Lecture Notes of Fiscal Salva SUMMARY: ART 114.

Treason Treason is a crime that could ONLY be committed when the Philippines is at war with a foreign country. Nobody could be a traitor to this country UNLESS the country is at war.

Two ways of committing Treason: 1. Levying war against the government 2. By adhering to the enemy, giving them aid and comfort. When asked what are the elements of treason: 1. The offender is either a Filipino or a resident alien. 2. That the Philippines is at war. 3. Offender commits ANY of this two acts: a. Levying war against the government b. Adhering to the enemy, giving them aid and comfort. The only distinction between levying war in the crime of treason and levying war in rebellion is that the PURPOSE of the traitor or offender is to overrun the government with the help of foreign country or to DELIVER the country to the hand of the foreign country. *In rebellion there is no foreign country. It is not to be delivered to any foreign country. Unlike in treason where the purpose is EITHER to deliver the country to the hands of a foreign country OR topple the government with the aid of a foreign country. Now, LEVYING WAR does not mean merely the enlistment of people who wants to fight the government. It is required that there must be actual assembly of these men for the common purpose of carrying out the treasonous design against the government. Mere enlistment will not constitute levying war. Mere sympathy would to the enemy would not make one a traitor. For Example, A Filipino who became a person who favored the food, customs, habit does not make him a traitor. Mere sympathy does not make him a traitor. The second element lacks. The overt act! Meaning, giving aid or comfort must strengthen the enemy countries strength or effort in order to defeat the defending country.

What about the Filipino businessman running nightclubs, prepared for the party of enemy military troops giving them prettiest women , best food and entertainment? As ruled by the Supreme Court, it does not materially increase the efforts of the enemy to defeat the Philippine government. Thus, ACQUITTED. NOW! What is QUANTUM OF EVIDENCE? In other words what are the two ways in proving treason? 1) TWO WITNESS RULE 2) CONFESSION IN OPEN COURT. The TWO WITNESS RULE -must be testimony of two(2) witnesses to THE SAME OVERT ACT. Now! Article 115, In Crim 1, There are two concept of conspiracy and proposal to commit a felony. 1) The concept of being a crime in itself 2) the concept of merely a manner of incurring criminal liability. NOW YOU MAY BE ASKED: Define Conspiracy to commit treason, Define Proposal to commit treason. There is conspiracy to commit treason whenever the Philippines is at war, whenever two or more persons, which may be citizen or a resident alien, who come to an agreement concerning the commission of treason either by levying war against the government or adhering to the enemy, by giving them aid and comfort and decided to commit it. Remember! In conspiracy to commit treason there is no overt act. It is enough to decide and design to commit treason. But once there is already an overt act, it is no longer conspiracy but TREASON itself. There is proposal to commit treason whenever the Philippines is at war with a foreign country, and that one, an offender, may be a Filipino or a resident alien, has decided to commit treason, either of those ways that I mentioned earlier and the offender proposed its execution to some other persons or person. ONLY ONE WITNESS is necessary to prove it! Article 116 Any person, WITHOUT BEING A FOREIGNER, have personal knowledge of conspiracy against the government and fail to disclose as soon as possible to the PROVINCIAL GOVERNOR or PROVINCIAL PROSECUTOR or MUNICIPAL or CITY MAYOR or the CITY PROSECUTOR. Note: only citizens of the Philippines can be an offender in this art. This would be one of the questions I will ask. SOOO it is a crime of OMISSION for failure to report or disclose as soon as possible this conspiracy to commit treason against the government. However, if the offender already committed treason and a person conceal of that commission failed to report the same to the authorities mentioned, HE COULD NOT BE GUILTY of Misprision of treason.

