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REVISED PENAL CODE OF THE PHILIPPINES

ACT NO. 3815
AN ACT REVISING THE PENAL CODE OF THE
OTHER PENAL LAWS
(December 8, 1983)
Preliminary Article This law shall be known
as The Revised Penal Code.
BOOK ONE
General provisions regarding the date of
enforcement and application of the provision of
this code, and regarding the offenses, the
persons liable and the penalties.
Preliminary Title and application of the provision
of this code.
Article 1. Time when Act takes effect. This
Code shall take effect on the first day of
January, nineteen hundred and thirty-two.
Criminal law is defined simply as that branch or
division in the study of law which defines crimes,
treats of their nature, and provides for their
punishment.
It defines crimes:
We are familiar with the Criminal Law axiom
nullum crimen , nulla poena sine lege, that
there is no crime where there is no law punishing
an act or omission as a crime. It tells us what is
punishable and what is not punishable.
Treats of their nature:
Crimes belong to different classes. In Book II
alone, crimes are divided or classified into 13
classifications from Crimes Against National
Security and the Laws of Nations, to Quasioffenses, Crimes Against Honor, etc. And there
are many classifications of penalties, like the
consummated, attempted, and frustrated, the
grave, less grave and the light felony. These are
what you call nature of crimes. We are concerned
not only of crimes under the Penal Code, but this
includes those acts punishable under special
laws. So, you must understand the nature of
each. Each one has its on special rules to be
followed.
Provides for their penalty:
One of the weaknesses of bar candidates is the
law on penalties. They are afraid of computation.
But you cannot avoid this because whether you
like it or not, the law on penalties is part and
parcel of the Revised Penal Code.
Question: What are the sources of criminal law?
Answer: There are only two know sources of
criminal law:
Revised Penal Code (Act 3815), as
amended; and
Special Laws (Anti-graft; Dangerous
Drugs Act, etc.)

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But actually, if you analyze it, there is only one

source, the law itself. Because the Revised Penal
Code is the general law; but, definitely common
sense would tell us that not all crimes in the
Philippines are found in the Revised Penal Code.
There are crimes that are found in various special
laws.
Question: Why is it that there is only one source
of criminal law, because in the final analysis,
there is only one source - the law itself?
Answer: You back to back in nullum crimen,
nulla poena sine lege. There is no crime if
there is no law that penalizes an act or omission
as a crime.
Question: Is there such thing as a common law
crime?
Answer: There is no such thing as common law
crime because law is based on customs and
tradition. There is no such thing as crimes by
tradition in the Philippines. Tradition or custom
itself does not create a crime, but the law itself
must provide and penalize an act as a crime.
Question: Is the Constitution a source of criminal
law?
Answer: No, because it does not define crime,
nor provide penalty. You still have to hear of an
information filed in court for the violation of the
Constitution. The Constitution is the source of
many rights of an accused, but you cannot find
any crime defined and penalized in the
Constitution. So, theoretically, the Constitution is
not a source of criminal law.
CHARACTERISTICS OF CRIMINAL LAW:
1. General;
2. Territorial;
3. Prospective
Generality:
Philippine criminal laws are binding on all persons
who live and sojourn in the Philippine territory
when one commits a crime in the Philippines,
whether he is a resident citizen, alien, a transient,
or tourist, he is subject to prosecution before
Philippine courts. That is what you mean by
general character of criminal law.
Questions: Are there exceptions? Are there
people who are in the Philippines who commit
criminal act, but are immune?
Answer: By way of exception, yes. There are
two:
1. Those who are exempt by virtue of
the principle of Public International
Law.
These are the:
Heads of State; and
Diplomatic officials
Example:
President Bush went to the Philippines on a state
visit, and upon landing in Manila, the first thing
he did was to molest somebody. Can he be
accused of acts of lasciviousness or rape? No. He

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cannot even be arrested and charged before our
courts because he is a head of state. He is
immune.

Territory, the offender can still be charged under

Philippine laws and tried by our courts, even of
the act was not committed here.

You also cannot arrest anybody who holds a

diplomatic rank, whether he be a diplomat of any
nation,
or
an
ambassador,
ministers
plenipotentiary, ministers residents, or charge d
affairs. These are the people who are exempt.

There are supposed to be five exceptions to the

territorial characteristic of criminal law. These
exceptions are found in Article 2 of the Revised
Penal Code.

2. Those are
treaties.

exempt

by

virtue

of

When the Philippines enters into a treaty with a

foreign country and grants immunity from
criminal prosecution of its nationals by
agreement the best example of such a treaty
was the former US-RP Military Bases Agreement
where for certain crimes committed in the
Philippines by American Servicemen who were
discharging their official duties, they could not be
charged in Philippine Courts. They could be
charged by the United States under their laws.
We cannot do anything about that because we
agreed to it. That is a treaty.
Territoriality:
This means that penal laws of the Philippines are
enforceable only within its territory. We cannot
enforce them outside of the Philippines if the
crime was committed outside.
PROBLEM:
A and B are Filipino citizens. They
took a tour on Japan. When they were in the tour,
A attacked B in Tokyo, inflicting upon B physical
injuries. When B came back here, the first thing
he did was to file a case of physical injuries
against A, in Philippine courts.
Question: Can the Philippine courts try the case
of physical injuries, because anyway both parties
are residents of the Philippines.
Answer: No, because even if the crime of
physical injuries will be admitted by A, it did not
happen here. It happened in Japan. We cannot
enforce our Revised Penal Code for the crime
committed outside of Philippine territory.
Question: What is the difference between
generality and territoriality?
Answer: They are almost the same. General
characteristics, it is enforceable upon everyone
who resides or visits or sojourns in the country.
Territorial characteristics is enforceable only
for crimes committed in the Philippines. They
may appear to be overlapping, but there is a
slight difference.
In general characteristics of criminal law, the
emphasis is on the offender, the person who
commits the crime, whether he is a reside alien
or not, tourist of citizen the emphasis is the
person who commits the crime.
But territorial characteristic, the emphasis is upon
place only. However, the territorial character of
criminal law has known exceptions. Meaning,
even if the crime committed outside Philippine

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Prospectivity:
This means that crimes are punished under the
law in force at the time of their commission.
So, if the act becomes a crime today because the
law itself fixed it such that it be considered a
crime today, you cannot prosecute a person who
had done the act yesterday. Criminal law looks
forward. That is the general rule.
Question: May a penal law be given retroactive
effect?
Answer: Yes, when a law is more favorable to the
accused. An example of such penal statue is if a
new law reduces the penalty of your offense.
Example: You commit a crime punishable by 5
years imprisonment. Now, there is a new law
reducing the penalty of 5 months.
Question: Can the offender claim now, that upon
conviction is penalty should be 5 months?
Answer: Yes, he is covered and he can claim it.
1. If the new law is expressly made
inapplicable to pending actions or
causes of action.
If the law is silent, it should be given
retroactive effect if favorable. Supposing the
law will say that it is not applicable to pending
actions. None, even if it is favorable, it will not
be given retroactive effect. Meaning, the law
provides for non-retroactivity. That is why
such a provision must be express.

2. Where the offender is a habitual

delinquent under Article 65, of the
Revised Penal Code.
CONSTRUCTION OF PENAL LAWS
If there is doubt, the doubt is resolved in favor of
the accused. Thus, applying the constitutional
presumption of innocence. But this rule of
construction is applied only where the law is
ambiguous, and there is doubt as to its
interpretation. Where the law is cleat, there is no
room for application of this rule.
But there is also rule of construction. In the
construction or interpretation of the provisions of
the Revised Penal Code, the Spanish text is
controlling because the Philippine Legislature in
its Spanish text approved the Code. This was the
language of the lawmakers in expressing the

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intent of the law. If there is a conflict between the
English version and the Spanish version of the
Revised Penal Code, the Spanish text shall
prevail.
BRIEF HISTORY OF THE REVISED PENAL
CODE
The Revised Penal Code originated from the old
Spanish Penal Code of 1887 which took effect in
July 14,1887. And that was the prevailing law up
to the coming of the Americans. The Americans
did not touch the Penal Code and the Civil Code.
They introduced law especially on criminal
procedure, but the substantive law remained the
same.
However, sometime in 1914, there was an
attempt by the government to change the Old
Spanish Penal Code. And the government
commissioned a Committee, chaired by Rafael del
Pan, to draft a new law. That Committee came out
with a proposed law to replace the old Penal
Code. The proposed law was called the Proposed
Correctional Code of del Pan. However, the draft
was never acted up by the Philippine Legislature.
About ten years later, the government created
another Committee which was given instructions
to revise the Old Penal Code. The Committee was
chaired by Anacleto Diaz, with the following
members:
Quintin Paredes
Guillermo Gueverra
Alex Reyes
Mariano de Joya
The committee came out with their draft and the
Philippine Legislature passed it into law on
December 8, 1930 and became effective on
January 1, 1932. It came to be known as Act
3815, or the Revised Penal Code. So, the Revised
Penal Code has been effective for 75 years
already. It has undergone several amendments,
but the basic structure of the law is the same.
During the late 1940s, there was an attempt to
redraft the Revised Penal Code (RPC). The
committee charged came out with the proposed
Code of Crimes, which, however, was not passed
by Congress. And in late 1970s, the UP Law
Center came out with another draft which was
also called he Code of Crimes. It was submitted to
the Batasang Pambansa but to no avail.
In 1995, the then Congress passed another bill
to be called the code of Crimes again. Although it
is different one from the previous drafts. It was
sponsored by Congressman Sergio Apostol. He
conducted public hearings, including in Davao,
but still remains to be seen whether the bill will
be finally enacted into law.
In other words, there have been several attempts
to amend or replace the RPC for the past 75
years. It has passed the test of time, it is a very
durable law.

