Book Two

CRIMES AND PENALTIES

Title One
CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS

Crimes against national security.

T h e crime s against nationa l securit y are:

1. Treason. (Art. 114 )

2. Conspirac y and proposal to commit treason. (Art. 115) 3. Misprision of
treason. (Art. 116)

4. Espionage . (Art. 117)

Crimes against the law of nations.

T h e crime s against th e law o f nation s are:
1. Inciting to wa r or giving motive s for reprisals. (Art. 118) 2. Violation of

neutrality. (Art. 119)

3. Correspondenc e wit h hostil e country. (Art. 120) 4. Flight to

enemy's country. (Art. 121)
5. Piracy in genera l and mutin y on the high sea s or in Philippine waters. (Art.
122)

1
Chapter One
CRIMES AGAINST NATIONAL SECURITY

Section One. — Treason and espionage

Article 114. Treason.' — Any Filipino citizen who levies

war against the Philippines or adheres to her enemies, giving them aid
or comfort within the Philippines or elsewhere, shall be punished by
reclusion perpetua to death 2
and shall pay a fine not to exceed
100,000 pesos.
No person shall be convicted of treason unless on the testimony of
two witnesses at least to the same overt act or on confession of the
accused in open court.
Likewise, an alien, residing in the Philippines, who commits acts of
treason as defined in paragraph 1 of this article shall be punished by
reclusion temporal to death and shall pay a fine not to exceed
3

100,000 pesos. (As amended by Sec. 2, Republic Act

No. 7659, which took effect on 31 December 1993)

Elements of treason:

1. Tha t th e offender is a Filipino citizen or an alien residin g in th e

Philippines;

2 . Tha t ther e is a wa r in whic h th e Philippine s is involved; 3. Tha t th e

offender eithe r —

a. levie s wa r against th e Government, or

b. adhere s t o th e enemies, givin g the m aid o r comfort.

'The Indeterminate Sentence Law is not applicable.

2
See Appendix "A," Scale of Penalties.
'See Appendix "A," Scale of Penalties

2
TREASON
Art. 114

Treason, defined.
Treason is a breach of allegiance to a government, committed by a person who
owes allegiance to it. (63 C.J. 814)

Nature of the crime.

Treason, in its general sense, is the violation by a subject of his allegiance to his
sovereign or to the supreme authority of the State. (U.S. vs. Abad, 1 Phil. 437)

The offender in treason is either a Filipino citizen or a resident alien.

Under the first paragraph of Art. 114, the offender in treason must be a
Filipino citizen, as he should not be a foreigner. Before Art. 114 was amended by
Executive Order No. 44, it was not possible under the Revised Penal Code to punish for
treason, resident aliens who aided the enemies. Now, as amended, the Revised Penal
Code punishes a resident alien who commits treason. (People vs. Marcaida, 79 Phil. 283)
How to prove that the offender is a Filipino citizen.
When the accused is allegedly a Filipino, his being a Filipino citizen may be
proved by his prison record which sets out his personal circumstances properly
identified as having been filled out with data supplied by the accused himself. (People vs.
Martin, 86 Phil. 204; People vs. Morales, 91 Phil. 445)
The citizenship of the accused may also be proved by the testimony of witnesses
who know him to have been born in the Philippines of Filipino parents. (People vs.
Flavier, 89 Phil. 15)

Law on treason is of Anglo-American origin.

The Philippines Law on treason is of Anglo-American origin and so we have to
look for guidance from American sources on its meaning and scope. (People vs.
Adriano, 78 Phil. 566)

Allegiance defined.
The first element of treason is that the offender owes allegiance to the
Government of the Philippines.
By the term "allegiance" is meant the obligation of fidelity and obedience which
the individuals owe to the government under which they live or to their sovereign, in
return for the protection they receive. (52 Am. Jur. 797)

Art. 114 TREASON

Allegiance is either permanent or temporary.