Article 117 Espionage Now, this crime may be committed in crimes of peace or in times of war. The first paragraph, any person without any lawful authority shall enter any warship, or military establishment or reservation for the purpose of obtaining or securing data or information which are of confidential character referring to the defense of the country. TAKE NOTE of the wording,those information or data which was to be obtained inside those warship, military reservation or camp, SHOULD be data or information which are of CONFIDENTIAL CHARACTER and which must PERTAIN to the defense of the Philippines. Is it necessary that the offender must have actually secured or taken those information or data? NO! It is not! That it could be proven the offenders purpose of obtaining those information or data of confidential character concerning the defense of the country. Now, In the second, They are public officers holding position in the government. And they have custody of those data or information and then he delivers it to the representative of a foreign country. COMMONWEALTH ACT 616 , oh there is such a crime of conspiracy to commit espionage. The violation of Neutrality, offender is not a participant in any war involving two or more countries in the world but the Philippines is not involved. He wanted to maintain his neutrality in this war going on between and against several nations or country. Once that policy or rules or regulation for the maintenance of the neutrality of the Philippines in that war is violated that makes the violator liable for that crime, VIOLATION OF NEUTRALITY Then we also have that crime of flight to enemys country. Committed by a citizen or a resident alien, when there is prohibition to that enemy territory or enemy country in violation of such prohibition he flies therein or attempt to go to that foreign enemy country, it is NOT necessary that he actually flies or reach that enemy territory it is not that there is prohibition, THE MERE ATTEMPT by any of the citizen of the Philippines to fly to that enemy country, makes it CRIMINALLY LIABLE. That is art 121. Now the last one, PIRACY Article 122, Now there are two provisions in the RPC pertaining to piracy, Art 122 defines piracy which is considered simple piracy or simple mutiny. Piracy is the deprivation, or robbery in the high seas done without lawful authority wit animo morandi and in the spirit of universal hostility. So by that definition, the crime of piracy is against the whole world. Now, What is mutiny? The mere creation of promotion in the vessel or ship in defiance to the authority of the ship captain.. That is mutiny. While Piracy connotes that there must be taking of property whether belonging to the ship or to the passengers or crew members.

Mutiny does not give idea of taking property, when they rob during the course, That is mutiny only. But in Piracy, there must be attacking the vessel, boarding the vessel or shall seize the vessel on any of the country. Article 123 QUALIFIED PIRACY Alright when the piracy is committed whether in high seas or in Philippine waters but it is attended by any of the circumstances enumerated in Art 123 of the RPC that is o longer simple piracy but it shall become Qualified piracy. Now where the Pirates: 1) Leave their victims without means of saving themselves 2) Accompanied by murder, homicide, physical injuries and rape. Note: So there is no complex crime of piracy with murder ah! Or piracy with rape! NO! It also means that if the mutiny is accompanied by any of those circumstances enumerated above, that shall be considered as QUALIFIED MUTINY. P.D 532 which define piracy in Philippine waters, by merely inserting Philippine waters. Yun lang dinagdag. Piracy that could be committed both in the high seas and Philippine waters provided that the pirates are outsiders in the vessel. People vs. Tuling making piracy also punishable if committed in Philippine water. Question: Thus, if a ship is sailing from manila and one or two passengers by way of violence or intimidation divested fellow passengers or crew men of their personal property and YOU WILL BE ASKED what crime or crimes are committed? Answer: if it is committed on board ship or goods fishing vessels are considered for purposes of this crime of piracy. As long as it begins in Philippine water, the crime committed is piracy. Bear that in mind that P.d.532 and art.122 and 123, In the RPC, only strangers of the ship can be pirates, however, in P.D. 532, ANYONE! Not only strangers. 3 kinds of Arbirary Detention: 1. Arbitrary detention by detaining a person without legal ground. Ar.124 2. Delay in the delivery of detained persons to the proper judicial authorities.Art.125 3. Delay in Release.Art.126 Only public officer could become liable for Arbitrary Detention. BUT not all public officers embraced in the Art.203 could commit arbitrary detention. Now are the particular public officers who could be liable of arbitrary detention?

