G. Crimes against persons

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

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CHAPTER 1: DESTRUCTION OF LIFE

SECTION 1 – PARRICIDE, MURDER, HOMICIDE

1. Parricide

ELEMENTS:

1) A person is killed;

2) The deceased is killed by the accused;

3) The deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendants or other descendants, or the legitimate spouse of the accused. (People v. Bolasco, G.R. No. 211062, 13 January 2016)

REMINDERS:

1) Whether or not the accused new of his family relationship with the victim, the crime of parricide is committed.

2) The family relations is only by blood, and does not extend to in-laws. The only exception is the legitimate spouse.

3) Whether or not the accused intended to kill the victim, the crime of parricide is committed.

4) If killing is committed with another who is a stranger, the latter’s crime is either homicide or murder – not parricide.

2. Death or physical injuries inflicted under exceptional circumstances

1ST MODE (SPOUSE) – ELEMENTS:

1) That a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and,

2) That he kills any of them or both of them in the act or immediately thereafter. (People v. Abarca, G.R. No. 74433, 14 September 1987)

2ND MODE (LEGAL PARENTS) – ELEMENTS:

1) The offenders are legal parents;

2) Their daughter  living with them; and,

3) They have surprised their  daughter under eighteen years of age in the act of committing sexual intercourse with her seducer; and,

4) They kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. (Parararaph 3, Article 247, Act No. 3815, Revised Penal Code)

PROXIMATE RESULT OR BY-PRODUCT OF RAGE: Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused “shall kill any of them or both of them… immediately” after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused’s rage.” (People v. Abarca, supra.)

a. No crime under Article 247, but a privilege or benefit

Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. (People v. Araquel, En Banc, G.R. No. L-12629, 09 December 1959)

DESTIERRO: Since there is no crime, punishment is not inflicted upon the accused. He is banished, but that is intended for his protection. (People v. Abarca, supra.)

NO AGGRAVATING/MITIGATING/QUALIFYING CIRCUMSTANCES: It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances (Ibid.)

BY-STANDERS WHO GET INJURED: Inflicting death under exceptional circumstances is not murder and thus no charge of frustrated murder may be had if by-standers get injured. Instead, physical injuries is the proper offense. (Ibid.)

b. Excluded from privilege or benefit

Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. (Last Parararaph, Article 247, Ibid.)

3. Murder

ELEMENTS:

1) That a person was killed;

2) That the accused killed him;

3) That the killing was attended by any of the qualifying circumstances mentioned in Article 248; and,

4) That the killing is not parricide or infanticide. (People v. Kalipayan, G.R. No. 229829, 22 January 2018)

a. Qualifying circumstances

1) With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity (Article 248[1], Act No. 3815, Revised Penal Code)

ELEMENTS:

1) the employment of means of execution which gives the person attacked no opportunity to defend or retaliate; and,

2) That said means of execution were deliberately or consciously adopted. (Ibid.)

ESSENCE OF TREACHERY: The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. A swift and unexpected attack on an unarmed victim that insures its execution without risk to the assailant arising from the defense of his victim is an indication that treachery is present. (Ibid.)

SAME; IMPOSSIBLE TO DEFEND: What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. In that sense, even attacks that occur from the front may be considered treacherous if the attack was so sudden and unexpected that the deceased had no time to prepare for self-defense. (Ibid.)

SAME; CONSCOPUSLY ADOPTED: The mode of attack must also be consciously adopted. The accused must make some preparation to kill the deceased in a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. The attack, then, must not spring from the unexpected turn of events. (Ibid.)

2) In consideration of a price, reward, or promise (Article 248[2] , Act No. 3815, Revised Penal Code)

3) By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin (Article 248[3], Ibid.)

4) On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity (Article 248[4], Ibid.)

5) With evident premeditation (Article 248[5], Ibid.)

ELEMENTS:

1) A previous decision by the accused to commit the crime;

2) An overt act or acts manifestly indicating that the accused has clung to his determination; and,

3) A lapse of time between the decision to commit the crime and its actual execution enough to allow the accused to reflect upon the consequences of his acts. (People v. Kalipayan, supra.)

