Art. 3. Definitions.

Acts and omissions punishable by law  Requisites:

are felonies (delitos) a. The direct, natural and logical cause
b. Produces the injury or damage
Felonies are committed not only by means of deceit (dolo) c. Unbroken by any sufficient intervening
but also by means of fault (culoa). cause
d. Without which the result would not have
There is deceit when the act is performed with deliberate
occurred
intent; and there is fault when the wrongful act results
from imprudence, negligence, lack of foresight or lack of Proximate Cause – that cause which sets into motion other
skill. causes and which unbroken by any efficient supervening
cause produces a felony without which such felony could
How felonies are committed: not have resulted.
1. By means of deceit (dolo) – act is performed with
Causes which produce a different result:
deliberate intent.
 Requisites: 1. Mistake in the identity of the victim – injuring one
a. Freedom person who is mistake for another
b. Intelligence a. Error in personae – the intended victim
c. Intent was not at the scene of the crime
2. By means of fault (culpa) – wrongful act results b. Mitigating of the crime committed is
from imprudence, negligence, lack of foresight or different from that which was intended
lack of skill. c. If the crime committed is the same as that
 Requisites: which was intended, error in personae
a. Freedom does not affect the criminal liability of the
b. Intelligence offender
c. Imprudence, negligence, lack of skill or 2. Mistake in blow – hitting somebody other than the
foresight target due to lack of skill or fortuitous instances
d. Lack of intent (complex crime under art. 48, unless if the resulting
consequence if not a grave or less grave felony)
Mistake of fact – a misapprehension of fact on the part of a. Aberratio ictus – a person directed the
the person who caused injury to another. He is not blow at an intended victim, but because of
criminally liable. poor aim, that blow landed on somebody
else
 Requisites:
b. The intended victim as well as the actual
a. That the act done would have been lawful
victim are both at the scene of the crime
had the facts been as the accused
c. The penalty for the more serious crime is
believed them to be
imposed in the maximum period
b. Intention of the accused is lawful
3. Injurious result is greater than that intended –
c. Mistake must be without fault or
causing injury graver than intended or expected
carelessness
(mitigating circumstance due to lack of intent to
Art. 4. Criminal liability. Criminal liability shall be incurred: commit so grave a wrong)
a. Praeter intentionem – it is mitigating only
1. By any person committing a felony, although the if there is a notable or notorious disparity
wrongful act done be different from that which he between the means employed and the
intended resulting felony
b. If the resulting felony can be foreseen or
2. By any person performing an act which would be an anticipated from the means employed,
offense against persons or property, were it not for the the circumstance of praeter intentionem
inherent impossibility of its accomplishment or on account does not apply
of the employment of inadequate or ineffectual means
Requisites of 2nd paragraph
st
Elements of the 1 paragraph:
1. Act would have been an offense against persons or
1. A felony was committed property
2. The felony committed resulted in the commission 2. Act is not an actual violation of another provision
of another felony (the act done is the proximate of the Code or of a special penal law
cause of the resulting felony; it must be the direct, 3. There was criminal intent
natural and logical consequence of the felonious 4. Accomplishment was inherently impossible; or
act) inadequate or ineffectual means were employed

Doctrine of Proximate Cause – such adequate and efficient Notes:

cause as, in the natural order of events, and under the
particular circumstances surrounding the case, which would  Offender must believe that he can consummate
necessarily produce the event the intended crime
  There is no attempted or frustrated impossible GR: Light felonies are punishable only when they have
crime been consummated.
 If the act done by the offender constitutes some
other crimes under the RPC, he will not be liable XPN: Those committed against persons or property
for an impossible crime. He will be prosecuted for
Art. 8. Conspiracy and proposal to commit felony.
the crime constituted so far by the act done by him
Conspiracy and proposal to commit felony are punishable
 Whenever you are confronted with a problem
only in the cases in which the law specially provides a
where the facts suggest that an impossible crime
penalty therefore.
was committed, be careful about the question
asked. If the question asked is: “Is an impossible A conspiracy exists when two or more persons come to an
crime committed?”, then you judge that question agreement concerning the commission of a felony and
on the basis of the facts. If really the facts decide to commit it.
constitute an impossible crime, then you suggest
than an impossible crime is committed, then you There is proposal when the person who has decided to
state the reason for the inherent impossibility. commit a felony proposes its execution to some other
person/s.
 If the question asked is “Is he liable for an
impossible crime?”, this is a catching question. Notes:
Even though the facts constitute an impossible
crime, if the act done by the offender constitutes  Conspiracy to commit a crime is not to be confused
some other crimes under the Revised Penal Code, with conspiracy as a means of committing a crime.
he will not be liable for an impossible crime. He will In both cases there is an agreement but mere
be prosecuted for the crime constituted so far by conspiracy to commit a crime is not punished
the act done by him. The reason is an offender is EXCEPT in treason, rebellion or sedition. Even then,
punished for an impossible crime just to teach him if the treason is actually committed, the conspiracy
a lesson because of his criminal perversity. will be considered as a means of committing it and
Although objectively, no crime is committed, but the accused will all be charged for treason and not
subjectively, he is a criminal. That purpose of the for conspiracy to commit treason.
law will also be served if he is prosecuted for some
other crime constituted by his acts which are also 2 kinds of conspiracy:
punishable under the RPC.
1. Conspiracy as a crime
a. No overt act is necessary to bring about
the criminal liability
Art. 6. Consummated, frustrated, and attempted felonies. b. The mere conspiracy is the crime itself
– Consummated felonies, as well as those which are c. Treason, rebellion, sedition and coup
frustrated and attempted, are punishable. d’etat are the only crimes where the
conspiracy and proposal to commit to
A felony is consummated when all the elements necessary them are punishable
for its execution and accomplishment are present; and it is 2. Conspiracy as a manner of incurring criminal
frustrated when the offender performs all the acts of liability
execution which would produce the felony as a a. There must be an overt act done before
consequence but which, nevertheless, do not produce it by the co-conspirators become criminally
reason of causes independent of the will of the liable
perpetrator. b. None of the co-conspirators would be
liable, UNLESS there is an overt act
There is an attempt when the offender commences the c. When one of them commits any overt act,
commission of a felony directly by overt acts, and does not all of them shall be held liable, unless:
perform all the acts of execution which should produce the i. A co-conspirator was absent from
felony by reason of some cause or accident other than his the scene of the crime
own spontaneous desistance. ii. He showed up, but he tried to
prevent the commission of the
Stages of a crime does not apply in: crime
1. Offenses punishable by Special Penal Laws, unless Composite crimes – crimes which, in substance, consist of
otherwise provided for more than one crime but in the eyes of the law, there is
2. Formal crimes only one crime.
3. Impossible crimes
4. Crimes consummated by mere attempt Art. 9.
5. Felonies by omission
6. Crimes committed by mere agreement Grave felonies – 6 years and 1 day – Reclusion perpetua

Art. 7. When light felonies are punishable. Less grave felonies – 1 month and 1 day – 6 years

Light felonies – 1 day – 30 days (arresto menor)

*** Fine of P200.00 (exact):  The person instigated is acting only as a mere
instrument or tool of the law enforcer in the
1. When the question is what kind of felony – Art. 9 performance of his duties
(light felonies) ; applicable in determining the  Absolves the offender from criminal liability
prescriptive period of feloniew  If the person instigated does not know that the
2. When the question is what kind of penalty – Art. 26 person is instigating him is a law enforcer or he
(correctional penalty) ; applicable in determining knows him to be not a law enforcer, this is not a
the prescriptive period of penalties case of instigation. This is a case of inducement,
both will be criminally liable
Felonies are classified as follows:
Entrapment
(1) According to the manner of their commission  A criminal design is already in the mind of the
person entrapped
 Involves only ways and means which are laid down
Under Article 3, they are classified as, intentional
or resorted to facilitate the apprehension of the
felonies or those committed with deliberate intent;
culprit
and culpable felonies or those resulting from
negligence, reckless imprudence, lack of foresight  Not an absolutory cause; offender is already
or lack of skill. committing a crime
 The person entrapped should not know that the
person trying to entrap him was a law enforcer

(2) According to the stages of their execution Circumstances affecting criminal liability

Justifying circumstances
Under Article 6., felonies are classified as
attempted felony when the offender commences 1. Affects the act, not the actor
the commission of a felony directly by overt acts, 2. Act complained of is considered to have been done
and does not perform all the acts of execution within the bounds of law; hence, it is legitimate
which should produce the felony by reason of and lawful in the eyes of the law
some cause or accident other than his own 3. No crime – no criminal
spontaneous desistance; frustrated felony when 4. No criminal liability as well as civil liability
the offender commences the commission of a
Exempting circumstances
felony as a consequence but which would produce
the felony as a consequence but which 1. Affect the actor, not the act
nevertheless do not produce the felony by reason 2. Act complained of is actually wrongful, but the
of causes independent of the perpetrator; and, actor acted without voluntariness. He is a mere
consummated felony when all the elements tool or instrument of the crime
necessary for its execution are present. 3. There is a crime; however, there is absence of dolo
or culpa; therefore, no criminal
4. There is civil liability for the wrong done. But there
(3) According to their gravity is no criminal liability
a. XPN: no criminal and civil liability –
paragraphs 4 and 7 of art. 12
Under Article 9, felonies are classified as grave
felonies or those to which attaches the capital Art. 11. Justifying circumstances. Those wherein the acts of
punishment or penalties which in any of their the actor are in accordance with law, hence, he is justified.
periods are afflictive; less grave felonies or those There is no criminal and civil liability because there is no
to which the law punishes with penalties which in crime.
their maximum period was correccional; and light
1. Self defense
felonies or those infractions of law for the
a. Elements:
commission of which the penalty is arresto menor.
i. Unlawful aggression – is a
physical act manifesting danger
to life or limb; it is either actual
Instigation v. Entrapment or imminent
1. Must exist at the time
Instigation the defense is made
ii. Reasonable necessity of the
 The criminal plan or design exists in the mind of the means employed to prevent or
law enforcer with whom the person instigated repel it
cooperated iii. Lack of sufficient provocation on
the part of the person defending
himself
2. Defense of relative proportion to the benefit which may have
a. Elements: been received
i. Unlawful aggression i. Civil liability is not based on the
ii. Reasonable necessity of the act committed but on the benefit
means employed to prevent or derived from the state of
repel the attack necessity
iii. In case provocation was given by ii. The accused will not be civilly
the person attacked, that the liable if he did not receive any
person making the defense had benefit out of the state of
no part in such provocation necessity
b. Relatives entitled to the defense: 5. Fulfillment of duty or lawful exercise of a right or
i. Spouse office
ii. Ascendants a. Elements:
iii. Descendants i. That the accused acted in the
iv. Legitimate, natural or adopted performance of a duty or in the
brothers or sisters lawful exercise of a right or office
v. Relatives by affinity in the same ii. That the injury caused or offense
degree (2nd degree) committed be the necessary
vi. Relatives by consanguinity within consequence of the due
the 4th civil degree performance of the duty, or the
c. If the person being defended is already a lawful exercise of such right or
second cousin, you do not invoke defense office
of relative anymore. It will be defense of 6. Obedience to a superior order
stranger. This is vital because if the person a. Elements:
making the defense acted out of revenge, i. There is an order
resentment or some evil motive in killing ii. The order is for a legal purpose
the aggressor, he cannot invoke the iii. The means used to carry out said
justifying circumstance of the relative order is lawful
defended is already a stranger in the eyes
of the law. On the other hand, if the Art. 12. Circumstances which exempt from criminal
relative defended is still within the liability:
coverage of defense of relative, even
though he acted out of some evil motive, 1. An imbecile or insane person, unless the latter has
it would still apply. It is enough that there acted during a lucid interval
was unlawful aggression against the 2. Minor – under special law
relative defended, and that the person 3. Accident (Damnum Absque Injuria) – any person
defending did not contribute to the who, while performing a lawful act with due care,
unlawful aggression causes an injury by mere accident without fault or
3. Defense of stranger intention of causing it
a. Elements: a. Elements:
i. Unlawful aggression i. A person is performing a lawful
ii. Reasonable necessity of the act
means employed to prevent or ii. Exercise of due care
repel the attack iii. He causes injury to another by
iii. The person defending be not mere accident
induced by revenge, resentment iv. Without fault or intention of
or other evil motive causing it
b. A relative not included in defense of b. Exempt from criminal and civil liability
relative is included in defense of stranger 4. Irresistible force – any person who acts under the
4. State of necessity compulsion of an irresistible force
a. Any person who, in order to avoid an evil a. Elements:
or injury, does an act which causes i. That the compulsion is by means
damage to another, provided that the of physical force
following requisites are present: ii. That the physical force must be
i. That the evil sought to be irresistible
avoided actually exists iii. That the physical force must
ii. That the injury feared by greater come from a third person
than that done to avoid it 5. Uncontrollable fear – any person who acts under
iii. That there be no other practical the impulse of an uncontrollable fear of an equal
and less harmful means of or greater injury
preventing it a. Elements:
b. The person for whose benefit the harm i. That the threat which causes the
has been prevented shall be civilly liable in fear is of an evil greater than, or
 at least equal to that which he is a. Necessary that the offender shall have
required to commit served out his sentence for the first
ii. That it promises an evil of such sentence
gravity and imminence that the b. Previous and subsequent offenses must
ordinary man would have not be embraced in the same title of the
succumbed to it code
6. Lawful or insuperable cause – any person who c. Not always an aggravating circumstance
fails to perform an act required by law, when 2. Recidivism
prevented by some lawful or insuperable cause a. Enough that final judgment has been
a. Elements: rendered in the first offense
i. That an act is required by law to b. Offenses must be embraced in the same
be done title
ii. That a person fails to perform c. Always aggravating
such act
iii. That his failure to perform such *** Habitual Delinquency – when a person within a period
act was due to some lawful or of 10 years from the date of his release or last conviction
insuperable cause of the crimes of serious or less serious physical injuries,
robbery, theft, estafa or falsification is found guilty of any
Kinds of mitigating circumstances of said crimes a third time or oftener.