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THEORIES UNDERLYING THE REVISED PENAL

CODE
Every country in the world has its system of
penology. Every country has its own theory of
what is a crime. How did it start? It depends upon
the orientation of that country. But it is admitted
that in criminal jurisprudence anywhere in the
world, there are two basic schools of thought or
theories underlying Criminal Law.
The Classical Theory
This is the older one. It is called the Traditional
Theory because it is the one that is older that the
positivist Theory, which is a more modern
thought. What we should remember here are the
basic principles underlying the Classical Theory.
What to Classicists advocate? What do they say
about crimes, about criminals/
The Classicists Theory: Man is a rational being. If
he is a rational being, he can distinguish right
from wrong. If he commits a crime, such as
murder, he assumes he knows that he is wrong.
Since he knew that it was wrong, he must prepare
himself for the consequences of what he did. That
is the theory of the Classicists and crimes vary.
There us a serious one; there is the not-so-serious
one, and there are slight ones.
There should be a mechanical proportion
between the crime and the penalty. That is why
the penalty in the RPC on sight physical injuries is
not the same penalty as in murder. Otherwise,
there must be a disproportion. If you punish
murder wit death and punish also physical
injuries with death, there is a disproportion.
The Positivist Theory
The positivist advocate that we cannot simply
consider a crime as permanently governed or
continuously governed by laws. Meaning, we
have to take into consideration the environment,
the social conditioning of persons and therefore it
is wrong to simply fix a predetermined penalty for
a crime, because there are so many factors to
consider. At least, the basic difference between
the two theories is on their emphasis.
Difference:
The Classical Theory gives more emphasis upon
the ACT committed rather that the actor.
Whereas, the Positivist Theory gives more
emphasis on the ACTOR rather than the act.
There is a focus of attention on the DOER rather
than on what he did. The focus on Classical
Theory is on WHAT HE DID rather than the actor.
Question: Upon which of these two schools of
thought is the RPC based?
Answer: The RPC is almost 80% reproduction of
the Penal Code of Soain. Since the Spanish Penal
Code is based on the Classical Theory,
necessarily our RPC is based on the Classical
Theory of Criminal Law. There were certain
changes introduced by the RPC. Certain Positivist
provisions were inserted. The framers of the RPC
had the complete authority to throw away the
Spanish Penal Code. But they were cautious, they

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were not prepared. They came basically with the
Spanish Penal Code, revised. So, they still
adhered to the structure of the Spanish Penal
Code. That is why our RPC is still the Classical
Theory.
Art. 2. Application of its provisions.
Except as provided in the treaties and laws
of preferential application, the provisions of
this Code shall be enforced not only within
the Philippine Archipelago, including its
atmosphere,
its
interior
waters
and
maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a
Philippine ship or airship
2. Should forge or counterfeit any coin or
currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with
the introduction into these islands of the
obligations and securities mentioned in the
presiding number;
4. While being public officers or employees,
should commit an offense in the exercise of
their functions; or
5. Should commit any of the crimes against
national security and the law of nations,
defined in Title One of Book Two of this
Code.
The phrase except as provided in treaties or laws
of preferential application. These are so called
Exceptions to the General Characteristics of
Criminal Law. Meaning, the RPC is binding on all
who live and sojourn in the Philippines, except
people who are not covered by the RPC due to
treaty stipulations, because laws of preferential
application.

1. Should commit an offense while on

a Philippine ship or airship
The term airship instead of airplane was used
because at the time of the drafting of the RPC,
there were no commercial planes yet. The means
of transportation then were the dirigibles, those
that look like ballons (the Lindenburg of American
accident fame). That is what they mean by the
term airship.
A ship or airship, which is of Philippine
registry, is considered as Philippine
territory.
PROBLEM: Mr. A, while on board a Philippine
vessel anchored at the Davao Gulf in Sasa,
commits a crime against Mr. B on board that
vessel.
Question: Are the provisions of the RPC
applicable?
Answer: Yes, because the crime was committed
in Philippine territory. Sasa is not yet outside of
Philippine territory. That is covered by the
opening paragraph, because the crime was
committed within the Philippine territorial waters.
So, the reason is not based of the opening
paragraph of Article 2.
Question: What is Paragraph 1?
Answer: That is when the ship is outside the
Philippines. What gives jurisdiction to the
Philippines is not the fact that crime was
committed on board a Philippine ship under
paragraph 1, but because of the fact that it was
committed in Philippine Territory, because it falls
under the exception. This is one of the instances,
when RPC may be given extraterritorial effect.

Question: What does Philippine Territory

cover?
Answer: The first paragraph of the RPC in Article
2 expresses the Territorial Principle: Philippine
territory comprises the Philippine Archipelago,
its atmosphere, the space above it, subject to the
aviation rights of other countries.

So, paragraph 2 refers to a ship already outside

of the Philippine territory. IF the problem says
that the ship is in the middle of Pacific Ocean,
does Philippine law apply? Yes, because the crime
was committed on board a Philippine vessel. Even
if it is outside of the Philippine Territory, it falls
under the exception. This is one of the instances
when RPC may be given extraterritorial effect.

During that time, the concept of outer space is

not yet recognized. That is beyond the territory of
any country. There is only a certain limit in
territorial waters. Only a portion of the sea is
considered as Philippine Territory. These are all
parts of public international law.

The same thing with airplanes. The plane is flying

in the middle of the atmosphere over the Pacific
Ocean, between the United States and the
Philippines. If the crime is committed aboard that
plane, the crime is triable in the Philippines. That
is an exception also.

As a general rule, the RPC and the other Penal

Laws can only be enforced within Philippine
Territory. They cannot be enforced outside. There
are Five exceptions to the territorial character of
Criminal Law.

We have no problem if the crime is committed on

board a Philippine ship or airplane, while outside
of the Philippines, flying or sailing, as the case
may be, in international waters or airspace. The
problem comes in if the crime is committed on
board a Philippine ship outside the Philippines
where it is anchored and it is under the territory
of another country.

Question: When may the provisions of the RPC

be enforced outside Philippine Territory? What are
the exceptions to the territorial nature of te RPC?
In what instances may the provisions of the RPC
be given EXTRATERITORIAL effect?
Answer:

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Question: Suppose, a Japanese vessel is in the

middle of the Pacific Ocean, and a Japanese
crewmember
killed
another
Japanese

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crewmember. Whose law shall be applied on the
prosecution of crime?
Answer: I do not know, and I do not care. It did
not happen in our territory. It did not happen in
our ship or airship. Presumable, it is the Japanese
law, but I do not know the Japanese law.
But if a Philippine ship was in the middle of the
Pacific Ocean and a crime was committed on
board it, no country will assume any interest
there.
Question: Was it committed in the Philippine
territory?
Answer: Of course not, the crime took place
while the vessel was in the middle of the Pacific
Ocean.
Question: Can the crime be tried in the
Philippines?
Answer: Yes, because of Article 2(1). The crime
was committed outside Philippine territory, but on
board a Philippine ship.
But the problem in paragraph 1 comes in when
the crime is committed on board a Philippine ship
while the same is in the territory of another
country.
For example: While a Philippine ship is anchored
in Tokyo Bay, or a PAL plane is about to land at
the Narita Airport in Tokyo, a passenger killed
another passenger.
Questions: Where will the crime be tried?
Suppose the Philippine would say, we should try
this here in the Philippines because the crime
took place on board of a Philippine ship or
airship. Is that correct?
Answer: Yes, based on Article 2(1).
But suppose Japan would say, No, the crime is
triable by our courts because it was committed in
Japanese territory. That is also correct. How do
you resolve that issue? Both sides have legal
issue.
That kind of problem has been in existence for
hundreds of years now. That is why it gave rise to
two sets of rules:
1.
The English Rule
2.
The French Rule
The English Rule
This holds the view that a crime is committed on
board a foreign vessel while that vessel is in the
territory of another country, the crime shall be
tried under the law of the territory where it is
committed.
Except when the crime is minor, something which
affects or involves only the internal management
of the vessels, in which case, it would be tried in
the country under whose flag the vessel
navigates or where it is registered.
The French Rule