6) With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse (Article 248[6] , Act No. 3815, Revised Penal Code)

CRUELTY: For cruelty to exist, it must be shown that the accused enjoyed and delighted in making the victim suffer slowly and gradually causing him unnecessary physical or moral pain in the consummation of the act.

SAME; NOT CRUELTY IF WOUNDING WAS CONTINUOUS: While the victim was shot three (3) times and hacked several times until he died, the infliction of the wounds was continuous rather than slow and gradual. Inflicting various successive wounds upon a person to cause his death without appreciable time intervening between the infliction of one wound and that of another, as in the present case, does not constitute cruelty. (People v. Fernandez, G.R. No. L-69619, 15 September 1987)

OUTRAGING/SCOFFING AT CORPSE: The killing was attended by the qualifying circumstance of outraging or scoffing at the victim’s person or corpse. It was established that after the victim was hacked and stabbed, the accused decapitated his head and threw the same in the “lubluban ng kalabaw.” It is well-settled that mere decapitation of the victim’s head constitute outraging or scoffing at the corpse of the victim, thus qualifying the killing to murder. (People v. Gerero, G.R. No. 213601, 27 July 2016)

4. Homicide

ELEMENTS:

1) A person was killed;

2) The accused killed him without any justifying circumstance;

3) The accused had the intention to kill, which is presumed; and,

4) The killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. (Wacoy v. People, G.R. No. 213792, 22 June 2015)

a. Attempted or frustrated homicide

INTENT TO KILL: The intent to kill being an essential element of the offense of frustrated or attempted homicide, said element must be proved by clear and convincing evidence. That element must be proved with the same degree of certainty as is required of the other elements of the crime. The inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt. (Mondragon v. People, En Banc, G.R. No. L-17666, 30 June 1966)

SAME; IF NONE, SEROUS PHYSICAL INJURY ONLY:  Frustrated homicide requires intent to kill on the part of the offender. Without proof of such intent, the felony may only be serious physical injuries.

SAME;  HOW ESTABLISHED; Intent to kill may be established through the overt and external acts and conduct of the offender before, during and after the assault, or by the nature, location and number of the wounds inflicted on the victim. (De Guzman, Jr. v. People, G.R. No. 178512, 26 November 2014)

SAME; SAME; FACTORS; factors to determine the presence of intent to kill:

1) The means used by the malefactors;

2) The nature, location, and number of wounds sustained by the victim;

3) The conduct of the malefactors before, during, or immediately after the killing of the victim;

4) The circumstances under which the crime was committed and the motives of the accused; and,

5) The motive of the offender and the words he uttered at the time of inflicting the injuries on the victim. (Ibid.)

REMINDER:

1) Since intent to kill is an element, there can be no attempted or frustrated homicide through imprudence as negligence is inconsistent with intent to kill.

5. Death caused in a tumultuous affray

ELEMENTS:

1) That there be several persons;

2) That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally;

3) That these several persons quarrelled and assaulted one another in a confused and tumultuous manner;

4) That someone was killed in the course of the affray;

5) That it cannot be ascertained who actually killed the deceased; and,

6) That the person or persons who inflicted serious physical injuries or who used violence can be identified. (Wacoy v. People, supra.)

TUMULTOUS AFFRAY; REQUIRES AT LEAST FOUR (4) PERSONS: The disturbance or interruption shall be deemed to be tumultuous if caused by more than three persons who are armed or provided with means of violence. (Paragraph 3, Article 153, Act No. 3815, Revised Penal Code)

REMINDER:

1) Since death by tumultuous affray presupposes that the one who killed cannot be identified, the crime is homicide if the person is identified despite the tumultuous circumstances.

6. Physical injuries inflicted in a tumultuous affray

ELEMENTS:

1) There is a tumultuous affray as referred to in the preceding article;

2) Only serious or less serious physical injuries are inflicted upon the participants thereof; and,

3) The person responsible thereof cannot be identified.