 Privileged mitigating *** Quasi-recidivism – any person who shall commit a

o Cannot be offset by any aggravating felony after having been convicted by final judgment,
circumstances before beginning to serve such sentence, or while serving
o Has the effect of imposing the penalty by the same, shall be punished by the maximum period of the
1 or 2 degrees lower than that provided penalty prescribed by law for the new felony
by law
o Minority, incomplete self-defense, two or Art. 17. The following are considered principals:
more mitigating circumstances without
any aggravating circumstances (has the  Principals by direct participation – those who
effect of lowering the penalty by one take a direct part in the execution of the act
degree)  Principals by induction/inducement – those who
 Ordinary mitigating directly force or induce others to commit it
o Can be offset by a generic aggravating  Principal by indispensable cooperation – those
circumstance who cooperate in the commission of the offense
o If not offset, has the effect of imposing the by another act without which it would not have
penalty in the minimum period been accomplished
o Those circumstances enumerated in par.
Art. 18. Accomplices are those persons who, not being
1-10 of art. 13
included in Art. 17, cooperate in the execution of the
Kinds of aggravating circumstances offense by previous or simultaneous acts.

1. Generic – generally applicable to all crimes Art. 19. Accessories are those who, having knowledge of
2. Specific – apply only to specific crimes (ignominy – the commission of the crime, and without having
for chastity crimes; treachery – for persons crimes) participated therein, either as principals or accomplices,
3. Qualifying – those that change the nature of the take part subsequent to its commission in any of the
crime (evident premeditation – becomes murder) following manners:
4. Inherent – necessarily accompanies the
1. By profiting themselves or assisting the offender
commission of the crime; it is an element of the
to profit by the effects of the crime;
crime committed (evident premeditation in theft,
2. By concealing or destroying the body of the crime,
estafa)
or the effects or instruments thereof, in order to
*** Recidivist – one who at the time of his trial for one prevent its discovery;
crime, shall have been previously convicted by final 3. By harboring, concealing, or assisting in the
judgment of another crime embraced in the same title of escape of the principals of the crime, provided the
the RPC accessory acts with abuse of his public functions
or whenever the author of the crime is guilty of
*** Reiteracion or Habituality – that the offender has been treason, parricide, murder or an attempt to take
previously punished for an offense to which the law the life of the Chief Executive, or is known to be
attaches an equal or greater penalty or for two or more habitually guilty of some other crime.
crimes to which it attaches a lighter penalty
*** Crime committed is kidnapping for ransom. Principal
Reitracion v. Recidivism was being chased by soldiers. His aunt hid him in the ceiling
of her house and aunt denied to soldiers that her nephew
1. Reiteracion had ever gone there. When the soldiers left, the aunt even
gave money to her nephew to go to the province. Is aunt
criminally liable? – No. One who is not a public officer and 2. The commitment of a minor to any of the
who assists an offender to escape or otherwise harbors, or institutions mentioned in Art. 80 and for the
conceals such offender, the crime committed by the purposes specified therein
principal must be either treason, parricide, murder or 3. Suspension from the employment of public office
attempt on the life of the Chief executive or the principal is during the trial or in order to institute proceedings
known to be habitually guilty of some other crime. 4. Fines and other corrective measures which, in the
exercise of their administrative disciplinary
*** However, under PD No. 1829, the aunt may be held powers, superior officials may impose upon their
criminally liable but not as an accessory. PD No. 1829 subordinates
penalizes obstruction of apprehension and prosecution of 5. Deprivation of rights and the reparation which the
criminal offenders. Here there is no specification of the civil laws may establish in penal form
crime to be committed by the offender for criminal liability
to be incurred for harboring, concealing or facilitating the Correlating art. 24 with art. 29
escape of the offender, and the offender need not be the
principal.  Under art. 24, preventive imprisonment of an
accuse who is not yet convicted is not a penalty
*** If the person in a public officer, the nature of the crime  Yet, art. 29, if ultimately the accused is convicted
is immaterial. What is material is that he used his public and the penalty imposed involves deprivation of
function in assisting escape liberty, provides that the period during which he
had undergone preventive detention will be
*** Where the crime committed by the principal was deducted from the sentence unless he is one of
robbery or theft, such participation of an accessory brings those disqualified under the law
about criminal liability under PD No. 1612 (Anti-Fencing  If he signed an undertaking to abide by the same
Law).Mere possession of any article of value which has been rules and regulations governing convicts, then it
the subject of robbery or theft brings about the prima facie means that while he is suffering from preventive
presumption of “fencing”, and he is considered a “fence” imprisonment, he is suffering like a convict, that is
why the credit is full
Art. 20. Accessories who are exempt from criminal liability.
 But if the offender did not sign an undertaking,
The penalties prescribed for accessories shall not be
then he will only be subjected to the rules and
imposed upon those who are such with respect to their
regulations governing detention prisoners. As such,
spouses, ascendants, descendants, legitimate, natural and
he will only be given 80% or 4/5 of the period of his
adopted brothers and sisters, or relatives by affinity within
preventive suspension
the same degrees, with the single exception of accessories
falling within the provisions of paragraph 1 of the next *** Preventive imprisonment – the incarceration
preceding article. undergone by a person accused of a crime which is not
bailable, or he cannot afford to post bond.
Art. 21. Penalties that may be imposed. No felony shall be
punishable by any penalty not prescribed by law prior to ***Subsidiary imprisonment – the personal penalty
its commission. prescribed by law in substitution of the payment of fine
embodied in the decision when the same cannot be
*** Nullim crimen, nulla poena sine lege – there is no
satisfied because of the culprit’s insolvency.
crime when there is no law punishing the same.
*** Bond to keep the peace – imposed as a penalty in
Art. 22. Retroactive effect of penal laws. Penal laws shall
threats
have a retroactive effect insofar as they favor the persons
guilty of a felony, who is not a habitual criminal, as the *** Bail bond – posted for the provisional release of a
term is defined in Rule 5 of Article 62 of this Code, person arrested for or accused of a crime
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving Art. 39. Subsidiary penalty. If the convict has no property
the same. with which to meet the fine mentioned in paragraph 3 of
the preceding article, he shall be subject to a subsidiary
Art. 23. Effect of pardon by the offended party. A pardon personal liability at the rate of one day for each eight
of the offended party does not extinguish criminal action pesos, subject to the following rules:
except as provided in Art. 344 of this Code; but civil
liability with regard to the interest of the injured party is 1. If the principal penalty imposed be prision
extinguished by his express waiver. correccional or arresto and fine, he shall remain
under confinement until his fine referred to in the
Art. 24. Measures of prevention or safety which are not preceding paragraph is satisfied, but his subsidiary
considered penalties. The following shall not be imprisonment shall not exceed 1/3 of the term of
considered as penalties: the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a
1. The arrest and temporary detention of accused
day shall be counted against the prisoner
persons, as well as their detention by reason of
2. When the principal penalty imposed by only a
insanity or imbecility, or illness requiring their
fine, the subsidiary imprisonment shall not exceed
confinement in a hospital
6 months, if the culprit shall have been
 prosecuted for a grave or less grave felony, and  Art. 48 applies only to cases where the Code does
shall not exceed 15 days, if for a light felony not provide a specific penalty for a complex crime
3. When the principal imposed is higher than prision  Does not apply when the law provides one single
correccional, no subsidiary imprisonment shall be penalty for single complex crime like the ff:
imposed upon the culprit (composite crimes)
4. If the principal penalty imposed is not to be o Robbery with homicide
executed by confinement in a penal institution, o Robbery with rape
but such penalty is of fixed duration, the convict, o Kidnapping with serious physical injuries
during the period of time established in the o Rape with homicide
preceding rules, shall continue to suffer the same  Composite crime – one in which substance is made
deprivations as those of which the principal up of more than one crime, but which in the eyes
penalty consists of the law is only a single indivisible offense; also
5. The subsidiary personal liability which the convict know as SPECIAL COMPLEX CRIME
may have suffered by reason of his insolvency  Plurality of crimes – consists in the successive
shall not relieve him, from the fine in case his execution by the same individual of different
financial circumstance should improve criminal acts upon any of which no conviction has
yet been declared
Art. 48. Penalty for complex crimes. When a single act  Continued crimes – refers to a single crime
constitutes 2 or more grave or less grave felonies, or when consisting of a series of acts but all arising from one
an offense is a necessary means for committing the other, criminal resolution; although there is a series of
the penalty for the most serious crime shall be imposed, acts, there is only one crime committed, so only
the same to be applied in its maximum period. one penalty shall be imposed
 The 2 or more grave or less grave felonies must be Art. 49. Penalty to be imposed upon the principals when
the result of a single act, or an offense must be a the crime committed is different from that intended. In
necessary means to commit the crime cases in which the felony committed is different from that
which the offender intended to commit, the ff rules shall
*** Complex crime – one crime only as there is only one
be observed:
criminal intent
1. If the penalty prescribed for the felony committed
2 kinds of complex crime:
be higher than that corresponding to the offense
1. Compound crime – single act constitutes two or which the accused intended to commit, the
more grave or less grave felonies penalty corresponding to the latter shall be
a. Requisites: imposed in its maximum period
i. That only one single act is 2. If the penalty prescribed for the felony committed
committed by the offender by lower than that corresponding to the one
ii. That the single act produces: which the accused intended to commit, the
1. 2 or more grave felonies penalty for the former shall be imposed in its
2. 1 or more grave and one maximum period
or more less grave 3. The rule established by the next preceding
felonies paragraph shall not be applicable if the acts
3. 2 or more less grave committed by the guilty person shall also
felonies constitute an attempt or frustration of another
2. Complex crime proper – when an offense is a crime, if the law prescribes a higher penalty for
necessary means for committing another either of the latter offenses, in which case the
a. Requisites: penalty provided for the attempted or the
i. That at least 2 offenses are frustrated crime shall be imposed in its maximum
committed period.
ii. That one or some of the offenses
Graduated scale of penalties in Art. 71:
must be necessary to commit the
other  Indivisible penalties:
iii. That both or all the offenses must o Death
be punished under the same o Reclusion perpetua
statute
 Divisible penalties
Notes: o Reclusion temporal
o Prision mayor
 No complex crime when one of the offenses is o Prision correccional
penalized by a special law o Arresto mayor
 When in the definition of a felony, one offense is a o Destierro
means to commit the other, there is no complex o Arresto menor
crime o Public censure
 No complex crime when one offense is committed o Fine
to conceal another
Art. 62. Effect of the attendance of mitigating or the date of his release or last conviction of the crimes of
aggravating circumstances and of habitual delinquency. — serious or less serious physical injuries, robo, hurto, estafa
Mitigating or aggravating circumstances and habitual or falsification, he is found guilty of any of said crimes a
delinquency shall be taken into account for the purpose of third time or oftener.
diminishing or increasing the penalty in conformity with
the following rules: Notes:
 If aggravating circumstances is present – you
1. Aggravating circumstances which in themselves cannot go higher 1 degree; apply or impose only its
constitute a crime specially punishable by law or maximum
which are included by the law in defining a crime  If aggravating is present, no matter how many
and prescribing the penalty therefor shall not be mitigating circumstances are present – apply only
taken into account for the purpose of increasing or impose the penalty in its minimum, you cannot
the penalty.chanrobles virtual law library lower the penalty to 1 degree
2. The same rule shall apply with respect to any
aggravating circumstance inherent in the crime to Art. 63. Rules for the application of indivisible penalties. —
such a degree that it must of necessity accompany In all cases in which the law prescribes a single indivisible
the commission thereof.chanrobles virtual law penalty, it shall be applied by the courts regardless of any
library mitigating or aggravating circumstances that may have
3. Aggravating or mitigating circumstances which attended the commission of the deed
arise from the moral attributes of the offender, or
from his private relations with the offended party, Art. 64. Rules for the application of penalties which contain
or from any other personal cause, shall only serve three periods. — In cases in which the penalties prescribed
to aggravate or mitigate the liability of the by law contain three periods, whether it be a single
principals, accomplices and accessories as to divisible penalty or composed of three different penalties,
whom such circumstances are each one of which forms a period in accordance with the
attendant.chanrobles virtual law library provisions of Articles 76 and 77, the court shall observe for
4. The circumstances which consist in the material the application of the penalty the following rules,
execution of the act, or in the means employed to according to whether there are or are not mitigating or
accomplish it, shall serve to aggravate or mitigate aggravating circumstances:
the liability of those persons only who had
knowledge of them at the time of the execution of 1. When there are neither aggravating nor
the act or their cooperation therein.chanrobles mitigating circumstances, they shall impose the
virtual law library penalty prescribed by law in its medium
5. Habitual delinquency shall have the following period.chanrobles virtual law library
effects:
2. When only a mitigating circumstances is
(a) Upon a third conviction the culprit present in the commission of the act, they shall
shall be sentenced to the penalty impose the penalty in its minimum
provided by law for the last crime of period.chanrobles virtual law library
which he be found guilty and to the 3. When an aggravating circumstance is present in
additional penalty of prision correccional the commission of the act, they shall impose the
in its medium and maximum periods; penalty in its maximum period.chanrobles virtual
(b) Upon a fourth conviction, the culprit law library
shall be sentenced to the penalty
provided for the last crime of which he be 4. When both mitigating and aggravating
found guilty and to the additional penalty circumstances are present, the court shall
of prision mayor in its minimum and reasonably offset those of one class against the
medium periods; and other according to their relative
(c) Upon a fifth or additional conviction, weight.chanrobles virtual law library
the culprit shall be sentenced to the
penalty provided for the last crime of 5. When there are two or more mitigating
which he be found guilty and to the circumstances and no aggravating circumstances
additional penalty of prision mayor in its are present, the court shall impose the penalty
maximum period to reclusion temporal in next lower to that prescribed by law, in the period
its minimum period.chanrobles virtual that it may deem applicable, according to the
law library number and nature of such
circumstances.chanrobles virtual law library
Notwithstanding the provisions of this article, the total of
the two penalties to be imposed upon the offender, in 6. Whatever may be the number and nature of
conformity herewith, shall in no case exceed 30 the aggravating circumstances, the courts shall
years.chanrobles virtual law library not impose a greater penalty than that prescribed
by law, in its maximum period.chanrobles virtual
For the purpose of this article, a person shall be deemed to law library
be habitual delinquent, is within a period of ten years from
 7. Within the limits of each period, the court shall 1. Those sentenced to a max of term of
determine the extent of the penalty according to imprisonment of more than 6 years
the number and nature of the aggravating and 2. Those convicted of subversion or any crime
mitigating circumstances and the greater and against national security or public order
lesser extent of the evil produced by the crime. 3. Those who were previously convicted by final
judgment of an offense punishable by
imprisonment of not less than 1 month and 1 day
ISLAW and/or fine of not more than 200
4. Those who have been once on probation
 If the crime is a violation of the RPC, the court will 5. Those already serving sentence
impose a sentence that has a minimum and
maximum. The maximum of the indeterminate May a recidivist be given the benefit of Probation Law?
sentence will be arrived at by taking into account
GR: NO
the attendant mitigating and/or aggravating
circumstances according to Art. 64 of the RPC. In XPN: If the earlier conviction refers to a crime the penalty
arriving at the minimum of the indeterminate of which does not exceed 30 days imprisonment or a fine
sentence, the court will take into account the of not more than P200.
penalty prescribed for the crime and go one degree
lower. Within the range of the penalty arrived at as  Even if he would be convicted subsequently of a
the max in the indeterminate sentence, the court crime embraced in the same title of the RPC as that
will fix the max of the sentence. If there is a of the earlier conviction, he is not disqualified from
privilege mitigating circumstance which has been probation provided that the penalty of the current
taken in consideration in fixing the max of the crime committed does not go beyond 6 years and
indeterminate sentence, the min shall be based on the nature of the crime committed by him is not
the penalty as reduced by the privilege mitigating against public order, national security or
circumstance within the range of the penalty next subversion
lower in degree.
 If the crime is a violation of a special law, in fixing GR: Although a person may be eligible for probation, the
the max of the indeterminate sentence, the court moment he perfects an appeal from the judgment of
will impose the penalty within the range of the conviction, he cannot avail of probation anymore.
penalty prescribed by the special law, as long as it
will not exceed the limit of the penalty. In fixing the XPN: If the offender would appeal the conviction of the
min, the court can fix a penalty anywhere within trial court and the appellate court reduced the penalty to
the range of penalty prescribed by the special law, say, less than 6 years, that convict can still file an
as long as it will not be less than the min limit of application for probation, because the earliest opportunity
the penalty under said law. No mitigating and for him to avail of probation cam only after judgment by
aggravating circumstances are taken into account the appellate court.