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It came out an opposite view. The French believe

that if a crime is committed on board a foreign
vessel while the same is anchored in another
country, the crime should be tried not in that
country, but in the home state of the vessel.
Except if it affects the peace, security, and safety
of the territory where the crime was committed,
in which case it should be tried here.
So, the only difference is that the English Rule
makes the territorial principle of criminal law as
the general rule and the extraterritorial principle
as the exception, whereas the French Rule holds
opposite view. It is actually a set of inverse rules
because of the fact that what the general rule is
there is an exception, which is the general rule in
the other. It is actually the dame dog with the
collar at different ends, depending upon who put
it.
Question: Which rule is followed in the
Philippines?
Answer: According to the old case of US vs.
BULL (15 Phil. 14), the Supreme Court said that
we adhere to the English Rule.
However, based on the public international law,
these vessels should be MERCHANT VESSELS.
This is not applicable to warships because
warships are considered extensions of the
territory of the mother state wherever it may be.
Example: A ship of an enemy is in the Philippine
waters, and a crime is committed. The English
Rule cannot be applied. The navy vessel in the
country is not subject of the laws of a foreign
sovereign.
2. Should forge or counterfeit any
coin or currency note of the
Philippine Islands or obligations
and securities issued by the
Government of the Philippine
Islands;
The second exception applies also to government
bonds, treasury warrants, and sweepstakes
tickets.
Example: You are responsible for counterfeiting
Philippine money abroad. Every week you fly to
the Philippines, and then you are caught. You say
you cannot be charged under Philippine laws
because you say you counterfeited currency, but
not in Philippine territory. That will not prosper!
You can be arrested as if you committed the
crime here. That constitutes economic sabotage,
so we can try the crime in our courts as idthe
crime was committed in Philippine territory.
3. Should be liable for acts connected
with the introduction into these
islands of the obligations and
securities
mentioned
in
the
presiding number;

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The third exception is related to the second. You
may not tne the forger or counterfeiter, but you
are the importer into the Philippines of these
forged or counterfeited currencies and securities.
So, you are liable for the introduction pf the same
in the Philippines.
4.

While being public officers or

employees, should commit an
offense in the exercise of their
functions; or

This applies more particularly to those in the

foreign service because the offender here is a
public officer who commits a crime in the exercise
of his function. For example, officers of the
Philippine Embassy and Consulate malversed
government funds of the embassy.
Question: Does it mean that every crime
committed abroad by these officers can be tried
here?
Answer: No, only those committed in the
exercise of their function. Meaning, the acts were
related to their jobs where the element of being
public officer is an essential ingredient. If you
commit an offense which is purely private and it
has nothing to do with your being a public officer,
it is not covered. These crimes here are those
under the Title of Crimes Against Public Office
malversation, bribery or crimes committed under
the Anti-Graft Act.
5. Should commit any of the crimes
against national security and the
law of nations, defined in Title
One of Book Two of this Code.
Example of a crime against national security:
treason, espionage. A Filipino citizen, during the
war, commits an act of treason while he is
abroad. After the war, he goes back to the
Philippines. He can be arrested for that crime
even if the crime was not committed here
because that is against national security of the
state.
Example of crimes against the laws of
nations: piracy, mutiny. A group of pirates
committed piracy in Indonesia. That is clearly
outside Philippine territory. But the pirates are
apprehended in Philippine waters. They can be
charged under Philippine law. They cannot say
the act of piracy was committed beyond
Philippine territory, that they committed it in
Indonesia. Piracy is a crime against the laws of
nations and the offenders can be apprehended
and tried under the law of the country where they
are caught.
Title One
FELONIES AND CIRCUMSTANCES
WHICH AFFECT CRIMINAL LIABILITY
Chapter One

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FELONIES
Art. 3. Definitions. Acts and omissions
punishable by law are felonies (delitos).
Felonies are committed not only be means
of deceit (dolo) but also by means of fault
(culpa).
There is deceit when the act is performed
with deliberate intent and there is fault
when the wrongful act results from
imprudence, negligence, lack of foresight,
or lack of skill.
According to this article, felonies are acts and
omissions punishable by law. But that is not
the complete definition. That is only one-third of
the definition. The concept of felony covers the
entire Article 3. It is not limited only to the first
paragraph. You have to incorporate the entire
Article 3.
Question: How do you rephrase that?
Answer: Felonies are acts and omissions
punishable by law which can be committed not
only be means of deceit (dolo) act is committed
with deliberate intent or by means of fault (culpa)
when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
That is the complete definition.
Question: What are the elements of felony?
Answer:
Elements of Felony:
1. Involves an act or omission.
2. Punishable by RPC.
3. Committed by either dolo or culpa.
1. Act or omission
Question: Define an act.
Answer: An act is a physical movement, a
physical activity of human body which tends to
influence the outside world. Practically, 90% of all
felonies are done through physical act. How do
you kill? By shooting or stabbing. These should
involve some movements of muscles. How about
oral defamation? There is still the movement of
your tongue; the muscles of your throat are
working when you utter defamatory words. So,
you cannot kill somebody by simple sitting on the
bench and stare at somebody. Its impossible
even with dagger looks!
Question: Define omission.
Answer: This is the opposite. Omission is defined
as inaction; the exact opposite of action. In
omission, it is the other way around .The failure
to do a positive duty which the law commands to
be done. So, to say that there is no crime when
there is no movement is wrong. You may be
prosecuted not by doing something but by failing
to act. But omissions are the minority. Majority of
felonies are done through actions. Among the
most famous ones us Misprision of Treason under
Article 116 of the RPC; if you have to knowledge
of any conspiracy, you have to report it.
Art. 116. Misprision of treason.
Every person owing allegiance to (the

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United States) the Government of the
Philippine Islands, without being a
foreigner, and having knowledge of
any conspiracy against them, conceals
or does not disclose and make known
the same, as soon as possible to the
governor or fiscal of the province, or
the mayor or fiscal of the city in which
he resides, as the case may be, shall
be punished as an accessory to the
crime of treason.
If you find a person dying in the middle of the
forest, then you just left him there, you are liable
under Article 275 for abandonment of
persons in danger. Normally, you are liable for
not doing. The Chinese proverb (Too much talk,
too many mistakes. Less talk, less mistake. No
talk, no mistake) is the general rule, but not in
felony of omission. You have to do something.
Question: Based on paragraph
felonies.
Answer:
a. Felonies by act;
b. Felonies by omission.

1,

classify

2. The act or omission must be punishable

by law or RPC.
Question: What is the principle here?
Answer: No matter how bad, no matter how
condemnable, immoral or atrocious an act or
omission is, if there be no law penalizing it, there
is no crime. The solution is to write to your
congressman and ask him to pass law. The Latin
Maxim is nullum crimen, nulla poena sine
lege. That must be first a law penalizing it. You
cannot convict a person for a crime which does
not exist in the RPC. There is no crime if there is
no law making it a crime.
Question: How many laws are there which
penalize crimes?
Answer: There are so many. Generally, there is
RPC. Illegal possession of firearms is punishable
by PD 8066. Smoking or selling marijuana is
punishable my Dangerous Drugs Act; drinking
liquor on Election Day is punishable by Omnibus
Election Code. Issuing a bouncing check is
penalized under BP 22, etc.
Question: Are these illegal possessions of
firearms, smoking or selling marijuana, etc., are
felonies?
Answer: No, because they are not punishable
by RPC. They are punishable under special laws.
So Article 3 says punishable by law, it refers to
RPC only. A better way of expressing it is:
Felonies are acts and omissions punishable
by the RPC. That would be the more accurate
way. For example, murder.
Question: Is there difference between crime and
a felony?
Answer: The word crime is generic, because it
refers to all acts or omissions punishable by any
law. Even the RPC uses the word crime to refer

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to felonies of Book Two in Crimes Against National