While it is true that the permanent allegiance is owed by the alien to his own
country, at the same time, he owes a temporary allegiance to the country where he
resides.
Allegiance as an element of treason seems to be either permanent or temporary.
Permanent allegiance consists in the obligation of fidelity and obedience which
a citizen or subject owes to his government or sovereign. Temporary allegiance is the
obligation of fidelity and obedience which a resident alien owes to our government.
(Laurel vs. Misa, 77 Phil. 856) This justifies Executive Order No. 44, amending Art. 114.

Treason cannot be committed in time of peace.

The second element of treason is that there is a war in which the Philippines is
involved.
Treason is a war crime. It is not an all-time offense. It cannot be committed in
peace time. While there is peace, there are no traitors. Treason may be incubated when
peace reigns. Treasonable acts may actually be perpetrated during peace, but there are
no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of
self-defense and self-preservation. The law of treason is an
emergency measure. It remains dormant until the emergency arises. But as soon as war
starts, it is relentlessly put into effect. (Concurring Opinion of Justice Perfecto,
Laurel vs. Misa, 77 Phil. 865)

Two ways or modes of committing treason:

1. By levying war against the Government.
2. By adhering to the enemies of the Philippines, giving them aid or comfort.

Meaning of "levies war."

Levying war requires the concurrence of two things: (1) that there be an
actual assembling of men, (2) for the purpose of executing a treasonable design by
force. (Ex parte Bollman and Ex parte Swartwout,
1 U,S. Sup. Ct. Rep. [4 Cranch 75], p. 571)

There must be an actual assembling of men.

Upon searching the house of the accused, the Constabulary officers found a
captain's commission under seal. It was held that the mere acceptance of the commission
from the secretary of war of the Katipunan

4
TREASON
Art. 114

Society by the accused, nothing else having been done, was not an overt act of treason
within the meaning of the law. (U.S. vs. De los Reyes, 3 Phil 349)
The actual enlistment of men to serve against the government does not amount to
levying war, because there is no actual assembling of men.
But if a body of men be actually assembled for the purpose of effecting by force a
treasonable design, all those who perform any part, however minute, or however remote
from the scene of action, and who are actually leagued in the general conspiracy, are to
be considered as traitors. (Ex parte Bollman and Ex parte Swartwout,
supra)

In treason by levying war, it is not necessary that there be a formal

declaration of the existence of a state of war.
It is not necessary that there be any formal declaration of the existence of a state
of war to justify the conclusion that those engaged in such attempt are levying war and
therefore guilty of treason. Actual hostilities may determine the date of the
commencement of war. (Justice Johnson, dissenting; U.S. vs. Lagnason, 3
Phil. 495)

The war must be directed against the government.

The levying of war must be with the intent to overthrow the government as
such, not merely to resist a particular statute or to repel a particular officer. (3
Wharton's Criminal Law, 12th Ed.)
An organized attempt on the part of persons joined together in a band to
overthrow and destroy the established government is a levying of war against the
government and constitutes treason.
It matters not how vain and futile the attempt was and how impossible of
accomplishment. It is not necessary that those attempting to overthrow the government
by force of arms should have the apparent power to succeed in their design in whole or
in part. (U.S. vs. Lagnason, 3 Phil. 473)
Those who, during war, rise publicly to inflict an act of hate or revenge upon the
persons of public officers do not commit treason by levying war because the public
uprising is not directed against the government.

Is it necessary that the purpose of levying war is to deliver the

country in whole or in part to the enemy?
Yes. Levying war as an act of treason must be for the purpose of executing a
treasonable design by force. Although in stating the acts constituting treason, Art. 114
uses the phrases (1) "levies war against" the Government of the
Philippines or (2) "adheres to" the enemies of the

Art. 114 TREASON

Philippines, "giving them aid or comfort," it does not mean that adhering
to the enemies is required only in the second mode of committing treason. Since
levying war against the Government is also punished as rebellion, there must be a
difference between treason committed by levying war and rebellion.

The levying of war must be in collaboration with a foreign enemy.

If the levying of war is merely a civil uprising, without any intention of helping
an external enemy, the crime is not treason. The offenders may be held liable for
rebellion under Art. 135 in relation to Art. 134 of this Code.