THREE FOLD RULE

The ISLAW shall not apply to:
 When a convict is to serve successive penalties, he
1. Persons convicted of offense punishable with will not actually serve the penalties imposed by
death penalty or life imprisonment law. Instead, the most severe of the penalties
2. Persons convicted of treason, conspiracy or imposed on him shall be multiplied by three and
proposal to commit treason the period will be the only term of the penalty to
3. Persons convicted of misprision of treason, be served by him. However, in no case should the
rebellion, sedition, espionage penalty exceed 40 years.
4. Persons convicted of piracy  If the sentences would be served simultaneously,
5. Persons who are habitual delinquents the rule does not govern
6. Persons who shall have escaped from  Can be applied only if the convict is to serve four or
confinement or evaded service more sentences successively
7. Those who have been granted conditional pardon  The court is not at liberty to apply the three-fold
by the Chief Executive and shall have violated the rule, whatever the sum total of penalty for each
terms thereto crime committed, even if it would amount to 1,000
8. Those whose maximum term of imprisonment years or more. It is only when the convict is serving
does not exceed one year, but not to those sentence that the prison authorities should
already sentenced by final judgment at the time determine how long he should stay in jail.
of the approval of ISLAW
9. Those sentenced to destierro or suspension Art. 89. How criminal liability is totally extinguished. —
Criminal liability is totally extinguished:
PROBATION LAW
1. By the death of the convict, as to the personal
The ff are disqualified: penalties and as to pecuniary penalties, liability
therefor is extinguished only when the death of the
 offender occurs before final judgment.chanrobles  Ways of proving treason:
virtual law library a. 2 witnesses testifying to same overt act
The testimonies must refer to the same act, place and
2. By service of the sentence; moment of time. Treason cannot be proved by
circumstantial evidence or by extrajudicial confession.
3. By amnesty, which completely extinguishes the
penalty and all its effects;
Example: X saw arms landed in La Union and
4. By absolute pardon; loaded into a motor vehicle. At this stage, not
sufficient to convict yet. Y later saw the arms
5. By prescription of the crime; unloaded in a warehouse. Will X + Y be sufficient
witnesses to convict? Answer: NO. Because the law
6. By prescription of the penalty; requires that 2 witnesses see the SAME OVERT
ACT.
7. By the marriage of the offended woman, as
provided in Article 344 of this Code. b. Confession of the accused in open court.
Arraignment, pre-trial, trial – OK.

Prescription of crime vs. Prescription of penalties 1. If he has pleaded NOT guilty already during
arraignment, he can still confess in open court
 Prescription of crimes – the loss or forfeiture of by stating the particular acts constituting
the right of the state to prosecute the offender treason.
after the lapse of a certain time 2. During trial, simply saying “I’m guilty” is not
 Prescription of penalty – the loss or forfeiture of enough.
the right of the government to execute the final 3. Withdrawing plea of “not guilty” during
sentence after the lapse of a certain time arraignment not necessary
4. If during arraignment he pleads guilty, court
Article 114 will ask if the accused understands is plea.
TREASON Submission of affidavit during trial, even if
assisted by counsel is not enough.
ELEMENTS:

a. That the offender owes allegiance to the  Treason: breach of allegiance to the government,
Government of the Philippines committed by a person who owes allegiance to it.
b. That there is a war in which the Philippines is Allegiance: obligation of fidelity and obedience. It is
involved permanent or temporary depending on whether the
c. That the offender either – person is a citizen or an alien.
1) Levies war against the government,  Evident premeditation, superior strength and treachery
are circumstances inherent in treason, and are,
1. breech of allegiance therefore, not aggravating.
2. actual assembling of men  Treason cannot be committed in times of peace, only in
3. for the purpose of executing a treasonable times of war – actual hostilities. But no need for
design declaration of war
2) Adheres to the enemies, giving them aid and
comfort
 Not Treasonous:
1. breech of allegiance a. Acceptance of public office and discharge of
2. adherence official duties under the enemy does not
3. giving aid or comfort to the enemy constitute per se the felony of treason
(exception: when it is policy determining)
b. Serving in a puppet government (ministerial
Requirements of levying war
functions) and in order to serve the populace
1) Actual assembling of men; is NOT treasonous. But it is treason if: a) there
is discretion involved; b) inflicts harm on
2) To execute a treasonable design by force; Filipinos; c) it is disadvantageous to them.
c. Purpose of offender: to deliver the Philippines
3) Intent is to deliver the country in whole or in part to the to enemy country; if merely to change officials
enemy; and – not treason

4) Collaboration with foreign enemy or some foreign  On Citizenship

sovereign a. Filipino citizens can commit treason outside
the Philippines. But that of an alien must be
Success is not important. What matters is the actual
committed in the Philippines.
assembly of men and the execution of treasonable design
by force.
 b. Only Filipino citizens or permanent resident aggravating circumstances. It may consider only the
aliens can be held liable number, nature and gravity of the acts established during
c. Alien: with permanent resident status from the trial. The imposition of the penalty rests largely on the
the BID – it is neither the length of stay in the exercise of judicial discretion.
Philippines nor the marriage with a Filipino
that matters. Defenses that may be availed of by the accused.

1. Duress or uncontrollable fear of immediate death; and

 Actual hostilities may determine the date of the
commencement of war 2. Lawful obedience to a de facto government.
 No such thing as attempted treason; mere attempt
consummates the crime
 Giving aid or comfort – material element, enhances  When killings and other common crimes are charged as
forces of the enemy country. overt act of treason, they cannot be regarded as (1)
separate crimes or (2) as complex with treason.
Acts which strengthen or tend to strengthen the enemy in
In the act of levying war or giving aid or comfort to the
the conduct of war against the traitor’s country or that
enemy, murder, robbery, arson or falsification may be
which weaken and tend to weaken the power of the same.
committed by the offender. BUT the offender does not
Example: Financing arms procurement of enemy commit the crime of treason complexed with common
country. But giving of shelter is not necessarily “giving crimes because such crimes are inherent to treason, being
aid and comfort.” an indispensable element of the same.

 Adherence and giving aid or comfort must concur

together. Treason distinguished from Rebellion.
 Adherence: when a citizen intellectually or emotionally
The manner in which both crimes are committed in the
favors the enemy and harbors convictions disloyal to his
same. In treason however, the purpose of the offender is to
country’s policy. But membership in the police force
deliver the government to the enemy country or to a
during the occupation is NOT treason.
foreign power. In rebellion, the purpose of the rebels is to
Example: Giving information to, or commandeering
substitute the government with their own form of
foodstuffs for the enemy.
government. No foreign power is involved.
 Adherence may be proved by: (1) one witness; (2)
Treason distinguished from Sedition.
from the nature of the act itself; (3) from the
circumstances surrounding the act. In treason, the offender repudiates his allegiance to the
government by means of force or intimidation. He does not
recognize the supreme authority of the State. He violates
When this adherence or sympathies are converted into aid
his allegiance by fighting the forces of the duly constituted
and comfort, only then they take material forM. This
authorities.
material form is now what is made punishable. It is usually
manifested by the offender in giving information, In sedition, the offender disagrees with certain policies of
commandeering foodstuffs, serving as spy and supplying the the State and seeks to disturb public peace by raising a
enemy with war materials. commotion or public uprising.

