of execution in the crime of theft been discussed in Art. 6, but there are other situations which have been affected by issuances after the decision concerned were rendered: a. Where a car was taken it was parked to another distant street, then its three tires were removed, thus indicating that there was animus lucrandi in the taking, it was held to be qualified theft of the entire car as that taking was what offender asported (People vs. Carpio, 54 Phil. 48). Now, this will constitute carnapping of the entire vehicle (People vs. Ellasos, et al., G.R. No. 139323, June 6, 2001). See R.A. 6539. b. Where the offender took the car a considerable distance away, then set it afire, the crime was arson, and not qualified theft, as there was no proof of animus lucrandi (People vs. Solis, CA, 64 O.G. 11257), which element is also required in carnapping. c. Where carabaos were stolen and sold in an adjoining province, with pretense of ownership over the animals, the accused is guilty of separate crimes of qualified theft with the owner as the victim, and estafa with buyers as the offender parties. Besides, theft was already consummated from the moment the animals were taken, and the theft and the sale were animated by different criminal intents. The two crimes cannot be complexed because of the common elements of damage. This may be affected by the anti-cattle rustling decree (P.D. 533); but neither can the offense of rustling be complexed with estafa, although P.D. 533 does not require animus lucrandi, because it is under a special law. 5. The objects of theft in case which have found their way to the courts are varied, such as electricity, gas, certificates of title, checks, and commercial papers. The basis of the penalty is the value of the property stolen, which may the value of the thing itself, or intrinsic value, or that which is represented thereby, or extrinsic value, as in checks or commercial documents (U.S. vs. Raboy, 25 Phil. 1), even if the same have no value to the thief (People vs. Koc Song, 63 Phil. 369). An example is a sales invoice issued to a third person which is useless to the offender but without which the victim could not collect the debt represented thereby (People vs. Mendoza, CA-G.R. No. 44473, Mar. 25, 1936). a. If the check is actually valueless, the thief may still be held liable for theft of property worth less than P5.00, following the rule in People vs. Reyes (G.R . No. 38901, Oct. 2, 1933). The court can take judicial notice of current and prevailing values of other objects like those objects of theft whenever no finding of value can be expeditiously arrived at (People vs. De la Cruz, CA, 43 O.G. Nov. 8, 3202). b. A meter reader of the electric company who intentionally “under reads” the electric meter of a consumer is liable for theft of electricity (Natividad vs. CA, G.R. No. L-14887, Jan. 31, 1961), in the same manner as a consumer who evades payment by using a “jumper” to deflect the current from his electric meter (U.S. vs. Carlos, 21 Phil. 553) or those who use other contrivances, or tamper with that meter for the same purpose. These acts were then also punished by P.D. 401 until its repeal on Dec. 3, 1994, by R.A. 7832, the Anti-Electric and Electric Transmission Lines/Materials Pilferage Act of 1994, which Act of 1994, which provided for a more thorough coverage and higher penalties. 6. 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 policeman to whom he entrusted it and who misappropriated the same, as the latter is also a finder in law (People vs. Avila, 47 Phil. 720). The immediate victim may be a bailee, agent, caretaker, or another thief, robber or swindler who obtained possession of the object. 7. In the case fungibles, according to a comment of Viada (Vol. 3, 4th Ed., p. 416), cited in U.S. vs. De Vera (43 Phil. 1000), the buyer is liable for theft even if the contract was already perfected and even if the goods were already shipped to and stored in his bodega, if he appropriates the same before such fungibles have actually been measured or weighed, as before that measurement or weighing he is not yet the owner thereof. It is submitted that this runs counter to our present civil law precepts. What determines the commission of theft is whether or not ownership of the fungibles has been transferred to the buyer. Under Art. 1464 of the Civil Code, the buyer becomes a co-owner in mass to the extent of his purchase even before such measuring or weighing, hence he cannot be liable for theft. In fact, it was held as early as the case of U.S. vs. Reyes (6 Phil. 441) that a share tenant who used some of the palay in his possession was not theft as he was entitled to an aliquot portion thereof as his share. With more reason that there will be no liability if he is a leasehold tenant. But even if one is a co-owner in mass or property, he is liable for theft if he abstracts more than his lawful share, and he has to respond for the excess. Hence, a finder of hidden treasure, being entitled to only one-half thereof is liable for the other half which he also took (People vs. Langdew, CA-G.R. No. 9380-R, June 4, 1953). 8. Formerly, the taking of a live carabao was qualified theft (Art. 310); if the carabao was killed and its meat asported, it would be simple theft (People vs. Morillo, CA, 40 O.G., Supp. No. 4, p. 107; People vs. Eslava, CA, 57 O.G. 5101); and if the carabao was

killed out of spite or revenge, it was malicious mischief (People vs. Valiente, CA-G.R. No. 9442-R, Dec. 29, 1953). There are now no such distinctions, as P.D.533 penalizes hereunder all such acts of killing cattle or taking its meat or hide. Art. 310. Qualified theft. 1. The circumstances which magnify the unlawful taking of personal property to qualified theft, with the consequent increase by two degrees of the penalties for simple theft, have been increased by a series of amendments. It will be noted, however, that the taking of a motor vehicle or large cattle are still among the qualifying circumstances in this article although the same items are also the respective subjects of the anti-carnapping law (R.A. 6539) and of the anti-cattle rusting decree (P.D. 533). In other words, both in the prosecutorial and adjudicative levels, where the subjects are motor vehicle or large cattle, jurisprudence still has to clearly delineate under which law the charges should lie, especially since the requisites in the afore-stated special laws are not exactly the same as those in Art. 302 and Art. 310, respectively. a. With respect to motor vehicle, the duplication of such subject matte in qualified theft and in the anti-carnapping law are avoided by some exceptions. R.A. 6539 excepts form its coverage such vehicle as roadrollers, trolleys, street-sweepers, sprinkles, lawn mowers, amphibian trucks and cranes if not used on public highways, vehicles which run only on rails or tracks, and tractors, trailers and tractor engines of all kinds and used executively for agricultural purposes (Sec. 2). 2. If theft is committed by a domestic servant, it is always qualified. If committed by ordinary employees, it is simple theft as special confidential or fiduciary relationships are required to qualify it, like those existing between an employer and his confidential secretary or with a cashier. 3. It has been held that where the accused had been given access to the place where the taking was committed or access to the stolen items, this circumstance supplies the element of confidence and intimacy which if abused by him would constitute the taking into qualified theft. Hence, where the truck driver unlawfully appropriated the electrical equipment, supplies and materials loaded on his truck and entrusted to him by his employer, he was guilty of qualified theft through grave abuse of confidence (Cariaga vs. CA, et al., G.R. No. 143561, June 2, 2001). 4. The motor vehicle referred to in this article requires and includes all self-propelled vehicles, including motorized bicycles even if also provided with foot pedals (People vs. Lallave, CA, 66 O.G. 3192). It also includes a motorized tricycle (People vs. Izon, G.R. 51370, Aug. 1, 1981). 5. The mail matter mentioned here is the same as that referred to and discussed in robbery (Art. 302) with the different that the crime is not denominated as qualified robbery and penalty is increased by only one degree, presumably since the penalties for robbery are comparatively higher that those for simple theft. 6. Theft of coconuts or fish are qualified only if they are taken by the offender from a plantation or a fishpond, respectively. If these agricultural products are taken under circumstances of robbery, the crimes and their penalties remain the same even if they were also taken from a plantation or fishpond. Art. 311. Theft of the property of the National Library and National Museum. 1. This is a special provision on theft in order to protect our historical and cultural treasures, with specific penalties regardless of the value of the thing stolen. If the crime is committed under any applicable circumstance in Art. 310, the penalty shall be that for qualified theft, or two degrees higher. If the taking was only to damage the items, it will be malicious mischief (At. 328). 2. There are other special provisions on theft which were adopted as a matter of national policy or necessity. a. P.D. 133, issued on Feb. 20, 1973, provides that any employee or laborer who shall steal any material, spare part, produce or article that he is working on, using or producing shall, upon conviction, be punished with imprisonment ranging from prision correctional to prision mayor. b. P.D. 330, issued on Nov. 8, 1973, provides that any person, whether natural or juridical, who directly or indirectly cuts, gathers, removes or smuggles timber or other forest products, either from any of the public forest reserves and other kinds of public forests, whether under license or lease, or from any privately owned forest lands in violation of existing laws, rules and regulations shall be guilty of the crime of qualified theft as defined and personalized under Arts. 308, 309 and 310 of the Revised Penal Code. This has been adopted as Sec. 68 of the Revised Forestry Code (P.D. 705), with amendments. c. P.D. 581, effective Nov. 13, 1974, provides that any person who shall take gold-bearing ores or rocks from a mining claim or mining camp or shall remove, collect or gather gold-bearing ores or locks in place or shall extract or remove the gold from such ores or rocks, or shall prepare and treat such ores or rocks to recover or extract the gold contents thereof, without the consent of the operator of the mining claim, shall be guilty of “highgrading” or theft of gold and shall suffer the penalty of prision correctional in its minimum period, but if the accused is an employee or laborer of the operator of the mining claim, the penalty shall be prision correctional in its

medium period without prejudice to the imposition of higher penalties provided in Art. 309 of the Revised Penal Codes if the value of the goods stolen so warrants. Chapter Four USURPATION Art. 312. Occupation of real property or usurpation of real rights in property. Art. 313. Altering boundaries or landmarks. 1. The application of Art. 312 was emasculated to a certain extent by the issuance on Aug. 30, 1975 of P.D. 772 which penalized acts of squatting where the taking was by violence, intimidation, threat or taking advantage of the absence or tolerance of the owner. That decree applied to urban properties or communities (People vs. Echaves, Jr., ect., et al., G.R. Nos. L-47757-61, Jan. 28, 1980; Bernardo, et al., vs. People, G.R. No. 62114, July 5, 1983), hence Art. 312 was limited only to rural areas. With the repeal of P.D. 772 by R.A. 8386 which was approved on Oct. 27, 1997, Art. 312 has been restored to its original force and application. 2. The offender must have employed violence or intimidation, with the threats made by him being absorbed as elements of intimidation, and he must have acted with animus lucrandi (Castrodes, et al., vs. Cubelo, etc. et al., G.R. No. L-47033, June 16, 1978). Usurpation cannot be complexed with injuries inflicted by violence used on that occasion as the penalty for the former shall be in addition to the penalty for the injuries. 3. If what is usurped is public agriculture land which is covered by an application of a claimant but the title of which is still in the name of Government, the crime shall be proceeded against under R.A. 947. 4. If the accused had no intent to gain but he used violence on the occupants of the property for reasons of his own, the crime is grave coercion (People vs. Nebrija, 76 Phil. 119). If he likewise had no intent to gain and did not employ violence but he caused damage to the property, he will be liable for malicious mischief (Art. 327). 5. The intimidation or violence referred to here is the means employed by the offender in securing possession of the land (People vs. Dimacutak, et al., CA, 51 O.G. 1389). If the violence was used by him to retain possession of the land in defiance of a writ of execution ordering his ouster therefrom, he will be liable for contempt (People vs. Leyson, et al., CA, 57 O.G. 6633), aside from his criminal liability for intimidation or physical injuries, if any. 6. The alteration of boundaries or landmarks in Art. 313 can be committed without intent to gain. Such intent is not required as this article even applies to boundaries of towns and provinces. Also, while it is a crime against property, not all crimes against property require animus lucrandi. Malicious mischief is a crime against property but if complemented by intent to gain, it will be theft under Art. 308 (2). Also, setting fire to one’s property in an uninhabited place (former Art. 326, which has been reiterated in Sec.2 [7], P.D. 1613) does not require intent to gain. Chapter Five CULPABLE INSOLVENCY Art. 314. Fraudulent insolvency. 1. To abscond is to hide, conceal or absent oneself clandestinely, with the intent to avoid legal processes (Smith vs. Johnson, 43 Neb754, 62 N.W. 217). Accordingly, the property involved may be real or personal property (People vs. Limgobom, et al., 45 Phil. 372). It is necessary, however, that actual damage or prejudice must have been caused by the absconder to his creditors. 2. The culpable insolvency referred to in this article is a criminal act and is different from that involved in the proceedings under the Insolvency Law (Act No. 1956) which refers to absconding after the institution of the aforesaid proceedings. The crime in this article may be committed even without any insolvency proceedings having been instituted. Chapter Six SWINDLING AND OTHER DECEITS Art. 315. Swindling (estafa). 1. Art. 315 is the principal repository of the law estafa or swindling, which felony has two basic and indispensable elements, that is, (a) abuse of confidence or deceit as the means of committing the crime, and (b) damage or intent to cause damage capable of pecuniary estimation as the basis for the penalty. Par. 1 deals with abuse of confidence or unfaithfulness, and Par. 2 and 3 are concerned with deceit or fraudulent means. See P.D. 818 which further amended this article by increasing the penalties for estafa committed by means of bouncing checks as defined in Par. 2(d) hereof.

2. Estafa has features similar to theft which sometimes cause controversial decision, but they are ready distinguishable under present jurisprudential guidelines. An early case held that in theft there is a “taking” while in estafa there is a “receiving” by the offender (U.S. vs. Vera, 43 Phil. 1000), but the law in this distinction is the fact that even if the property was received by the offender but only the physical possession of the object was transferred, his appropriation thereof would still constitute the crime of theft. 3. A more important and accurate distinction is that in estafa with abuse of confidence, juridical possession to the property passes to the offender who thereafter converts the same to his own use or purpose, while in theft only the physical or material possession of the object is transferred. 4. There is transfer of juridical possession when the transfer of the property is made by virtue of an obligation created by a valid contract or by law, which grants to the transferee a right possession which he can set up even against the transferor. This distinguishing definition is important if, and subject other caveat that there is no fraud in the taking or the transfer. The moment there is fraud or deceit in such transfer or transfer or transaction, the crime shall always be estafa. 5. If aside from material and juridical possession, ownership was also transferred to the errant transferee, his default in the return thereof will only entail civil liability. Thus, when the thing transferred is fungible or consumable and under circumstances of mutuum, there is transfer of ownership and any liability is only civil in nature. 6. Once acts constitute of estafa have been fully committed, the criminal responsibility of the accused cannot be converted to civil liability by subsequent agreement of the parties (U.S. vs. Montamer, 8 Phil. 620; U.S. vs. Velazco, 42 Phil. 76), and prosecution will lie even if complete reparation was made by the offender (Javier vs. People, 70 Phil. 550). 7. But where there is only incipient criminal liability, or that liability which is only beginning to come into being or to become apparent, a novatory agreement entered into by the parties prior to the filing of the information can erase criminal liability (People vs. Galsim, CA, 45 O.G. 3466; People vs. Trinidad, CA, 53 O.G. 731), even if the novation was reduced to writing after the case was filed in court (People vs. De la Rama, CA, 54 O.G. 7083). In People vs. Nery (G.R. No. L-19567, Feb. 5 1967), a prosecution for estafa involving sale of jewelry on commission, the Supreme Court held that the failure of the accused to account for the jewelry or the proceeds of the sale thereof constituted only incipient criminal liability for estafa, but if the parties agreed to convert their original agreement into an ordinary creditor-debtor relation by agreeing on the payment of the jewelry, such novation would extinguish the criminal liability. In other words, the original contract of sale on commission (agency) would become a contract of loan (mutuum) and would result only in civil liability (see, in this connection, the cases of Gonzales vs. Serrano, etc., G.R. No. L-25791, Sept. 23, 1968; Ong vs. CA, et al., G.R. No. 58476, Sept. 2, 1983; Guingona, Jr. vs. City Fiscal, et al., G.R. No. 60033, April 4, 1984). 8. The aforesaid ruling in Nery does not apply to a theft case since there is no bilateral agreement or contractual relation which can be modified or altered by the parties (People vs. Tanjutco, G.R. No. L-23924, April 29, 1968). 9. Where the accused had admitted having used the sales proceeds before she executed the promissory notes to pay therefor, it was held that the crime of estafa was already fully committed hence her liability could not only be civil in nature (Torres vs. People, G.R. No. L-21751, May 29, 1971). 10. Where the accused had already committed estafa by collecting and failing to over the rentals, then agreed to work for the employer with the misappropriated amount to be deducted from his salary but he thereafter failed to comply, he may still be convicted of estafa as no novation was involved. Since he was an employee and not an agent, there was no contract of agency which could be converted into a contract of mutuum (People vs. Benitez, 108 Phil. 920). 11. Permanent damage or prejudice is not required or necessary in estafa as the temporary disturbance of property rights is equivalent to damage (U.S. vs. Goyenechea, 8 Phil. 117). Even if the prejudice to the offended party is temporary in nature, as where the property remained with him but he could not fully exercise his right over it, the accused still be liable for estafa ( People vs. Santiago, 54 Phil. 814; People vs. Garde, CA, 54 O.G. 399). Temporary deprivation is sufficient damage (U.S. vs. Sevilla, 43 Phil. 186). 12. In estafa, the profit or gain must be obtained by the accused personally and his mere negligence in permitting another to benefit from the transaction is not estafa (People vs. Nepomuceno, CA, 46 O.G. 6128), subject to the rules on sub-agent as will hereafter be discussed. This is one of the distinctions between estafa and malversation. However if the accused acted in connivance with third persons who obtained the gain, he will be liable even if he did not profit personally (People vs. Trinidad, CA, supra). 13. As stated, the elements of estafa are abuse of confidence or deceit, and damage or intent to cause damage. a. Although they are alternative means, both abuse of confidence and deceit may be present in the same case. Where a person was entrusted with the sale of land for an agreed amount but he misrepresented his powers and sold it for a higher sum, then pocketed the overprice without informing the seller, he acted with deceit to the buyer and abuse of the confidence of the seller (U.S. vs. Lim, 36