Answer: Only those public officers who had been given direct power to arrest, like the POLICEMAN, the NBI, Barangay tanod and barangay captain. QUESTION: If X a city treasurer, one of his janitors was suspected of being the author of stealing the personal belongings of the employees, held the janitor locked fr 48hrs in one of the vacant rooms, WHAT IS THE CRIME COMMITTED? Answer: it is ILLEGAL DETENTION Now, usual ground for arbitrary detention is warrantless arrest. QUESTION: Distinguish between two felonies, Arbitrary detention and Unlawful or illegal arrest. Yan! Itatanong ko yan! QUESTION: What are the legal ground for detention? ANSWER: Under art.124, detention of those who are suffering from mental illness and other conditions requiring confinement or institution for the treatment of the same person, if arrested, there is no illegal detention. ARTICLE 125, ARBITRARY DETENTION BY DELAYING DELIVERY. It is the duty of the police officer to immediately file the case to the court. However, the fiscal is important, because no information will reach the court without the information duly signed by the fiscal. So there is so called the INQUEST PROCEEDING.

The police man should file the case: Within 36 hours if the penalty is above 6 years Within 18 hours if the penalty does not exceed 6 years. Within 12 hours if the penalty is 30 days or of a light felony. If he fails to file or deliver the person or file the case before the inquest proceeding, then the police could be charged with the proper judicial authority. BUT TAKE NOTE! That provision only applies to warrantless arrest. If there is already a warrant of arrest, THERE is NO required number of hours.

Article 126, speaks that a detained person shall be delivered to the proper judicial authority for the filing of the proper complaint or information. So once, the case is already pending, that provision is not applicable if there is already a warrant of arrest anytime maybe two or three days because the obligation of the police who arrest a person by virtue of a warrant is only to make a report to the judge

informing the judge that the person subject of the warrant is already in custody, so that the court can now schedule the arraignment. When the police officer is prevented by some lawful cause or insuperable cause, One of these lawful cause is during Saturday, Sunday or Holiday. So the policeman could not be faulted and charged of the crime because it is not his own liking. Article 126(3) THE RELEASE OF A DETAINED PRISONER, Three situations: 1. Delay in the execution of the judicial or executive order for the release of the person. 2. Delay in the service 3. Delay the compliance of that order.

Article 127, EXPULSION Also committed by a public officer.. What if ginawa ng PRIVATE INDIVIDUAL? Oh, that is COERCION(Art.286). How committed? A public officer, WITHOUT LAWFUL AUTHORITY, shall expel a person from the country. WITHOUT AUTHORITY! Take note.

QUESTION: When a public officer said, HOY UMALIS KA NA DYAN, WALA KANG KARAPATAN DITO TUMIRA, MAGBAGO KA NA NG BAHAY!...... Oh that is Expulsion. QUESTION: What if he is a private individual? Like Oi karapatan naming pakinabangan bahay ko, Alis dyan! because the person cannot pay the rentals. Oh that is NOT Expulsion, That is grave coercion. GRAVE COERCION is a crime committed by any person without lawful authority and by means of violence and intimidation shall compel another to do something against his will, whether right or wrong. Now, what is the legal way of expelling a a person to change residence? That is expropriation proceeding. TAKE NOTE OF THE ABOVE DISTINCTION: You might be asked of that. Makikipagtalo ka, mali ka dyan..