Article 116
 Treason is a CONTINUING CRIME. Even after the war,
offender can be prosecuted. MISPRISION OF TREASON
 ELEMENTS:
Treason is a continuing offense. It can be committed by a a. That the offender must be owing allegiance to
single act or by a series of acts. It can be committed in one the government, and not a foreigner
single time or at different times and only one criminal
intent. In construing the provisions relating to the
commission of several acts, the same must be done in b. That he has knowledge of any conspiracy (to
pursuance or furtherance of the act of treason. commit treason) against the government

No matter how many acts of treason are committed by the

offender, he will be liable for only one crime of treason. c. That he conceals or does not disclose and
make known the same as soon as possible to
 If you convict a person for treason by reason of the governor or fiscal of the province or the
irresistible force or uncontrollable fear, you may use mayor or fiscal of the city in which he resides
Art.12. No treason through negligence While in treason, even aliens can commit said crime because
of the amendment to the article, no such amendment was
In the imposition of the penalty for the crime of treason, the made in misprision of treason. Misprision of treason is a
court may disregard the presence of mitigating and
crime that may be committed only by citizens of the  High seas: any waters on the sea coast which are
Philippines. without the boundaries of the low water mark although
such waters may be in the jurisdictional limits of a
 Offender is punished as an accessory to the crime of foreign gov’t
treason  Piracy in high seas – jurisdiction is with any court
where offenders are found or arrested
Take note that the offender is a principal to the crime of  Piracy in internal waters – jurisdiction is only with
misprision of treason, yet he is penalized only as an Philippine courts
accessory. In the imposition of the penalty, the court is not  For purpose of Anti-Fencing Law, piracy is part of
bound by the provisions of Article 63 and 64, referring to robbery and theft
indivisible penalties. In the presence of mitigating and
aggravating circumstances, the offender is punished two
degrees lower than the penalty for the crime of treason. Piracy Mutiny
Robbery or forcible Unlawful resistance to a
degradation on the high superior officer, or the raising
seas, without lawful of commotion and disturbances
The criminal liability arises if the treasonous activity was authority and done with on board a ship against the
still at the conspiratorial stage animo lucrandi and in authority of its commander
 This crime does not apply if the crime of treason is the spirit and intention
already committed of universal hostility.
 Crime of omission
Intent to gain is an No criminal intent
This is a felony by omission although committed with dolo, element.
not with culpa.
Attack from outside. Attack from the inside.
 “To report within a reasonable time” – depends on Offenders are strangers
time, place and circumstance – the RPC did not fix time. to the vessel.
 RPC states 4 individuals, what if you report to some
other high-ranking government official? Ex. PNP
Director? Judge Pimentel says any gov’t official of the
DILG is OK.  under the amended article, piracy can only be
committed by a person who is not a passenger nor
Whether the conspirators are parents or children, and the member of the complement of the vessel irrespective of
ones who learn the conspiracy is a parent or child, they are venue. So if a passenger or complement of the vessel
required to report the same. The reason is that although commits acts of robbery in the high seas, the crime is
blood is thicker than water so to speak, when it comes to robbery, not piracy.
security of the state, blood relationship is always  If in the Phil. waters still piracy
subservient to national security. Article 20 does not apply
here because the persons found liable for this crime are not
However, despite the amendment, P.D. No. 532 may still
considered accessories; they are treated as principals.
apply where the offender is not stranger to the vessel since
Article 122 it provides: “Any attack upon or seize of any vessel, or the
PIRACY taking away of the whole of part thereof or its cargo,
equipment or the personal belongings of its complement or
 2 Ways of Committing Piracy passengers, irrespective of the value hereof, by means of
a. By attacking or seizing a vessel on the high seas or violence against or intimidation of persons or force upon
in the Philippine waters (PD 532) things, committed by any person, including a passenger or
b. By seizing the whole or part of the cargo of said member of the complement of said vessel, in Philippine
vehicles, its equipment or personal belongings of waters, shall be considered as piracy. The offenders shall be
its complement or passengers considered as pirates and punished as hereinafter provided.”
After all, under the Revised Penal Code, for one to be called
 Elements: a pirate, the offender must be a stranger to the vessel.
a. That a vessel is on the high seas/Philippine waters
b. That the offenders are not members of its  While the Article 122 limits the offenders to non-
complement or passengers of the vessel passengers or non-members of the crew, P.D. 532
c. That the offenders – states that the attack upon or seizure of any vessel, or
1. attack or seize that vessel or (hence, if taking away the whole or part thereof or its cargo,
committed by crew or passengers, the crime is equipment or personal belongings of its complement or
not piracy but robbery in the high seas) passengers committed by any person including a
2. seize the whole or part of the cargo of said passenger or member of the complement of said vessel
vessel, its equipment or personal belongings shall be considered Piracy.
of its complement or passengers
Note, however, that in Section 4 of Presidential Decree No.
532, the act of aiding pirates or abetting piracy is penalized
as a crime distinct from piracy. Said section penalizes any
person who knowingly and in any manner aids or protects  Parricide/infanticide should be included (Judge
pirates, such as giving them information about the Pimentel)
movement of the police or other peace officers of the  Murder/rape/homicide/physical injuries must have
government, or acquires or receives property taken by such been committed on the passengers or complement
pirates, or in any manner derives any benefit therefrom; or
who directly or indirectly abets the commission of piracy. In piracy, where rape, murder or homicide is committed, the
Also, it is expressly provided in the same section that the mandatory penalty of death is imposable. This means that
offender shall be considered as an accomplice of the even if the accused enters a plea of guilty, the penalty of
principal offenders and punished in accordance with the death will still be imposed because death is a single and
Revised Penal Code. This provision of Presidential Decree indispensable penalty. (People vs. Rodriguez, 135 SCRA
No. 532 with respect to piracy in Philippine water has not 485)
been incorporated in the Revised Penal Code. Neither may it
be considered repealed by Republic Act No. 7659 since The penalty for qualified piracy is reclusion perpetua to
there is nothing in the amendatory law is inconsistent with death. If any of the circumstances enumerated under the
said section. Apparently, there is still the crime of abetting law is proven or established, the mandatory penalty of
piracy in Philippine waters under Presidential Decree No. death should be imposed. The presence of mitigating or
532. aggravating circumstances will be ignored by the court.

Considering that the essence of piracy is one of robbery, any Although in Article 123 merely refers to qualified piracy,
taking in a vessel with force upon things or with violence or there is also the crime of qualified mutiny. Mutiny is
intimidation against person is employed will always be qualified under the following circumstances:
piracy. It cannot co-exist with the crime of robbery.
Robbery, therefore, cannot be committed on board a vessel. (1) When the offenders abandoned the victims without
But if the taking is without violence or intimidation on means of saving themselves; or
persons or force upon things, the crime of piracy cannot be
(2) When the mutiny is accompanied by rape, murder,
committed, but only theft.
homicide, or physical injuries.
Elements of mutiny
Note that the first circumstance which qualifies piracy does
1) The vessel is on the high seas or Philippine waters; not apply to mutiny.

2) Offenders are either members of its complement, or Republic Act No. 6235 (The Anti Hi-Jacking Law)
passengers of the vessel;
Anti hi-jacking is another kind of piracy which is committed
3) Offenders either – in an aircraft. In other countries, this crime is known as
aircraft piracy.
a. attack or seize the vessel; or
Four situations governed by anti hi-jacking law:
b. seize the whole or part of the cargo, its
equipment, or personal belongings of the (1) usurping or seizing control of an aircraft of
crew or passengers. Philippine registry while it is in flight, compelling
the pilots thereof to change the course or
Mutiny is the unlawful resistance to a superior officer, or destination of the aircraft;
the raising of commotions and disturbances aboard a ship
against the authority of its commander. (2) usurping or seizing control of an aircraft of foreign
registry while within Philippine territory, compelling
Article 123 the pilots thereof to land in any part of Philippine
QUALIFIED PIRACY territory;

 QUALIFYING CIRCUMSTANCES: (3) carrying or loading on board an aircraft operating

a. Whenever they have seized a vessel by boarding as a public utility passenger aircraft in the
or firing upon the same Philippines, any flammable, corrosive, explosive, or
b. Whenever the pirates have abandoned their poisonous substance; and
victims without means of saving themselves
c. Whenever the crime is accompanied by murder, (4) loading, shipping, or transporting on board a cargo
homicide, physical injuries, or rape. (the above aircraft operating as a public utility in the
may result to qualified mutiny) Philippines, any flammable, corrosive, explosive, or
poisonous substance if this was done not in
accordance with the rules and regulations set and
Murder, rape, homicide, physical injuries are mere promulgated by the Air Transportation Office on
circumstances qualifying piracy and cannot be punished as this matter.
separate crimes, nor can they be complexed with piracy.
Between numbers 1 and 2, the point of distinction is
whether the aircraft is of Philippine registry or foreign
registry. The common bar question on this law usually
involves number 1. The important thing is that before the Note, however, that there is no hi-jacking in the
anti hi-jacking law can apply, the aircraft must be in flight. attempted stage. This is a special law where the attempted
If not in flight, whatever crimes committed shall be stage is not punishable.
governed by the Revised Penal Code. The law makes a
distinction between aircraft of a foreign registry and of 2. A Philippine Air Lines aircraft is bound for
Philippine registry. If the aircraft subject of the hi-jack is of Davao. While the pilot and co-pilot are taking their snacks
Philippine registry, it should be in flight at the time of the hi- at the airport lounge, some of the armed men were also
jacking. Otherwise, the anti hi-jacking law will not apply and there. The pilots were followed by these men on their way
the crime is still punished under the Revised Penal Code. The to the aircraft. As soon as the pilots entered the cockpit,
correlative crime may be one of grave coercion or grave they pulled out their firearms and gave instructions where
threat. If somebody is killed, the crime is homicide or to fly the aircraft. Does the anti hi-jacking law apply?
murder, as the case may be. If there are some explosives
carried there, the crime is destructive arson. Explosives are No. The passengers have yet to board the aircraft.
by nature pyro-techniques. Destruction of property with If at that time, the offenders are apprehended, the law will
the use of pyro-technique is destructive arson. If there is not apply because the aircraft is not yet in flight. Note that
illegally possessed or carried firearm, other special laws will the aircraft is of Philippine registry.
apply.
3. While the stewardess of a Philippine Air
Lines plane bound for Cebu was waiting for the passenger
manifest, two of its passengers seated near the pilot
On the other hand, if the aircraft is of foreign registry, the surreptitiously entered the pilot cockpit. At gunpoint, they
law does not require that it be in flight before the anti hi- directed the pilot to fly the aircraft to the Middle East.
jacking law can apply. This is because aircrafts of foreign However, before the pilot could fly the aircraft towards the
registry are considered in transit while they are in foreign Middle East, the offenders were subdued and the aircraft
countries. Although they may have been in a foreign landed. What crime was committed?
country, technically they are still in flight, because they have
to move out of that foreign country. So even if any of the The aircraft was not yet in flight. Considering that
acts mentioned were committed while the exterior doors of the stewardess was still waiting for the passenger manifest,
the foreign aircraft were still open, the anti hi-jacking law the doors were still open. Hence, the anti hi-jacking law is
will already govern. not applicable. Instead, the Revised Penal Code shall govern.
The crime committed was grave coercion or grave threat,
Note that under this law, an aircraft is considered in flight depending upon whether or not any serious offense violence
from the moment all exterior doors are closed following was inflicted upon the pilot.
embarkation until such time when the same doors are again
opened for disembarkation. This means that there are However, if the aircraft were of foreign registry, the
passengers that boarded. So if the doors are closed to bring act would already be subject to the anti hi-jacking law
the aircraft to the hangar, the aircraft is not considered as in because there is no requirement for foreign aircraft to be in
flight. The aircraft shall be deemed to be already in flight flight before such law would apply. The reason for the
even if its engine has not yet been started. distinction is that as long as such aircraft has not returned to
its home base, technically, it is still considered in transit or in
flight.
Questions & Answers
As to numbers 3 and 4 of Republic Act No. 6235, the
1. The pilots of the Pan Am aircraft were distinction is whether the aircraft is a passenger aircraft or a
accosted by some armed men and were told to proceed to cargo aircraft. In both cases, however, the law applies only
the aircraft to fly it to a foreign destination. The armed men to public utility aircraft in the Philippines. Private aircrafts
walked with the pilots and went on board the aircraft. But are not subject to the anti hi-jacking law, in so far as
before they could do anything on the aircraft, alert marshals transporting prohibited substances are concerned.
arrested them. What crime was committed?
If the aircraft is a passenger aircraft, the prohibition is
The criminal intent definitely is to take control of absolute. Carrying of any prohibited, flammable, corrosive,
the aircraft, which is hi-jacking. It is a question now of or explosive substance is a crime under Republic Act No.
whether the anti-hi-jacking law shall govern. 6235. But if the aircraft is only a cargo aircraft, the law is
violated only when the transporting of the prohibited
The anti hi-jacking law is applicable in this case. substance was not done in accordance with the rules and
Even if the aircraft is not yet about to fly, the requirement regulations prescribed by the Air Transportation Office in
that it be in flight does not hold true when in comes to the matter of shipment of such things. The Board of
aircraft of foreign registry. Even if the problem does not say Transportation provides the manner of packing of such kind
that all exterior doors are closed, the crime is hi-jacking. of articles, the quantity in which they may be loaded at any
Since the aircraft is of foreign registry, under the law, simply time, etc. Otherwise, the anti hi-jacking law does not apply.
usurping or seizing control is enough as long as the aircraft
is within Philippine territory, without the requirement that it However, under Section 7, any physical injury or damage to
be in flight. property which would result from the carrying or loading of
the flammable, corrosive, explosive, or poisonous substance
in an aircraft, the offender shall be prosecuted not only for
violation of Republic Act No. 6235, but also for the crime of  Though the elements specify that the offender be a
physical injuries or damage to property, as the case may be, public officer or employee, private individuals who
under the Revised Penal Code. There will be two conspire with public officers can also be liable.
prosecutions here. Other than this situation, the crime of
physical injuries will be absorbed. If the explosives were In a case decided by the Supreme Court a Barangay
planted in the aircraft to blow up the aircraft, the Chairman who unlawfully detains another was held to be
circumstance will qualify the penalty and that is not guilty of the crime of arbitrary detention. This is because he
punishable as a separate crime for murder. The penalty is is a person in authority vested with the jurisdiction to
increased under the anti hi-jacking law. maintain peace and order within his barangay. In the
maintenance of such peace and order, he may cause the
All other acts outside of the four are merely qualifying arrest and detention of troublemakers or those who disturb
circumstances and would bring about higher penalty. Such the peace and order within his barangay. But if the legal
acts would not constitute another crime. So the killing or basis for the apprehension and detention does not exist,
explosion will only qualify the penalty to a higher one. then the detention becomes arbitrary.