Security. But the more accurate term for acts or
omissions by the RPC are felonies. Those
punished by special laws are called crimes or
offenses. Felony is a technical term. Those
punishable by ordinance are called infraction of
ordinance.
If you say murder is a crime that is correct
because the term is used in its generic sense. But
when you say murder is a felony, you must be a
law student. You are expected to know the
meaning of the word felony. On the other hand, if
you say that issuing a bouncing check is a felony
you do not know what you are talking about. It
cannot be felony, because it is not found in the
RPC.
3. There is deceit (dolo) or fault (culpa).
When you say deceit it means you were fooled.
For example, you run out of cash, so you issue
check which you know will bounce because there
is no fund for it. There is deceit there. In estafa,
there is also deceit. But there are felonies where
there is no deceit. For example, Give me your
money or else Ill kill you. There is a felony, i.e. a
robbery or hold-up, but there is no deceit. There
is intimidation and intent to gain but there is no
deceit.
Question: If there are many crimes where there
is no deceit, how come the law says felonies are
committed by means of either deceit or fault?
Answer: Because deceit is a wrong translation of
the word dolo. Deceit is a form of dolo but not
every dolo constitutes deceit. The better
translation for the Spanish word dolo is intent.
So, there must be intent, instead of deceit.
Culpa means fault when there is negligence or
importance. There is no intent but is substituted
by lack of foresight or lack of skill.
Based on the third element, there are two types
of felonies:
Intentional felonies
Culpable felonies
Another classification are (based of the first
element of felony):
Felonies by act
Felonies by omission
Question: Intent is in the mind. But how do you
prove intent? For example: When you kill
somebody, how do you prove that you have the
intent to kill?
Answer: There is no need to prove it. There is a
presumption in law that criminal intent is
presumed from the commission of a criminal act.
When you kill somebody, the law presumes intent
to kill. When you divest somebody of his money
in a robbery or theft, the law presumes that there
is intent to gain. It is fair enough, because how
can the prosecution prove what is in the mind of
person? So, what is in the mind is judged by your
actions.

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Question: Why is there such a presumption?
Answer: Because of the Classical Theory of
criminal law that man is a rational being, so that
when he commits a criminal act, it is presumed
that he did it knowingly, and therefore, his
criminal intent is presume from his commission of
a criminal act. Without such presumption, it
should be very difficult for the prosecution to be
required to prove criminal intent. But the
presumption could be rebutted.

A motorist drove his car at a speed of 100 kph in

the middle of San Pedro St. Suppose he bumps
somebody. That is normal for incidents as that
to happen. But there must be something wrong in
his foresight. Why is he driving at a very fast jeep
in a busy street?

Question: Distinguish motive from intent.

Answer: Both are in the mind. Motive is the
moving power that impels a person to commit a
crime; while intent the purpose to use a particular
means to achieve a particular result. While
criminal intent is an element of a felony, motive
is completely immaterial.

Question: What is the test of imprudence?

Answer: The failure to do what any ordinary
person would have ordinarily done.

Example:
A shoots B to death.
Question: What was the intent of A?
Answer: His intent was to kill.
Question: What was the motive of A in killing B?
Answer: I dont give a damn. Maybe it is anger,
revenge, jealousy, etc.
In the realm of criminal law substantive law
motive is immaterial; it is not an element of the
crime. Hence, it need not be proved for purposes
of conviction. Otherwise, if we were to require
motive to be an element of a crime, many
criminals will not be prosecuted. When the
commission of a crime is proved and the identity
of the criminal is established, motive is
immaterial.
Motive is important, not in substantive law, but in
procedural law the law on Evidence. Motive may
constitute circumstantial evidence. Meaning, if
you have no direct evidence that A killed B, I will
gather a series of possible reasons to show why A
is guilty. So motive is important to prove the
probability that A is the criminal, but it is not
important to prove the existence of a crime. But if
you have hundred witnesses, it is not necessary
to prove motive because in that case, the reason
for committing the crime becomes completely
immaterial.
Question: Can a person be held criminally liable
under the RPC even if he has no criminal intent?
Answer: Yes, if it is committed by means of fault
or culpa which is substituted for intent.
Culpable felonies are known under Article 365 as
QUASI-OFFENSES. There is no criminal intent but
is substituted by fault imprudence or
negligence.
Imprudence means deficiency of action, lack of
skill. Negligence refers to deficiency of
perception, lack of foresight. Meaning, the failure
to foresee what a reasonable man ought to
foresee.
Example:

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Question: What is the test of intelligence?

Answer: The test is the failure to foresee what
any ordinary person would have ordinarily done.

Question: Why does the law penalize people

who commit culpable felonies, when actually
there was no criminal intent?
Answer: Because he is penalize people for his
lack of skill. According to the Supreme Court, it is
very dangerous is a person can get away
with a criminal act simply because he did
not have the intent. Society will be a great
risk if people can be careless anytime.
Another important principle: when the law says
there must be criminal intent or fault, what
it means is the act must be committed
voluntarily. Every felony must be committed
voluntarily.
Question:
What
are
the
elements
of
voluntariness in an intentional felony?
Answer: There must be, on the part of the actor,
the following:
a. Freedom
b. Intelligence
c. Intent
Question: How about in a culpable felony?
Answer: In a culpable felony, the elements of
voluntariness are:
a. Freedom of Action
b. Intelligence
c. Fault or negligence
Question: What do you mean by voluntary act
in felony?
Answer: It is an act which is free, intelligent and
intentional. When you remove one of these
elements, the act ceases to be voluntary. There
might be intelligent and intent, but if there is no
freedom, the act ceases to be voluntary.
Example:
Article 12 one who acts under the compulsion of
an irresistible force, one who acts under the
impulse of an uncontrollable fear of an equal or
greater injury. Under these two circumstances,
the offender acts with intelligence and intent, but
if there is no freedom of action, as he is only
forced, threatened or intimidated to commit the
crime. So, he is exempt from criminal liability
because the act ceases to be voluntary. There is
Latin maxim: actus me unvito, factus non est
meus actus. As it is done against my will, it is
not my act.

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If there is freedom, there is intent but no
intelligence it has same effect. The act ceases
to be voluntary. For example: Article 12 an
imbecile or insane person; a minor under 9 years
of age.

What was the intention of Ah Chong in killing that

man?
Answer:
The intention was lawful the act in self-defense,
to protect his life and limb.

Suppose there is freedom, there is intelligence,

but there is no intent. What happens is that
person is again free from criminal liability. It is
true that criminal intent is presumed, but such
presumption is not conclusive, it is rebuttable.

Question:
Was he careless? Did he just immediately stab
the person when the latter enterd the room?
Answer:
No, in fact Ah Chong asked who he was and even
gave him warnings not ot enter the room or else
Ah Chong would kill him. Moreover, it was dark,
so how can he determine the intruder was his
roommate or not. In other words, the element of
intent and culpa were all negated.

US vs. AH CHONG
35 PHIL 488
Facts:
Ah Chong was a cook in Fort McKinley. He was
afraid of bad elements. One evening before going
to bed, he locked himself in his room by placing a
chair against the door. He called out twice, Who
is there? but received no answer. Fearing that
the intruder is a robber, he leaped from his bed
and called out again if you will enter my
room, I will kill you! But at that precise
moment, he was struck by the cahir that had
been placed against the door, and believing that
he was being attacked, he seized a kitchen knife
and struck and fatally wounded the intruder
turned out to be his roommate.
Held:
Ah Chong is not liable for the death of his
roommate because of mistake in fact.
Mistake of Fact is a misapprehension of fact
on the part of the person who caused injury to
another. He is not, however, criminally liable
because he did not act with criminal intent.
Requisites of Mistake of Fact
a. That the act done would have been
lawful had the facts been or turned out
as the believe the to be;
b. That the intention of the accused in
performing the act should be lawful;
c. That the mistake must be without fault
or carelessness on the part of the
accused.
Question:
What is the reason why Ah Chong killed the
intruder?
Answer:
Ah Chong killed the intruder because he believed
that the intruder was inside his room in the dark
to kill him and therefore, he had to kill him first.
Question:
Suppose what he believed turned out to be true;
an intruder in the middle of the night enters his
room to kill him, but he kills him first. Is he liable?
Answer:
Of course not! Because of self-defense. Meaning
if you believe it to be so true, you are not liable.
So, the first element is there.
Question:

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That is the classic example of mistake of fact. And

the Latin maxim there is Actus no facit reum
nist mens sit rae. The act is not criminal when
the mind is not criminal.
Another maxim Ignirantia facti excusat
(mistake of fact is an excuse) is not to be
confused with the Ignorantia legis non
excusat. While ignorance of the law excuses no
one from compliance therewith, ignorance or
mistake of fact relieves the accused from criminal
liability.
PEOPLE vs. OANIS
76 PHIL 257
Facts: Chief of Polis Oanis and his co-accused,
Corporal Galanta were under instructions to
arrest one Balagtas, a notorious criminal and
escaped convict, and if overpowered to get him
dead or alive. Proceeding to the suspected house,
they went into a room and seeing a man sleeping
with his back towards the door. The victimturned
out to be an innocent man, Tecson, and not the
wanted criminal.
During the trail, the accused invoke the Ah Chong
case.
Held: Both accused are guilty of murder. The Ah
Chong case does not apply here. The first
requisite of fact is lacking that the act done
would have been lawful had the facts been as the
accused believed them to be. Assuming it was
the wanted criminal that they were ordered to
apprehend, do they have the authority under the
law to shoot him down? Even if they invoke the
mitigating circmstance of fulfillment of duty, it
will not be appreciated in their favor because
although they are authorized to use force in order
to affect the arrest, the law says, reasonable
force. It was not necessary for them to shoot him
down immediately. Even hardened criminals, if
they can be caught without killing them, then
there is no need to shoot them to death.
Question: Was there fault or negligence on their
part?
Answer: Of course! They did not even bother to
discover his identity whether the guy was the

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right person. They just started shooting him. So,
that is the difference between these two cases.
While it is true that culpable felony, intent is not
necessary, however, the law still requires
voluntariness on the part of the offender in a
culpable felony. The element being still freedom,
intelligence and negligence. So, it is not correct
to say that in reckless imprudence case, the act is
not voluntary.
If you are reckless, you ask yourself, were you
forced to be reckless? Did somebody compel you
to perform a negligent act? If there is none, then
there is freedom. Were you crazy or out of mind
when you committed the crime? If you were not,
then there is still intelligence. In other words,
even culpable felonies, the elements of
voluntariness are still there.
Question:
How does Article 365 define
imprudence?
Answer:
Article
365
defines
reckless
imprudence as voluntarily but without malice in
doing or failing to do an act. So, there, you will
see that in reckless imprudence cases, there is no
dolo, but still the act must be voluntary.
Question: Can a person be held criminally liable
under Philippine law even if there is no criminal
intent on his part?
Answer: Yes:
1. When the felony is classified as culpable in
nature, like reckless imprudence; and
2. If the crime for which he is caused is
classified as a crime malum prohibitum.
MALA IN SE vs. MALA PROHIBITA
MALA IN SE

MALA
PROHIBITA

Crimes
so
serious in their
effects
to
society as to call
for
unanimous
condemnation
to its members.

Violations
of
mere
rules
of
convenience
designed
to
secure a more
orderly regulation
of the affairs of
society.

Criminal intent
is necessary.

Criminal intent is
immaterial
because the only
inquiry is: has the
law
been
violated?

Generally, refers
to those act or
omission
punished by the
RPC.

Generally, refers
to
acts
or
omissions made
criminal
by
special laws.

Example of crimes mala in se are murder,

homicide, robbery or rape. They are not only
crimes under our laws, but they go against
natural law, the basis commandments of God.

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Even without knowing the law, you conscience

would tell you that there is something wrong with
these crimes. They are wrong per se. Even
without the RPC, the human conscience will tell
us that there is something wrong when a person
kill, robs or rapes somebody. With or without the
RPC, society could not accept these evils.
However, these are also crimes which are NOT
inherently wrong mala prohibita. They are
wrong only because they are prohibited. They are
violations of mere rules of convenience enacted
by the state for the proper and orderly
administration of society. Examples of these are
illegal possession of firearms, violations of traffic
rules.
Question: Is there anything inherently immoral
when a person brings a gun with him?
Answer: One may posses or own a firearm
without license because the law says so. It is
wrong because it is prohibited, not because it is
immoral.
Question: Is there anything wrong when a
person drinks a bottle of beer during election
day?
Answer: None, it becomes a crime because the
law says so. It says one drink on any other day,
but not on Election Day.
Question: Why are people prohibited from
drinking on election day?
Answer: People are prohibited from drinking on
election day because this may lead to more
violence, added to electoral terrorism, on that
day. Suppose B drinks on Election Day, but he has
no intention of committing acts of violence or
terrorism. Meaning, he has no criminal intent to
terrorize voters. This is immaterial. The law says
that the above act is violation. The only issue is
whether or not the law was violated. That is all.
Art. 4. Criminal liability. Criminal liability
shall be incurred:
1. By any person committing a felony
(delito) although the wrongful act done be
different from that which he intended.
2. By any person performing an act which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or an
account of the employment of inadequate
or ineffectual means.
Question: Suppose a person commits felony and
the wrongful act done is precisely what he
intended. For example, B kills A. B aimed his gun
towards A and shoots him, Bs intent was to kill A,
and A die. Does he incur criminal liability?
Answer: Of course! But this is not mentioned in
Article 4 which says the wrongful act done be
different from which he intended. Here, it was
really the intention of B to kill A.
Question; But why is B liable when it is not
covered by Article 4?

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Answer: Article 4 enumerates only the
EXTRAORDINARY manner of committing a
crime or incurring criminal liability. The
ordinary way is to commit a felony and the
wrongful act done was precisely what you
intended. But the wrongful act is different from
which he intended, that is not normal. That does
not happen everyday. That is why it is
extraordinary, and that is what Article 4 covers.
One incurs criminal liability even if his intention is
different from what actually happened.
You will notice that based on that definition, the
first paragraph of Article 4 applies only to felonies
by act. It cannot apply to felonies by omission
because the wrongful act had done be different
from that which he intended. So, there was really
intent. Therefore, it is also limited to intentional
felonies. It has no application to culpable felonies.
Question: How can a person commit a felony
and the wrongful act done is different from that
which he intended?
Answer: There are three situations contemplated
by Article 4 (1):
1. Error in personae error in identity
2. Aberration ictus mistake in blow
3. Praeter
Intentionem

the
result
exceeded the intention.
Error in Personae
A wants to kill B so, he decided to ambush B in
the dark. One night, A waited for B, when he
thought he saw B coming, A attacked and killed
B. Later on, A found out that the person he
attacked was not actually B, but X. he killed the
wrong guy. Of course, A will be prosecuted for
death of X, and b is very much alive. This is As
defense: he should not be liable for the death of
X because he (A) did not intended to kill X. He
just misidentified the victim.
Question: Is that a valid defense?
Answer: Of course not! A is still liable for the
death of X because although there was a mistake
identity of the victim, he still had the intention to
kill.
Aberratio Ictus
This is not mistake in identity, but a mistake in
the blow. For example, A wanted to kill B. A drew
his gun, pointed to B and fired at him. But the
bullet did not hit B. Instead, the bullet hi X, killing
the latter. Prosecuted for the death of X. As
defense is that X was not the intended victim.
Question:
Is A liable for the death of X, although he (A) did
not even intended to kill him?
Answer:
Yes. That defense will not hold any water. A is
liable for the felony although it was not the one
he intended.
So in error in personae, there is a correct aim
but the actual victim turned out to be a person
different from the intended victim. In aberration

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ictus, on the other hand, because of faulty aim,

the intended victim is not the person hit.
Praeter Intentionem
The result exceeded the intention.
A person, committing a felony, is liable for
the direct, logical and natural
consequences of his criminal act.
In other words, the principle which the Supreme
Court applied is the so called doctrine of
proximate cause, and is defined as that cause
which in the natural and continuous sequence,
unbroken by any efficient intervening cause,
results in a particular felony, without which the
felony would not have resulted.
Question: What do you mean by efficient
intervening cause?
Answer: An efficient intervening cause is
something
absolutely
foreign
and
totally
unexpected which intervened and which break
the relation of cause and effect, between the
original felonious act and the result.
Generally, infections are all considered as a
continuation or the natural effects of what
happened to the victim. They are not efficient
intervening cause.
The law says that one is not liable if there are
efficient intervening causes. Meaning, if there is
something which happened in between which is
absolutely foreign between the victims death
and the original act, there is a break in the
relation of cause and effect, then one is liable
only up to that point. Beyond that, no more.
Take note that the Supreme Court says that one is
liable for all the direct, logical and natural
consequences of his criminal act. The Supreme
Court never said that he is liable for all possible
and probable consequences of his act.
There are some cases where the factor that
intervened between the criminal act and the
resulting injury was considered as an efficient
intervening
cause,
something
totally
un
expected, something absolutely foreign which
broke the relation of cause and effect between
the original act and the resulting injury. So, when
you are liable for a felony, you are liable up to a
certain point.
By any person performing an act which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or an
account of the employment of inadequate
or ineffectual means.
This is known as the concept of Impossible
Crime.
Question: Define Impossible Crime.

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Answer: An impossible crime is a crime
committed by a person who performs an act,
which would be an offense against the persons or
property, were it not for the inherent impossibility
of its accomplishment or on the account of the
employment of inadequate or ineffectual means.

Answer: No, there is legal impossibility. One of

the elements of theft is that the personal taken
by the offender belongs to another. If it belongs
to you, it cannot be theft. It is impossible for the
offender to be at the same time the victim of his
own act. One cannot steal from himself.