VIOLATION TO DOMICILE in relation to TRESPASS TO DWELLING: QUESTION: What are the crimes know as crime of domicile? ANSWER: Articiles 128, 129, and 130. Dont forget it! HOW committed: The offender is a public officer, the public officer is without proper judicial authority, that proper judicial authority mixed without a validly issued search warrant. What acts constitute violation of domicile under art.128? 1. He enters the dwelling of another against the will of the other. 2. He enters against express prohibition to enter or implied prohibition to enter. A policeman without official authority, without search warrant, said, can I enter your house? And Pedro said NO! but despite the prohibition, the policeman barged in to the house. THAT IS VIOLATION TO DOMICILE. Another example of express prohibition is the sign of NO TRESPASSING!. How about implied prohibition? Enters through a window. It shall be considered against the will because no one is expected to enter that. What is a window for? For the mere citizen like me, window is good for seeing the beautiful faces and legs of women, for women, oh for seeing handsome faces of those macho men. If he is a private individual, then his crime is TRESPASS TO DWELLING. But if it is through the door, without permission or consent, it might not, unless it is middle of the night where the door was forgotten to be locked. Now, in the middle of the night, somebody intrudes into the privacy of the house without committing any crime at all. Wala pang nakikitang overt act kung ano ang kanyang purpose it will be a crime of trespass to dwelling. But the moment he enter and pulls any personal belongings inside and the he tries to get out, then the crime is attempted robbery. QUESTION: A policeman asked Mang pedro, Mang Pedro pwede ba ako makapasok sa bahay? May search warrant ka ba?Wla po kaya nga po himihingi ako ng permiso sayo eh. Alright enter. But the moment he enters, he conducted search In every corner of the house of mang pedro. Oh he found caliber 45 pistol. He asked if licensed. Wala po. Alright, sumama ka sakin, you are under arrest for violation of RA 8294 Illegal possession of unlicensed firearm. Will it prosper? ANSWER:

NO! He conducted search without previous consent, If you allow the policeman to enter, does your permission carry with it permission to search? DIFINITELY NOT! That will be a violation of his constitutional right against unreasonable search. The policeman is also guilty of violation of domicile. Since there is violation of domicile, because of unreasonable search all those that are confiscated shall be considered fruit of a poisonous tree and not be considered admissible in evidence in the court proceedings. QUESTION: When a public officer surreptitiously enter the house of Mang Pedro, so Mang Pedro demanded him to leave. HOY! Mamang pulis bakit ka nandito sa bahay ko? Wala ka permisso! UMALIS KA! But the police didnt leave, Is there violation of domicile? ANSWER: If he does not leave, then that will be the time he will be liable for the violation of domicile. If he leaves immediately, there is no violation of domicile because the law said, if he does not leave until demanded to do so, that will be the effect. Additional question:IS HE GUILTY OF ANY CRIME??? Answer? Will you not be annoyed, vexed, and irritated? UNJUST VEXATION! QUESTION: Raiding policemen arrived at the house of a gambling lord, oh they showed a warrant, OK you can search my house. When the raiding policemen found nothing, probably the owner was tipped off, the team leader began axing the walls until it was totally destroyed.. Now what is the crime? ANSWER: OH! There is violation of domicile by exceeding or employing excessive severity in the conduct of the search. But because that act resulted to damage then it might be a crime of malicious mischief. Two crimes yan. EH papanu kung wala sila nakuha but they pocket monet money by destroying the cabinet, taking all the wrist watches???? OH! Aside from malicious mischief, there is already ROBBERY. There are two crimes. Eh kapag fake yung warrant? Or procuring a warrant? Oh there are two violations and prosecutions. One is ART.129, Maliciously procuring a search warrant and the other one is making a false affidavit which is PERJURY. ARTICLE 130! Now here is proper judicial authority. There is a search warrant. He enters the premises to be searched but the house owner or any member of his family is out and they do not have any witnesses of the same locality and they conducted search. NOW WHAT IS THE CRIME COMMITTED? VIOLATION OF ARTICLE 130! That is