Phil. 682). At any rate, it has also been held to be estafa thru abuse of confidence (Balitaan vs. CFI of Batangas, et al., G.R. no. L38544, July 30, 1982). b. The penalty for consummated estafa is based on the damage arising from the actual fraud; for attempted or frustrated estafa, it is the amount of the intended fraud (People vs. Nisperos, CA, 56 O.G. 7317). 14. Par. 1(a) punishes the offender for altering the substance, quantity or quality of the thing which he is obliged to deliver by virtue of an onerous obligation. a. A donation is a transfer by gratuitous title, hence a donor does not commit estafa under this provision unless what is involved is a remuneratory donation which is governed by the law on sales and is an onerous obligation. b. This provision applies even if the thing to be delivered is illegal, such as opium (people vs. Manansala, et al., 58 Phil. 796), or immoral, such as obscene literature or items. 15. Par. 1(b) provides for estafa by misappropriating or converting property which the offender received under a mode of transfer entailing juridical possession under a duty on his part to return or make delivery thereof. a. The offender must have received the property in trust, on commission, for administration or any other obligation requiring the delivery or return thereof. These other obligations may arise from contracts of bailment, like a lease of personal property, commodatum or contracts of deposit, the latter having been translated as “in trust” although the Spanish version says “deposito” People vs. Claparols, CA, 73 O.G. 10034). It may also be an obligation arising from a quasi-contract, such as solution indebiti (Art. 2154, Civil Code; U.S. vs. Yap Tian Jon, 34 Phil. 10). b. The subject matter must be money, good or person property. A check is included in the concept of money, not because of its ready acceptability in commercial transaction, but under the legal principle that when enchased, the law considers the amount as having been received on the date the check was given ( Galvez vs. CA, G.R. No. L-22760, Nov. 29, 1971). c. Bank deposit whether fixed, current or savings, are governed by the law on mutuum (Art. 1980, Civil Code), hence the failure of the bank to pay the same does not constitute estafa (Guingona, Jr. et al., vs. City Fiscal, et al., supra). In mutuum, ownership transfers to the transferee (People vs. Vadez, CA, 51 O.G. 821), thus his non-compliance will only result in civil liability. d. The failure of the entrustee of a trust receipt to account for proceeds of the sale constitutes estafa even if the money involved did not come from the entrustor. The former conflicting views on this matter have been definitely laid to rest by P.D. 11, the Trust Receipts Decree, issued on Jan. 29, 1973, which specifically declares such act as estafa under Art. 315 (People vs. Cuevo, G.R. No. L27607, May. 7, 1981). e. The amounts paid by the students to the school to answer for materials which may be broken by them are not in the nature of deposits which are to be returned in exactly the same bills or coins since the relation created thereby is to one depositor and depositary. The transaction was in the nature of a loan (mutuum) and not a contract of deposit (depositum). Ergo, the college acquired ownership over the amounts subject to reimbursement of equal amounts minus deduction for destroyed materials. The failure of the college to refund gives to rise to civil liability, not estafa (People vs. Montemayor, et al., G.R. L-17449, Aug. 30, 1962). f. The thing to be delivered or returned by the offender must be the very object which he received. Hence, where he was given a kilo of pork on the condition that he would give the monetary value thereof to the treasurer in behalf of the person who gave him the pork, his failure to deliver the money as agreed upon does not constitute estafa (U.S. Figueroa, 22 Phil. 269). g. There must have been no deceit in the taking of the subject matter but there must have been abuse of confidence, which is not required to be grave for purposes of estafa. Necessarily, there must have been some degree of confidential relations between the parties. Apropos to this, it has been held that the relation between a lessor and a lessee is not fiduciary in nature, and it cannot be a basis or estafa (People vs. De Vera, CA, 51 O.G. 3522). h. There must be a formal demand on the offender to comply with his obligations before he can be charged with estafa and, no exceptions were allowed in this requirement (People vs. Pendon, CA, 53 O.G. 174). Subsequently, it was held that such requirement yields to two exceptions: (a) when the offender’s obligation to comply is subject to a period (People vs. Librea, CA, 48 O.G. 5304), and (b) when the accused cannot be located despite due diligence (People vs. Villegas, CA, 55 O.G. 1983). i. The offender also commits this form of estafa by denying he received such money, goods, or other property. If he does not deny his receipt thereof but denies that he holds them in trust, on commission, for administration, and so forth, that would also be estafa as it amounts to the false blanket denial. j. Where a truck for personal use of the owner was rented by the accused, and during the agreed lease period the latter sold it, the crime was held to be estafa since he was in jurisdiction possession of the of the vehicle (People vs. Noveno, CA, 46 O.G. 1637). Where a passenger jeep was rented and sold by the accused, it was likewise held to be estafa for the same reason (People vs. Bonifacio,

CA, 48 O.G. 5301). This latter holding was, however, deemed abandoned by the ruling of the Supreme Court in People vs. Isaac (96 Phil. 931) which clarified that a public utility vehicle cannot be rented out for private purposes or be the subject of similar contracts which are prohibited by the Public Service Commission. The contract between the accused and the owner of the vehicle being the accused only had material, not juridical, possession thereof, hence his crime was qualified theft (see also People vs. Aviles, CA, 59 O.G. 1570). k. In the case of jewelry for sale on commission, the rule is that the agent must not violate the terms laid down by the owner regarding the details for the sale or the return of the jewelry if unsold. (1)Where the agent sold the jewelry on the security of promissory notes, it was held that she did not commit estafa, since there was no agreement or instruction that all sales should be on cash basis (U.S. vs. Morales, et al., 15 Phil. 236). But where, on similar facts, the agent sold the jewelry on credit although the agreement specifically required that they should be sold for cash, the agent committed estafa (U.S. vs. Panes, 37 Phil. 116). Where the agent sold the jewelry at prices lower than what was agreed upon with the owner, there was no estafa, but her misappropriation of the reduced sales price was estafa (U.S. Torres, 11 Phil. 606). (2) In the afore-cited case of Torres it was also held that if the jewelry intended to be sold was instead pledged by the agent who failed to account for the amount received from the pledgee, the crime is also estafa as, there being a contract of agency, she had juridical possession thereof. On the ether hand, if the jewelry was merely given by the owner to be pledged but the accused sold them, the crime is theft as there was no agency agreement and the latter had only material possession (People vs. Trinidad, 50 Phil. 65). (3) If the agent entrusted the jewelry to her sub-agent without the knowledge or consent of the principal, and the jewelry or the value thereof was not recovered, the agent is guilty of estafa (People vs. Flores, CA, 47 O.G. 6210); but if that arrangement with the sub-agent was with the principal’s knowledge or consent, the agent incurs no liability absent any collusion with the sub-agent (People vs. Nepomuceno, CA, 46 O.G. 6128). 1. In a partnership, where the property converted by the accused was contributed for a specific partnership purpose, he is guilty of estafa (People vs. De la Cruz, G.R No. L-21732, Sept. 3, 1924); but if the property was contributed for a general partnership purpose, there can be no estafa without prior liquidation (U.S. vs. Clarin, 17 Phil. 84). m. Regarding the liability of sales commission agent, it will depend on the terms of the contract whether or not fiduciary relations were established thereby, and whether or not juridical possession was acquired by the agent over the property in question. (1) As a general rule, the possession of a sales commission agent is juridical in nature, hence his conversion of the property is estafa, not theft (Guzman vs. CA, 99 Phil. 703). Where, however, he was only authorized to solicit orders from customers but not to deliver or repossess goods, and without the principal’s he repossessed the goods and pawned them, the crime is theft as he was not vested with juridical possession over the goods (People vs. Maglaya, G.R. No. L-29243, Nov. 28, 1969). (2) The act of the agent of retaining or deducting his accrued commissions from his collections has been clarified by decisional rules, to wit: (a) if such retention or deduction had been authorized by the principal, there will be no criminal liability (People vs. Aquino, 52 Phil. 37); (b) If such retention is for protection against a possible civil controversy there is no estafa (U.S. vs. Berbari, 42 Phil. 152), as where there is a pending mutual accounting between the parties (People vs. Cunanan, CA, 57 O.G. 2926) or where the principal had previously failed to pay the agent’s accrued commissions in an amount bigger than that retained by the agent (People vs. Jumawan G.R. No. L-28060, Feb. 27, 1970); and (c) If the retention was not authorized by the principal nor was it for protection against a civil dispute, there is liability for estafa (People vs. Leachon, 56 Phil. 737). n. In the contract of depositum, the depositary has juridical possession over the deposited article. Hence, conversion thereof constitutes estafa (People vs. Nicolas et al., CA, 58 O.G. No. 3, p. 472). o. Where the sale of the appliance was on a trial basis and the buyer did not give notice of rejection after the end of the trial period, the ownership of the passes to him. His subsequent sale thereof does not make him liable under Par. 1(b) since he exercised an act of ownership over the property (People vs. Joyce, CA, 66 O.G No. 45, p. 10163). It is submitted, however, that this resolution will not apply if the contract of sale on trial basis contains a reservation of ownership by the seller unless the price of the sale was fully paid. ` 16.Par. 1(c) punishes as estafa the act of the offender who takes advantage of the signature in bank of the victim, and by writing any document above the same without the knowledge or consent and to the prejudice of the victim. a. If the paper with the signature in bank is delivered to the offender who then filled it up not according to the instructions or intendment of the signatory, the crime is estafa and falsification is absorbed therein pursuant to the specification in this provision.

b. If that same paper was not delivered to the accused but he obtained the same and filled it up, all without the victim’s knowledge or consent, the crime is falsification under Art. 17(3) by attributing participation in that act as signatory. There is no abuse of confidence here as it was not delivered to the accused. c. If there is a writing above the signature and it was altered by the offender without the signature the signatory’s knowledge and consent, it will be falsification under Art. 171(6) because of the intercalation to change the meaning of the writing. d. If the signature was secured by fraud, the crime is estafa under Par. 3(a) by inducing another, though deceit, to sign a document. e. The estafa covered by Par. 1 (c) of this article is different from the crime in Art. 316(4) consisting of the execution of a simulated contract, because in the latter case the person who executed the fictitious contract is himself the one who signed the same. 17. Pars. 2, and 3, as already stated, provide for estafa though deceit. Par.2(a) classifies acts committed prior to simultaneous with the fraud into (a) of fictitious name, (b) pretense of power, etc., or imaginary transaction, and similar deceits. a. Where the accused obtained money from the offended party on a promise that he would work for the approval of certain applications but did not succeed, it is not estafa as the parties had actually entered into a contract for services, unless it is that the accused had no intent to perform the services at time he asked for the money (Abeto vs. People, 90 Phil. 581; People vs. Wilson Yee, CA, 55 O.G. 1222). b. Thus, where the accused undertook to purchase palay for the victim but failed to deliver as promised, there is no estafa even if he had received advance payment, unless there was misrepresentation on his part or fraud in the inducement, or if he had no intention from the outset to comply with his undertaking, there being pretense or deceit in both instances (People vs. Dizon, CA, 53 O.G. No. 4113). c. However, even if the accused had the intention to comply with his undertaking but to obtain the victim’s agreement he resorted to misrepresentations that his brother was an authorized agent and a close friend of the foreign affairs secretary, which were not true, there was pretense of power and influence, and he was guilty of estafa (People vs. Buted, CA, 47 O.G. 6259). d. Where the accused submitted trainman’s receipts for sugarcane belonging to another, to make it appear the same belonged to him so he could thereafter collect the price thereof, he is guilty of estafa under this paragraph, and not of theft, as there was no physical taking by him of the said sugarcane (Jane vs. CA, et al., G.R. No. 63129, Sept. 28, 1984). e. Where the accused commits the crime of illegal recruitment under the Labor Code, his act of causing damage to the victim under the false pretense that he has been licensed to engage in recruitment and placement activities, for which he was paid by the victim, will hold him separately for estafa under this paragraph (People vs. Benemetrito, et al., G.R. No. L-120389, Nov. 21, 1996; People vs. Tan Tiong Meng, G.R. Nos. 120835-40, April 10, 1997). With regard to illegal recruitment, Art. 13(b) and Art. 34 of the Labor Code provide how it is committed. As to who will be liable is explained in the Migrant and Overseas Filipinos Act of 1995 (Sec. 8, R.A. 8042; see People vs. Chowdury, G.R. Nos. 129577-80, Feb, 2000). f. The accused may be convicted for both illegal recruitment and estafa. Illegal recruitment is malum prohibitum while estafa is a malum in se, hence the criminal intent of the accused is not necessary for conviction in the former but is required in the latter pursuant to Art. 315, par. 2, of the Revised Penal Code (People vs. Saulo, G.R. No. 125903, Nov. 15, 2000). Furthermore, the two Codes involved provide specific penalties for the offenses respectively committed as provided therein. For this and the foregoing reasons, the two offenses cannot constitute a complex crime. 18. Par. 2(b) has been more or less supplanted by the Weights and Measures Act and other special commercial laws, including the offense of manipulating weighing scales. 19. In estafa under Par. 2(c), 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, and the penalty shall be imposed in the maximum period. If, to commit estafa, he promised to bribe a government employee to convince the victim of his capacity to achieve their agreed purpose, he can be liable for estafa under Par. 2(d) for acting with pretense of power or influence, but not for the defamatory statement. 20. Par. 2(d) governs the crime of estafa thru the so-called bouncing checks. The particular provision has been amended and the penalties increased on Oct. 22, 1975 by P.D. 818. For instance, the penalty shall be reclusion temporal in its maximum period if the amount of the defraudation exceeds P22,000 plus an additional year for each P10,000 but not to exceed 30 years. Hence, a defraudation of P55,000 was punished by 23 years and a defraudation of P32,000 by 21 years (People vs. Dy, G.R. Nos. 54912-13, Nov. 23, 1981).