7. Giving assistance to suicide

1ST MODE (ASSISTANCE) – ELEMENTS:

1) The offender assists another to commit suicide; and,

2) Whether or not the suicide was successful.

2ND MODE (LEADS ASSISTANCE) – ELEMENTS:

1) The offender leads the assistance of suicide to another to the extent of doing the killing himself; and,

2) Whether or not the suicide was successful.

8. Discharge of firearms

ELEMENTS:

1) That the offender discharges a firearm against or at another person; and,

2) That the offender has no intention to kill that person. (Dado v. People, G.R. No. 131421, 18 November 2002)

Section Two. – Infanticide and abortion

9. Infanticide

ELEMENTS:

1) A child was killed;

2) The deceased child was less than three (3) days old; and,

3) The accused killed the child. (People v. Adalia, G.R. No. 235990, 22 January 2020)

REQUIREMENT OF BORN ALIVE AND VIABLE: In the crime of infanticide, it is necessary that the child be born alive and be viable, that is, capable of independent existence. However, even if the child who was expelled prematurely and deliberately were alive at birth, the offense is abortion due to the fact that a fetus with an intrauterine life of 6 months is not viable. (People v. Paycana, Jr., G.R. No. 179035, 16 April 2008)

10. Intentional abortion

ELEMENTS:

1) That there is a pregnant woman; and,

2) That the offender intentionally causes an abortion.

11. Unintentional abortion

ELEMENTS:

1) That there is a pregnant woman;

2) That violence is used upon such pregnant woman without intending an abortion;

3) That the violence is intentionally exerted; and,

4) That as a result of the violence the fetus dies, either in the womb or after having been expelled therefrom. (People v. Paycana, Jr., supra.)

12. Abortion practiced by the woman herself of by her parents

1ST MODE (BY ANY OTHER PERSON) – ELEMENTS:

1) The offender is a pregnant woman;

2) She:

(a) Practices abortion upon herself; or,

(b) Consents that any other person should do so.

2ND MODE (BY PARENT/S) – ELEMENTS:

1) The offender is a pregnant woman;

2) She consents that her parents or either of them commits abortion; and,

3) They do so for purposes of concealing her dishonor.

13. Abortion practiced by a physician or midwife and dispensing of abortives

ELEMENTS:

1) The offender is a physician or midwife;

2) They take advantage of their scientific knowledge or skill; and,

3) They: (a) cause an abortion, or (b) assist in causing the same.

Section Three. – Duel

14. Responsibility of participants in a duel

ELEMENTS:

1) The offender participates in a duel;

2) He inflicts physical injuries or kills his adversary in a duel.

15. Challenging to a duel

ELEMENTS:

1) The offender: (a) challenges another, or (b) incite another to give or accept a challenge to a duel, or (c) shall scoff at or decry another publicly for having refused to accept a challenge to fight a duel.

Chapter Two: Physical Injuries

16. Mutilation

1ST MODE (REPRODUCTION ORGAN) – ELEMENTS:

1) That there be a castration, that is, mutilation of organs necessary for generation; and,

2) That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. (Aguirre v. DOJ, G.R. No. 170723, 03 March 2008)

2ND MODE (OTHER MUTILIATION) – ELEMENTS:

1) That there be a mutilation of organs not relating to organs of reproduction; and,

2) That the mutilation is caused purposely and deliberately.

MUTILATION: The ordinary usage of the term “mutilation” is the deprivation of a limb or essential part (of the body), with the operative expression being “deprivation.” (Aguirre v. DOJ, supra.)

SAME; VASECTOMY; Vasectomy does not deprive a man, totally or partially, of some essential organ of reproduction. (Ibid.)

CASTRATION: The word “castration” is defined as the removal of the testies or ovaries. (Ibid.)

17. Serious physical injuries

1ST MODE (+30 DAY INCAPACITY) – ELEMENTS:

1) That the offender has wounded, beaten, or assaulted another; and

2) That the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than 30 days. (Pilares, Jr. v. People, G.R. No. 165685, 14 March 2007)

2ND MODE (+90 DAY INCAPACITY FROM WORK; DEFORMITY, ETC.) – ELEMENTS:

1) That the offender has wounded, beaten, or assaulted another; and

2) That the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety (90) days.