search conducted without a witness. Now if the owner of the house or any occupant thereof is present then the law is not violated. So if they imported two witnesses from Bulacan but they conducted a search in Pasay, THAT is a violation of Article 130. Because the law is very clear, that requirement is that the two witnesses come from the same locality. Oh! Itong mga police meron ng ready yan na sachet ng marijuana or shabu as the case may be. Bigla nalang may malalaglag dun sa cabinet. Pagbukas nila oh meron kang shabu ditto. THAT IS PLANTING OF EVIDENCE. DISSOLUTION, INTERUPTION OF A PEACEFUL MEETING. Again the offender is a public officer, now he interrupts, disturb or dissolve the meeting. But remember it must be a peaceful meeting to make the public officer liable. He is without lawful authority to dissolve that peaceful meeting. There are three acts covered by art. 131. That is the first act. Second is by hindering any person from joining any lawful association and the last act by preventing or hindering any person from addressing their petition for their grievances or correction of abuses. CRIMES AGAINST PUBLIC ORDER: QUESTION: Distinguish treason and rebellion. Answer1: treason is a crime against national authority while Rebellion is crime against public order. Treason could be committed in two ways while rebellion is committed in one way. Rebellion- there is arm public uprising, that is rising publicly and taking arms against the government and establish their own government. Treason- even without public uprising the mere adhering to the enemy or giving comfort to the enemy where the purpose is to deliver the government or the country to hands of the invading foreign country. QUESTION: Give atleast four distinction between the crime of rebellion and coup d etat.

Treason Nature of crime Overt acts Against national security Levying war

Rebellion Against public order Public uprising

Coup d etat Public order

Sedition Public order

Swift attack

Rising publicly

against the government or adherence and giving aid or comfort to enemies Purpose Deliver the government to the enemy DURING WAR.

and taking up arms against the government

against authorities, military camp, networks or public utilities, or other facilities Seizing and diminisihing state power

and tumultuously (see enumeration in Art 139 of RPC)

Overthrow the government and establish their own.

See enumeration in article.

Person in authority any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission. EX. Barangay Captain, Barangay Chairman, Teachers, professors, lawyers. IN THE ACTUAL PERFORMANCE OF THEIR PROFESSIONAL DUTIES OR ON THE OCCASION OF SUCH PERFORMANCE ARE PERSONS IN AUTHORITY. Agent of person in authority any person who by direct provision of law or by election or by appointment by a competent authority, is charged with the maintenance of public order and the protection and security of life and property. EX. Barrio Councilman, Barrio Policeman, Barangay leader, Any person who comes to the aid of persons in authority. Evasion of Service of sentence 1. That the offender is a convict by final judgment 2. That he is serving his sentence which consists in deprivation of liberty(destierro included) 3. That he evades the service of his sentence by escaping during the service of his sentence.

QUESTION: Michelle, a convicted rapist, Ivy, also a rapist but still has a pending appeal in the Court of appeals, escaped the prison with the help of Tricia, a friend of ivy. Now what are the crimes committed?

ANSWER: Michelle he committed the crime of evasion of service of sentence Ivy he is not liable for any crime. Tricia he committed the crime of Delivering a prisoner from jail QUESTION: Now what about the officer in charged of their custody, lets say WARREN? What if sinuhulan ni tricia? ANSWER: Then Warren committed the crime of INFIDELITY IN THE CUSTODY OF PRISONERS. And kapag tinangap nya yung suhol he is liable for DIRECT BRIBERY. QUASI RESIDIVISM: Quasi-residivism - is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a felony before beginning to serve such sentence or while serving the same. HOW FORGERY IS COMMITTED: a. By giving to a treasury or bank note or any instrument payable to bearer or to order, the appearance of a true and genuine document. b. By erasing, substituting, counterfeiting, altering by any means the figures, letters, or words, or signs contained therein Article 179 Illegal use of insignia or uniform. QUESTION: Suppose women working as GRO always report for work nightly using of Saint paul College, for the custormer to believe or think that they are kolehiyala, When the school learned of this they complained that they are illegally using of their school which besmirched the reputation of St. Paul. Will thay be liable? ANSWER: NO! Only uniform that represent authority like uniform of policemen or the vest of the priest of the church. This represents authority in the religion which they represent. And individual who is not a priest and goes around using that vest could be held liable under article 179.