a. This provision punishes the crime of estafa with the bouncing checks of the offender being the means for the commission of the defraudation. It should be distinguished from the offense under B.P. 22, the gravamen whereof is the issuance of worthless or bum checks, thus the difference in the elements of these two offenses. Those of the felony provided herein are as follows: (1) The issuance by the offender of the check prior to or simultaneous with the transaction, must be for the purpose of contracting the obligation, otherwise if the check is issued in payment of a pre-existing legal obligation, no estafa is committed (People vs. Lilius, 59 Phil. 339; People vs. Sabio, Sr. G.R. No. L-45490, No. 20, 1978), and this rule applies to a postdated check issued in payment of a pre-existing obligation (People vs. Go Bio, Jr., G.R. No. 69575, June 6, 1986); (2) The drawer did not have any funds or had insufficient funds in the bank to answer for that check; and (3) The payee was not informed by the offender, and the payee did not know that the offender had no funds or insufficient funds; otherwise, there would be no deceit and no estafa. b. Before Par. 2(d) was amended on June 17, 1967 by R.A. 4885, a further element for this felony was that the offender knew that he did not have funds or had insufficient funds at the time he issued the check. This was eliminated by said amendatory law which, instead merely established the prima facie evidence of deceit if the drawer failed to deposit the amount necessary to cover the check within 3 days from notice of its dishonor. c. The check involved need not be postdated and any check will do, as clarified in People vs. Fernandez (59 Phil. 615; cf. People vs. Cua, CA, 72 O.G. 3182). In fact, even an antedated check can cause such injury, as where the offender who is no longer authorized by the company to sign and issue company checks put the date on the check as of the time when he was still authorized to issue the same and then maintains an account for that purpose. d. If the check, however, 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 (People vs. Obieta, CA, 52 O.G. 5224; People vs. Lagura, CA, 74 O.G. 4261; People vs. Tan, CA, 75 O.G. 1634). There would be no deceit on the part of the accused, therefore, no estafa was committed (Pacheco vs. et al., G.R. No. 126670, Dec. 8, 1999). e. Estafa thru bouncing checks can be committed not only against the payee, but also against an indorsee. If the payee was aware of the drawer’s deceit, he is a co-principal and the indorsee will be the offended party but, this time estafa under Par. 2(a) on imaginary transactions deceits. Par. 2(d) refers to the act of the drawer, not of the payee-indorser; but if said payee was in collusion with the drawer, then estafa under Par. 2(d) can apply to him. f. The other way around is possible, that is, where the drawer is innocent but it is the payee who is guilty. Where the check was issued by the drawer for an innocent purpose without the intent to have the same cashed but just to accommodate the payee who represented that he would merely show the check to the creditor to gain time to pay his account. The payee, contrary to such agreement, negotiated the check which bounced, hence the liability for estafa should be with the payee (see People vs. Isleta, et al., 61 Phil. 332). g. Where the drawer of the check countermands the payment thereof by the bank for a justifiable reason, he will not incur any liability in connection therewith; but if his purpose was to defraud, as where he had received money for the check which he did not reimburse, and he had from the outset intended to countermand payment of the check, he is liable for estafa (U.S. vs. Lee Cheng Poe, 39 Phil. 466). h. Attention was invited to the amendment of Par. 2(d) of this article by P.D. 818 which increased the penalty for estafa thru bouncing checks, where the defraudation exceeds P22,000, by an additional one year for each excess P10,000, but the total should not be more than 30 years; and such total penalty and its accessory penalties shall be termed reclusion perpetua. As explained in People vs. Reyes (G.R Nos. 101127-31, Aug. 7, 1992, cited in Note 1 of Art. 27), the additional one year imposed for each excess P10,000 would be considered as an incremental penalty (instead of “additional” penalty which usage is identified with habitual delinquency). If the penalty imposed in Par.2 (d) plus the incremental penalty exceeds 20 years which is the maximum range of reclusion temporal, that penalty should be considered as reclusion perpetua. At that time, reclusion perpetua did not have a fixed duration, and it was only when Art. 27 was amended by R.A. 7659 in that it was given a definite duration of 20 years and 1 day to 40 years. In People vs. Hernando, et al. (G.R. No. 125214, Oct. 28, 1999), the accused in the sum of P700,000 and sentenced to serve 30 years of reclusion perpetua pursuant to that amendment by P.D. 818. The Supreme Court ruled that they should instead be given an indeterminate, and not a straight penalty. It was posited that even if the amount exceed P22,000, the penalty is nevertheless still reclusion temporal in the maximum period; that the increased penalty known as reclusion perpetua “merely describes the penalty actually imposed on account of the amount involved,” and that the excess amount “should not be considered in the initial determination of the indeterminate penalty,” but to be “taken as analogous to modifying circumstances in the imposition of the maximum term” of the indeterminate sentence. This doctrine was followed in the cases of People vs. Panganiban (G.R. No. 133028, July 10, 2000) and People vs. Menil, Jr. (G.R. Nos. 115054-66, Sept. 12, 2000).

While the intent to construe laws in favor of the accused is laudable, there are some legal implications calling for further rumination. The Indeterminate Sentence Law specifically excludes from its coverage, among others, “persons convicted of offenses punished with death penalty or life imprisonment,” the latter having since then been understood to refer to or include reclusion perpetua. This is because of the gravity of the offenses contemplated and also because reclusion perpetua and death are indivisible penalties. While under Art. 27, as amended, reclusion perpetua, has now acquired a fixed duration, it is still an invisible penalty (People vs. Lucas, G.R. Nos. 108172-73, May 25, 1994). Yet in the Hernando case, the maximum period imposed was 30 years of reclusion perpetua, thus treating it as a divisible penalty, and apparently for the first time, imposing reclusion perpetua as part of an indeterminate sentence. Also, while it is urged that the amount in excess of P22,000 should merely be considered as analogous to modifying circumstances, this presents a problem of concept and terminology. The generic term of “modifying circumstances” is used for the attendant facts which, as provided in the Code, either absolve from, or determine the degree or period of, the penalty (Arts. 11 to 15), or qualify the offense into another felony. Contrarily, the punitive increments provided by P.D. 818, which take the sentence beyond reclusion temporal, are penalties per se separately computed on the basis of the amounts involved, just, as in other felonies where discrete penalties are determined by the damage or injury in each case. Besides, analogous circumstances are allowed only in Art. 13(10) on mitigating circumstances. Significantly, the aforesaid pronouncements in Hernando are virtually taken from People vs. Gabres (G.R. Nos. 118950-54, Feb. 6, 1997). The penalty of reclusion perpetua was involved therein because although the estafa cases subject thereof were committed in 1992, the provisions of P.D. 818 were not applied or taken into account. On the matter as to whether or not the doctrine in Hernando, et seq. has affected the ruling in Reyes which declared penalties of more than 20 years as falling within the ambit of reclusion perpetua, the answer is in the negative. The former is a decision in division and cannot modify or reverse the doctrine in the latter which was handed down in a decision en banc. Furthermore, the question presented in Hernando was whether, in the judgment, an indeterminate sentence can be imposed even if the maximum thereof is reclusion perpetua. In Reyes, on the other hand, the issue was whether bail can be granted, even at the start of the case but before judgment, where the offense is punishable by reclusion perpetua. This, of course, is expressly proscribed by the Constitution (Sec. 13, Art. III) and the Rules of Court (Secs. 4 and 5, Rule 114). 21. Regarding Par. 2(e), this was amended by C.A. 157 on Nov. 9, 1936 since, as a matter of law and experience, a person who orders food and obtains accommodation from restaurants, hotels or lodging houses impliedly represents that he has the means to duly pay therefor; consequently his act of reneging and absconding thereafter confirms his liability for estafa. This was not the subject of the Lilius case in 1933 as, although unpaid hotel bills were also involved the prosecution was founded on his payment thereof through bouncing checks. The rule therein that there is no estafa if the bouncing checks were issued in payment of a pre-existing obligation still holds true despite the amendment of Par. 2(d) by R.A. 4885. 22. B.P. 22, which took effect on April 24, 1979, is the special law on bouncing checks, the proliferation of which crime posed a serious danger to the country’s commercial interests and called for this remedial legislation sans the intricacies of prosecuting estafa involving so-called rubber checks. There are distinguishing features between the two laws, and the main aspects are readily discernible. a. Unlike estafa thru bouncing checks in the Code, the crime in B.P. 22 is a malum prohibitum and it is classified as a crime against public interest. It applies whether the check is contemporaneously dated or postdated. The elements of deceit and damage in estafa are not required in B.P. 22 as, being malum prohibitum, the intent of the accused is immaterial; and the issue of damage is like inconsequential since a specific penalty is imposed and the amount of the fine is based on the amount of the check without regard to the damage sustained by the offended party (Lozano vs. Martinez, ect., et al., G.R. No. 63419, Dec. 18, 1986; People vs. Manzanilla, ect., et al., G.R Nos. 66203-04, Dec. 11, 1987; People vs. Laggaui, ect., et al., G.R. Nos. 76262-63, Mar. 16, 1989). b. There is no distinction as to whether the check was issued in payment of or to guarantee an obligation (Que vs. People, et al., G.R. Nos. 75217-18, Sept. 21, 1987). If the corresponding elements are present, the accused may be prosecuted both for estafa thru bouncing checks and under B.P.22 (Sec. 5), since there are elements in one which are not present in the other. B.P. 22 has been declared constitutional as a valid exercise of police power (Lozano vs. Martinez, ect., et al., supra, and 7 companion cases). c. The basic elements for liability under B.P. 22 are that (a) the offender issues any check on account or for value; (b) he knows that he has no funds or has insufficient funds in the bank at the time; and (c) the check is subsequently dishonored for lack or insufficiency of funds or credit, or would have been dishonored for the same reason if, without valid ground, he did not stop payment. d. Even if with sufficient funds, the accused must maintain that account or a credit to cover the full amount of the check if presented within 90 days from the date of the check, otherwise he will be liable if the same is dishonored within that period. It will also be noted that the accused will be liable for the dishonor of the check even if it was issued in payment of a pre-existing legal obligation as he issued that check “to apply on account” (Sec.1).

e. If the check is issued by a juridical person and the same is dishonored, the person or persons liable are those who signed the check. The penalty is imprisonment of 30 days to one year and/or a fine not less than, and not more than double, the amount, but not to exceed P200, 000. f. The drawer is presumed to be aware of the insufficiency, of his funds unless he pays the holder or makes arrangements for full payment with the drawee bank within 5 banking days from notice of non-payment (see Ting Seng Dee, et al., G.R. No. L-40665, Nov. 13, 200). g. The drawee must state the reason for the dishonor, even if the payment was stopped, specifically if the reason is the insufficiency of funds; and the drawee’s written statement shall be prima facie evidence of the drawing, presentment and dishonor of the check and the reason therefore. 23. Knowledge of lack or insufficiency of funds at the time of the issuance of the check is an essential element. Hence, the wife who merely co-signed, as joint depositor, her husband’s check which bounced, but had no other participation in the transaction, is not answerable for the criminal liability arising from her husband’s acts (Dingle vs. IAC, et al., G.R. No. . No. 75243, Mar. 16, 1987). 24. Estafa under Par. 3(a) requires that the offender resorted to deceitful inducements without which the victim would not have signed the document. If the victims had been willing to sign the document from the start and in fact asked that the same be prepared, but the accused drew up a different document, the crime would be falsification by attributing to the victim statements other than those in fact made by them (U.S. vs. Capule, 24 Phil. 12). 25. In estafa committed by resorting to fraudulent practices to insure success in gambling, as provided in Par. 3(b), the offender shall be liable even if the victim knew that it was a fraudulent gambling game but nonetheless participated therein (People vs. Romero, CA, 53 O.G. 695). 26. For estafa in Par. 3 (c), the removal, concealment or destruction of court records, office files documents or any other papers must been done by the accused with the specific intent to defraud those who are concerned in or affected by those papers. If there was no intent to defraud anybody, it could be malicious mischief. If these acts were committed by a pubic officer who is officially entrusted with those documents, it would be infidelity in the custody of documents (Art. 226). Art. 316. Other forms of swindling. 1. Par. 1 presupposes that the property actually exists but does not belong to the offender who, under pretense of its ownership, effects the stated dispositions thereof. a. If the property does not exist but the offender makes the dispositions though false pretenses or misrepresentation, it would be estafa under Par. 2(a). b. If the offender acts under the pretense of having the right of possession for purposes of the disposition of the property calling for the exercise of that right, that would be estafa likewise under Par. 2(a), and not under this article (People vs. Absalud, CA-G.R. No. 11679-R, Feb. 21, 1955). 2. In Par. 2, the essence of the crime is the disposition of legally encumbered real property by the offender under the pretense or misrepresentation that there is no encumbrance thereon. a. There is an error by omission in the English text of this paragraph as it now appears. The authoritative Spanish original on this portion provides “El que dispusier de un inmueble como libre sabiendo que estaba gravado,x x x” but the italicized phrase which should have read “as free from encumbrance” was omitted, hence jurisprudence has to supply the omission. b. Such fraudulent disposition must have been made by the accused with knowledge of the existence of the encumbrance and the vendee did not know thereof (People vs. Escueta, CA-G.R. No. 6639, Feb. 18, 1941). c. The accused must have expressly misrepresented that the property is free from encumbrances, by such phrases in the document as “free from liens and encumbrances” or the standard “libre de toda carga y gravamen.” While Art. 1339 of the Civil Code considers as fraudulent the “failure to disclose facts when there is a duty to do so,” this rule on civil fraud does not apply to the present requirement of criminal fraud. d. An unregistered real estate mortgage has been held as not constitutive of an encumbrance on the property because of the provisions of Art. 2125 of the Civil Code. Accordingly, the disposition thereof as unencumbered realty is not estafa (People vs. DE la Cruz, CA, 52 O.G. 4725). e. Even if the mortgage on the property is duly recorded in the Registry of Deeds but the accused misrepresented in the deed of sale that there are no liens or encumbrances thereon, he commits estafa under this article. The principle of constructive notice because

of such registration is not applicable here as the basis of the crime is the deceit in such misrepresentation (Antazo vs. People, G.R. No. L-45278, Aug. 28, 1985). f. In the sale or realty under the circumstances in this paragraph, if the one defrauded is the purchaser or the encumbrancer, the crime is estafa (People vs. Luzentales, CA, 55 O.G. 48). If the one defrauded is the creditor, and the debtor has no other property, the offense is culpable insolvency (Art. 314). g. To mortgage a house for 5 years as free from encumbrances, when in fact there was an existing first mortgage thereon, constitutes estafa. The fact that the second mortgagee is thereby deprived of the use of his money given as the mortgage loan is the element of damage in the crime (People vs. Galsim, 107 Phil. 303). 3. Estafa in Par. 3 is committed by the owner who unlawfully takes by any mode his personal property from the lawful possessor thereof and thereby prejudicing him or a third person. a. The personal property must be taken from a lawful possessor, otherwise there would be no offense if taken from an unlawful possessor even if reasonable force is used (Art. 429, Civil Code). Furthermore, unlike the rule in theft, an unlawful possessor cannot suffer any prejudice which is other element of estafa. b. The crime will still be estafa even if the owner takes the property from the lawful possessor under the modes of taking in theft or robbery (II Cuello Calon, Derecho Penal, pp. 830-831; VI Viada, 5th Ed., pp. 549-553) which crimes cannot be committed by the owner in his property. 4. Executing a fictitious contract to defraud another is estafa under Par. 4 of this article, and this applies whether the contract is absolutely or relatively simulated as long as it is to the prejudice of a contracting party or a third person (see Art. 1345 and 1346, Civil Code). 5. Accepting payment for unperformed labor or undelivered service is estafa under Par. 5 if done by the recipient in bad faith, as when he knows he is not entitled to it because he has not done what he has been paid for. If he accepted the payment in good faith, as through mistake, he would only be civilly liable under the quasi-contract of solutio indebiti. 6. Estafa in Par. 6 is committed by a person who disposes of or encumbers the real property which he posted as a surety in a bond given in a judicial action, without judicial authority or while his obligation as such surety was still subsisting. In Castillo vs. People (73 Phil. 489, it was held that there must be actual, and not only potential, damage caused by the act of the accused and that the rule on damages due to temporary disturbance of property rights does not apply. The reason given by the Supreme Court is that the penalty of fine in this type of estafa is conjunctive with imprisonment and proportional to the actual material damage caused. Furthermore, there could be no disturbance to the property rights of the opposing party as the land sold by the accused was his own. 7. See P.D. 1689, April 6, 1980, increasing the penalties for certain forms of swindling involving rural banks, cooperatives, and so forth. Art. 317. Swindling a minor. 1. In this form of estafa, the offender performs the different kinds of deception on the minor, as stated in this article, by taking advantage of the minor’s inexperience, emotions or feelings which thereby supplies the element of deceit. 2. This article does not apply if the minor was defrauded of real property or real rights by the aforementioned stratagems of the offender as the minor cannot convey or encumber real property without the consent of his parents or the court. The accused may be held liable under Art. 318. 3. In view of the amendment of the Family Code (E.O. 209) by R.A. 6809, approved on Dec. 13, 1989, majority commences at the age of 18 years (Art. 234), and such emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, except in special cases (Art. 236). Art. 318. Other deceits. 1. This is the other catchall provision in the Code. Illustrations of other deceits which the appellate courts have declared and punished as estafa are those wherein the offender (a) got a loan from the offended party on the promise to mortgage his real property to the latter, but he instead sold the land to another (People vs. Mendezong, 1 Phil. 696); (b) hired and used a vehicle but failed to pay the rental for lack of funds (People vs. Santingo, 55 Phil. 266); (c) offered to serve as a domestic servant then left after he received advance wages (People vs. Panlilio, 57 Phil. 952 [Unpub.]); (d) showed one lot to an interested buyer, but thereafter sold him a different lot (People vs. Ganasi, CA, 61 O.G. 3603); and (e) whitened a copper coin to make it look like a 20-centavo coin (peseta) which is silver plated, and then used it to pay an obligation (U.S. vs. Basco, 6 Phil. 110).