Requirements of the second way or mode of committing treason.

In the second way or mode of committing treason, (1) adherence and (2)
giving aid or comfort to the enemy must concur together. Adherence alone, without
giving aid or comfort to the enemy, is not sufficient to constitute treason. And conversely,
aid or comfort alone, without adherence, is not treason.

Adherence to the enemy, defined.

The phrase "adherence to the enemy" means intent to betray. There is "adherence
to the enemy" when a citizen intellectually or emotionally favors the enemy and harbors
sympathies or convictions disloyal to his country's policy or interest. (Cramer vs. U.S.,
65 Sup. Ct. 918, April 23, 1945)

"Aid or comfort," defined.

The phrase "aid or comfort" means an act which strengthens or tends to
strengthen the enemy in the conduct of war against the traitor's country and an act which
weakens or tends to weaken the power of the traitor's country to resist or to attack the
enemy. (Cramer vs. U.S., supra)
Adherence alone, without giving the enemy aid or comfort, does not
constitute treason.
The fact that the accused had friendly relations with the Japanese during the war,
openly revealing himself sympathetic to the cause of the enemy and also believing in the
invincibility of the Japanese Armed Forces does not constitute in itself treasonable act as
denned by law. The crime of treason consists of two elements: (1)
adherence to the enemy; and (2) rendering him aid and comfort. (People vs. Tan, P.C.,
42 O.G. 1263)

6
TREASON
Art. 114

Emotional or intellectual attachment or sympathy to the enemy, without giving the

enemy aid or comfort, is not treason. (People vs Rbble 83 Phil. 1)

When there is no adherence to the enemy, the act which may do aid or
comfort to the enemy does not amount to treason.
The sale to the enemy of alum crystals and water pipes does not per se constitute
treason, because said articles or materials are not exclusively for war purposes and their
sale does not necessarily carry an intention on the part of the vendor to
adhere to the enemy. (People vs. Agoncillo, 80 Phil
33)
While the sale to the enemy of alum crystals and water pipes may do aid or
comfort to the enemy, if there is no evidence of intent to betray, the person making the
sale is not guilty of treason.

Giving information to, or commandeering foodstuffs for, the enemy is

evidence of both adherence and aid or comfort.
The defendant's act of giving information to the enemy constituted not only
giving aid and comfort, but also adherence to the enemy. (People vs. Paar, 86 Phil. 864)
The defendant's act of commandeering foodstuffs for the Japanese soldiers is sufficient
proof of adherence to the enemy. (People vs. Mangahas, 93 Phil. 1113)

Extent of aid or comfort.

The aid and comfort must be given to the enemy by some kind of action. It must
be a deed or physical activity, not merely a mental operation. It must be an act that has
passed from the realm of thought into the realm of action.
The expression includes such acts as furnishing the enemy with arms, troops,
supplies, information, or means of transportation. In a broad sense, the
law of treason does not prescribe kinds of social, business and political intercourse
between the belligerent occupants of the invaded country and its inhabitants. In the
nature of things, the occupation of a country by the enemy is bound to create relations
of all sorts between the invaders and the natives. What aid and comfort constitute
treason must depend upon their nature, degree and purpose. To draw a line between
treasonable and unreasonable assistance is not always easy. The scope
of adherence to the enemy is comprehensive, its requirement indeterminate.
As a general rule, to be treasonous, the extent of the aid and comfort given to
the enemies must be to render assistance to them as enemies and not merely as
individuals and, in addition, be directly in furtherance of

Art. 114 TREASON

the enemies' hostile designs. To make a simple distinction: To lend or give money to an
enemy as a friend or out of charity to the beneficiary so that he may
buy personal necessities is to assist him as an individual and is not technically
traitorous. On the other hand, to lend or give him money to enable him to buy arms or
ammunition to use in waging war against the giver's country enhances his strength and
by the same count injures the interest of the government of the giver. That is treason.
(People vs. Perez, 83 Phil. 314-315)

The act committed need not actually strengthen the enemy.