FALSIFICATION BY PUBLIC OFFICER, employee or notary or ecclesiastical minister. ELEMENTS: 1. That the offender is a public officer, employee or notary public. 2. That he takes advantage of his official position. a. He has duty to make or to prepare or otherwise to intervene in the preparation of the document; b. He has the official custody of the document which he falsifies. 3. He falsifies the document by: a. Counterfeiting or imitating any handwriting, signature or rubric. b. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. c. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. d. Making untruthful statements in a narration of facts. e. Altering true dates. f. Making any alteration or intercalation in a genuine document which changes its meaning. g. Issuing in authenticated form a document purporting to be a copy of an original document when no such original exits, or including in such copy a statement contrary to, or different from that of the original. h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or record book.. 4. In case the offender is an ecclesiastical minister, the act of falsification may affect the civil status of persons. FEIGNING to represent by false appearance when no original exists. COUNTERFEITING intent or attempt to IMITATE. PERJURY (ART 182) Two ways of committing perjury: 1. By falsely testifying under oath 2. By making false affidavit.

QUESTION: Is there a crime known as subordination of perjury? ANSWER: Before the enactment of our Revised Penal Code, we have a crime of subordination of perjury.. However upon enactment of the RPC, that provision was not incorporated in our Revised Penal Code. In what way? If a person presents a false witness knowing that the witness is false and what he is going to state is false, he shall be penalized as the same penalty for false testimony or perjury as the case may be.

NOW ARTICLE 210 DIRECT BRIBERY: Three ways of committing direct bribery: 1. By performing or agreeing to perform an act that constitute a crime in relation to the performance of the duty of that public officer in consideration of a gift, present, or promise. So it is not the actual performance but the mere agreeing to perform that act. 2. By accepting a gift in consideration of the execution of an act which does not constitute a crime in connection with the performance of his official duty 3. By agreeing to refrain or by refraining, from doing something which it is his official duty to do in consideration of a gift or promise. *Temporary performance of public functions is sufficient to constitute a person a public officer. A private person may commit this crime only in the case in which custody of prisoners is entrusted to him. The third type of bribery and prevaricacion are similar offenses, both consisting of omissions to do an act required to be performed, In direct bribery however, a gift or promise is given in consideration of the omission. Article 211-A QUALIFIED BRIBERY Elements: 1. That the offender is public officer entrusted with law enforcement 2. That he refrains from arresting/ prosecuting an offender for crime punishable by reclusion perpetua and/or death 3. In consideration of any offer.

Art. 212. Corruption of public officials Elements: 1. That the offender is makes offers or promises or gives gifts or presents to a public officer 2. That the offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery.

Anti Graft and Corrupt Practices ACT (RA. No. 3019) - suhol PLUNDER (RA 7080)- Ill gotten wealth Art. 211 Indirect Bribery. Now the offender is a public officer. He received a gift and accept it by reason of his public office. For instance in the birthday of the judge, a person, a wealthy businessman goes to the office and greeted the judge. Judge happy birthday. Dahil mabuti kang tao may dala akong gift sayo. Ipinakita yung susi ng BMW, ito ang regalo ko sayo isang BMW. Now what crime is committed? It is Indirect bribery. The wealthy businessman will also be liable that is consummated corruption of public official. Article 246 Parricide. A brother kills his brother and then the policeman charged the offender with a crime of parricide. THAT IS WRONG. WHO MAY BE GUILTY OF PARRICIDE? Elements: 1. That a person is killed 2. That the deceased is killed by the accused 3. That the deceased is the: a. Father, mother or b. Child whether legitimate or illegitimate c. Legitimate other ascendant or other descendant d. Legitimate spouse QUESTION:

If a child is born between couple who are merely living in together as husband and wife without the benefit of marriage, this child grew under the care of the paternal grandfather, when the child lets say Alexis, the grandson killed the grandfather, what is the crime committed? ANSWER: Homicide. WHY???? Because the grandchild is an illegitimate child of his parents and therefore his relationship with his grandfather is illegitimate.