2. This article punishes fortune tellers who for profit take advantage of the credulity of the public. If, on top of that, the offender deceived the victim by pretending that he had supernatural powers it would be estafa under Par. 2(a) of Art. 315 (People vs. Rull, 72 Phil. 111). 3. Any kind of deceit resorted to by the offender to the prejudice of the victim is covered by this article which is intended as the catchall provision for that purpose with its broad scope and intendment. Chapter Seven CHATTEL MORTGAGE Art. 319. Removal, sale or pledge of mortgage property. 1. The chattel mortgage, in order to be the basis of the punitive provisions of this article, must be valid and subsisting, and the document must contain all the formal and substantive requirements of the law (People vs. Vda. de Agoncillo, CA, 50 O.G. 4884) and duly registered as now required by Art. 2140 of the Civil Code (People vs. Mata, CA, 58 O.G. 6287), otherwise it will be considered only as a pledge. 2. A house may be the subject of a chattel mortgage if so agreed upon by the parties (People vs. Galsim, 107 Phil. 303; People vs. Daproza, et la., CA, 62 O.G. 5961). However, for its validity as already stated, it must be duly registered. If the mortgagee subsequently elected to file merely a collection suit instead of foreclosure, he thereby abandons the mortgage as the basis for relief from any violation by the mortgage under this article (People vs. Mata, supra). 3. The removal of the property from the province or city where it was located at the time of the execution of the contract, whether by the mortgagor or a third person is punishable if done without the written consent of the mortgagee. However, to be so punishable, there must be intent to defraud on the part of the mortgagor or it was unjustified under the circumstances. Where the mortgaged properties are taxicabs, their periodic removal is justified as the nature of the objects involves mobility (People vs. Torres, CA, 51 O.G. 6280). Where the mortgagor transfers in good faith, without the opportunity to inform the mortgagee, there is no violation as the former cannot just leave the property behind (People vs. Mata, supra). 4. Although Par. 2 of this article penalizes the mortgagor who shall “sell or pledge” the property for the second time, this prohibition includes a subsequent chattel mortgage, as the distinction between these two transactions and their concepts in civil law do not apply to this Code (People vs. Vda. de Agoncillo, supra; People vs. Ferrer, CA, 51 O.G. 6332). In fact, this paragraph says “shall sell or pledge personal property already pledged x x x under the terms of the Chattel Mortgage Law x x x.” 5. In both Par. 1 and Par. 2, to avoid penal liability, the written consent of the mortgagee must be obtained; and in sale or pledge under Par. 2, the mortgagee’s consent must further be written at the back of the instrument which should then be duly registered. 6. Even if the sale of the property was with the consent of the mortgagee, but the mortgagor sold the same as unencumbered, he commits estafa. If there was no written consent of the mortgagee, and the mortgagor sold the property as unencumbered, he commits two separate crimes against different offended parties, that is, estafa against the buyer, and violation of this article against the mortgagee (see People vs. Alvarez, 45 Phil. 472; People vs. Galsim, supra). Chapter Eight ARSON AND OTHER CRIMES INVOLVING DESTRUCTION Art. 320. Destructive arson. 1. Arts. 320 to 326-B of this Code were expressly repealed on Mar. 7, 1979 by Sec. 9, P.D. 1631 which is now the basic law on arson. However, Art. 320 was restored by P.D. 1744 issued on Nov. 11, 1980 and was later amended by Sec. 10, R.A. 7659 as now presented here, to constitute the present law on destructive arson. 2. P.D. 1613 is reproduced hereunder with the caveat that, with the changes explained in Note 1 hereof, its provisions on destructive arson (Sec. 2) were effective only from Mar. 7, 1979 to Nov. 10, 1980. xxx Section 1. Arson. - any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another.

Sec. 2. Destructive Arson. - The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. 2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. 3. Any church or place of worship or other building where people usually assemble. 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. 5. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings. 6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. 7. Any building, whether used as a dwelling or not situated in a populated or congested area. Sec. 3. Other Cases of Arson. - The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industries establishment shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest; 5. Any rice mill, sugar mill, cane mill or mill central; and 6. Any railway or bus station, airport, wharf or warehouse. Sec. 4. Special Aggravating Circumstances in Arson. - The penalty in any case of arson shall be imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons. Sec. 5. Where Death Result From Arson. - If by reason of or on the occasion of arson death results, the penalty of Reclusion Perpetua to death shall be imposed. Sec. 6. Prima Facie Evidence of Arson. - Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building not necessary in the business of the offender or not for household use.

3. If the gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 5. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned by or under the control of the offender and/or insured. 6. If shortly before of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business, 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim. Sec. 7. Conspiracy to Commit Arson. - Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period. Sec. 8. Confiscation of Object of Arson. - The building which is the object of arson including the land of which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on this part. Sec. 9. Repealing Clause. - The provisions of Article 320 to 326-B of the Revised Penal Code and all laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Decree are hereby repealed or amended accordingly. Chapter Nine MALICIOUS MISCHIEF Art. 327. Who are liable for malicious mischief. Art. 328. Special cases of malicious mischief. Art.330. Damage and obstruction to means of communication. Art. 331. Destroying or damaging statues, public monuments or paintings. 1. Malicious mischief is destruction out of hate, revenge or other evil motive, for the specific purpose of destroying property. Hence, it cannot be committed thru reckless imprudence (Quizon vs. Justice of the Peace, etc., 97 Phil. 342) or thru violence in the course of a fight (People vs. Collantes, CA-G.R. No. 12086-R, Feb. 24, 1955). Also, the damages must not have been caused by arson or other destructive means as provided in the preceding Chapter Eight. 2. If property was maliciously damaged then appropriated by the offender, the crime would be theft under Art. 308(2), the malicious act being absorbed therein. Where the pigs of another were killed by the accused to avoid damage to his crops, he incurs only civil liability (People vs. Liddayao, 53 O.G. 8163). But where the cattle of the offender party were killed by the accused out of hate or for revenge, it would be malicious mischief (People vs. Valiente, CA-G.R. No. 9442-R, Dec. 29, 1953). 3. Art. 328 provides the special cases of malicious mischief, sometimes called qualified malicious mischief because of the graver nature of the consequences arising therefrom. Chapter Ten EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY Art 332. Persons exempt from criminal liability. 1. The relationship between the offender and the offended party operates as an absolutory cause in the crimes of theft, estafa and malicious mischief. Hence, the exemption does not apply to robbery or where one of the crimes mentioned here is complexed with another, such as theft falsification or estafa thru falsification. 2. Regarding the relatives mentioned in Par. 1, it has been held that included in the exemptions are parents-in-law, step-parents and adopted children (People vs. Alvarez, 52 Phil. 65; People vs. Adame, CA, 40 O.G., Supp. No. 12, p. 63). The exemption further applies to illegitimate children provided they are recognized or their filiation is duly proved. It does not apply, however, to an “illegitimate grandfather” (III Viada 625-626). “Spouses” included common-law relationships (People vs. Constantino, CA, 60 O.G. 3603) as, in fact, their property relations are governed by the law on co-ownership. It is submitted that the exemption should apply even in case of legal separation, provided there has yet been no dissolution of the conjugal partnership.

3. In the case of the widowed spouse, she is also exempt if the property belonging to the estate of the deceased has not “passed into the possession of another.” Consequently, if the estate already under judicial settlement, the exemption cannot be invoked as the property is deemed to be in the possession of the administrator or in custodia legis if the inventory thereof has been approved by the probate court. 4. Brothers and sisters or brothers-in-law and sisters-in-law will also enjoy the exemption if they are actually living together but not where one is only given temporary shelter by the other, for then the closeness of the ties of consanguinity or affinity would be supplanted by considerations of convenience which may be taken advantage of. TITLE ELEVEN CRIMES AGAINST CHASTITY Chapter One ADULTERY AND CONCUBINAGE Art. 333. Who are guilty of adultery. Art. 334. Concubinage. 1. Crimes against chastity are also referred to as private crimes, or crimes which cannot be prosecuted de oficio, because of the requirement that the prosecution thereof be upon a sworn written complaint of the offended party or certain persons authorized by law. While in legal contemplation it is the law which confers subject-matter jurisdiction on the courts, that sworn letter complaint is not a mere formal requirement since it commences the prosecutory process and without it the courts cannot exercise their jurisdiction over the case. It is that sense that the complaint has been called a jurisdictional requirement in some decisions although it is more accurately a procedural sine qua non for the exercise of criminal jurisdiction in those cases. 2. The crimes against chastity which cannot be prosecuted de oficio are adultery (Art. 333), concubinage (Art. 334), acts of lasciviousness with or without consent (Arts. 336, 339), seduction whether qualified or simple Art. 337, 338) and abduction which may be forcible or consented (Arts. 342, 343). Two crimes against chastity, corruption of minors (Arts. 340) and white slave trade (Art. 341), can be prosecuted de oficio. Rape has been reclassified as a crime against persons and is governed by Arts. 266-A to 266-D. a. A defamation consisting of the imputation of a crime which cannot be prosecuted de oficio (Art. 360), or the so-called private libel, is not a crime against chastity but a crime against honor. However, a criminal action therefore also cannot be brought except at the instance and upon complaint of the offended party. 3. For the crime of adultery, the judicial validity of the offending woman’s marriage is not involved, as adultery can be committed even if the marriage be subsequently declared void or viodable but a judicial declaration whereof is necessary. The reason for this is that even void marriages produce legal effects regarding the children, hence the danger of introduction of the false heirs exist (U.S. vs. Mata, 18 Phil. 490). a. Thus, Art. 333 provides “even if the marriage be subsequently declared void,” and such a proceeding is contemplated by Art. 408(6) of the Civil Code, which further provides that the judicial declaration of nullity of the marriage be recorded in the Civil Register. Sec. 2(f) of Rule 108 of the Rules of Court also provides for the same contingency and requirement (CF. Weigel vs. Sempio-Dy, etc., et al., G.R. No. 53703, Aug. 19, 1986). b. The validity of the marriage of the offender and the complainant is presumed (Sec. 5[bb], Rule 131; U.S. vs. Villafuerte, 4 Phil. 476), but if the accused woman and her alleged paramour claim to be married, then it is necessary that the marriage of the complainant and the accused woman be proved (People vs. Nebrida, et al., 32 Phil. 160). c. There will be separate crimes of adultery and bigamy even if the adultery resulted from or was by reason of the bigamous marriage. In People vs. Schneckenburger, et al., (65 Phil. 633), the Supreme Court did not initially resolve this issue for being premature, but when brought to the Court in another appeal (73 Phil. 413), it held that they were separate crimes. Also, in Del Prado vs. De la Fuente (28 Phil. 23), it was held that while the married man was acquitted of adultery because he did not know the woman was married, he could still be convicted of concubinage. These three offenses will constitute separate crimes as long as the elements for each offense are present. It is submitted that the Schneckenburger rule also applies where the crimes are concubinage and bigamy. d. The theory that every intercourse between a married woman and her paramour is a separate crime of adultery should be rationalized to mean adulterous acts on different occasions. The case of People vs. Zapata, et al. (88 Phil. 688) shows that the first conviction for adultery was for acts committed from 1946 to 1947 and the second prosecution for adultery against the same accused was for adulterous acts from 1947 to 1948. It would have been ridiculous to require the accused to account and hold them liable for as many physical acts of carnal intercourse they committed during those periods, which had to be considered as only two occasions. e. Regarding consent to or pardon of adulterous acts, in People vs. Guinucud, et al. (58 Phil. 621), it was held that consent refers to a past offense, but in People vs. Schneckenburger (73 Phil. 413), the ruling was that consent refers to future acts, while pardon applies to past acts. In People vs. Engle, et al., (CA, 43 O.G. 3733), the Court of Appeals adhered to the Guinucud doctrine, but in

People vs. Zapata, et la., the Supreme Court reiterated its Schneckenburger ruling. The present doctrine rule, therefore, is that consent applies to future acts, while pardon refers to past acts. The importance of this distinction lies in the fact that consent is valid and will exculpate from liability even if granted to only the offending spouse; but pardon, to absolve, must be granted to both offenders. f. The present rule on recrimination in crimes against has been stated to be that the illicit relationship of the complaining husband with another woman does not absolve the adulterous wife from her own transgressions. The husband’s misdeeds, however, may possibly be considered in mitigation of the wife’s liability (People vs. Florez, CA-G.R. No. 26089-CR, April 6, 1964). g. Where the wife committed adultery while having been unjustifiedly abandoned by the husband, that fact is declared by the law as a special extenuating circumstance which lowers the penalty by one degree. Curiously, in People vs. Avelino (CA, 40 O.G. Supp. No. 11 p. 194), it was considered also in favor of the paramour. This doctrine should be revisited as a misapplication of Par. 3, Par. 62. h. In People vs. Alberto (CA, 47 O.G. 2438), a wife, whose husband left in response to a duty and returned after a long time, took up with another man who supported her and her three children. Convicted of adultery, she was given a penalty two degrees lower on the theory that she did so out of sheer necessity for her and her children to survive, and another degree lower because it was proved that she acted in the honest belief that her husband was already dead. It is submitted that the facts relied upon could not properly qualified even as analogous mitigating circumstances. On the other hand, since she acted on ignorantia facti and in good faith that her husband was dead, she could have been acquitted in light of the doctrine in the bigamy case of U.S. vs. Enriquez (32 Phil. 202), absent any countervailing fact. i. In prosecutions for adultery or concubinage, the acquittal or subsequent death of one accused does not prevent the continued prosecution of the other in the pending case (U.S. vs. Topiño, et al., 35 Phil. 901); but the death of the offended spouse before the filing of the complaint is a bar to further proceedings. If, however, he died after the complaint had been duly prepared and filed, the criminal action can proceed (People vs. Diego, 38 O.G. 2537). j. There can be no accomplice in both adultery and concubinage. The crime shall be intriguing against honor in Art. 364 (III Viada 107). This doctrine in Spanish law appears to have been adopted in our Code. Thus, while Art. 346 provides for the liability of accomplices in rape, acts of lasciviousness, seduction, corruption of minors, white slave trade and abduction (Chapters Two, Three and Four), there is no mention of adultery and concubinage (Chapter One). Also, in the fourth paragraph of Art. 344, only co-principals, accomplices and accessories in the crimes of seduction, abduction, acts of lasciviousness and rape are benefited by the extinction of liability provided therein, but not in the adultery and concubinage. 4. Concubinage is committed in three ways. The element of habituality in the commission of the crime is required in the first and third modes. a. In the first mode, it is essential that the concubine be taken in and maintained by the accused husband in such a status and for that purpose in his and his wife’s conjugal dwelling, which need not be their conjugal property. The concubine must live therein as such for brief periods and mere carnal relations would not suffice (People vs. Hilao, CA, 52 O.G. 904), although scandal is not required (U.S. vs. Macababag, et al., 31 Phil. 257). b. Commission of the offense under scandalous circumstances is an element in the second mode. Proof of actual sexual relations is not required as long as these can be reasonably inferred from the circumstances and the conduct of the accused (Ocampo vs. People, 72 Phil. 268). The scandalous circumstances stated here must be such as to offend public conscience, giving rise to criticism and general protest, such acts being imprudent and wanton, and setting a bad example (People vs. Santos, et al., CA, 55 O.G. 3690). c. Where the offended party had to employ people to spy upon and watch the conduct of the husband, but there was no incriminating report and none of those living in the vicinity had observed any immoral or suspicious conduct on the part of portion accused, it cannot be concluded that there were relations under scandalous circumstances (U.S. vs. Campos Rueda, et al., 35 Phil. 51). d. While the law does not specifically so provide, it is necessary that the concubine knows that her paramour is a married man, as this situation is similar to adultery wherein such knowledge is required (People vs. Nepomuceno, Jr., G.R. No. L-40624, June 27, 1975). c. In the third mode, cohabiting in any other place requires that both accused actually live together as husband and wife. Occasional visits or mere transient interviews between the accused do not constitute cohabitation which is expressly required by the Code (People vs. Pitoc, et al., 43 Phil 758; People vs. Santos, et al., CA, supra.) Chapter Two RAPE AND ACTS OF LASCIVIOUSNESS Art. 335. (The legal concept of rape was expanded and, reclassified as a crime against persons, it was incorporated into Title Eight under Chapter Three as Article 266-A, 266-B, 266-C and 266-D.) Art. 336. Acts of lasciviousness.