Note: There is no such thing as impossible crime

by omission.

Question: Is there a crime committed?

Answer: Yes, an impossible crime.

Question: Why is it that in paragraph 2, the

Penal Code says, performing an act, whereas
paragraph 1 says, committing a felony.
Answer: Precisely because in paragraph 2 there
is no known felony. Unlike in paragraph 1 where
felony is defined in the RPC, Book II; but, he
performed an act which would have been an
offense against persons or property.

Inadequate Means
For example, I placed a small quantity of poison
in the food of somebody. He took the food but he
did not die because of the dosage that I put in the
food as insufficient to kill a person. I am liable for
committing an impossible crime.

Meaning, the act should have been a crime

against person or property but it did not turn out
to be that way because of the inherent
impossibility of its accomplishment or on the
account of the employment of inadequate or
ineffectual means.
Question: Are all impossible attempts to commit
a crime punishable? Meaning, when you
committed an act which turned out not to be an
offense of an inherent impossibility, are you
liable?
Answer: No, in order to be considered an
impossible crime, it would have been an offense
against persons or property. So, when you
perform an act which would be an offense against
chastity, against honor, or against public interest,
that is not covered by paragraph 2 of Article 4
because of the special hatred by the RPC for
crimes against persons and property.
Crimes Against Persons
Suppose, you want to kill Lei and you plan to stab
him in his room in the middle of the night while
he is sleeping. So, you go to his room, you see
him lying, then, you start stabbing him to death,
but without knowing that he is already dead
because one or two hours earlier he died in sleep.
Question: Are you liable for murder?
Answer: No, murder is impossible because you
cannot kill somebody who is already dead. There
is a physical impossibility; you cannot kill a
cadaver. So, you did not commit murder. But had
he been alive, it would have been murder.
Question: What crime did you commit?
Answer: You committed an impossible crime
because of the physical impossibility of killing
2somebody who is dead. That is Article 4,
paragraph 2.
Crimes Against Property
I want to steal your fountain pen. That pen is
similar to the pen that I lost. I cannot buy another
one, I steal yours. Upon looking at the pen, I
realize that it is mine, it is the fountain pen that I
lost.
Question: Did I commit the crime of theft?

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Question: For instance, the poison that I placed

in the food was adequate but I did not know that
the person was especially immune from the
chemical that I used. So, he did not die despite
the sufficient amount of poison. Did I commit an
impossible crime?
Answer: No, that would be more of a frustrated
murder. The offender performed all the acts of
execution, which would produce a felony as a
consequence, but which, nevertheless, do not
produce it by reason of causes independent of
the will of the perpetrator. So, it is frustrated
murder under Article 6, rather than an impossible
crime under Article 4 paragraph 2.
Ineffectual Means
For example, I placed something in your office
believing that it was poison, but actually it was
salt or sugar. You could not have been killed
because it was not poison. But because I believed
that I could have killed you were it not for the
ineffectual means, Iam liable for impossible
crime.
The must be criminal intent on the part of
the offender.
In other words, he believed he was committing a
crime at that moment.
Suppose, I want to kill Dao while he is asleep in is
room. I go to Daos room and see him ling in bed.
I approach him, and I notice that he is not
moving. I touch him; he is already dead! So, I
said: Shit! Why do you have to die before I kill
you?! So, I just stab his body, knowing anyway
he is already dead.
Question: Am I liable for impossible crime?
Answer: No, because there is not intent to kill. It
is different when you think you are killing him
when actually he is already dead.
A person could be liable for an impossible
crime only if the act does not fall under any
specific provision of the RPC.
Impossible crime is the last resort.
A, who knew that B owned and always carried a
watch, decided to rob B of said watch. When A

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met B for that purpose, B did not have the watch
because he forget to carry it with him. Thinking
that B had watch wit him, A pointed his gun at
him and asked for the watch. Finding that B did
not have the watch, A allowed to go without
further molestation.
Question: Is he liable for an impossible crime
because it was impossible for him to take
something, which is not there?
Answer: No, that is not an impossible crime that
is attempted robbery. It would fit the definition of
an attempted robbery better than the definition
of an impossible crime. And the mere act of
placing or poking a gun at somebody is by itself
already a felony. So, it falls under a specific
provision of the RPC, then, it should not be
treated as an impossible crime.
Question: What is the basis for impossible crime
doctrine? Why should a person be held liable
when actually he did not commit any crime?
Answer: The principle here is objectively he is
not criminal, but subjectively he is a criminal. He
thought he was committing a crime. So, he
should be punished for that. In the positivist
thinking, he is socially dangerous person, be is
criminally minded.
Question: Why are we talking about the person?
Didnt we say that the RPC is based on the
Classical Theory of criminal law, where we are
looking at the effect rather than the person? Is
this not a violation of the classical theory of
criminal law?
Answer: No, Article 4 (2) of the RPC is one of the
few principles, which is positivist-oriented. Our
RPC is mainly based on the Classical Theory, but
there are few positivist-oriented provisions and
one of them is the impossible crime concept,
under Article 4 (2) of the RPC.
Question: What is the penalty to be imposed on
impossible crime? Can we penalize the offender
for murder, homicide, robbery, etc the crime
that he would have committed?
Answer: Of course not! He cannot be penalized
for the crime, which he would have committed
precisely because he did not commit the crime.
Question: What crime did he commit?
Answer: He committed an impossible crime.
Question: What then is the penalty for
impossible crime?
Answer: Article 59 of the RPC. Penalty to be
imposed in case of failure to commit the crime
because the means employed or the aims sought
are impossible. When the person intending to
commit an offense has already performed the
acts for the execution of the same but
nevertheless the crime was not produced by
reason of the fact that the act intended was by its
nature one of impossible accomplishment or
because the means employed by such person are
essentially inadequate to produce the result
desired by him, the court, having in mind the
social danger and the degree of criminality shown
by the offender, shall impose upon him the

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penalty of arresto mayor or a fine from 200 to

500 pesos.
Art. 5. Duty of the court in connection with
acts which should be repressed but which
are not covered by the law, and in cases of
excessive penalties. Whenever a court
has knowledge of any act which it may
deem proper to repress and which is not
punishable by law, it shall render the proper
decision, and shall report to the Chief
Executive, through the Department of
Justice, the reasons which induce the court
to believe that said act should be made the
subject of legislation.
In the same way, the court shall submit to
the
Chief
Executive,
through
the
Department of Justice, such statement as
may be deemed proper, without suspending
the execution of the sentence, when a strict
enforcement of the provisions of this Code
would result in the imposition of a clearly
excessive penalty, taking into consideration
the degree of malice and the injury caused
by the offense.
Question: What does the first paragraph of
Article 5 mean? Suppose a person is accused in
court criminally and it turned out that the act is
not a crime. Meaning, there is no law that
penalizes this act. What should the court do?
Answer: The law says that the court should
render the proper decision.
Question: What is the proper decision?
Answer: Acquit. How can you convict a person
when there is no existing crime? Nullum
Crimen, Nulla Peona Sine Lege. But the court
should inform the executive branch that it should
recommend passage of the law. Sometimes, it
happens that you commit an act which appears
to be immoral and illegal, but there is no
governing law. So, you now recommend that a
new law be passed. This is to cover the loophole
in the law.
But the second paragraph states the opposite
situation. If a person is found guilty of a crime
there is no question about it; there is no question
that he is liable and this is the proper penalty.
This must still be imposed on the convict even
though it is excessive. Why excessive? It is
excessive
because
of
some
special
circumstances. Normally, it is not excessive but
because of some circumstances, it becomes one.
But there is nothing that the judge can do. He still
must impose it but he must recommend
executive clemency. That is for the President to
grant. The judge has no power to pardon. The
judge has no power to commute or to grant
conditional pardon. The executive branch must
take over but as a judge, he has no other choice
but to apply the law.

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act of stabbing. Except when the law penalizes
such preparatory acts.
Preparatory external acts of preparation for
the commission of a felony are not
punishable,
except
when
the
law
specifically provides penalty for such
preparatory acts.
How a felony develops
MENTAL
PROCESS/INTERNAL
ACTS
EXTERNAL/PHYSICAL
ACTS
a.
Preparatory
Acts

b.