Questions & Answers  Legal grounds for the detention of any person:
a. commission of a crime
b. violent insanity or other ailment requiring
1. In the course of the hi-jack, a passenger or
compulsory confinement of the patient in a
complement was shot and killed. What crime or crimes
hospital
were committed?
c. escaped prisoner

The crime remains to be a violation of the anti hi- When the peace officers acted in good faith even if
jacking law, but the penalty thereof shall be higher because the three (3) grounds mentioned above are not obtaining,
a passenger or complement of the aircraft had been killed. there is no Arbitrary Detention.
The crime of homicide or murder is not committed.
 Without legal grounds:
2. The hi-jackers threatened to detonate a a. he has not committed any crime or no reasonable
bomb in the course of the hi-jack. What crime or crimes ground of suspicion that he has committed a crime
were committed? b. not suffering from violent insanity or any other
ailment requiring compulsory confinement in a
Again, the crime is violation of the anti hi-jacking hospital
law. The separate crime of grave threat is not committed.
This is considered as a qualifying circumstance that shall  Grounds for warrantless arrest:
serve to increase the penalty. a. Crime is about to be, is being, has been committed
in his presence
Classes of Arbitrary Detention: b. Officer must have probable cause to believe based
on personal knowledge of facts and circumstances
a. By detaining a person without legal ground that the person probably committed the crime
b. Delay in the delivery of detained persons to the
proper judicial authorities
 For escaped prisoner – no need for warrant
c. Delaying release
 Example: Y was killed by unknown assailant. Officers
got a tip and arrested X. X voluntarily admitted to the
Article 124 officers that he did it although he was not asked. X was
detained immediately. According to the SC, there was
ARBITRARY DETENTION NO arbitrary detention. Why? Because once X made a
confession, the officers had a right to arrest him.
 ELEMENTS:
a. That the offender is a public officer or employee Arbitrary detention can be committed thru simple
(whose official duties include the authority to make imprudence or negligence. (People vs. Misa)
an arrest and detain persons; jurisdiction to
maintain peace and order).
b. That he detains a person (actual restraint). Periods of Detention penalized:
c. That the detention was without legal grounds
(cannot be committed if with warrant). 1. Detention not exceeding three days;

2. Detention for more than three days but not more than
 Detention: when a person is placed in confinement or 15 days;
there is a restraint on his person.
3. Detention for more than 15 days but not more than 6
Only those public officers whose official duties carry with it months; and
the authority to make an arrest and detain persons can be
guilty of this crime. So, if the offender does not possess such 4. Detention for more than 6 months.
authority, the crime committed by him is illegal detention.
 Continuing crime is different from a continuous crime In arbitrary detention, the main reason for
 Ramos v. Enrile: Rebels later on retire. According to the detaining the offended party is to deny him of his
SC, once you have committed rebellion and have not liberty.
been punished or amnestied, then the rebels continue
to engage in rebellion, unless the rebels renounce his In unlawful arrest, the purpose is 1) to accuse the
affiliation. Arrest can be made without a warrant offended party of a crime he did not commit; 2) to
because this is a continuing crime. deliver the person to the proper authority; and 3)
to file the necessary charges in a way trying to
Distinction between arbitrary detention and illegal incriminate him.
detention
When a person is unlawfully arrested, his subsequent
1. In arbitrary detention -- detention is without legal grounds.
The principal offender must be a public officer.
Civilians cannot commit the crime of arbitrary Article 134
detention except when they conspire with a public REBELLION OR INSURRECTION
officer committing this crime, or become an
accomplice or accessory to the crime committed by  ELEMENTS:
a. That there be –
the public officer; and
1. public uprising and
The offender who is a public officer has a duty 2. taking arms against the government
which carries with it the authority to detain a (force/violence)
person. b. That the purpose of the uprising or movement is
either
1. to remove from the allegiance to said
government or its laws –

2. In illegal detention –
i. the territory of the Philippines or any part
thereof, or
The principal offender is a private person. But a ii. any body of land, naval or other armed
public officer can commit the crime of illegal forces, or
detention when he is acting in a private capacity or 2 To deprive the chief executive or congress,
beyond the scope of his official duty, or when he wholly or partially, of any of their powers or
becomes an accomplice or accessory to the crime prerogatives
committed by a private person.
 Persons liable for rebellion
The offender, even if he is a public officer, does not a. Any person who: 1. promotes
include as his function the power to arrest and 2. maintains, or
detain a person, unless he conspires with a public
officer committing arbitrary detention. 3. heads a rebellion or
insurrection; or
Whether the crime is arbitrary detention or illegal detention,
it is necessary that there must be an actual restraint of b. Any person who, while holding any public office or
liberty of the offended party. If there is no actual restraint, employment, takes part therein by:
as the offended party may still go to the place where he 1. engaging in war against the forces of the
wants to go, even though there have been warnings, the government
crime of arbitrary detention or illegal detention is not 2. destroying property or committing serious
committed. There is either grave or light threat. violence
3. exacting contributions or diverting public
However, if the victim is under guard in his movement such funds from the lawful purpose for which they
that there is still restraint of liberty, then the crime of either have been appropriated (Note: “diverting
arbitrary or illegal detention is still committed. public funds” is malversation absorbed in
rebellion);
Distinction between arbitrary detention and unlawful 4. Any person merely participating or executing
arrest the command of others in rebellion
(1) As to offender

In arbitrary detention, the offender is a public The essence of this crime is a public uprising with the taking
officer possessed with authority to make arrests. up of arms. It requires a multitude of people. It aims to
overthrow the duly constituted government. It does not
In unlawful arrest, the offender may be any person. require the participation of any member of the military or
national police organization or public officers and generally
(2) As to criminal intent
carried out by civilians. Lastly, the crime can only be
committed through force and violence.
The crime of rebellion cannot be committed by a single  Mere giving of aid or comfort is not criminal in the case
individual. Invariably, it is committed by several persons for of rebellion. Merely sympathizing is not participation,
the purpose of overthrowing the duly constituted or there must be ACTUAL participation
organized government. In the Philippines, what is known to
the ordinary citizen as a symbol of Government would be
the barangay, represented by its officials; the local There must be a public apprising and taking up of
government represented by the provincial and municipal arms for the specified purpose or purposes mentioned in
officials; and the national government represented by the Article 134. The acts of the accused who is not a member of
President, the Chief Justice and the Senate President and the Hukbalahap organization of sending cigarettes and food
the Speaker of the House of Representatives. supplies to a Huk leader; the changing of dollars into pesos
for a top level communist; and the helping of Huks in
opening accounts with the bank of which he was an official,
 Success is immaterial, purpose is always political do not constitute Rebellion. (Carino vs. People, et al., 7
SCRA 900).

The crime of rebellion is essentially a political crime. The  Not necessary that there is killing, mere threat of
intention of the rebel is to substitute himself in place of removing Phil is sufficient
those who are in power. His method of placing himself in
authority with the use of violence, duress or intimidation, Rebellion may be committed even without a single shot
assassination or the commission of common crimes like being fired. No encounter needed. Mere public uprising
murder, kidnapping, arson, robbery and other heinous with arms enough.
crimes in what we call rebellion.
 Rebellion cannot be complexed with any other crime.

 Rebellion used where the object of the movement is Common crimes perpetrated in furtherance of a political
completely to overthrow and supersede the existing offense are divested of their character as “common”
government offenses and assume the political complexion of the main
 Insurrection refers to a movement which seeks merely crime which they are mere ingredients, and consequently,
to effect some change of minor importance to prevent cannot be punished separately from the principal offense,
the exercise of gov’t authority w/ respect to particular or complexed with the same.
matters or subjects
 The phrase “to remove allegiance from the government’ Article 134-A
is used to emphasize that the object of the uprising
could be limited to certain areas, like isolating a COUP D’ ETAT
barangay or municipality or a province in its loyalty to
 ELEMENTS:
the duly constituted government or the national
a. Swift attack
government.
b. Accompanied by violence, intimidation, threat,
strategy or stealth
Allegiance is a generic term which includes loyalty, civil c. Directed against:
obedience and civil service. 1. duly constituted authorities
2. any military camp or installation
The law on rebellion however, does not speak only of 3. communication networks or public
allegiance or loss of territory. It also includes the efforts of utilities
the rebel to deprive the President of the Philippines of the 4. other facilities needed for the exercise
exercise of his power to enforce the law, to exact obedience and continued possession of power
of laws and regulations duly enacted and promulgated by d. Singly or simultaneously carried out anywhere in
the duly constituted authorities. the Philippines

 Actual clash of arms w/ the forces of the gov’t, not d. Committed by any person or persons
necessary to convict the accused who is in conspiracy belonging to the military or police or
w/ others actually taking arms against the gov’t holding any public office or employment;
 Purpose of the uprising must be shown but it is not with or without civilian support or
necessary that it be accomplished participation
 A change of government w/o external participation e. With or without civilian support or
 RISING PUBLICLY and TAKING ARMS AGAINST participation
GOVERNMENT – actual participation. If there is no f. Purpose of seizing or diminishing state
public uprising, the crime is of direct assault. power

When any of the objectives of rebellion is pursued but there The essence of the crime is a swift attack upon the facilities
is no public uprising in the legal sense, the crime is direct of the Philippine government, military camps and
assault of the first form. But if there is rebellion, with public installations, communication networks, public utilities and
uprising, direct assault cannot be committed. facilities essential to the continued possession of
governmental powers. It may be committed singly or DIRECT ASSAULT
collectively and does not require a multitude of people.  ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT
a. That the offender employs force or intimidation.
 The objective may not be to overthrow the government b. That the aim of the offender is to attain any of the
but only to destabilize or paralyze the government purposes of the crime of rebellion or any of the
through the seizure of facilities and utilities essential to objects of the crimes of sedition. (victim need not
the continued possession and exercise of governmental be person in authority)
powers. It requires as principal offender a member of c. That there is no public uprising.
the AFP or of the PNP organization or a public officer
with or without civilian support. Finally, it may be
carried out not only by force or violence but also Example of the first form of direct assault:
through stealth, threat or strategy.
Three men broke into a National Food Authority warehouse
and lamented sufferings of the people. They called on
How do you distinguish between coup d’etat and people to help themselves to all the rice. They did not even
rebellion? help themselves to a single grain.

Rebellion is committed by any person whether a private The crime committed was direct assault. There was no
individual or a public officer whereas in coup d’etat, the robbery for there was no intent to gain. The crime is direct
offender is a member of the military or police force or assault by committing acts of sedition under Article 139 (5),
holding a public office or employment. that is, spoiling of the property, for any political or social
end, of any person municipality or province or the national
In rebellion, the object is to alienate the allegiance of a government of all or any its property, but there is no public
people in a territory, whether wholly or partially, from the uprising.
duly constituted government; in coup d’etat, the object or
purpose is to seize or diminish state power.

In both instances, the offenders intend to substitute  ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT:
themselves in place of those who are in power. a. That the offender (a) makes an attack, (b)
employs force, (c) makes a serious intimidation, or
(d) makes a serious resistance.
b. That the person assaulted is a person in authority
Treason Rebellio Coup Sedition or his agent.
(114) n (134) d’etat (139) c. That at the time of the assault the person in
(134-A) authority or his agent (a) is engaged in the actual
performance of official duties (motive is not
Crime Crime Crime Crime essential), or that he is assaulted (b) by reason of
Nature of against against against against the past performance of official duties (motive is
Crime National Public Public Public essential).
Security Order Order Order d. That the offender knows that the one he is
assaulting is a person in authority or his agent in
levying Public See Rising the exercise of his duties (with intention to offend,
Overt Acts war uprising article. publicly injure or assault).
against the or e. That there is no public uprising.
gov’t; tumultuo
AND usly
OR (caused Crime of direct assault can only be committed by means of
Taking by more dolo. It cannot be committed by culpa.
adherence up arms than 3
and giving against armed  Always complexed with the material consequence of the
aid or the gov’t men or act (e.g. direct assault with murder) except if resulting
comfort to provided in a light felony, in which case, the consequence is
enemies with absorbed
means of The crime is not based on the material consequence of the
violence) unlawful act. The crime of direct assault punishes the spirit
of lawlessness and the contempt or hatred for the authority
Purpose of Deliver the See Seizing See or the rule of law.
objective gov’t to article. or enumera
enemy diminishi tion in To be specific, if a judge was killed while he was holding a
during war ng state article. session, the killing is not the direct assault, but murder.
power. There could be direct assault if the offender killed the judge
simply because the judge is so strict in the fulfillment of his
duty. It is the spirit of hate which is the essence of direct
assault.
Article 148
So, where the spirit is present, it is always complexed with treasurer, postmaster, sheriff, agents of the BIR,
the material consequence of the unlawful act. If the Malacañang confidential agent)
unlawful act was murder or homicide committed under  Even when the person in authority or the agent agrees
circumstance of lawlessness or contempt of authority, the to fight, still direct assault.
crime would be direct assault with murder or homicide, as  When the person in authority or the agent
the case may be. In the example of the judge who was provoked/attacked first, innocent party is entitled to
killed, the crime is direct assault with murder or homicide. defend himself and cannot be held liable for assault or
resistance nor for physical injuries, because he acts in
The only time when it is not complexed is when material legitimate self-defense
consequence is a light felony, that is, slight physical injury.
Direct assault absorbs the lighter felony; the crime of direct
assault can not be separated from the material result of the The offended party in assault must not be the aggressor. If
act. So, if an offender who is charged with direct assault there is unlawful aggression employed by the public officer,
and in another court for the slight physical Injury which is any form of resistance which may be in the nature of force
part of the act, acquittal or conviction in one is a bar to the against him will be considered as an act of legitimate
prosecution in the other. defense. (People vs. Hernandez, 59 Phil. 343)

 Hitting the policeman on the chest with fist is not direct  There can be no assault upon or disobedience to one
assault because if done against an agent of a person in authority by another when they both contend that they
authority, the force employed must be of serious were in the exercise of their respective duties.
character
 The force employed need not be serious when the
offended party is a person in authority (ex. Laying of The offender and the offended party are both public
hands) officers. The Supreme Court said that assault may still be
committed, as in fact the offender is even subjected to a
greater penalty (U.S. vs. Vallejo, 11 Phil. 193).
 The intimidation or resistance must be serious whether
the offended party is an agent only or a person in
authority (ex. Pointing a gun)
 When assault is made by reason of the performance of
his duty there is no need for actual performance of his
Force Employed Intimidation/ official duty when attacked
Resistance
In direct assault of the first form, the stature of the offended
Person in Need not be serious Serious person is immaterial. The crime is manifested by the spirit
Authority of lawlessness.