QUESTION: What if the child is born within wedlock and he is a legitimate child, his relationship with his other ascendant the grandparents is also legitimate. What is the crime? ANSWER: PARRICIDE. But if illegitimate it is not covered by Parricide. What if adopted? Homicide! Why? Because the relationship between the father and the adopted son is merely creation of law. That is a relationship by operation of law. The relationship spoken here are all blood relationship in the direct line whether upward or downward. It should be natural blood relationship in the direct line. Now! Killing a spouse! There must be a valid marriage. If a husband and a wife is legally separated and the husband kills the wife, is there parricide? Yes! Legal separation does not severe the marriage life. If the marriage is declared null and void, the tie is severed, there is no more marriage that exist between them. Now if the former husband kills the former wife? Then that is plain murder or homicide. Now suppose may treachery? Will that be considered as a qualifying circumstance? NO! because it is not necessary that the killing be attended by a qualifying circumstance to constitute parricide. It will only be a generic aggravating circumstance. Article 247 Death or physical injuries under exceptional circumstances. If a husband kills a wife while in the act of sexual intercourse, he could not be charged with death under exceptional circumstances because Article 247 NEVER DEFINES CRIME! Now what is Article 247? A provision of law which creates a special extenuating circumstance which if present in the of the other spouse will not be penalized for the penalty of parricide or murder or killing the paramour because it becomes a special extenuating

circumstance. Now! Notwithstanding the fact that he could not be penalized for parricide or murder, What is the penalty??? DESTIERRO!!! QUESTION: What is the nature of destierro? ANSWER: It is not to be understood strictly as a punishment because the intention of the law in providing that destierro as penalty is to give protection to the person who have killed the other spouse from the revenge or retaliation that may come from the relative pr sympathizer of the wife who was killed or the paramour who was killed by the spouse. It is a form of protection. Also applicable to parent who surprised the daughter below 18years who are still living with them in the act of sexual intercourse with her lover. The killing should be immediately after the incident. The law says in the act of sexual intercourse. So when the husband surprises the wife and the paramour only committing lascivious acts prelude to sexual intercourse. The supreme court, it is not justified to kill the other spouse or the paramour if there was only prelude to the sexual act. There is an obiter dictum that if the circumstance is such that the husband who surprised the other committing in the act where the paramour is on top of the wife both naked although he could not see if there was sexual intercourse, if he honestly believe that there was an act of sexual intercourse or had just been committed, he may reasonably inflict injury or kill those victims. ELEMENTS: 1. A legally married person or parent surprises his spouse or daughter in the act of committing sexual intercourse with another person 2. He/ she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter 3. He has not promoted or facilitated the prostitution of his wife or daughter, or that he has not consented to the infidelity of the other spouse. The killing must be the direct by-product of the rage of the accused. The daughter must be single. QUESTION: A girl below 18, but married, was caught by his father having sexual intercourse with a boy. The father kills both girl and boy. Will the father be entitled to this extenuating circumstance? ANSWER:

NO! Dont say the marriage is null and void because she is below 18. Nobody could interpret the validity of marriage. The law requires that there must be a judicial declaration of nullity of marriage. Meaning only the court could interpret the validity of the marriage not the husband or the wife to be entitled to it. If the husband promotes the prostitution of the wife or the parent promotes or facilitates the prostitution of the daughter, they are not entitled to this special extenuating circumstance. QUESTION: Suppose in the judgment imposing the penalty of destierro the court pronounce civil indemnity in favor of the relative of those persons whom the husband had killed. Is the indemnity valid? ANSWER: It is valid.the offender is exempt from criminal liability but is not exempt from civil liability.