Acts
of
Execution
Attempted
Frustrated
Consummated

Not Punishable

Gen.
Rule:
Not
Punishable
Exception: If the RPC
penalize it.
Example:
Art.
304
(Possession of Picklocks
and false keys)

Punishable

Normally, as outlined in some books, a crime

usually starts with a person arriving at the
decision to commit a crime and then he plans it
out. We call that the mental process or some
authors call them internal acts. Although the
word internal acts does not seem to be accurate
in criminal law, when we say act as defined in
Article 3, it is physical action, a moving of the
muscle. If it is a mental process , it cannot be an
act but we will just use the word act loosely.
At this stage, this is still beyond the scope of
criminal law. No one can charge you for thinking
of committing a crime. That is a problem, which
should be solved by the person with his spiritual
director. But it is not the concern of the law. So if
you want to murder your enemies, you just
imagine. If you want to rape beautiful girls, you
just imagine. That is beyond the scope of criminal
law.
However, usually after the decision and the
planning, that is followed by external acts, the
physical activity. So, the mental process will now
be followed by external or physical acts. But
external acts should be divided into two. First, are
the Preparatory Acts.
Like for example, you want to poison your enemy,
you will buy poison. If you want to stab him, you
buy knife ad sharpen it. If you want to shoot him,
you get a gun and practice shooting. Those are
preparations.
Question:
Are
they
punishable?
Answer: The general rule is No. The act of
buying poison is not the act of poisoning the
victim. The act of sharpening a knife is not the

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The best example is Article 304 of the RPC, which

penalizes the crime known as possession of
picklocks and similar tools. Picklocks and similar
tools are usually objects of gadgets, which are
owned by robbers. They use it to open doors,
windows, etc.
But actually, the possession of a false key or a
picklock is not the actual act of robbery. It is only
in preparation of robbery. Normally, it should not
be punishable but the trouble is Article 304 says
mere possession of these objects, which are
preparatory to the crime of robbery with force
uon things, is also possible.
After the preparatory acts comes the ACTS OF
EXECUTION. Where a person now proceeds to
implement his plan. He now executes the
commission of the act and there are three
possibilities, which RPC calls as the attempted,
frustrated and consummated or mere frustrated
or attempted is already punishable. So, we are
concern here because these are all punishable
already.
Art. 6. Consummated, frustrated, and
attempted
felonies.

Consummated
felonies as well as those which are
frustrated and attempted, are punishable.
A felony is consummated when all the
elements necessary for its execution and
accomplishment are present; and it is
frustrated when the offender performs all
the acts of execution which would produce
the felony as a consequence but which,
nevertheless, do not produce it by reason of
causes independent of the will of the
perpetrator.
There is an attempt when the offender
commences the commission of a felony
directly or over acts, and does not perform
all the acts of execution which should
produce the felony by reason of some cause
or
accident
other
than
this
own
spontaneous desistance.
Attempted Stage:
There is an attempt when the offender
commences the commission of felony directly by
overt act. Since the law says by overt acts, the
conclusion is: In felony by omission, there is no
attempted stage. So, there is no such thing as
attempted stage in a felony by omission because
attempted stage applies only to felony by act.
The Supreme Court laid down the rule in order to
convict a person for an attempted felony; the
overt act must have a direct relation to the felony
for which he is charged. There must be a direct

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relation between the overt act and the elements
of the felony for which he is charged.
Cause
Theft, pick pocket. He was trying to pick pocket of
the victim. He was trying to lift the wallet inside
the pocket or the bag. The owner of the wallet
detected it, and held the hands of the thief. So,
he failed to take the wallet. There was the act of
taking but he failed to complete the possession of
the wallet. The reason here why he failed to
perform all the acts of execution was because the
owner prevented him. That is a cause other than
is own spontaneous desistance. So, attempted
theft.
Accident
I want to kill A. I aim the gun. I fired, but the gun
jammed. It did not explode. So, with that I failed
to kill the victim. Well, when I pointed my gun to
the victim, I have already commenced the act of
trying to kill. But the trouble is it did not explode.
The jamming of the gun was not consummated,
not because the offender stopped from
proceeding, but because of something else.
Other
than
your
own
spontaneous
desistance
If a person commences the commission of a
felony, but did not complete it because of his own
spontaneous desistance, according to Viada,
there is no criminal liability. He is not even guilty
of attempted felony on the theory that a person
who is already on the verge of committing a
crime but desists or decides not to pursue
because his conscience bothers him should not
be penalized. In fact, he should be rewarded for
hearkening to his conscience.
Question: Suppose, A would like to kill Z. As a
matter of fact, he already commenced the
commission of the felony but he realized that
there were many eyewitnesses. So, he desisted.
Can he be liable?
Answer: Viada says, never mind what is the
motive for not continuing. What is important is
that he did not continue with the crime; he
desisted voluntarily. Viada does not care whether
his desistance was based on a noble reason,
remorse, or out of fear of being caught. What is
important is his desistance. When he tries again
that is another story. But for the moment, since
he desisted, he would not be liable.
But take note that the desistance must come
before the consummation of the crime. You
cannot desist when all the acts of execution are
already accomplished.
Question: Is there an attempted theft? Or is
there no theft at all because of my desistance?
Answer: The crime of theft is consummated. The
moment I take your wallet and then leave, the
crime is accomplished or has already been fully
consummated. So, when I return it to you. I
cannot say that I desist.

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Note: You cannot desist when the crime is already

consummated. However, under Article 13, I will
be entitled to a mitigating circumstance that is
analogous to voluntary surrender.
Some authors all that the OBJECTIVE STAGE and
the SUBJECTIVE STAGE. In the objective stage, the
actor is still in control of his act. It is still within
his means to desist. If he desists, he is not liable.
But if he did not proceed not because of his
desistance but because of cause or accident
other than is desistance, he is liable for an
attempted felony. But if reaches the subjective
stage where he can no longer desist, then, he has
reached
either
the
frustrated
stage
or
consummated stage, depending on whether the
crime is accomplished or not. He has gone
beyong the stage of attempted felony.
Frustrated Stage
Question: How does the law define a frustrated
felony?
Answer: In a frustrated felony, the offender has
performed all the acts of execution which would
produce a felony as a consequence but which,
nevertheless, do not produce it by reason or
causes independent of the will of the perpetrator.
Question: Distinguish attempted stage from
frustrated stage.
Answer: In attempted stage, the offender has
not performed all the acts of execution, which
would produce the felony as a consequence;
whereas, in frustrated stage, the offender has
performed all the acts of execution, which would
produce the felony as a consequence.
Sometimes, these two stages are difficult to
distinguish. Even the Supreme Court in some old
decisions admitted its difficulty. The line that
divides the two stages seems to be very thin. The
best illustration of determining the stage of a
crime is in crime against person which involve an
attempt to kill attempted or frustrated murder
or homicide. But there are some crimes, which
show very unclear differences, like rape, arson,
etc.
Question: Suppose, I shot K but the gun
jammed. Is that attempted or frustrated?
Answer: Attempted. How can K die when I did
not even hit him. The jamming of the gun is an
accident other than my own spontaneous
desistance.
Question: Suppose, I shot K, but because of my
poor aim, he was not hit. What is that?
Answer: That is still attempted. How can he die
unless I hit him. So, my poor aim is the cause
other than my own spontaneous desistance.
Question: Suppose, I hit him but the wound is
not really fatal. So, he did not die. Is it attempted
or frustrated?
Answer: It is still attempted because I have not
performed all the acts of execution. How can K
die without a fatal wound? So, until the offender
inflicts a fatal wound which could normally kill, it

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can be rightfully claimed that the offender has
not performed all the acts of execution which
would produce felony as a consequence.
But, supposed, the offender, with the use of .45
caliber pistol, shot the victim in the head blowing
off his brain, hit him in his chest blasting his heart
and still another shot blasting his liver. Then, the
victim was rushed to a hospital. Because of
modern apparatus, he was able to survive. This
modern science is the cause independent of the
will of the perpetrator. I did everything to kill him.
Definitely, Ive performed all the acts of
execution. He is supposed to be dead by now.
That is frustrated.
Question: A doctor wanted to poison his wife.
So, he placed poison in his food. His wife ate the
food with poison. When the wife had already
swallowed the food, the doctor was bothered by
his conscience. He was remorseful; so he
administered first aid and forced her to vomit.
The wife survived. Was the crime attempted or
frustrated parricide?
Answer: (Analysis)
In attempted parricide, the offender has
not performed all the acts of execution. In
other words, it would be attempted if the
wife, who has already taken the poison,
vomited by herself. When she spit out the
poison that constitutes an accident other
than the husbands desistance. But if the
husband had his conscience stricken
before the wife had swallowed the poison,
then, there is not even attempted
parricide because of his own spontaneous
desistance.
But if the wife has already swallowed the
poison, and it was already in her stomach,
desistance is immaterial. You cannot order
the poison to go out the body. He has in
fact passed the frustrated stage because
he has already performed all the acts of
execution. But to convict a person of
frustrated parricide, the law requires that
the felony did not materialize because of
causes independent of the will of the will
of the perpetrator. Like you shot
somebody
but
because
of
timely
intervention by a doctor, he survived. But,
here, the offender himself saved the wife.
In other words, it would not also fit the
definition of a frustrated felony.