3RD MODE (PERMANENT INCAPACITY) – ELEMENTS:

1) That the offender has wounded, beaten, or assaulted another; and

2) That the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefor habitually engaged.

4TH MODE (INSANITY, ETC.) – ELEMENTS:

1) That the offender has wounded, beaten, or assaulted another; and

2) That the injured person shall become insane, imbecile, impotent, or blind.

PARENT: The crime is not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement. (Paragraph 3, Article 263, Ibid.)

18. Administering injurious substances or beverages

ELEMENTS:

1) The offender inflictz upon another any serious, physical injury;

2) It is by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity; and,

3) It is without intent to kill.

19. Less serious physical injuries

ELEMENTS:

1) That the offender inflicted physical injuries upon another; and,

2) That the physical injuries inflicted either incapacitated the victim for labor for 10 days or more, or the injuries required medical assistance for more than 10 days. (Enrile v. Manalastas, G.R. No. 166414, 22 October 2014)

20. Slight physical injuries and maltreatment

ELEMENTS:

1) The offender inflicts upon another physical injuries, which do not amount to less serious or serious physical injuries; and,

2) He incapacitates the offended party for labor for nine (9) days or less, or shall require medical assistance for the same period.

21. Rape

1ST MODE (SEX WITHOUT CONSENT) – ELEMENTS:

1) The offender had carnal knowledge of the victim; and,

2) Such act was accomplished through force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under twelve years of age. (People v. Tubillo, G.R. No. 220718, 21 June 2017)

2ND MODE (INSERTION OF OBJECT) – ELEMENTS:

1) The offender commits an act of  sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person; and,

2) S/he commits the acts under any of the circumstances mentioned under the 1st Mode.

EFFECT OF PARDON: The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. (Article 266-C, Ibid.)

PRESUMPTIONS: Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A. (Article 266-D, Ibid.)

a. No frustrated rape

PHYSICAL IMPOSSIBILITY: Rape in its frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of execution which would produce the felony; and (2) that the felony is not produced due to causes independent of the perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal knowledge of his victim, because from that moment all the essential elements of the offense have been accomplished, leaving nothing more to be done by him. (Cruz v. People, G.R. No. 166441, 08 October 2014)

b. When attempted rape

In attempted rape, the concrete felony is rape, but the offender does not perform all the acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its attempted stage requires the commencement of the commission of the felony directly by overt actswithout the offender performing all the acts of execution that should produce the felony, the only means by which the overt acts performed by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his intent to lie with the female. (Ibid.)

CRIMINAL INTENT: Accepting that intent, being a mental act, is beyond the sphere of criminal law,23 that showing must be through his overt acts directly connected with rape. He cannot be held liable for attempted rape withoutsuch overt acts demonstrating the intent to lie with the female. In short, the State, to establish attempted rape, must show that his overt acts, should his criminal lintent be carried to its complete termination without being thwarted by extraneous matters, would ripen into rape. (Ibid.)

SAME; DISTIGUISHED FROM ACTS OF LASCIVIOUSNESS: The fundamental difference between attempted rape and acts of lasciviousness is the offender’s intent to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not required in acts of lasciviousness. Attempted rape is committed, therefore, when the “touching” of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of consummating the sexual act touching the external genitalia of the female. Without such showing, only the felony of acts of lasciviousness is committed. (Ibid.)

22. Qualified Rape

AGGRAVATING/QUALIFYING CIRCUMSTANCES:

l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;

 2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;

 3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;

 4) When the victim is a religious engaged in legitimate religious vocation or calling and  is personally known to be such by the offender before or at the time of the commission of the crime;

 5) When the victim is a child below seven (7) years old;

 6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;

 7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;

 8) When by reason or on the occasion of the rape, the  victim has suffered permanent physical mutilation or disability;

 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and

 10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.

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