Art. 339. Acts of lasciviousness with the consent of the offended party 1. The essence of acts of lasciviousness is lewd designs, that is, deriving vicarious pleasure from acts performed on the person of the victim. Accordingly, this offense is not absorbed in seduction wherein libidinous intent may be present even without acts of lasciviousness being performed against the offended party (People vs. Franco, Jr., CA, 53 O.G. 410). Acts of lasciviousness are always consummated (People vs. Famularcano, CA, 43 O.G. 1721). 2. In People vs. Jalosjos (G.R. Nos., 132876-79, Nov. 16, 2001), where the accused was convicted of two counts of statutory rape and six counts of acts of lasciviousness committed against the same victim, the Supreme Court adopted the definition of “lascivious conduct” in Art. XIII, Sec. 32, of the Implementing Rules and Regulations of R.A. 7610, which reads as follows; “The intentional touching, either directly or though clothing, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh or buttocks; or the introduction of any object into the genitalia, anus or mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; bestiality, masturbation, lascivious exhibition of the genitals or public area of a person.” Notably, this expanded definition does not limit the offender’s motivation to lewdness or eroticism but also considers as lascivious conduct the acts mentioned therein even if the intent was to abuse, humiliate, harass or degrade the victim as long as he or she is an exploited or sexually abused child below 12 years age. Under other circumstances, conduct under the latter motivations may ordinarily constitute maltreatment (Art. 266[3]) or unjust vexation (Art. 287). 3. Acts of lasciviousness under Art. 336 are without the consent of the victim since they are committed “under any of the circumstances mentioned in the preceding article,” that is, Art. 335 which used to be that for rape. It must be noted, however, that this reference is to the law on rape as it originally existed coetaneously with Art. 336, which was simple rape committed thru force or intimidation, or when the woman is deprived of reason or unconscious, or is under 12 years of age. Since it can also be committed against any person regardless of age or sex, it includes any abnormal sex acts, unless the same fall within the other crimes against chastity or other provisions of law. 4. Lascivious acts with consent punished by Art. 339 are committed by the same persons and under the same circumstances by the same persons and under the same circumstances in Arts. 337 and 338, that is, of qualified or simple seduction wherein the consent of the victim was obtained by abuse of authority, confidence or relationship, but without intercourse. Hence, only a woman can be the victim and only a man can be the offender, with the victim being a virgin, or single, or a widow of good reputation, and 12 years or over but less than 18 years of age. 5. There is again an oversight in the law where the victim is exactly 12 years old. If the victim is below 12, the crime will always be rape, or unconsented acts of lasciviousness or forcible abduction. Hence, the text of the corresponding articles stating “over twelve years of age” should be 12 years of age or over, thus construing the doubt in favor of the accused. a. Where the victim is under 12 years of age, the accused is liable under Art. 336 even if the victim performed the lascivious acts voluntarily since, in law, she cannot give valid consent thereto (People vs. Patiño, CA, 53 O.G. 3780). b. If the victim is 18 years old or over, there can be no crime of acts of lasciviousness with consent, unless the offender is a brother or an ascendant wherein, as in qualified seduction, the virginity or age of the victim is immaterial. 6. Certain provisions of R.A. 7610 which were adverted to in the notes under Arts. 266-A et seq. on rape have also to be taken into account. Sec. 5 thereof provides that “children, whether male or female, who for money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in x x x lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.” Sec. 5(b) correlatively provides for the punishment of “(t)hose who commit the act x x x lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 336 of x x x the Revised Penal Code for x x x lascivious conduct x x x: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.” See the illustrative case of People vs. Abadies (G.R. Nos. 139346-50, July 11, 2002) where the victim was 17 years old. 7. Where the lascivious conduct consists of sexual favors sought by a person having authority, influence or moral ascendancy over another in a work or training or educational environment, the same is punishable as sexual harassment under Art R.A. 7877 (Jacutin vs. People, G.R. No. 140604, Mar. 6, 2002). 8. If, under the proven facts, the acts performed by the accused on the person of the victim do not actually amount to attempted rape, the accused may still be convicted of acts of lasciviousness. The nature of the crime of rape essentially includes acts of lasciviousness (People vs. Caifiat, G.R. No. 137963, Feb. 6, 2002; Perez vs. CA, et al., G.R. No. 143828, May 9, 2002).

Chapter Three SEDUCTION, CORRUPTION OF MINORS AND WHITE SLAVE TRADE Art. 337. Qualified seduction. Art. 338. Simple seduction 1. An amendatory rule has been introduced by R.A. 7610, approved on June 17, 1992. Sec. 10(e) thereof provides that the penalty for the commission of acts punishable under Arts. 337, 339, 340 and 341 of this Code for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one degree higher than that imposed by law when the victim is under 12 years of age. 2. The gist of qualified seduction is the abuse of authority, confidence, or relationship as the means for committing the crime; in simple seduction, it is the use of deceit. Hence, as long as there is such abuse by the offender, the seduction is qualified even if there was also deceit, such as contrived promise of marriage, as this latter circumstance will merely be considered a superfluity. Deceit is not required in qualified seduction (People vs. Fontanilla, G.R. No. L-25354, June 28, 1968). 3. It has been posited that qualified seduction does not require physical virginity (virgo intacta) or as the term is understood in medical science. The legal view is that qualified seduction only requires virginity in law, that is, that the victim has had no other voluntary carnal relations with another man. a. Legal virginity, as thus understood, should have the same meaning as virginity in consented abduction (Art. 343). There is actually no legal conflict between U.S. vs. Suan (27 Phil. 12) on qualified seduction and U.S. vs. Casten (34 Phil. 808) on abduction with consent. In the first case, the complainant had maintained illicit relations with other men, thus she was not a virgin in any sense as she was virtually a public woman; while in the latter case, the woman previously had sexual relations with one and the same man who was the accused in the case hence, insofar as he was concerned, she was still a virgin in law. b. Since virginity is required by law, it is suggested that there can be no qualified seduction of a widow, unless it can be proved that she never had sexual relations with the deceased husband, even if she is 12 years or over and under 18 years of age, and there was abuse of authority, confidence or if the offender is a brother or ascendant. In any event, the victim’s virginity or age is immaterial, and the crime is categorized as qualified seduction as an expression of the laws revulsion against incest. c. For qualified seduction, there must be abuse of (a) authority, by a person in public authority, a guardian, a teacher, or a person entrusted with the education or custody of the victim, such as a housemaid; (b) confidence, by a priest, a house-servant or a domestic; and (c) relationship, by a brother or ascendant, whether legitimate or illegitimate, but not by adoption since incest is contemplated, hence the relationship must be by consanguinity. d. A domestic is different from a house-servant. A domestic is any person living under the same roof as a member of the same household, and includes boarders or houseguests but not transients or visitors (U.S. vs. Santiago, 41 Phil. 793; People vs. Subingsubing, G.R. Nos. 104942-43, Nov. 25, 1993). e. In People vs. Alvarez (G.R. No. L-34644, Jan. 17, 1974), while there was some intimation that the brother-in-law had taken advantage of his moral ascendancy over the victim, the fact that their relationship was by affinity is actually inconsequential. It was qualified seduction because of his abuse of the victim’s confidence since she lived in the same household as the accused and his wife, who was the victim’s sister, hence she was a domestic. f. Regarding a teacher, it is sufficient that he is a faculty member in the same school where the victim is studying even if she is not taking subjects under him, since such a teacher nevertheless exercises some influence over students in the same school (De los Santos vs. People, 69 Phil. 321). g. Seduction is not a continuing offense, hence the liability of the accused for cohabiting with the victim during a particular period under a promise of marriage is determined by the acts and circumstances o the parties during that period (People vs. Bautista, 76 Phil. 184; cf. U.S. vs. Salud, 10 Phil. 206). 4. For simple seduction, aside from the age requirement, it is only required that the victim is single or a widow of good reputation. It is not required in simple seduction that the victim be a virgin (II Cuello Calon, Codigo Penal, 10th Ed., pp. 580-581). a. A promise of marriage is usually the principal inducement, therefore it must precede the seduction (U.S. vs. Sarmiento, 27 Phil. 121), even if made 11 months before the act (People vs. Iman, 62 Phil. 92). b. Generally, a breach of a promise of marriage constitute the deceitful conduct but there have been other deceitful means resorted to, as where the offender convinced the woman that the sexual congress was part of her medication (People vs. Don Moran, 25 Mich. 356) or where a fictitious marriage ceremony was performed to convince the victim (U.S. vs. Hernandez, 29 Phil. 109).

5. The doctrine of mutual desire, or the defense that the woman yielded not because of deceit but because of her own desire, is applicable only to simple seduction but not to qualified seduction wherein the essence of the crime is abuse of authority, confidence, or relationship (People vs. Sarmiento, supra). Art. 340. Corruption of minors. Art. 341. White slave trade. 1. The concept of the crime of corruption of minors was explained as early as the case of U.S. Tagle (1Phil. 692) that where the girl was forcibly taken without lewd designs on the part of the accused but to satisfy the lust of another, crime is corruption of that minor and not abduction. 2. Formerly however the Code provided that a single act of corruption, if without abuse of authority or confidence, was not punishable as corruption (U.S. vs. Javier et al., 20 Phil. 337). The rule has now been changed with the amendment introduction by B.P. 92, and corruption of minor is punishable without need for habituality, abuse of authority or abuse of confidence on the part of the offender. 3. Corruption may have as victims persons of their sex who are “under age and, as explained in Alimagno vs. People (G.R. No. L-36458), this meant those who were below 21, which was then the age of majority. The age majority is now 18, pursuant to the amendment of the Family Code by R.A. 6809, which was approved on Dec. 13, 1989, hence that holding in Alimagno is no longer controlling and is deemed modified. 4. Corruption of minors and white slave trade are distinguished as follows: a. In corruption, it is essential that minors are used, while in white slave trade, minority need not be involved. b. Corruption may have victims of either sex, but white slavery is limited to females. c. Corruption may not necessarily be for profit, but white slavery is generally for profit. d. Corruption may be committed by a single act, but white slavery is generally committed habitually. 5. White slavery is committed by (a) engaging in prostitution, (b) profiting therefrom, and (c) enlisting the services of prostitutes. The first two modes require element of profit and habituality. In the third mode, the mode, the profit motive is not required (People vs. Nuevas, 76 Phil. 276; People vs. Golo, 56 O.G. 4056), nor is habituality an element thereof (People vs. Bueno, CA, 62 O.G. 1381). 6. White slave trade may be with or without the consent of the woman, while slavery for the purpose of assigning the woman to immoral traffic (Art. 272) is committed against her will. Chapter Four ABDUCTION Art. 342. Forcible abduction. Art. 343. Consented abduction. 1. In both forms of abduction, there must lewd designs and there must be the taking of the woman, not necessarily with some degree of permanence but for some appreciable period of the time (People vs. DE la Cuz, 48 Phil. 533; People vs. Ingayo, CA-G.R. No. 3723-R, Dec. 10, 1949). 2. The phase stating “over twelve and under eighteen’’ for consented abduction should read 12 years or over but under 18, so that if the victim was exactly 12 years old when abducted the accused may have the benefit of the doubt created by the law and be given the lesser penalty in Art. 343. a. In forcible abduction, force sufficient to overcome the victim’s resistance is required, unless the victim is under 12 years of age. If the victim’s consent was obtained through deceit and therefore there was no valid consent, the crime is forcible abduction, the deceit to be considered as constructive force (see U.S. vs. Vivar, 29 Phil. 451). b. For consented abduction, there is no need for deceit, but the victim’s consent must be intelligently and freely given, considering that she is already a person of sufficient discretion. 4. Where a woman is single, she is presumed to be a virgin and virtuous. Virginity is not to be understood in its material sense, as to exclude a virtuous woman of good reputation, since the essence of the crime of abduction is not the injury to the woman but the outrage and alarm to her family (Valdepeñas vs. People, G.R. No. L-20687, April 30, 1966). 5. Actual intercourse with the victim is not required in abduction as lewd design in the taking is sufficient. Even if the offender’s avowed intention was to marry the victim, but then he knew that as a minor she could not legally give consent to the marriage

he was consequently acting with lewd designs and is criminally liable (People vs. Crisostomo, 46 Phil. 775; People vs. Hatib Tala, et al., CA, 44 O.G. 117). Chapter Five PROVISIONS ELATIVE TO THE PRECEDING CHAPTERS OF TITLE ELEVEN Art. 344. Prosecution of the crimes of adultery. concubinage, seduction, abduction, rape and acts of lasciviousness. 1. Since rape is now a crime against persons, it should be considered deleted from the text of this article, and has accordingly been excluded in the following discussions, except when necessary. 2. Concubinage and adultery can be prosecuted only by the offended spouse regardless of age and even if incapacitated. A complaint filed by the offended spouse, even if a minor, is valid and operative for purpose of the case (see Quilantan, et al., vs. Caruncho, etc., 21 Phil. 399). 3. To be considered an offended spouse who can initiate criminal action for adultery, one must actually be married to the accused spouse at the time the complaint was filed. Where the supposed offended party, who is a foreigner, had obtained a divorce in his country from the accused before he filed the adultery case in the Philippine he no longer has the status of an offended spouse who can institute such proceedings (Pilapil vs. Ibay-Somera, ect., et al., G.R. No. 80116, June 30, 1989). 4. Seduction, abduction and acts of lasciviousness can be prosecuted exclusively and successively by the following parties: a. Offended party: (1) Even if she is a minor, she can validly file the complaint (U.S. vs. Gariboso, 25 Phil. 171). (2) If she is of legal age and not otherwise incapacitated, only she can file the complaint (Benga-Oras vs. Evangelista, ect., et al., 97 Phil. 612). If she is a minor or is otherwise incapacitated and she refuses or fails to file the complaint, either of her parents, grandparents, or guardian, in that successive order, can file the complaint (People vs. Bangalao, et al., 94 Phil. 354; People vs. Pastores, et al., G.R. No. L-29800. Aug. 31, 1971). b. Parents, grandparents or guardian in this succeeding order: (1) Either of the parents can file the sworn written complaint (People vs. De la Cruz, G.R. No. L-28810, Mar. 27, 1974; People vs. Mariano, G.R. No. L-47437, Sept. 29, 1983); (2) Either of the grandparents, whether on the paternal or maternal side; and (3) Legal or judicial guardians (People vs. De la Cruz, 59 Phil. 531). c. The State, as parens patriae, when the offended party dies or becomes incapacitated before she could file the complaint and she has no known parents, grandparents or guardian. 5. In adultery and concubinage, only the offended spouse, even if a minor but not otherwise incapacitated, can validly extend the pardon or consent contemplated in those crimes. 6. In seduction, abduction and acts of lasciviousness, the decisional rules on the validity of a pardon extended to the accused are as follows: a. The offended minor, if with sufficient discretion, can validly pardon the offender by herself if she has no parents or the offender is her own father and her mother is dead (People vs. Inciong, CA, 1 O.G. 904). b. The parents, grandparents or guardian of the offended minor cannot extend a valid pardon to the offender without the conformity of the offended party, even if the latter is a minor (U.S. vs. Luna, 1 Phil. 360; People vs. Lacson, CA, 55 O.G. 9460). c. If the offended party is of legal age and not otherwise incapacitated, only she can extend a valid pardon to the offender. 7. The pardon in seduction, abduction and acts of lasciviousness, as specified in Art. 344 of this Code and Sec. 4 (now, Sec. 5) of Rule 110, must be express; but in adultery and concubinage, a pardon, whether express or implied, will bar a criminal prosecution (People vs. Guinucud, et al., 58 Phil. 73; People vs. Cornejo, et al., 60 Phil. 785). 8. The subsequent marriage between the offended party and the accused extinguishes the criminal liability of the latter or shall remit the penalty already imposed upon him, together with that of the co-principals, accomplices, and accessories, except:

a. In adultery and concubinage; b. Where the marriage was invalid or contracted in bad faith in order to escape criminal prosecution (People vs. Santiago, 51 Phil. 68); c. In “private libel,” or the defamatory imputation to the complainant of the commission of the crimes of concubinage, adultery, seduction, abduction or acts of lasciviousness (People vs. Orzame, CA, 39 O.G. 1168); and d. In multiple rape, insofar as the other accused in the other acts of rape committed by them are concerned (People vs. Bernardo, 38 O.G. 3479). For the one who marries the offended party, his liability as a principal in the rape he committed and his participation in the other rapes is extinguished; and the liability of the other accused based on or with respect to the their participation in the rape committed by the one who marries the victim is also extinguished, but not their liability in the other crimes of rape committed by them or their other co-accused. Art. 345. Civil liability of persons guilty of crimes against chastity. 1. These are the special provisions on civil liability arising from specific crimes against chastity, which may in proper cases be supplementary to the general provisions on civil liability ex delicto in Title Five, Book One of the Code. It will be noted that acts of lasciviousness are not included in the provisions of this article, possibly because of the precise nature of the relief granted by it. In all events, Art. 2219 of the Civil Code provides that moral damages may be recovered in the crimes against chastity stated therein, including acts of lasciviousness, by the victim as well as by he parents. 2. Three forms of civil liability of the persons guilty of crimes against chastity are provided here, which then included rape before its reclassification. At any rate, since it is in this article where such provisions are still found, the discussions affecting the crime of rape should be taken in relation to Arts. 266-A to 266-D. This article specifies: a. Indemnification of the offended woman in seduction or abduction. concubinage, the concubine may also be ordered to indemnify the offended spouse.