It is not essential that the effort to aid be successful, provided overt acts are done
which if successful would advance the interest of the enemy. (Cramer vs. United States,
65 Sup. Ct. 918, cited in People vs. Alarcon, 78 Phil. 733)
It is said there is aid and comfort no matter how vain or futile the attempt may
be, as long as the act committed tends to strengthen the enemy. It is not the degree of
success, but rather the aim for which the act was perpetrated, that determines the
commission of treason.

Commandeering of women to satisfy the lust of the enemy is not

treason.

"Commandeering" of women to satisfy the lust of Japanese

officers or men or to enliven the entertainments held in their honor was not treason even
though the women and the entertainments helped to make life more pleasant for the
enemies and boost their spirit; he was not guilty any more than the women themselves
would have been if they voluntarily and willingly had surrendered their bodies or
organized the entertainments. The acts herein charged were not, by
fair implication, calculated to strengthen the Japanese Empire or its army or to cripple
the defense and resistance of the other side. Whatever favorable effect the defendant's
collaboration with the Japanese might have in their prosecution of the war was trivial,
imperceptible and unintentional. (People vs. Perez, supra)

Specific acts of aid or comfort constituting treason. The

following are specific acts of aid or comfort:
1. Serving as informer and active member of the Japanese Military Police,
arresting guerilla suspects in an attempt to suppress the underground
movement. (People vs. Fernando, 79 Phil. 719)
2. Serving in the Japanese Army as agent or spy and participating
in the raid of guerrilla hideout. (People vs. Munoz, et
al., 79 Phil. 702)
 3. Acting as "finger woman" when a barrio was "zonified"
by the Japanese, pointing out to the Japanese several men whom she
accused as guerillas. (People vs. Nunez, 85 Phil. 448)
4. Taking active part in the mass killing of civilians by the Japanese soldiers by
personally tying the hands of the victims. (People vs Canibas, 85 Phil. 469)

Being a Makapili constitutes an overt act of psychological com fort.

Being a Makapili is in itself constitutive of an overt act. The crime of treason was
committed if he placed himself at the enemy's call to fight side by side with him when the
opportune time came even though an opportunity never presented itself. Such
membership by its very nature gave the enemy aid and comfort. The enemy derived
psychological comfort in the knowledge that he had on his side nationals of the country
with which he was at war. It furnished the enemy aid in that his cause was advanced, his
forces augmented, and his courage was enhanced by the knowledge that he could count
on men such as the accused and his kind who were ready to strike at their own people.
The practical effect of it was no different from that of enlisting in the invader's army.
(People vs. Adriano, 78 Phil. 563; People vs. Villanueva, 92 Phil. 637)

Acceptance of public office and discharge of official duties under the

enemy do not constitute per se the felony of treason.
The mere acceptance of a public office and the discharge of the functions and
duties connected therewith, during the Japanese military occupation in the Philippines,
do not constitute per se the felony of treason. But admitting that such acts were really of
aid and comfort to the enemy, they can not be punishable in this particular case, because
there is no satisfactory proof of the adherence of the accused to the cause of the enemy.
(People vs. Alunan, P.C., 43 O.G. 1288)

When there is adherence to the enemy.

But when the positions to which the accused was appointed were not only highly
responsible positions but also policy-determining, because they denned the
norm of conduct that all the offices and officials under the departments he headed had
to adopt and enforce, and helped in the propagation of the creed of the invader, and the
acts and utterances of the accused while holding such position were an earnest
implement to such policy, the acceptance of public office and discharge of official duties
constitute treason. (People vs. Sison, P.C., 42 O.G. 748)

Art. 114 TREASON

Mere governmental work during the Japanese regime is not an act of

treason.
1. Those who refused to cooperate, in the face of danger, were patriotic citizens; but it
does not follow that the faintheart, who gave in, were traitors. It is now
undisputed that mere governmental work under the Japanese regime — and
pilotage service may be considered in the same light — does not constitute per se
indictable disloyalty. (People vs. Godinez, 79 Phil. 776)
2. Appellant's membership in the Bureau of Constabulary under the government of
 occupation is not treason. That institution was intended for the promotion and
preservation of law and order which were essential, during war, to the life of the
civilian population. (People vs. De Castro, 84 Phil. 118)