because of causes independent of the will of the

perpetrator.
Consummated
Question: What is a consummated felony?
Answer: A felony is consummated when all the
elements necessary for its execution and
accomplishment are present.
The definition of a crime in Book II contains the
elements, which you can detect by splitting the
definition into parts. And to convict a person of a
particular crime, you have to prove all the
elements to establish the crime. If all the
elements of a crime are present, then the felony
is consummated. Thats the simplest test.
For example, with intent to kill. A shot B and B
died. That is consummated homicide or murder.
Question: But supposed some elements are
present and some elements are absent. Suppose
a crime is composed of several elements, then
the prosecution has established only some of the
elements but the others are not, what will
happen?
Answer There are Three Possibilities:
1. The accused can be found guilty only
of frustrated or attempted felony.
Example: A, with intent to kill, shoots B. But B
did not die because the doctor saved his life.
Question: Is the crime a consummated
homicide?
Answer: Of course not! It is frustrated homicide.
2. The accused cannot be convicted
the
felony
charged
in
consummated stage but he can
found guilty of another felony in
consummated stage.

of
its
be
its

Example:
A person is charged with robbery. Robbery is
committed when, with intent to gain, one takes
personal property belonging to another with
violence or intimidation of persons or force upon
things. The offender is proved to have taken, with
intent to gain , property of another but there was
no force upon things, or violence or intimidation
against persons.

Question: So, what was the crime committed?

Answer: The crime of administering injurious
beverage under Article 364. It is a form of serious
physical injuries.

Question: What crime was proven?

Answer: What was proven was the crime of
simple theft.

Question: How do we distinguish the attempted

or frustrated stage of a felony from an impossible
crime?
Answer: In an impossible crime, the crime to be
committed
was
inherently
impossible
of
commission; whereas in attempted or frustrated
felony, the crime is possible of accomplishment,
but it was not produced because of a cause or an
accident other than the offenders desistance, or

Example:
A is accused of murder because according to the
prosecution, with intent to kill. A shot B and killed
him by means of treachery. During the trail, the
prosecution proved that the accused shot the
victim. He shot A with intent to kill. The victim
died but there was no treachery. So, the charge is
consummated murder, the crime proven was
consummated homicide.

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That is the 2nd possibility. When the prosecution
proves less than the elements of the crime
charged, the accused can be convicted of another
crime also in its consummated stage. In the law
on criminal procedure, that means the accused of
a crime is convicted of a crime necessarily
included in the crime charged.
3. When a person is charged with a
crime consists of two or more
elements, some elements are proven
but the others are not, the accused
should be acquitted because no crime
was established.
Example:
A accused B of estafa under the Penal code.
Generally, the elements of estafa are:
a. Misappropriation;
b. Deceit or abuse of confidence; and
c. Pecuniary damage suffered by the
plaintiff.
During the trial, the prosecutor proved that the
accused as able to get money fom the victim and
he did not return the money. So there was
pecuniary damage. But there was no deceit, no
abuse of confidence.
Question: So, what has been proved?
Answer: It is a simple loan. Therefore, there is no
estafa. It is purely a civil obligation. In te absence
of abuse of confidence or deceit, the cause of
action is purely civil. No crime is proven but there
is civil liability.
However, there are certain crimes where you
will have a hard time determining the stage
of execution.
1. There is no distinction between the
attempted felony and consummated
felony.
You have to take note also that in some special
crime the attempted stage and the consummated
stage are identical. Meaning, when you do it,
consummated. When you attempt to do it, it is
also consummated. So, there is no distinction
between the attempted and the consummated
because they carry the same penalty.
Art. 121. Flight to enemys country.
The penalty of arresto mayor shall be
inflicted upon any person who, owing
allegiance
to
the
Government,
attempts to flee or go to an enemy
country when prohibited by competent
authority.
PROBLEM: Philippines is at war with another
country. So, all citizens of the Philippines are
banned from going to that country. Suppose, in
violation of that, you decide to go to that country.
When you come back, the government will file a

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case against you because you visit a country with

which we are at war and there is prohibition.
You really wanted to go. You are on the act of
going; you are about to board a plane. You are
caught! So, you are no table to go. You attempt to
go, consummated. You go and you are caught,
consummated
also.
The
attempted
and
consummated stages are identical, that is why a
mere
attempt
is
already
considered
consummated.
2. Consummated or Nothing
There are some crimes where there is no
attempted or frustrated. Its either consummated
or nothing.
Examples:
1. Felony by omission You failed to do
an act which the law commands you t
do as a duty. So, if you dont commit
any crime. But if you do not do it, there
is a crime. Either you o or you do not
do.
2. False Testimony in Court
3. Slander When you orally defame
somebody
in
public
presence;
kawatan ka, rapist pa gyud!. What
did you commit? You have orally
defamed the person to put him
dishonor. Suppose, you said; kaw,
you did not finish. Is that attempted
slander? No! Either you say the whole
thing or you dont
Some authors call that Formal Crimes
where there is only one stage as
distinguished from crimes composed of
stages, which are called Material
Crimes, like homicide. But even in
material crimes, it is also hard to
distinguish one from another.
For instance, Arson:
You burn a building. Out of 30 rooms, only two are
totally burned. The fire was extinguished. So, 2/30.
Question: What is that attempted, frustrated,
or consummated? How much portion of the
building must be burned before it becomes
consummated, frustrated, or attempted?
Answer: According to the Supreme Court,
counting the number of rooms or percentage of
the building, which was burned, is not the way to
determine the stage of execution of arson. No
matter how small is the portion burned, that is
already consummated arson.
Question: If that is so, how can you commit
frustrated or attempted arson? Is there such a
thing as attempted or consummated arson?
Answer: Yes, that is answered by jurisprudence.

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The same thing with rape. According to the
Supreme Court, there is no such thing as half
measure or quarter measure in a rape. Mere
penetration of the labia no matter how slight or
momentary, even if there is no emission,
consummates rape.
If there is sexual intercourse between the rapist
and the victim, even how fleeting it is, or how
shallow the penetration, that is already
consummated. If it is in the act of entering but it
is discontinued, that is attempted.
Question: Where is frustrated here?
Answer: In one case, the Supreme Court said
that there is no frustrated stage in rape. These
can only be learned if you know jurisprudence.
Note: Case of People vs Orita
Supreme Court held that it was a
consummated rape not just only frustrated
rape.
Citing People vs Enrile, no frustrated stage
anymore and Enrile ruling was a stray
decision.
It is well settled that slight penetration
consummates
rape
and
perfect
penetration is not essential.
Mere touching of the lips of vagina,
without laceration of vagina or emission,
already consummates rape.
Question: So, based on Article 6, what are the
classifications of felonies according to stages of
execution?
Answer: They are the following:
1. Attempted
2. Frustrated
3. Consummated
Stages of Execution: (From the memory aid of
Atty. Angel)
1. Consummated

all
elements
necessary
for
EXECUTION
and
ACCOMPLSIHMENT are present.
2. Frustrated

all the acts of

EXECUTION performed but not produce
a felony as a consequence by reason
of Causes Independent of the will of
perpetrator. (Recall: CaIn)
3. Attempted

commences
the
commission of the felony directly by
overt acts, but not perform all the acts
of EXECUTION by reason of some
Cause or Accident other than is own
spontaneous
desistance.
(Recall:
CoRa)
Art. 7. When light felonies are punishable.
Light felonies are punishable only when
they have been consummated, with the
exception of those committed against
persons or property.
GENERAL RULE: Light Felonies under Art. 9 are
only punishable if they are consummated.
EXCEPTIONS:

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1. Light felonies
persons
2. Light felonies
properties

are

committed

against

are

committed

against

In other words, light felonies must be

consummated to be punishable. So, if the felon is
light and it is only attempted or frustrated, there
is no liability. It is not possible. In effect, there is
no crime and you are not liable.
The reason for the rule is that a light felony is
merely an infraction of the law. As a matter of
fact, even if the light felony is consummated, the
penalty is only arresto menor or a fine not
exceeding P200. Damage or injury to society or to
the public order is negligible. If it is negligible,
what possible damage to society is there if the
light felony is only attempted or frustrated? It is
so microscopic in size that the law would rather
not punish it anymore.
However, Art. 7 has also an exception: xxx with
the exception of those committed against person
or property. If the light felony is classified as an
offense against persons or property, it will be
punishable even if it is only attempted or
frustrated. Meaning, those who commit crimes
against persons are more perverse than those
who violate the other Titles of the Book.