In adultery, the adulterer or paramour, and in

b. Acknowledgment of the offspring, except (1) in adultery and concubinage since only a natural child may be acknowledged; (2) where either the offended party or the accused is married (People vs. Luchico, 49 Phil. 689; People vs. Belandrez, 85 Phil. 874; People vs. Bayani, G.R. No. 120894, Oct. 3, 1996); and (3) when paternity cannot be determined as in multiple rape (People vs. De Leon, 88 Phil. 783 [Unpub.]). c. Support for the offspring in every case, hence a married man who is the offender must give support, and in multiple rape all the offenders must give support even if paternity be determined (People vs. Veto, 80 Phil. 438). 3. A controversial question is whether in rape cases (and the same may arise adultery, concubinage, seduction cases), where the victim is a married woman, the offender should be ordered to give support to the offspring. a. In People vs. Sanico (46 O.G. 98), the Court of Appeals ruled that since the rape victim was a married woman, it could not order the offender to support the child, obviously relying on the cases of U.S. vs. Yambao (4 Phil. 204), U.S. vs. Hernandez (29 Phil. 109), and People vs. Luchico, supra, wherein no support was decreed because all the offended parties in those cases were married women. b. It is suggested that said holdings should be reviewed and revised to the end that as long as the offender’s paternity can be established or presumed, he should support the hapless offspring even if the mother is a married woman. Otherwise, the phrase in this article requiring support “in every case” would be limited only to the so-called natural children and would exclude other illegitimate children whose rights to support are recognized in civil law. The reason given in the Yambao case that to require support would put the accused and the victim in contact is eliminated by the legal provisions that custody of the offspring cannot be given to he offender since there are moral and legal obstacles (Art. 299, Civil Code; Art. 204, Family Code). The reason why no support could be decreed to be paid by the rapist in Yambao was because the victim was already 4 months pregnant by her husband when she was raped by the accused. In Hernandez, the woman had not conceived even after 16 months from the rape. Also, in Luchica, the victim did not conceive despite virtually the same lapse of time from the commission of the crime. Obviously, the Supreme Court could not order support for a child that was neither conceived nor could be conceived as a consequence of the rapes committed by the respective accused in those cases. Finally, under Arts. 184 and 185 of the Family Code, the classification of natural and acknowledged natural children has been eliminated, as they are now classified as either legitimate or illegitimate. Art. 176 of said Code refers to parental authority over illegitimate children and likewise provides for their entitlement to support (People vs. Bayani, supra). Art. 346. Liability of ascendants, guardians, teacher, or other persons entrusted with the custody of the offended party.

1. This article provides for the liability of the persons therein stated in crimes of rape and acts of lasciviousness (Chapter II); seduction, corruption of minors and white slave trade (Chapter III); and abduction (Chapter IV), who act as accomplices in those crimes, but who shall be punished as principals. In fact, such aggravated penalties will subject those accomplices to more penalties than the actual principals, as they will be meted out additional accessory penalties, that is, for teachers or persons entrusted with education and guidance of the youth, either temporary or perpetual special disqualification. Furthermore, all those falling within the terms of this article shall be punished with special disqualification from the office of guardian. 2. The foregoing provisions constitute an exception to Art. 52, and apply to all crimes against chastity, except adultery and concubinage (Chapter I) which are not included therein. TITLE TWELVE CRIMES AGAINST THE CIVIL STATUS OF PERSONS Chapter One SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. 1. For simulation of births and substitution of children, this article does not require that the child be legitimate; but for concealment and abandonment, the child must be legitimate. P.D. 603, in Art. 59(1) thereof, does not make the latter distinction but since its Art. 50 provides that this Code shall apply if it imposes a higher penalty, which in this instance is prision mayor and a fine of not more than P1, 000, said Art. 59(1) should apply to illegitimate children, the penalty in P.D. 603 being 2 to 6 months imprisonment and/or a P500 fine. 2.The purpose of the acts punished in this article is to cause the loss of civil status or to affect or obtain the civil status of another. If the simulation of birth by the woman is just to feign that she is not sterile, it is not for that alone punishable; but if the purpose is to extort money from the alleged father, it could be estafa. 3. The unlawful sale of the child by its father was held to be not punishable under this Code (U.S. vs. Capillo, et al., 30 Phil. 349). Now, it is punishable under P.D. 603, with its Art. 59(3) which imposes 2 to 6 months imprisonment and/or P500 fine. Furthermore, if the accused shall engage in trading and dealing with children, including the act of buying and selling of a child, that crime of child trafficking is punished with reclusion temporal to reclusion perpetua under Sec. 7, R.A. 7610. Art. 348. Usurpation of civil status. 1. If the purpose is to defraud the offended party or his heirs by usurping the civil status of said offended party, the offense is punishable under this article with a higher penalty. Where the intent of such usurpation is merely to enjoy or use the usurped civil rights, as by using another's license or getting a cedula in another's name, to avoid military service or to get a passport, it would not be punishable under this article (II Cuello Calon, Codigo Penal, 10th Ed., p. 670). The offender could be liable for using fictitious name (Art. 178) or estafa if he intended to defraud third persons (Art. 315), or possibly perjury or falsification depending on the acts he performed in connection with his intended offense. Chapter Two ILLEGAL MARRIAGES Art. 349. Bigamy 1. The three kinds of illegal marriages provided for and punished in this chapter are bigamy (Art. 349), marriage contrary to the marriage law (Art. 350), and premature marriage (Art. 351). These are crimes against status and can therefore be committed independently from adultery and/or concubinage which are crimes against chastity that the accused may also have committed (People vs. Schneckenburger, 73 Phil. 413). 2. In bigamy, it is essential that the first marriage is valid and subsisting and that the second marriage would have been valid were it not for the existence of the first marriage (People vs. Dumpo, 62 Phil. 246). 3. If the first marriage was null and void, there would be no bigamy (People vs. Mendoza, 95 Phil. 845). Where during the existence of his first marriage, the accused contracted a second marriage, and after the death of the first wife and contracted a third marriage for which he was prosecuted, it was held that he did not commit bigamy. There was no legal impediment to his third marriage because the first marriage was no longer subsisting and the second marriage was null and void for being bigamous. (People vs. Aragon, 100 Phil. 1033). He could have been liable for bigamy if he had been prosecuted for the second marriage. 4. Subsequently, in Gomez vs. Lipana (L-23214, June 30, 1970) and Vda. De Consuegra, et al. vs. GSIS, et al.(L-28093, Jan. 30, 1970), it was held that while the second marriage could be presumed to be null and void ab initio since it was celebrated while the first marriage was subsisting, there was still a need for a judicial declaration of nullity of the second marriage. While contrary views

were thereafter aired in Odayat vs. Amante (A.M. No. P-58, June 2,1977) and Tolentino vs. Paras, et al. (L-43905, May 30, 1983), it was reiterated in Wiegel vs. Sempio-Dy, etc., et al. (G.R. No. 53703, Aug. 19, 1986) that judicial declaration of the nullity of a void marriage was required. Again, however, Yap vs. CA, et al. (L-40003, Oct. 28, 1986) held otherwise. Eventually, those conflicting decisions were laid to rest by the Family Code which took effect on Aug. 3, 1988, and, adopting the doctrines in Gomez, Vda. De Consuegra and Wiegel, provides as follows: Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. See further Ty vs. CA, et al. (G.R. No. 127406, Nov. 27, 2000) for ramifications of this provision, and holding that the same cannot be applied retroactively if it would prejudice vested rights such as those of children born out of those void marriages before the effectivity of the Family Code (Apiag, et al. vs. Cantero, A.M. No. MTJ-95-1070, Feb. 12,1997; Jison vs. CA, et al., G.R. No. 124853, Feb. 24, 1998). 5. If the first marriage is voidable, the accused is liable if he remarries in the belief that such prior marriage is invalid. Being voidable, the same is valid until annulled, and the belief of the accused is a mistake of law which does not exempt him from liability (People vs. Cotas, CA, 40 O.G. 3154). The same doctrine was applied in People vs. Bitdu (58 Phil. 817) where the accused was held liable, as his mistaken belief regarding the effect of a Mohammedan divorce was a mistake of law and not of fact. 6. If the second marriage was void not because of the existence of the first marriage but for other causes, such as the lack of a marriage license, the crime would not be bigamy but that of contracting marriage contrary to the marriage law which is punished by Art. 350 (People vs. De Lara, CA, 51 O.G. 4079). 7. It has been ruled in some cases that where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate (Lukban vs. Republic, 98 Phil. 574). Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith (People vs. Malana, CA-G.R. No. 5347, Jan. 30, 1940; People vs. Reyes, CA-G.R. No. 12107-R, June 30, 1955). There were contrary views because of the ruling in Jones vs. Hortiguela (64 Phil. 179) and the provisions of Art. 83 (2) of the Civil Code. This controversy appears to have been resolved by Art. 41 of the Family Code which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry. Also in view of Art. 40 of the Family Code, a person can be liable for bigamy if he remarries without a judicial declaration of the nullity of his first marriage even if it was void ab initio (Mercado vs. Tan, G.R. No. 137110, Aug. 1, 2000). 8. The rules in adultery and bigamy are different. Adultery can be committed even if the marriage is void, while bigamy cannot be committed if that first marriage is really void. Accordingly, even if the accused cannot be held liable for bigamy under these circumstances, she can still be guilty of adultery. 9. If a man and a woman, each married to their respective spouses, contract marriage with each other and have sexual relations thereafter: a. The woman shall be liable for bigamy and adultery. If her first marriage is null and void ab initio, she will not be liable for bigamy but she is still liable for adultery. b. The man shall be liable for bigamy and for adultery if he knew that the woman was married. If he did not know that she was a married a woman, he will be liable only for bigamy but not for adultery. If his first marriage was null and void ab initio, and he did not know that the woman was already married, he incurs no liability for these two crimes. 10. A married man can be liable for bigamy and concubinage if he marries and subsequently cohabits with the second wife who was theretofore single (U.S. vs. Diaz, 223 U.S. 422; U.S. vs. Cabrera, 43 Phil. 82; People vs. Schneckenburger, supra). 11. If the second spouse knew that the accused whom she married was already a married man, she is an accomplice (People vs. Concepcion, CA, 40 O.G. 2878; III Viada 274) or at least an accomplice (People vs. Archilla, et al., G.R. L-15632, Feb. 28, 1961). If she did not know that the man was married, she incurs no liability (People vs. Nepomuceno, Jr., G.R. No. L-40624, June 27, 1975). 12. The prescriptive period for the crime of bigamy does not commence from the commission thereof but from the time of its discovery by the complainant spouse. While, it may be conceded that the bigamous marriage was celebrated publicly in church and recorded in the Office of the Civil Registrar, the rule on constructive notice cannot apply. A bigamous marriage is entered into in secrecy from the first spouse and generally in a place where the offender is not known to be a married person. More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides for constructive notice of entries regarding registered land in the Office of the Register of Deeds, there is no equivalent provision in Act No. 3753 which established civil registers or in Arts. 407 to 413 of the Civil Code (Sermonia vs. CA, et al., G.R. No. 109454, June 14, 1994). Art. 350. Marriage contracted against provisions of laws. 1. The offender is punished under this article for contracting a marriage with full knowledge that the legal requirements have not been complied with or that there is a legal impediment to such marriage. Since bigamy is also contracted in disregard of a legal

impediment, this article had to specify that the offender thereunder is one who is not "included in the provisions of the next preceding article," that is, bigamy. 2. As already observed, it is necessary that in the crime of bigamy all requirements have been complied with in the second marriage which would therefore have been valid were it not for the existence of a valid first marriage of the accused. In People vs. Peralta (CA-G.R. No. 13130-R, June 30, 1955), it was accordingly held that since the accused contracted a second marriage without obtaining a marriage license therefor, he would not be liable for bigamy but for a criminal violation of this article. Art. 351. Premature marriage. 1. The first paragraph refers to a widow and the period of 301 days is reckoned from the date of the death of her husband. However, if she was pregnant at the time of his death and she thereafter delivers, that period is disregarded. The second paragraph refers to any woman whose marriage has been annulled or dissolved and she remarries before her delivery or within the period of 301 days after the legal separation. The phrase "legal separation" does not mean that equivalent of relative divorce as used in the Civil Code but the annulment or dissolution of the marriage for any other legal cause. 2. If she marries within the prohibited period, without a marriage license when required, aside from the fact that the marriage is void, she is liable under both Art. 350 for contracting a marriage without complying with the marriage law, and under this article for such premature marriage. 3. Since the purpose of this article is to avoid cases of doubtful paternity, the woman will not be liable thereunder if (a) she has already delivered, and (b) she has conclusive proof that she was not pregnant by her first spouse since he was permanently sterile (People vs. Masinsin, CA, 49 O.G. 3908). a. For the same reason, she should not be liable if she has conclusive proof that she herself is permanently sterile or incurably impotent or that the second spouse also suffers from the same reproductive incapacity. b. Even under the foregoing circumstances, however, if she gets married without the marriage license when required, or with any other violation of the law on marriage, she will at least be liable under Art. 350. 4. The new husband is not liable under Art. 351, even as an accomplice, as this offense is intended only for the woman who contracts a premature marriage (III Viada 279-280). 5. A little legal archeology is called for on the suggestion that this article is now inoperative since Art. 84 of the Civil Code was deleted from the Family Code. This article penalizing premature marriages had been in the Revised Penal Code since its effectivity on Jan. 1, 1932. On the other hand, said Art. 84, which prohibited the issuance of a marriage license to a widow until after 300 days from her husband's death unless she shall already have given birth, was introduced as a new provision in the Civil Code on Aug. 30, 1950. Another new provision resolving the paternity of the child born of that widow who remarried within the 300-day period was provided by the same Civil Code as Art. 259 thereof. These two new articles of the Civil Code were evidently to support the penal law and provide rules in resolving questions of paternity which this Art. 351 of the Revised Penal Code was designed to prevent. Those civil law provisions were thus intended to implement Art. 351, and not as bases therefor, hence the absence of Art. 84 cannot impliedly repeal Art. 351. Art. 84 was not reproduced in the Family Code because of a different rule adopted in the latter. Art. 18 thereof has divested the local civil registrar of the power to investigate any legal impediment to the issuance of a marriage license and requires him to issue the same unless prevented by a court order. Art. 259 of the Civil Code has been retained, with slight modifications, as Art. 168 of the Family Code for the same original purpose. Art. 352. Performance of illegal marriage ceremony. 1. The solemnizing officer of any of the foregoing illegal marriages who performs or authorizes the same, despite his knowledge of the illegality, shall be punishable under Sec. 39 of Act No. 3613 which imposes a penalty of 1 month to 2 years imprisonment or a P200 to P2,000 fine. TITLE THIRTEEN CRIMES AGAINST HONOR Chapter One LIBEL Section One. - Definition, forms and punishment of this crime Art. 353. Definition of libel

1. The definition of libel in this article is more properly a definition of defamation since the Spanish text thereof states "difamacion" which has been incorrectly translated as libel in the English version (Lu Chu Sing, et al. vs. Lu Tiong Gui, 76 Phil. 669; People vs. Enriquez, et al., CA, 47 O.G. 5182). Since the basic difference between oral defamation or slander and libel is the means of commission, it would be a more complete definition of libel to complement the provisions of Art. 353, treating of the nature of libel, with the text of Art. 355 which provides for the means of its commission. 2. The special form of calumny punishable as seditious or scurrilous libel against the Government has no bearing on the felony of libel in this article. What is noteworthy, on the other hand, is that the victims here include juridical or deceased persons who shall therefore be represented by their legal representatives in the actions filed in their behalf. 3. The elements of libel are (a) a defamatory imputation, (b) malice in law or in fact, (c) publication, and (d) an identified or identifiable victim. These elements have to be proved in either a criminal or an independent civil action since these actions can be brought and prosecuted separately. 4. The test of a defamatory imputation is what the article conveyed to a fair and reasonable man and that is what should be considered, not the intent of the writer (People vs. Encarnacion, CA, 48 O.G. 1817). It may be in metaphorical or ironical language as long as it is sufficient to induce suspicion. a. Mere expressions of opinion, such as in a case for settlement of an estate, that there was unfairness in the distribution of the property are not actionable if the accused had the right to assert the same (People vs. Baja, CA, 40 O.G., Supp. No. 5, p. 206), but not where they were made by a third person without any right to do so. Expressions of opinion, however, are actionable if the purpose is to discredit another, even if the imputation does not amount to a crime (Blanco vs. People, 70 Phil. 735). b. The accused need not be the author of the defamatory imputation. In fact, there can be a libel even if the author was the offended party herself, that is, a married woman who wrote the love letters which the accused maliciously caused to be published (U.S. vs. Eguia, et al., 38 Phil. 857). Under Art. 723 of the Civil Code, letters and private communications belong to the addressee but they cannot be published without the consent of the author or his heirs, or a court order authorizing the same. c. If the defamatory matter is only an incident in an act which has another objective as, for instance, a criminal prosecution against the offended party, those statements made thereon will not be actionable as libel (People vs. Velasco, CA-G.R. No. 43286, Feb. 19, 1937). In fact, they could even be privileged, if relevant or pertinent to the issues of the case. 5. The second element in libel is malice, which may be malice in law, also known as presumed malice, or malice in fact which is actual malice. Malice is a legal term which indicates that the offender is motivated by his personal ill will or spite and that he speaks not pursuant to a duty but in order to injure the reputation of the person defamed (U.S. vs. Cañete, 38 Phil. 253). a. If on its face the article is defamatory, even if the facts therein are true, it is presumed that the offender acted with malice. Since there is malice in law in such case, no evidence regarding malice has to be submitted, except where what is involved is a privileged communication under Art. 354, in which case malice in law cannot arise and malice in fact has to be proved. b. If the article is not defamatory on its face or it is ambiguous, but it can be considered libelous in light of the surrounding circumstances which gave rise to its existence, then actual malice on the part of the offender, or malice in fact, has to be proved. A halfhearted explanation in a republication regarding a defamatory article (U.S. vs. Montalvo, et al., 29 Phil. 595) or republication of the article with pseudo praise incorporated therein are indicia of malice in fact (Jimenez vs. Reyes, 27 Phil. 52). c. Generally, where the defamation is directed to or in connection with the private life of the victim, there is malice in law. Where, however, it is in connection with his public life or his conduct as a public officer or public figure, since the public has the right to comment thereon, malice in law does not arise. 6. The third element is the publication of the defamatory article or document by or at the instance of the accused. This simply means that the accused parts with possession of the article under circumstances, or makes arrangements, whereby the same may be adequately read by a person or persons other than the victim. a. In an early case, it was held that where a libelous article was delivered by the accused to a typesetter of the printing press which he contracted for the printing thereof, that satisfied the requirement of publication (U.S. vs. Crame, 10 Phil. 135). If it was the victim who received a copy of the libelous article and showed it to other persons; then such publication is not imputable to the accused. b. Where the daughter who received a copy of a libelous letter against her showed the same to her father, but a copy thereof had also been sent to and received by him, there was sufficient publication for purposes of a libel charge (People vs. Aguilar; CA, 66 O.G. 3464). c. Where a defamatory letter was sent in a sealed envelope to the offended party through a messenger, and there was no proof that the same had been exposed to the sight of third persons, the prevailing rule is that there was no publication (Lopez vs. Delgado, 8 Phil. 26; U.S. vs. Ramos, 28 Phil. 219; U.S. vs. Griño, 36 Phil. 738). However, in the Ramos case, the accused was found guilty