Agent Must be of serious Serious In the second form, you have to distinguish a situation
character where a person in authority or his agent was attacked while
performing official functions, from a situation when he is
not performing such functions.

 Person in authority: any person directly vested with  If attack was done during the exercise of official
jurisdiction (power or authority to govern and execute functions, the crime is always direct assault. It is
the laws) whether as an individual or as a member of enough that the offender knew that the person in
some court or governmental corporation, board or authority was performing an official function whatever
commission may be the reason for the attack, although what may
 A barangay captain is a person in authority, so is a have happened was a purely private affair.
Division Superintendent of schools, President of
Sanitary Division and a teacher
On the other hand, if the person in authority or the agent
In applying the provisions of Articles 148 and 151, teachers, was killed when no longer performing official functions, the
professors, and persons charged with the supervision of crime may simply be the material consequence of he
public or duly recognized private schools, colleges and unlawful act: murder or homicide. For the crime to be direct
universities and lawyers in the actual performance of their assault, the attack must be by reason of his official function
duties or on the occasion of such performance, shall be in the past. Motive becomes important in this respect.
deemed a person in authority. Example, if a judge was killed while resisting the taking of
his watch, there is no direct assault.
 Agent: is one who, by direct provision of law or by
election or by appointment by competent authority, is In the second form of direct assault, it is also important that
charged with the maintenance of public order and the the offended knew that the person he is attacking is a
protection and security of life and property. (Example. person in authority or an agent of a person in authority,
Barrio councilman and any person who comes to the performing his official functions. No knowledge, no
aid of the person in authority, policeman, municipal lawlessness or contempt.
For example, if two persons were quarreling and a The victim in indirect assault should be a private person who
policeman in civilian clothes comes and stops them, but one comes in aid of an agent of a person in authority. The
of the protagonists stabs the policeman, there would be no assault is upon a person who comes in aid of the agent of a
direct assault unless the offender knew that he is a person in authority. The victim cannot be the person in
policeman. authority or his agent.

In this respect it is enough that the offender should know Take note that under Article 152, as amended, when any
that the offended party was exercising some form of person comes in aid of a person in authority, said person at
authority. It is not necessary that the offender knows what that moment is no longer a civilian – he is constituted as an
is meant by person in authority or an agent of one because agent of the person in authority. If such person were the
ignorantia legis non excusat. one attacked, the crime would be direct assault

 Circumstances qualifying the offense (Qualified Article 152

Assault):
a. when the assault is committed with a weapon PERSONS IN AUTHORITY/AGENTS OF PERSONS IN
b. when the offender is a public officer or employee AUTHORITY:
c. when the offender lays hand upon a person in
 Persons in Authority – any person directly vested with
authority
jurisdiction, whether as an individual or as a member of
some court or governmental corporation, board or
 Complex crime of direct assault with homicide or
commission.
murder, or with serious physical injuries.
 Examples of Persons in Authority :
a. Barangay captain
If the crime of direct assault is committed with the use of
b. Barangay chairman
force and it resulted in the infliction of slight physical
c. Municipal mayor
injuries, the latter shall not be considered as a separate
d. Provincial fiscal
offense. It shall be absorbed by the greater crime of direct
e. Justice of the peace
assault. (People vs. Acierto, 57 Phil. 614)
f. Municipal councilor
g. Teachers
h. Professors
 Direct assault cannot be committed during rebellion. i. Persons charged with the supervision of public or
duly recognized private schools, colleges and
May direct assault be committed upon a private universities
individual? Yes. When a private person comes to the aid of j. Lawyers in the actual performance of their
a person in authority, and he is likewise assaulted. Under professional duties or on the occasion of such
Republic Act No. 1978, performance

 a private person who comes to the aid of a person in  Agent of Person in Authority – any person who, by
authority is by fiction of law deemed or is considered direct provision of law or by election or by appointment
an agent of a person in authority. by competent authority, is charged with the
maintenance of public order and the protection and
Article 149 security of life and property.

INDIRECT ASSAULT  Examples of agents of PIA :

a. Barrio councilman
 ELEMENTS: b. Barrio policeman
a. That a person in authority or his agent is the c. Barangay leader
victim of any of the forms of direct assault defined d. Any person who comes to the aid of persons in
in ART. 148. authority
b. That a person comes to the aid of such authority
or his agent.  Section 388 of the Local Gov’t Code provides that “for
c. That the offender makes use of force or purposes of the RPC, the punong barangay,
intimidation upon such person coming to the aid sangguniang barangay members and members of the
of the authority or his agent. lupong tagapamayapa in each barangay shall be
deemed as persons in authority in their jurisdictions,
 Indirect assault can be committed only when a direct while other barangay officials and members who may
assault is also committed be designated by law or ordinance and charged with
 To be indirect assault, the person who should be aided the maintenance of public order, protection and the
is the agent (not the person in authority because it is security of life, property, or the maintenance of a
already direct assault, the person coming to the aid of desirable and balanced environment, and any barangay
the person in authority being considered as an agent member who comes to the aid of persons in authority
and an attack on the latter is already direct assault). shall be deemed AGENT of persons in authority.
Example. Aiding a policeman under attack.
 When the offended party is a person in authority and c. That such offer or promise be accepted or
while being assaulted, a private individual comes to his gift/present received by the public officer
rescue, such private individual, by operation of law, (mere agreement consummates the crime)
mutates mutandis becomes an agent of a person in 1. with a view to committing some crime
authority. Any assault committed against such person is (delivery of consideration is not necessary)
direct assault, and not indirect assault. But if the person or
assaulted is an agent of a person in authority, and a 2. in consideration of an execution of an act
private individual comes to his rescue and is himself which does not constitute a crime, but
assaulted while giving the assistance, as earlier the act must be unjust (delivery of
discussed, the crime committed is indirect assault. consideration is necessary), or
3. to refrain from doing something which is
Article 203 his official duty to do
 WHO ARE PUBLIC OFFICERS: d. That the act which the offender agrees to
a. Takes part in the performance of public perform or which he executes be connected
functions in the Government, or with the performance of his official duties
b. Performs public duties as an employee, agent
or subordinate official in the gov’t or any of
its branches Bribery refers to the act of the receiver and the act of the
giver is corruption of public official.
 Notes:
 For purposes of this article, temporary performance of
a. Public officer must derive his authority from:
public functions is sufficient to constitute a person a
1. direct provision of law
public officer.
2. popular election  A private person may commit this crime only in the
case in which custody of prisoners is entrusted to him
3.appointment by competent authority  Applicable also to assessors, arbitrators, appraisal and
claim commissioners, experts or any other person
performing public duties

In defining the term “public officers”, the law makes the

reference to the manner by which he is appointed to public  Cannot be frustrated, only attempted or consummated.
office. He thus becomes a public officer because of his
appointment by competent authority or because he is
elected to public office. Direct bribery may be committed only in the attempted and
consummated stages because, in frustrated felony, the
b. Public officers: embraces every public servant offender must have performed all the acts of execution
from the lowest to the highest rank which would produce the felony as a consequence. In direct
bribery, it is possible only if the corruptor concurs with the
offender. Once there is concurrence, the direct bribery is
Under Republic Act No. 3019 (The Anti-Graft and Corrupt
already consummated. In short, the offender could not have
Practices Act), the term public officer is broader and more performed all the acts of execution to produce the felony
comprehensive because it includes all persons whether an
without consummating the same.
official or an employee, temporary or not, classified or not,
contractual or otherwise. Any person who receives Actually, you cannot have a giver unless there is one who is
compensation for services rendered is a public officer. willing to receive and there cannot be a receiver unless there
is one willing to give. So this crime requires two to commit.
It cannot be said, therefore, that one has performed all the
c. A government laborer is not a public officer. acts of execution which would produce the felony as a
However, temporary performance by a laborer consequence but for reasons independent of the will, the
of public functions makes him a public officer
crime was not committed.
Crimes committed by public officers are nothing but It is now settled, therefore, that the crime of bribery and
corruption in public service. corruption of public officials cannot be committed in the
frustrated stage because this requires two to commit and
that means a meeting of the minds.
Article 210
Illustrations:
DIRECT BRIBERY
(1) If the public official accepted the corrupt
 ELEMENTS:
consideration and turned it over to his superior as
a. That the offender be a public officer within
evidence of the corruption, the offense is
the scope of Art 203
attempted corruption only and not frustrated. The
b. That the offender accepts an offer or promise
official did not agree to be corrupted.
or receives a gift or present by himself or
through another
 If the public officer did not report the same to his (1) If the corruptor offers a consideration to a
superior and actually accepted it, he allowed custodian of a public record to remove certain files,
himself to be corrupted. The corruptor becomes the mere agreement, without delivery of the
liable for consummated corruption of public consideration, brings about the crime of direct
official. The public officer also becomes equally bribery and corruption of public official.
liable for consummated bribery.
If the records were actually removed, both the public
(2) If a public official demanded something from a officer and the corruptor will in addition to the two
taxpayer who pretended to agree and use marked felonies above, will also be liable for the crime
money with the knowledge of the police, the crime committed, which is infidelity in the custody of the
of the public official is attempted bribery. The public records for which they shall be liable as principals;
reason is that because the giver has no intention to one as principal by inducement, the other as principal by
corrupt her and therefore, he could not perform all direct participation.
the acts of execution.
(2) A party litigant approached the court’s
Be sure that what is involved is a crime of bribery, stenographer and proposed the idea of altering the
not extortion. If it were extortion, the crime is not transcript of stenographic notes. The court
bribery, but robbery. The one who yielded to the stenographer agreed and he demanded P 2,000.00.
demand does not commit corruption of a public
Unknown to them, there were law enforcers who
officer because it was involuntary.
already had a tip that the court stenographer had
 Bribery exists when the gift is: been doing this before. So they were waiting for
a. voluntarily offered by a private person the chance to entrap him. They were apprehended
b. solicited by the public officer and voluntarily and they said they have not done anything yet.
delivered by the private person
Under Article 210, the mere agreement to commit
c. solicited by the public officer but the private
the act, which amounts to a crime, is already
person delivers it out of fear of the consequences
bribery. That stenographer becomes liable already
should the public officer perform his functions
for consummated crime of bribery and the party
(here the crime by giver is not corruption of public
who agreed to give that money is already liable for
officials due to involuntariness)
consummated corruption, even though not a single
centavo is delivered yet and even though the
 Actual receipt of the gift is not only if acts constitutes a stenographer had not yet made the alterations.
crime necessary. An accepted offer or promise of a gift
If he changed the transcript, another crime is
is sufficient. However, if the offer is not accepted, only
committed: falsification.
the person offering the gift is liable for attempted
corruption of a public officer The same criterion will apply with respect to a public officer
 The gift must have a value or capable of pecuniary who agrees to refrain from performing his official duties. If
estimation. It could be in the form of money, property the refraining would give rise to a crime, such as refraining
or services to prosecute an offender, the mere agreement to do so will
 If the act required of the public officer amounts to a consummate the bribery and the corruption, even if no
crime and he commits it, he shall be liable for the money was delivered to him. If the refraining is not a crime,
penalty corresponding to the crime in addition to the it would only amount to bribery if the consideration be
penalty for bribery delivered to him.

In direct bribery, consider whether the official act, which the If it is not a crime, the consideration must be delivered by
public officer agreed to do, is a crime or not. the corruptor before a public officer can be prosecuted for
bribery. Mere agreement, is not enough to constitute the
crime because the act to be done in the first place is
If it will amount to a crime, it is not necessary that the legitimate or in the performance of the official duties of the
corruptor should deliver the consideration or the doing of public official
the act. The moment there is a meeting of the minds, even
without the delivery of the consideration, even without the Unless the public officer receives the consideration for
public officer performing the act amounting to a crime, doing his official duty, there is no bribery. It is necessary
bribery is already committed on the part of the public that there must be delivery of monetary consideration. This
officer. Corruption is already committed on the part of the is so because in the second situation, the public officer
supposed giver. The reason is that the agreement is a actually performed what he is supposed to perform. It is
conspiracy involving the duty of a public officer. The mere just that he would not perform what he is required by law
agreement is a felony already. to perform without an added consideration from the public
which gives rise to the crime.
If the public officer commits the act which constitutes the
crime, he, as well as the corruptor shall be liable also for The idea of the law is that he is being paid salary for being
that other crime. there. He is not supposed to demand additional
compensation from the public before performing his public
Illustrations: service. The prohibition will apply only when the money is
delivered to him, or if he performs what he is supposed to guilty of Robbery (Article 294, par. 5) or Bribery (Article
perform in anticipation of being paid the money. 210). If the victim actually committed a crime, and the
policeman demanded money so he will not be arrested, the
Here, the bribery will only arise when there is already the crime is Bribery. But if no crime has been committed and
acceptance of the consideration because the act to be done the policeman is falsely charging him of having committed
is not a crime. So, without the acceptance, the crime is not one, threatening to arrest him if he will not come across
committed. with some consideration, the crime is Robbery.