because aside from the letter he sent in the sealed envelope, he also gave copies to his friends. In the Griño case, the accused was held guilty as it was later proved that the envelope had not actually been sealed. In one case, the Court of Appeals held that sending a letter in a sealed envelope constitutes publication because the letter “could have been read” by third persons (People vs. Adamos, CA, 35 O.G. 496), but the holding was subsequently abandoned in People vs. Atencio (CA-G.R. Nos. 11351-R to 11353-R, Dec. 14, 1954). d. Sending libelous letters to a wife, which letters were defamatory of her husband, is sufficient publication as the theoretic identity of the spouses yields to the rule in libel that she is a third person for purposes of the element of publication (U.S. vs. Ubinana, 1 Phil. 471). The same rule applies to letters sent to a lawyer defamatory of his client (People vs. Fernandez, CA, 64 O.G. 343). e. Every publication of a libelous article is a separate crime, whether it is published in parts or in the same newspaper, and each subsequent publication is aggravating of the previous libelous acts (see U.S. vs. Sotto, 36 Phil. 389; People vs. Enriquez, et al., CA, 47 O.G. 5182). 7. The last requirement in libel is that the victim is identified in, or is identifiable from the contents of, the libelous article. a. No names need be mentioned, it being sufficient that a third person or persons other than the victim recognized or could identify who was the party vilified therein (Kunkle vs. Cablenews-American, et al., 42 Phil. 757) from the caricatures, descriptions, facts or events narrated, or other indications from which his identity can be safely deduced. b. When the imputation in the article is impersonal and its language does not single out any specific individual and is not merely ambiguous but totally deficient in that respect, this requirement for an identified or identifiable victim has not been complied with and the case must be dismissed (Uy Tioco, et al. vs. Yang Shu Wen, et al., 32 Phil. 624). But where the writing is only ambiguous, it has been held that the prosecution may be permitted to introduce evidence showing that the vague imputations refer to the unnamed complainant (People vs. Silvela, 103 Phil. 773). 8. When several persons are defamed, jurisprudence has evolved guidelines for determining how many crimes of libel have been committed and who shall be considered as the victims, individually or collectively. a. If the defamation was made on different occasions or by independent acts, there are as many crimes of libel as there are persons directly addressed with such statements or directly referred to. b. If the defamation was committed on a single occasion, we distinguish: (1) Where the same was directed at a class or group of numerous persons in general terms only without any particular person being directly addressed, there is no victim identified or identifiable, hence there is no actionable libel (Uy Tioco, et al. vs. Yang Shu Wen, et al., supra). If the defamation is directed against a group or class, to be actionable it is indispensable that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual therein can prove that the defamatory statement specifically pointed to him, and he can bring his action separately (Newsweek, Inc. vs. IAC, et. al., G.R. No. 63559, May 30, 1986). The U.S. Doctrine of group libel is not followed here, except in seditious libel under Art. 142 (see People vs. Espuelas, 90 Phil. 524). (2) If several identifiable victims are libeled in a single article, there are as many crimes of libel as there are persons defamed (People vs. Del Rosario, et al., 86 Phil. 163). This doctrine was reiterated in People vs. Gil (G.R. No. L-20398, Oct. 31, 1968) which involved the crime of slander on the same occasion but was directed against two different persons. (3) In slander cases, the rule is that even if an entire class is defamed (“kayong mga Bisaya”), it is actionable only by the person belonging to the class and to whom such defamation was directly addressed (People vs. Marquez, CA, 51 O.G. 239). This rule was sustained by the Supreme Court in People vs. Aquino (99 Phil. 713) where the victims were “you Merrera lawyers” and said victims were identifiable, being a family of lawyers. However, it was held to be one single crime of oral defamation as the victims were not separately identified and the defamation was uttered only once. Art. 354. Requirement of publicity. 1. The doctrine of privilege applies to both libel and slander, and may be either qualified or absolute. This article provides for the qualifiedly privileged communications in libel cases. The effect of a qualified privilege in the law on libel is that it destroys malice in law, as a consequence of which the prosecution has to prove malice in fact for its case to prosper (People vs. Monton, et al., G.R. No. L-16772, Nov. 30,1962). 2. An absolutely privileged communication is not actionable even if made in bad faith. Specifically recognized in the Constitution as absolutely privileged are statements made in official proceedings of Congress by the members thereof, as an implementation of their parliamentary immunity.

a. Statements made in judicial proceedings are privileged but only if pertinent or relevant to the case involved (Santiago vs. Calvo, 48 Phil. 919; Tupas vs. Parreho, et al., 105 Phil. 1304[Unrep.]; Gutierrez vs. Abila, et al., G.R. No. 59161, Jan. 30,1982; Malit vs. People, et al., G.R. No. 58681, May 31, 1982; Armovit, et al. vs. Purisima, et al., G.R. No. L-39258, Nov. 15,1982). Courts are liberal in determining relevancy and once the statement is found to be relevant, the privilege is absolute even if there was malice in fact (Sison vs. David, G.R. No. L-11268, Jan. 28,1961; Tolentino vs. Baylosis, G.R. No. L-15742, Jan. 31, 1961). As stated in People vs. Aquino (G.R. No. L-23908, Oct. 29, 166), the article should be liberally considered to favor the writer, and the words are not to be scrutinized with microscopic intensity. b. In American law, statements of members of the executive department in the discharge of official duties are absolutely privileged (Spalding vs. Villas, 161 U.S. 483). In People vs. Orfaniel (G.R. No. L-26877, Dec. 26, 1969), our Supreme Court held that official communications made by public officers in the performance of their duties are also absolutely privileged. Hence, an explanation made by the accused in an endorsement to his immediate superior, a division superintendent of schools, was considered as absolutely privileged (Deaño vs. Godiñez, G.R. No. L-19518, Nov. 28, 1964). 3. This article provides for two types of qualifiedly privileged communications. However, in Borjal, et al. vs. CA, et al. (G.R. No. 126466, Jan. 14, 1999), it was held that the enumeration in Art. 354 is not an exclusive list of qualifiedly privileged communications since comments on matters of public interest are also privileged. The concept of privileged communications is implicit in the freedom of the press and fair commentaries therein on matters of public interest are privileged. Honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. It reiterated what was said in Bulletin Publishing Corp. vs. Noel, etc et al. (G.R. No. 76565, Nov. 5, 1988) that a newspaper, especially one which is national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest, so long as it respects and keeps within the standards of morality and civility prevailing in the community. 4. The first of the qualifiedly privileged communications provided by this article is a private communication made in the performance of a legal, moral or social duty. It may be verbal or written and refers to those made for redress of grievances, without undue publicity, regardless of whether it is in the form of a private, public or official document (People vs. Cantos, CA, 51 O.G. 2995). a. Since the law speaks of a private communication, it is not applicable to statements made or distributed in a public meeting (People vs. Jaring, CA, 40 O.G. 3683). Unnecessary publicity destroys the privilege (People vs. Cabayan, CA, 40 O.G., Supp. No. 5, p. 163; People vs. Cruz, CA, 40 O.G., Supp. No. 11, p. 119). b. Complaints against a justice of the peace (People vs. Bustos, 37 Phil. 371), or a lawyer (Santiago vs. Calvo, 48 Phil. 919), or a priest (U.S. vs. Cañete, 38 Phil. 253) are privileged communications even if addressed to the wrong persons, but not if the complainant did not even verify the truth of his accusations (U.S. vs. Santos, 13 Phil. 690). c. In order to be privileged, however, there must be a duty either legal, moral or social to be performed by the complainant. The latter duties depend upon the relationship of the sender and the receiver or the confidential and pressing urgency of the communication, which is also required to be by and to one who has a right, duty or interest in the subject matter (U.S. vs. Bustos, supra; U.S. vs. Canete, supra; Arcand vs. People, 68 Phil. 601). Hence, where a non-employee of Caltex reported to the corporation the alleged pilferage of gasoline by his brother-in-law, the communication was not considered privileged and since malice in fact was also proved, he was convicted of libel (People vs. Hogan, CA, 55 O.G. 1597). d. Apropos to this discussion is the issue as to whether or not a person who has been libeled would be liable if he publishes a libelous answer thereto. The Supreme Court, in two early cases where the issue was raised, held that he would be liable (Causing vs. Ricamora, 5 Phil. 31; Pellicena Camacho vs. Gonzalez Liquete, 6 Phil. 50). The Court of Appeals held the qualified view that he would not be liable if he acted in good faith, and his answer if not unnecessarily defamatory is privileged (People vs. Baja, CA, 40 O.G., Supp. No. 5, p. 206) or was made in self-defense (People vs. Chua Hiong, CA, 51 O.G. 1932). However, in a latter case, the Court of Appeals clarified its holdings and convicted the accused whose answer was unnecessarily libelous, and the fact that it was in response to a preceding libel was considered as only mitigating (People vs. Royo, et al., CA, 53 O.G. 8618). It is believed that, to avoid liability, the answer in question must be limited and related to the defamatory imputations and should not be unnecessarily libelous. 5. The other qualifiedly privileged communication in this article is a fair and true report of non-confidential official proceedings, or of official acts of public officers or public figures. This privilege applies to verbal communications, and the charge could be slander or oral defamation. Hence, defamatory imputations made in political meetings are held to be qualifiedly privileged if made in good faith and in the public interest (People vs. De la Victoria, 58 Phil. 911 [Unpub.]). But a sermon on the pulpit is not privileged (Arcand vs. People, supra). a. A judicial proceeding, for purpose of this article, is one in open court where both parties have the opportunity to present evidence and be heard (Barreto vs. Phil. Publishing Co., 30 Phil. 88; Choa Tek Hee vs. Phil. Publishing Co., 34 Phil. 447) and it includes pleadings on which the court has already acted (see Elizalde, et al. vs. Gutierrez, etc. et al., G.R. No. L-33615, April 29, 1977). It has also been held that a fair and true report of a complaint filed in court without remarks or comments thereon is privileged, even before an answer has been filed thereto, where it was identical with a counterclaim filed in another case (Cuenco vs. Cuenco, et al., G.R. No. L-29560, Mar. 31, 1976).

b. To be privileged, the publication must be done in good faith, without libelous comments or remarks proscribed by Art. 362 and the matters prohibited by Art. 357. Fair comment, even if wrong, may be made on cases even if pending in court at the time of the publication (El Hogar Filipino vs. Prautch, et al. 49 Phil. 171; In re Sotto, 82 Phil. 595), provided that they do not violate the sub judice rule which would subject them to administrative sanctions. c. While the privilege extends to public records, it refers only to those records to which everyone has a right of access and in which the purpose of the law is to give publicity for public interest or protection (U.S. vs. Santos, 33 Phil. 533). It does not extend, therefore, to records of disbarment proceedings or administrative disciplinary actions against lawyers (Rule 139-B) and judges (Rule 140) which are confidential in nature, and those prohibited by the court to be published (Sec. 2, Rule 135). d. Publishing an article against a public prosecutor for filing serious cases on trivial ground is not libelous, it being a matter of public interest (People vs. Velasco, CA, 40 O.G. 3694), subject to the usual caveat that it be fair and objective reporting and without unnecessary comments or remarks. Art. 355. Libel by means of writings or similar means. 1. These are the means by which libel is committed and thus distinguishes it from slander or oral defamation. In the case of a radio broadcast, while the statements or the programs aired over its stations and received by the listeners are oral in nature, as a medium of mass communication it stands on the same footing as newspapers or even more, as its audience, reach and scope exceed those of the print media and other forms of mass communications in the country as of now. Its pervasiveness in national information cannot be downgraded to the level of ordinary verbal exchanges involved in slander. 2. For the same reason, libel can also be committed in television programs or broadcasts (People vs. Casten, CA-G.R. No. 07424-CR, Dec. 13, 1974), and was not specifically mentioned in this article since these were not yet in existence, but are included as “any similar means.” On the other hand, if the defamation was made by the use of amplifiers or microphones, the crime is only slander (People vs. Santiago, G.R. No. L-17663, May 30, 1962). Art. 356. Threatening to publish and offer to prevent such publication for a compensation. 1. While the title of this article speaks conjunctively of a threat to publish a libel and an offer to prevent such publication, the text of the provision specifically uses the alternative “or.” Hence, the offense is committed in two ways, that is, by (a) threatening to publish a libel against the victim or his family or (b) offering to prevent such a publication for a consideration. This is a special form of threat and is not included in grave threats under Art. 282. 2. Accordingly, while being similar to the crime of blackmail in U.S. Penal law, it differs therefrom because a mere threat to publish a libel, without an attempt or intent to extort money, is already a felony in itself; and the other offer to prevent such a publication for a consideration is another mode. If both modes are committed by the same offender, it will only be one offense. If the two modes are committed by different persons, there will be two separate offenses for which the offenders will respectively be liable, unless they were acting on conspiracy. 3. This offense is always consummated as the mere threat to publish or the mere offer to prevent that publication already constitutes the crime itself. Art. 357. Prohibited publication of acts referred to in the course of official proceedings. 1. This article punishes the reporter, editor or manager who in a narration or report of any judicial or administrative proceeding publishes or includes therein facts regarding the private life of another which is offensive to his honor, virtue or reputation. This is why this article is referred to as the Gag Law because while a report of that proceeding is allowed, it gags those who would publish therein those facts which this article prohibits, and punishes any violation thereof. 2. Thus, publishing verbatim the defamatory imputations made against a person's private life, although the same appear in the information filed against him in court, constitutes a violation of this article (People vs. Diño, CA-G.R. No. 8822, Sept. 24, 1942). To avoid violating this article, those prohibited facts concerning a person's private life must be deleted from any report of the proceeding where he is involved. Art. 358. Slander. 1. Slander or oral defamation may be grave or simple. For instance, a charge of immorality is grave slander (U.S. vs. Tolosa, 37 Phil. 166), but if the purpose is to correct the conduct of the person concerned, it is simple slander (People vs. Clarin, CA, 37 O.G. 1106). Also, if the defamatory statements were uttered in the heat of anger, it would also be simple slander (People vs. Espero, CA, 57 O.G. 7727). 2. Not only words, but antecedents, special circumstances, time, place and relationship are to be considered (People vs. Gallito, CA, 56 O.G. 970). Even if the words uttered were not definitely defamatory, the surrounding circumstances should be taken into account. In a case, the accused was convicted not on the mere basis of the statements she made. Her act of also searching the victim in