 The third type of bribery and prevaricacion (art 208) are Article 211
similar offenses, both consisting of omissions to do an INDIRECT BRIBERY
act required to be performed. In direct bribery
however, a gift or promise is given in consideration of  ELEMENTS:
the omission. This is not necessary in prevaricacion a. That the offender is a public officer.
b. That he accepts gifts.
c. That the said gifts are offered to him by
Distinction between direct bribery and indirect bribery reason of his office.

Bribery is direct when a public officer is called upon to

perform or refrain from performing an official act in  The gift is given in anticipation of future favor from the
exchange for the gift, present or consideration given to him. public officer
Indirect bribery, the public officer receives or accepts gifts,
If he simply accepts a gift or present given to him by reason money or anything of value by reason of his office. If there
of his public position, the crime is indirect bribery. Bear in is only a promise of a gift or money, no crime is committed
mind that the gift is given "by reason of his office", not "in because of the language of the law which uses the phrase
consideration" thereof. So never use the term “shall accept gifts.”
“consideration.” The public officer in Indirect bribery is not
to perform any official act.  There must be clear intention on the part of the public
Note however that what may begin as an indirect bribery officer to take the gift offered and consider the
property as his own for that moment. Mere physical
may actually ripen into direct bribery.
receipt unaccompanied by any other sign, circumstance
or act to show such acceptance is not sufficient to
convict the officer
Illustration:
The Supreme Court has laid down the rule that for indirect
Without any understanding with the public officer, a taxi bribery to be committed, the public officer must have
operator gave an expensive suiting material to a BLT performed an act of appropriating of the gift for himself, his
registrar. Upon receipt by the BLT registrar of his valuable family or employees. It is the act of appropriating that
suiting material, he asked who the giver was. He found out signifies acceptance. Merely delivering the gift to the public
that he is a taxi operator. As far as the giver is concerned, officer does not bring about the crime. Otherwise it would
he is giving this by reason of the office or position of the be very easy to remove a public officer: just deliver a gift to
public officer involved. It is just indirect bribery him.

If the BLT registrar calls up his subordinates and said to take  There is no attempted or frustrated indirect bribery
care of the taxis of the taxi operator so much so that the  The principal distinction between direct and indirect
registration of the taxis is facilitated ahead of the others, bribery is that in the former, the officer agrees to
what originally would have been indirect bribery becomes perform or refrain from doing an act in consideration of
direct bribery. the gift or promise. In the latter case, it is not necessary
that the officer do any act. It is sufficient that he
accepts the gift offered by reason of his office
Bribery (210) Robbery (294)  Public officers receiving gifts and private persons giving
gifts on any occasion, including Christmas are liable
When the victim has When the victim did not under PD 46.
committed a crime and commit a crime and he is  The criminal penalty or imprisonment is distinct from
gives money/gift to intimidated with arrest and/or the administrative penalty of suspension from the
avoid arrest or prosecution to deprive him of service
prosecution. his personal property.
Article 211-A
Victim parts with his Victim is deprived of his QUALIFIED BRIBERY
money or property money or property by force or
voluntarily. intimidation.  ELEMENTS:
a. Public officer entrusted with law enforcement
Robbery should be distinguished from Bribery b. Refrains from arresting/prosecuting offender
where a law enforcer, say a policeman, extorts money from for crime punishable by reclusion perpetua
a person, employing intimidation and threatening to arrest and/or death
the latter if he will not come across with money may be
 (if lower penalty than stated above, the crime is In determining whether the offender is liable for
direct bribery) malversation, it is the nature of the duties of the public
officer that controls. While the name of the office is
c. In consideration of any offer, promise or gift important, what is controlling is whether in performing his
Note that the penalty is DEATH if the public officer is the duties as a public officer, he has to account or is required by
one who asks or demands such present. the nature of the performance of a duty, to render an
He need not receive the gift or present because a account on the money or property that came into his
mere offer or promise is sufficient. possession.

It is not necessary that the offender profited because

MALVERSATION OF PUBLIC FUNDS OR PROPERTY somebody else may have misappropriated the funds in
question for as long as the accountable officer was remiss in
his duty of safekeeping public funds or property. He is liable
Article 217 for malversation if such funds were lost or otherwise
MALVERSATION OF PUBLIC FUNDS OR PROPERTY misappropriated by another.

 ELEMENTS COMMON TO ALL ACTS MALVERSATION OF  It can be committed either with malice or through
PUBLIC FUNDS OR PROPERTY : negligence or imprudence
a. That the offender be a public officer (or
private person if entrusted with public funds
or connived with public officers) There is no crime of malversation through
b. That he had the custody or control of funds or negligence. The crime is malversation, plain and simple,
property (if not accountable for the funds, whether committed through dolo or culpa. There is no
theft or qualified theft) crime of malversation under Article 365 – on criminal
c. That those funds or property were public negligence – because in malversation under Article 217, the
funds or property (even if private funds if same penalty is imposed whether the malversation results
attached, seized, deposited or commingled from negligence or was the product of deliberate act.
with public funds)
d. That he:  In determining whether the offender is a public officer,
what is controlling is the nature of his office and not the
1. Appropriated the funds or property
designation
2. Took or misappropriated them
3. Consented or, through abandonment or
negligence, permitted any other person The offender, to commit malversation, must be accountable
to take such public funds or property. (it for the funds or property misappropriated by him. If he is
is not necessary that the offender profited not the one accountable but somebody else, the crime
thereby. His being remiss in the duty of
committed is theft. It will be qualified theft if there is abuse
safekeeping public funds violates the trust
of confidence.
reposed)
Accountable officer does not refer only to cashier,
disbursing officers or property custodian. Any public officer
Concept of Malversation having custody of public funds or property for which he is
accountable can commit the crime of malversation if he
would misappropriate such fund or property or allow others
It consists in the misappropriation or conversion of public
funds or property to one’s personal use or knowingly, or to do so.
through abandonment or negligence allowing other to use
 The funds or property must be received in an official
or appropriate the same. The offender is made liable
capacity. Otherwise, the crime committed is estafa
because of the nature of his duties to take care of the funds
or property entrusted to him with the diligence of a good
When private property is attached or seized by public
father of a family. He is accountable by virtue of the nature
authority and the public officer accountable therefor
of his office to account for funds or properties that come to
misappropriates the same, malversation is committed also.
his possession. If he is not accountable for the funds or
properties and he misappropriates the same, the crime will Illustration:
not be malversation but estafa under Article 315.
If a sheriff levied the property of the defendants and
 Malversation is otherwise called embezzlement absconded with it, he is not liable of qualified theft but of
malversation even though the property belonged to a
This crime is predicated on the relationship of the offender private person. The seizure of the property or fund
to the property or funds involved. The offender must be impressed it with the character of being part of the public
accountable for the property misappropriated. If the fund funds it being in custodia legis. For as long as the public
or property, though public in character is the responsibility officer is the one accountable for the fund or property that
of another officer, malversation is not committed unless was misappropriated, he can be liable for the crime of
there is conspiracy. malversation. Absent such relation, the crime could be
theft, simple or qualified.
 Estafa Malversation reported has a distinct ring of truth to it, the legal
presumption of prima facie evidence of guilt will not apply.
It is usually committed by a Committed by accountable In order to support conviction, the prosecution must prove
private individual public officers the actual misappropriation of the missing funds.(Salvacion
vs. The Honorable Sandiganbayan, G. R. No. 68233, July 11,
Funds or property of The object is public fund or 1986)
misappropriation are property.
privately owned. To rebut the presumption of guilt prima facie under Article
217, the accused must raise the issue of accuracy,
The offender appropriates Personal appropriation is correctness and regularity in the conduct of audit. If asked
personally the funds or not indispensable because for a second audit before the filing of the information
property. allowing others to commit against him and the same was denied, and during the trial,
the misappropriation is also some disbursement vouchers were introduced which were
malversation. not considered in the first audit, the denial of the request
for a second audit is fatal to the cause of the prosecution
because in the meantime, the evidence introduced does not
establish a fact beyond reasonable doubt. Had the re-audit
 When a public officer has official custody or the duty to
requested by the accused been accorded due course, the
collect or receive funds due the government, or the
remaining balance could have been satisfactorily accounted
obligation to account for them, his misappropriation of
for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442,
the same constitutes malversation
May 9, 1989)

 Returning the embezzled funds is not exempting, it is

Note that the moment any money is commingled with the
only mitigating
public fund even if not due the government, it becomes
impressed with the characteristic of being part of public
Payment of the amount misappropriated or restitution
funds. Once they are commingled, you do not know
of property misappropriated does not erase criminal
anymore which belong to the government and which belong
liability but only civil liability.
to the private persons. So that a public vault or safe should
not be used to hold any fund other that what is due to the
government.
 There is also no malversation when the accountable
officer is obliged to go out of his office and borrow the
amount corresponding to the shortage and later, the
 In malversation thru negligence, the negligence of the missing amount is found in an unaccustomed place
accountable public officer must be positively and clearly  A person whose negligence made possible the
shown to be inexcusable, approximating fraud or commission of malversation by another can be held
malice liable as a principal by indispensable cooperation

Under jurisprudence, when the public officer leaves his post It is not necessary that the accountable public officer should
without locking his drawer, there is negligence. Thus, he is actually misappropriate the fund or property involved. It is
liable for the loss. enough that he has violated the trust reposed on him in
connection with the property.
 The measure of negligence to be observed is the
standard of care commensurate with the occasion  Demand as well as damage to the government are not
 When malversation is not committed through necessary elements
negligence, lack of criminal intent or good faith is a
defense Note that damage on the part of the government is not
 The failure of a public officer to have any duly considered an essential element. It is enough that the
forthcoming public funds or property upon demand, by proprietary rights of the government over the funds have
any authorized officer, shall be prima facie evidence been disturbed through breach of trust.
that he has put such missing funds or property to The grant of loans through the vale system is a clear case of
personal use. However, if at the very moment when the an accountable officer consenting to the improper or
shortage is discovered, the accountable officer is unauthorized use of public funds by other persons, which is
notified, and he immediately pays the amount from his punishable by law. To tolerate such a practice is to give a
pocket, the presumption does not arise license to every disbursing officer to conduct a lending
operation with the use of public funds. There is no law or
An accountable public officer may be convicted even if regulation allowing accountable officers to extend loans to
there is no direct evidence of misappropriation and the only anyone against the “vales” or chits given in exchange by the
evidence is the shortage in his account which he has not borrowers. (Meneses vs. Sandiganbayan)
been able to explain satisfactorily. (Palma Gil vs. People)
A private person may also commit malversation under the
following situations:
If a public officer reports the loss of money before a cash (1) Conspiracy with a public officer in committing
examination is conducted and the cause of the loss as malversation;
(2) When he has become an accomplice or accessory to Not all frauds will constitute this crime. There must be no
a public officer who commits malversation; fixed allocation or amount on the matter acted upon by the
public officer.
(3) When the private person is made the custodian in
whatever capacity of public funds or property, The allocation or outlay was made the basis of fraudulent
whether belonging to national or local government, quotations made by the public officer involved.
and he misappropriates the same;
For example, there was a need to put some additional
(4) When he is constituted as the depositary or lighting along a street and no one knows how much it will
administrator of funds or property seized or cost. An officer was asked to canvass the cost but he
attached by public authority even though said connived with the seller of light bulbs, pricing each light
funds or property belong to a private individual. bulb at P550.00 instead of the actual price of P500.00. This
is a case of fraud against public treasury.
Technical malversation is not included in the crime of
malversation. In malversation, the offender If there is a fixed outlay of P20,000.00 for the lighting
misappropriates public funds or property for his own apparatus needed and the public officer connived with the
personal use, or allows any other person to take such funds seller so that although allocation was made a lesser number
or property for the latter’s own personal use. In technical was asked to be delivered, or of an inferior quality, or
malversation, the public officer applies the public funds or secondhand. In this case there is no fraud against the public
property under his administration to another public use treasury because there is a fixed allocation. The fraud is in
different from that for which the public fund was the implementation of procurement. That would constitute
appropriated by law or ordinance. Recourse: File the proper the crime of “other fraud” in Article 214, which is in the
information. nature of swindling or estafa.

Article 213 Be sure to determine whether fraud is against public

FRAUDS AGAINST PUBLIC TREASURY treasury or one under Article 214.