the presence of her other employees were considered as indirect imputations of theft which she said she suspected the victim to have committed (People vs. De Guzman, G.R. No. L-19075, Nov. 23, 1966). 3. Defamatory statements in a political meeting are qualifiedly privileged only if made in good faith and in the public interest (People vs. De La Victoria, supra). If malice in fact can be proved, the accused will be liable, although the fact that it was made in political meeting can be a mitigating circumstance (People vs. Larogo, CA, 40 O.G., Supp. No. 11, p. 123). 4. Gossiping is oral defamation if a defamatory fact is imputed to another. If there is no such imputation, it can still be intriguing against honor (Art. 364). Intriguing entails secret plots, trickery, strategy and so forth (People vs. Fontanilla, CA, 56 O.G. 193), but if there is a defamatory imputation, the crime is slander, and the act of intriguing is absorbed therein. 5. The word "puta" is not an imputation of prostitution (People vs. Atienza, G.R. No. L-19857, Oct. 26, 1968). The expletive "putang ina mo," as a rule, is merely an expression of disgust or displeasure and does not in itself constitute an oral defamation (Reyes vs. People, G.R. Nos. L-21528-29, Mar. 28, 1969). Art. 359. Slander by deed. 1. The gravamen of this offense, which may also be grave or simple, is the intent to humiliate the offended party. If such intent cannot be duly proven, the offense may still be maltreatment by deed (Art. 266). 2. Formerly, in People vs. Velez (60 Phil. 1037 [Unpub.]), the act of the accused in holding the schoolteacher by her hair and shaking her head, at the time when she was holding classes, was held to be ill-treatment by deed (Art. 266[3]). Now, the crime would be direct assault (Art. 148) as the teacher is a person in authority and she was in the actual performance of her duties. 3. This is to be distinguished from People vs. Roque (CA, 40 O.G. 1710) where the schoolteacher was slapped during a dance but, since she was not in the performance of her duties and she was not assaulted because of her previous performance thereof, the offense was correctly held to be slander by deed. Art. 360. Persons responsible 1. This article enumerates the parties who are liable for the preparation and publication of a libelous writing, book, pamphlet, newspaper, magazine or serial publication. The printer or owner of the printing establishment who took part therein is also liable and if the real printer's name is not disclosed, he shall be further liable for unlawful publications under Art. 154 (4). 2. While being criminally or civilly liable for the libel committed, the publisher, editor, columnist or reporter cannot be compelled to reveal the source of the information given to him in confidence, unless demanded by the security of the State as determined by a House or Committee of Congress, pursuant to R.A. 1477 (In re Aspiras, G.R. No. L-10031, Aug. 29, 1956). This privilege not to reveal the source of the information applies only to publications of general circulation (Pelissier vs. Pascual, et al., CA, 52 O.G. 6936). 3. The venue of actions for libel, with updated terminology, are: a. In the Regional Trial Court where the civil or criminal action was first filed acquires jurisdiction to the exclusion of the others. While an independent civil action may be filed (Art. 33, Civil Code) either simultaneously or separately, it must be filled in the same Regional Trial Court where the criminal action was filed, and vice versa. 4. Although, based on the penalty, the municipal trial court may have concurrent jurisdiction, the provision on libel is considered an exception thereto and the Regional Trial Court has exclusive jurisdiction over the criminal action, especially where the civil action for the same libel was filed first with said court (Laquian vs. Baltazar, etc., et al., G.R. No. L-27514, Feb. 15, 1970). The subsequent amendment of the Judiciary Act by R.A. 3828 did not affect such jurisdiction, repeals by implication not being favored in this jurisdiction (Jalandoni vs. Endaya, etc., et al., G.R. No. L-23894, Jan. 24, 1974). Also, that jurisdiction of the Regional Trial Court over libel cases has not been affected by R.A. 7691 which granted expanded jurisdiction to the courts of the first level (Arambulo vs. Laqui, et al., G.R. No. 138596, Oct. 12, 2000). 5. Under this article as amended, the preliminary investigation of libel cases may be conducted by the provincial or city prosecutor of the province or city, or by the municipal court of the city or capital of the province, where the criminal action may be filed. Such enumeration divested the ordinary municipal court of the power to conduct preliminary investigation of libel cases. The Regional Trial Courts do not have the power to conduct preliminary investigation which was conferred on the former Courts of First Instance by then Sec. 2 of Rule 112. Furthermore, under the revised Rules of Criminal Procedure, the metropolitan trial court and first level courts in other chartered cities likewise cannot conduct such preliminary investigation (Sec. 1[b], Rule 110). 6. If the defamatory imputation made by the offender is that the offended party committed a crime which cannot be prosecuted de oficio, a sworn written complaint is required, whether the imputation was made orally or in writing (Campita vs. Villanueva, etc., et

al., G.R. No. L-20226, Nov. 28, 1964). This requirement no longer applies where what is imputed is the commission of the crime of rape, since rape has been reclassified as a crime against persons and can already be prosecuted de officio. 7. Where the accused called a married woman a prostitute, although it also imputes adultery, the defamatory statement specifically imputes prostitution, a public crime, hence he can be prosecuted de oficio (People vs. Hong Din Chu, G.R. No. L-27830, May 29, 1970; People vs. Orcullo, etc., et al., G.R. No. 57103, Jan. 30, 1982). But where the imputation is that the married woman is having illicit relations with another man, the imputation is adultery, hence the case cannot be prosecuted de officio (Fernandez vs. Lantin, et al., G.R. No. L-44759, Dec. 17, 1976). Art. 361- Proof of the truth. 1. As a rule, proof of the truth of the defamation against the victim is not a defense (Tumang vs. People, 73 Phil. 700; People vs. Reynante, CA, 46 O.G. 3194). Nonetheless, such proof of the truth is admissible (a) if the act imputed constitutes a crime, whether the victim is a private individual or a public officer, or (b) if the imputation is made against Government employees regarding the discharge of their official duties, whether or not the acts imputed constitute a crime (Blanco vs. People, 70 Phil. 735). In such cases, under this article proof of the truth plus good motives and justifiable ends will warrant the acquittal of the accused. 2. The third paragraph of this article, which as formulated appears to require that the accused should prove the truth of the imputation made by him, has already been clarified. In Vasquez vs. CA, et al. (G.R. No. 118971, Sept. 15, 1999), the Supreme Court pointed out that where the accused denounced their barangay chairman, he was not acting in his self-interest alone but in the performance of a civic duty to see to it that public duty is faithfully discharged by the public officials concerned. The recognition of this right and duty of every citizen is inconsistent with any requirement for him to prove that he acted with motives and justifiable ends. Even if the defamatory statements turn out to be false, no liability can attach if they relate to official conduct unless the public official involved proves that the statements were made with actual malice, that is, that the statements were false or made with reckless disregard of whether they were false or not. A rule placing on the accused the burden of showing the truth of the allegations of official misconduct and/or good motives or justifiable ends for making such allegations would not only be contrary to Art. 361. It would also infringe upon the constitutionally granted freedom of expression. Art. 362. Libelous remarks. 1. This article is a complementary limitation on the exercise of the qualified privilege protecting the communications subject of Art. 354. Thus, while upholding that privilege, Art. 357 restricts the applicability thereof to statements criticizing the public acts of a person, and punishes statements on his private life which are offensive to his honor, virtue or reputation. This article, in turn, also recognizes the protective privilege in Art. Chapter Two INCRIMINATORY MACHINATIONS Art. 363. Incriminating innocent person. Art. 364. Intriguing against honor 1. These two articles spell out the incriminatory machinations punished by the Code. The offense of incriminating innocent person in Art. 363 is limited to acts not constituting perjury but directly tending to cause prosecution, that is, by the accused "planting evidence" against the victim (People vs. Rivera, 59 Phil. 236; Ventura vs. Bernabe, G.R. No. L-26760 April 30, 1971). If the prosecution is actually initiated by the accused with the use of false evidence or testimony, it may be either perjury or false testimony depending on the mode of commission (see Lu Chu Sing, et al. vs. Lu Tiong Gui, 76 Phil. 669). 2. Intriguing against honor punished by Art. 364 refers to such intrigues against a person's honor or reputation which are not otherwise punished under other articles of the Code. 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 (People vs. Fontanilla, CA, 56 O.G. 1931). 3. Where the accused policemen arrested the victim without lawful cause in order that they could plant in his pocket a marked peso bill while they were supposedly investigating him, they committed the complex crime of incriminating an innocent person thru unlawful arrest, since it was necessary for them to arrest the victim in order to plant evidence on his person clandestinely (People vs. Alagao, et al., G.R. No. L-20721, April 30, 1966). 4. A very stringent repression of the crime of incriminating an innocent person is provided for in the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165), viz: Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death (Sec. 29, Art. II). 5. There is no crime of malicious prosecution in this Code (Strebel vs. Figueras, etc., et al., 96 Phil. 321) as the same is civil law concept (see Art. 2208[3], Civil Code; RFC vs. Koh, et al., G.R. No. L-15512, Feb. 28, 1962). The possible crime somewhat equivalent thereto may be perjury or false testimony, if the other elements are present. On the other hand, a civil action for damages under Arts. 21 and 2219, or on tort under Art. 2176, may be maintained (Ventura vs. Bernabe, supra).

TITLE FOURTEEN QUASI OFFENSES CRIMINAL NEGLIGENCE Art. 365. Imprudence and negligence 1. A persisting controversy which surfaces now and then is whether or not this article, comprising Title Fourteen on "Quasi Offenses," defines a crime of criminal negligence, contrary to the rule in Article 3 that negligence is only a modality in committing a felony as contradistinguished from the other mode of criminal intent. Thus, in some prosecutions arising from vehicular mishaps involving damage to property and/or a number of victims, the offense is denominated as simple or reckless criminal negligence resulting in damage to property or homicide and physical injuries, instead of damage to property or homicide and physical injuries through criminal negligence. This appears to have been spawned by the 1995 ruling in Quizon vs. Justice of the Peace of Bacolor, Pampanga, et al. (97 Phil. 342) where the primary issue was whether or not the respondent court had jurisdiction over a case of damage to property through reckless imprudence punishable by a fine of P125 to P375. Under the Judiciary Act then in force, where the fine exceeded P200, jurisdiction was vested in the then Court of First Instance but, curiously, attention was also called to the fact that malicious mischief was within the jurisdiction of the lower court. Naturally, a negative answer was given by the Supreme Court, otherwise it would appear that damage to property through reckless negligence “is but a variant” of malicious mischief, aside from the fact that “malice mischief can not be committed through negligence, since culpa (negligence) and malice (or deliberateness) are essentially incompatible.” The Court, however, went further and laid down this dictum: The proposition inferred from Art. 3 (of the Revised Penal Code) that “reckless imprudence is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability” is too broad to deserve unqualified assent. There are crimes that by their structure can not be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense; and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In international (sic, intentional) crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. Much of this confusion has arisen from the common use of such descriptive phrases as “homicide through reckless imprudence,” and the like; when the strict technical offense is, more accurately, “reckless imprudence resulting in homicide”; or “simple imprudence causing damages to property”. In the later case of People vs. Cano (G.R. No. L-19660, May 24, 1966), the accused was charged with damage to property with multiple physical injuries. On appeal from the order of the trial court granting his motion to quash, one of the issues raised was whether the “misdemeanor” of slight physical injuries sustained by some victims could be complexed with the offenses of damage to property and serious physical injuries sustained by the other victims. Evidently, the offense of slight physical injuries could not be complexed with grave or less grave felonies, and the information did not purport to do so. Further, the Court pointed out that in the afore-cited case of Quizon, the issue that “reckless imprudence is not a crime in itself but simply a way of committing it and merely determines a lower a degree of criminal liability” had therein been passed upon. However, this time the Court did not explicitly rule upon that point, declaring merely that “regardless of whether the issue adverted to above should be decided in the affirmative or in the negative, the proper procedure for the lower court to reserve the resolution thereof until after the case has been heard on the merits, when decision is rendered thereon, x x x.” On this and other procedural considerations, the case was remanded for further proceedings. In People vs. De los Santos (G.R. No. 131588, Mar. 27, 2001), the accused was convicted of the complex crime of multiple murder, multiple frustrated murder and multiple attempted murder caused by his driving a truck into the path of several police trainees who were on jogging exercises. The Supreme Court, considering all environmental and relevant circumstances, held that the crimes were committed through reckless negligence. Although using some terminology culled from Quizon, the Court neither reiterated nor adverted to the doctrines or their rationalization in said case as herein before quoted. Instead, it discussed and applied the traditional concepts of Arts. 3 and 48 of the Code, and the disposition of the cases as outlined in Cano, it wit: “Considering that the incident was not a product of malicious intent but rather the result of a single act of reckless driving, GLENN should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries.

“Article 48 of the Revised Penal Code provides that when the single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Since Article 48 speaks of felonies, it is applicable to crimes through negligence in view of the definition of felonies in Article 3 as “acts or omissions punishable by law” committed either by means of deceit (dolo) or fault (culpa). In Reodica vs. Court of Appeals, we ruled that if a reckless, imprudent or negligent act results in two or more grave or less grave felonies, a complex crime is committed. Thus, in Lapuz vs. Court of Appeals, the accused was convicted, in conformity with Article 48 of the Revised Penal Code, of the complex crime of “homicide with serious physical injuries and damage to property through reckless imprudence,” and was sentenced to a single penalty of imprisonment, instead of two penalties imposed by the trial court. Also, in Soriao vs. Court of Appeals, the accused was convicted of the complex crime of “multiple homicide with damage to property through reckless imprudence” for causing a motor boat to capsize thereby drowning to death its twenty-eight passengers. (Citations omitted). 2. Crimes thru culpa are punishable here unless they are specifically penalized under other provisions of the Code, such as malversation thru negligence (Art. 217), evasion thru negligence (Art. 224), and failure to render accounts (Art. 218). Where several crimes result from criminal negligence, and they are grave or less grave, Art. 48 on complex crimes may apply. 3. The rules for graduating penalties based on mitigating or aggravating circumstances (Art. 64) are not applicable to offenses thru negligence. Hence, even if there are two or more mitigating circumstances and no aggravating circumstance, the accused is not entitled to a penalty one degree lower (People vs. Medroso, Jr., G.R. No. L-37633, Jan. 31, 1975). 4. Under this article, crimes against persons are punishable by imprisonment, while those against property, by fine. In People vs. Bueno, (CA, 54 O.G. 7405), it was held that in arson thru reckless imprudence resulting in damage to property only, the penalty shall be a fine. 5. The doctrine of last clear chance applies only in cases where the accused had sufficient opportunity to avoid the accident after noticing the peril or after the time he should have noticed it (People vs. Calma, CA, 57 O.G. 4770). It may involve negligence on the part of both parties (People vs. Lopez, CA, 44 O.G. 584; Lacdan vs. Guy, CA, 57 O.G. 7172). 6. The emergency rule is exemplified by a driver who, by the negligence of another and not by his own negligence is placed in an emergency and compelled to act instantly to avoid an impending danger, is not liable if he makes a choice which an ordinarily prudent person would make, even if he did not make the wisest choice under the circumstances (5 Am. Jur. 600-601). Obviously, this rule cannot be invoked by the accused if there was negligence on his part at the time of the incident (Addenbrook vs. People, G.R. No. L-22995, June 29, 1967) where the emergency situation did not arise suddenly but could reasonably be foreseen or anticipated (People vs. Eleazar, et. al., CA, 60 O.G. 1728). 7. Relevant to this Title, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established without specific proof of negligence. While negligence is not ordinarily inferred or presumed, under the doctrine of res ipsa loquitur (which literally means that the thing or transaction speaks for itself), the facts or circumstances accompanying an injury may be such as to raise a presumption or permit an inference of negligence on the part of the defendant or person charged with negligence. Where the thing or instrumentality which caused the injury was under the control or management of the defendant, and the injurious occurrence was such that in the ordinary course of things it would not happen if those who had its control or management used proper care, there is sufficient or reasonable evidence, absent satisfactory explanation, that the injury was caused by defendant’s want of care. This doctrine is a rule of necessity since it proceeds on the theory that, under the circumstances involved, it is within the power of the defendant to show that there was no negligence on his part, while direct proof of his negligence is beyond plaintiffs’ power to produce (see D.M. Consunji, Inc. vs. CA, et al., G.R. No. 137873, April 20, 2001). 8. Contributory negligence is not applicable in cases under this article on the criminal aspect, and is only mitigating for the civil liability (People vs. Quiñones, CA, 44 O.G. 1520). In People vs. Tan (CA, 64 O.G. 9324), it was held that the parents or persons in custody of the child who died in a vehicular mishap can also be prosecuted if they were themselves negligent and not merely contributorily so, without prejudice to the liability of the driver for negligence. 9. The failure of the offender to immediately render assistance to the injured party raises the penalty by one degree. This is a qualifying circumstances which cannot be taken into account unless alleged in the information (People vs. Beduya, CA, 60 O.G. 2667; Ibabao vs. People, G.R. No. L-36959, Sept. 28, 1984). Under Sec. 55 of the Land Transportation Code (R.A. 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 physician or a nurse for medical assistance to the injured.