 ELEMENTS: (par. 1)
a. That the offender be a public officer.
b. That he should have taken advantage of his
office, that is, he intervened in the transaction
in his official capacity. ILLEGAL EXACTIONS (par 2)
c. That he entered into an agreement with any
 ELEMENTS:
interested party or speculator or made use of
a. The offender is a public officer entrusted with
any other scheme with regard to (a)
the collection of taxes, licenses, fees and
furnishing supplies (b) the making of
other imposts.
contracts, or (c) the adjustment or settlement
b. He is guilty of any of the following acts or
of account relating to a public property or
omissions:
funds.
1. demanding, directly or indirectly the
d. That the accused had intent to defraud the
payment of sums different from or larger
government.
than those authorized by law, or
2. failing voluntarily to issue a receipt, as
provided by law, for any sum of money
 Notes:
collected by him officially, or
a. The public officer must act in his official
capacity 3. Collecting or receiving, directly or
b. The felony is consummated by merely entering indirectly, by way of payment or
into an agreement with any interested party or otherwise, things or objects of a nature
different from that provided by law.
speculator or by merely making use of any
scheme to defraud the Government
 Notes:
The essence of this crime is making the government pay for
something not received or making it pay more than what is This can only be committed principally by a public officer
due. It is also committed by refunding more than the whose official duty is to collect taxes, license fees, import
amount which should properly be refunded. This occurs duties and other dues payable to the government.
usually in cases where a public officer whose official duty is Not any public officer can commit this crime. Otherwise, it
to procure supplies for the government or enter into is estafa. Fixers cannot commit this crime unless he
contract for government transactions, connives with the conspires with the public officer authorized to make the
said supplier with the intention to defraud the government. collection.
Also when certain supplies for the government are
purchased for the high price but its quantity or quality is The essence of the crime is not misappropriation of any of
low. the amounts but the improper making of the collection
which would prejudice the accounting of collected amounts
by the government.
 a. Mere demand of a larger or different amount In the example given, the public officer did not
is sufficient to consummate the crime. The include in the official receipt the P100.00 and,
essence is the improper collection (damage to therefore, it did not become part of the public
gov’t is not required) funds. It remained to be private. It is the taxpayer
who has been defrauded of his P100.00 because he
On the first form of illegal exaction can never claim a refund from the government for
excess payment since the receipt issued to him was
only P400.00 which is due the government. As far
In this form, mere demand will consummate the crime, as the P100.00 is concerned, the crime committed
even if the taxpayer shall refuse to come across with the is estafa.
amount being demanded. That will not affect the
consummation of the crime. (3) A taxpayer pays his taxes. What is due the
In the demand, it is not necessary that the amount being government is P400.00 and the public officer issues
demanded is bigger than what is payable to the a receipt for P500.00 upon payment of the taxpayer
government. The amount being demanded maybe less than of said amount demanded by the public officer
the amount due the government. involved. But he altered the duplicate to reflect
only P400.00 and he extracted the difference of
b. If sums are received without demanding the P100.00.
same, a felony under this article is not
committed. However, if the sum is given as a In this case, the entire P500.00 was covered by an
sort of gift or gratification, the crime is indirect official receipt. That act of covering the whole
bribery amount received from the taxpayer in an official
c. When there is deceit in demanding larger fees, receipt will have the characteristics of becoming a
the crime committed is estafa part of the public funds. The crimes committed,
d. May be complexed with malversation therefore, are the following:

(a) Illegal exaction – for collecting more than

Note that this is often committed with malversation or he is authorized to collect. The mere act
estafa because when a public officer shall demand an of demanding is enough to constitute this
amount different from what the law provides, it can be crime.
expected that such public officer will not turn over his
(b) Falsification – because there was an
collection to the government.
alteration of official document which is
Illustrations: the duplicate of the official receipt to
show an amount less than the actual
(1) A taxpayer goes to the local municipal treasurer to amount collected.
pay real estate taxes on his land. Actually, what is
due the government is P400.00 only but the (c) Malversation – because of his act of
municipal treasurer demanded P500.00. By that misappropriating the P100.00 excess
demand alone, the crime of illegal exaction is which was covered by an official receipt
already committed even though the taxpayer does already, even though not payable to the
not pay the P500.00. government. The entire P500.00 was
covered by the receipt, therefore, the
(2) Suppose the taxpayer came across with P500.00. whole amount became public funds. So
But the municipal treasurer, thinking that he would when he appropriated the P100 for his
abstract the P100.00, issued a receipt for only own benefit, he was not extracting private
P400.00. The taxpayer would naturally ask the funds anymore but public funds.
municipal treasurer why the receipt was only for
P400.00. The treasurer answered that the P100.00 Should the falsification be complexed with the
is supposed to be for documentary stamps. The malversation?
taxpayer left.
As far as the crime of illegal exaction is concerned,
He has a receipt for P400.00. The municipal it will be the subject of separate accusation
treasurer turned over to the government coffers because there, the mere demand regardless of
P400.00 because that is due the government and whether the taxpayer will pay or not, will already
pocketed the P100.00. consummate the crime of illegal exaction. It is the
breach of trust by a public officer entrusted to
The mere fact that there was a demand for an make the collection which is penalized under such
amount different from what is due the article. The falsification or alteration made on the
government, the public officer already committed duplicate can not be said as a means to commit
the crime of illegal exaction. malversation. At most, the duplicate was altered in
order to conceal the malversation. So it cannot be
On the P100.00 which the public officer pocketed, complexed with the malversation.
will it be malversation or estafa?
 It cannot also be said that the falsification is a On the second form of illegal exaction
necessary means to commit the malversation
because the public officer can misappropriate the The act of receiving payment due the government without
P100.00 without any falsification. All that he has to issuing a receipt will give rise to illegal exaction even though
do is to get the excess of P100.00 and a provisional receipt has been issued. What the law requires
misappropriate it. So the falsification is a separate is a receipt in the form prescribed by law, which means
accusation. official receipt.

However, illegal exaction may be complexed with Illustration:

malversation because illegal exaction is a necessary
means to be able to collect the P100.00 excess If a government cashier or officer to whom payment is
which was malversed. made issued a receipt in his own private form, which he
calls provisional, even though he has no intention of
In this crime, pay attention to whether the misappropriating the amount received by him, the mere
offender is the one charged with the collection of fact that he issued a receipt not in the form prescribed by
the tax, license or impost subject of the law, the crime of illegal exaction is committed. There must
misappropriation. If he is not the one authorized be voluntary failure to issue the Official Receipt.
by disposition to do the collection, the crime of
illegal exaction is not committed. On the third form of illegal exaction

If it did not give rise to the crime of illegal exaction,

the funds collected may not have become part of Under the rules and regulations of the government,
the public funds. If it had not become part of the payment of checks not belonging to the taxpayer, but that
public funds, or had not become impressed with of checks of other persons, should not be accepted to settle
being part of the public funds, it cannot be the the obligation of that person.
subject of malversation. It will give rise to estafa or
Illustration:
theft as the case may be.
A taxpayer pays his obligation with a check not his own but
(3) The Municipal Treasurer demanded P500.00 when
pertaining to another. Because of that, the check bounced
only P400.00 was due. He issued the receipt at
later on.
P400.00 and explained to taxpayer that the P100
was for documentary stamps. The Municipal
Treasurer placed the entire P500.00 in the vault of
the office. When he needed money, he took the The crime committed is illegal exaction because the
P100.00 and spent it. payment by check is not allowed if the check does not
pertain to the taxpayer himself, unless the check is a
The following crimes were committed manager’s check or a certified check, amended already as of
1990. (See the case of Roman Catholic.)
(a) Illegal exaction – for demanding a
different amount; Under Article 213, if any of these acts penalized as illegal
exaction is committed by those employed in the Bureau of
(b) Estafa – for deceiving the taxpayer; and
Customs or Bureau of Internal Revenue, the law that will
(c) Malversation – for getting the P100.00 apply to them will be the Revised Administrative Code or
from the vault. the Tariff and Customs Code or National Revenue Code.

Although the excess P100.00 was not covered by This crime does not require damage to the government.
the Official Receipt, it was commingled with the
Officers and employees of the BIR or Customs are not
other public funds in the vault; hence, it became
covered by the article.
part of public funds and subsequent extraction
thereof constitutes malversation. The NIRC or Administrative Code is the
applicable law
Note that numbers 1 and 2 are complexed as illegal exaction
with estafa, while in number 3, malversation is a distinct These officers are authorized to make impositions and to
offense. enter into compromises. Because of this discretion, their
demanding or collecting different from what is necessary is
The issuance of the Official Receipt is the operative fact to
legal
convert the payment into public funds. The payor may
demand a refund by virtue of the Official Receipt. Article 220

In cases where the payor decides to let the official to “keep ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical
the change”, if the latter should pocket the excess, he shall malversation)
be liable for malversation. The official has no right but the
government, under the principle of accretion, as the owner  ELEMENTS:
of the bigger amount becomes the owner of the whole. a. That the offender is a public officer.
 b. That there is public fund or property under his of the cement in paving his own garage. The crime of
administration. technical malversation is also committed.
c. That such public fund or property has been
appropriated by law or ordinance (without Note that when a private person is constituted as the
this, it is simple malversation even if applied to custodian in whatever capacity, of public funds or property,
other public purpose). and he misappropriates the same, the crime of malversation
d. That he applies the same to a public use other is also committed. See Article 222.
than for which such fund or property has been
appropriated by law or ordinance. Illustration:

The payroll money for a government infrastructure project

The term technical malversation is used because in this on the way to the site of the project, the officers bringing
crime, the fund or property involved is already appropriated the money were ambushed. They were all wounded. One
or earmarked for a certain public purpose. of them, however, was able to get away from the scene of
the ambush until he reached a certain house. He told the
The offender is entrusted with such fund or property only to occupant of the house to safeguard the amount because it
administer or apply the same to the public purpose for is the payroll money of the government laborers of a
which it was appropriated by law or ordinance. Instead of particular project. The occupant of the house accepted the
applying it to the public purpose to which the fund or money for his own use. The crime is not theft but
property was already appropriated by law, the public officer malversation as long as he knew that what was entrusted in
applied it to another purpose. his custody is public fund or property.

 To distinguish this article with Art 217, just remember Malfeasance Doing of an act which a public officer
that in illegal use of public funds or property, the should not have done
offender does not derive any personal gain, the funds
are merely devoted to some other public use
 Absence of damage is only a mitigating circumstance
Misfeasance Improper doing of an act which a person
might lawfully do
Since damage is not an element of malversation, even
though the application made proved to be more beneficial
to public interest than the original purpose for which the
amount or property was appropriated by law, the public Nonfeasance Failure of an agent to perform his
officer involved is still liable for technical malversation. undertaking for the principal
If public funds were not yet appropriated by law or Habitual delinquency
ordinance, and this was applied to a public purpose by the
custodian thereof, the crime is plain and simple Recidivism
malversation, not technical malversation. If the funds had
been appropriated for a particular public purpose, but the Quasi-recidivism
same was applied to private purpose, the crime committed
is simple malversation only. Habituality

Illustration: Impossible crimes

The office lacked bond papers. What the government 1. A was charged with murder, the court sentenced him to
cashier did was to send the janitor, get some money from life imprisonment. Is the court correct? Why?
his collection, told the janitor to buy bond paper so that the
2. ISLAW – RPC and Special Law
office will have something to use. The amount involved
maybe immaterial but the cashier commits malversation 3. Probation – if he has appealed. RTC – 6 yrs and 1 day
pure and simple. max.. SC – 2 years and 4 months. Can he still avail of
probation?
This crime can also be committed by a private person.
4. Is there an attempted physical injuries?
Illustration:
If there is no result, you do not know. Criminal law cannot
A certain road is to be cemented. Bags of cement were
stand on any speculation or ambiguity; otherwise, the
already being unloaded at the side. But then, rain began to
presumption of innocence would be sacrificed. Therefore,
fall so the supervisor of the road building went to a certain
the commentator’s opinion cannot stand because you
house with a garage, asked the owner if he could possibly
cannot tell what particular physical injuries was attempted
deposit the bags of cement in his garage to prevent the
or frustrated unless the consequence is there. You cannot
same from being wet. The owner of the house, Olive,
classify the physical injuries.
agreed. So the bags of cement were transferred to the
garage of the private person. After the public officer had You will notice that under the Revised Penal Code, the crime
left, and the workers had left because it is not possible to do of physical injuries is penalized on the basis of the gravity of
the cementing, the owner of the garage started using some the injuries. Actually, there is no simple crime of physical
injuries. You have to categorize because there are specific
articles that apply whether the physical injuries are serious,
less serious or slight. If you say physical injuries, you do not
know which article to apply. This being so, you could not
punish the attempted or frustrated stage because you do
not know what crime of physical injuries was committed.

5. May a crime be committed without criminal intent?

Criminal intent is not necessary in these cases:

(1) When the crime is the product of culpa or

negligence, reckless imprudence, lack of foresight or lack of
skill;

(2) When the crime is a prohibited act under a special

law or what is called malum prohibitum.

6. Suicide..

7. Penalty to be imposed with 2 mitigating circumstances

and no aggravating circumstances – parricide

8. X was convicted of an offense, imprisonment plus fine..

not able to pay fine, is he liable to subsidiary
imprisonment

9. X convicted with murder, RP. Can he avail of ISLAW

10. T stole a phone, gave it to K, knowing it to be stolen,

kept and possessed the phone without telling anyone.
What is the liability of K?

11. X was convicted of direct assault, sentenced to an

imprisonment of prision correccional medium. Can he avail
of probation?

12. Prescription of crimes v. Prescription of penalties