Membership in the police force during occupation is not treason; but

active participation with the enemies in the apprehension of guerrillas and
infliction of ill-treatments make such member liable for treason.
Appellant's membership in the police force of Manaoag does not in itself
constitute treason; but his having accompanied the Japanese soldiers to the places of
abode of guerrilla leaders and the several ill-treatments which he personally inflicted
upon them because of their refusal to disclose their connection with the guerrilla forces,
constitute treason. (People vs. Dizon, 84 Phil. 48; People vs. Galo, 84 Phil. 52;
People vs. Badili, 84 Phil. 71)

Guerilla warfare may be unlawful, but it should not be sup pressed.

The argument is made that the accused was, at the most, merely obeying superior
orders in the suppression of guerrilla activities, which, in the opinion of his counsel, are
outlawed by the rules of war. But the evidence is clear that he identified himself with the
enemy's cause by acting as spy and causing the arrest of even his close relatives to
prevent them from taking part in the resistance movement, and while guerrilla warfare
may be unlawful from the standpoint of the conqueror, it cannot be so regarded by those
who, by natural right, are trying to drive him out of their invaded territory. (People vs.
Balingit, 83 Phil. 881)

10
TREASON
Art. 114

When the arrest of persons alleged to have been guerrillas was caused by
the accused due to their committing a common crime, like arson, he is not
liable for treason.
The matter had no treasonous significance, when the persons arrested admitted
that they were suspected of, and investigated for, having burned the house of one Pedro
Daco, and were confined in the provincial jail, and not in the Japanese garrison. (People
vs. Dumapit, 84 Phil. 698)

The aid or comfort given to the enemies must be after the declaration of
war. The enemies must be the subject of a foreign power.
The aid or comfort given to the enemies must be after the declaration of war
between the countries, and the term "enemies" applies only to the subjects of a
foreign power in a state of hostility with the traitor's country. It does not embrace rebels
in insurrection against their own country (63 C.J. 816), because they are still citizens and
not enemies.
No treason thru negligence.
The overt act of aid and comfort to the enemy must be intentional, as
distinguished from merely negligent or undesigned ones. (Cramer vs. U.S., supra)

Is there a complex crime of treason with murder, physical injuries, etc.?

In the case of People vs. Prieto, 80 Phil. 138, where the accused, besides being a
Japanese spy, took part in the execution of some of the guerrilla suspects and in the
infliction of physical injuries on the others, the Supreme Court held that murder and
physical injuries were inherent in the crime of treason characterized by the giving of aid
and comfort to the enemy.

When killings and other common crimes are charged as overt acts of
treason, they cannot be regarded: (1) as separate crimes, or (2) as
complexed with treason.
In treason, the giving of aid and comfort can be accomplished only by some kind
of action — a deed or physical activity. This deed or physical activity may be and often
is in itself a criminal offense under another penal statute or provision.
Thus, where the accused rendered service to the Japanese army as a secret
agent, informer and spy and, in the performance of such service, he participated in the
Japanese expeditions against guerrillas and committed

11

Art. 114 TREASON

mass murders, arson and robberies (People vs. Villanueva, 104 Phil. 450), and those
deeds or physical activities (committing mass murders, arson and robberies) were
charged an element of treason (giving the enemy aid or comfort), they become
identified with the crime of treason and cannot be the subject of a separate punishment
or used in conjunction with treason to increase the penalty as provided in Art. 48.
(People vs. Prieto, 80 Phil. 138; People vs. Vilo, 82 Phil. 524; People vs.
Navea, 87 Phil. 1)
When the raping mentioned in the information is therein alleged not as a specific
offense but as mere element of the crime of treason (People vs. Adlawan, 83 Phil. 194)
and the illegal detention is another overt act of treason (People vs. Butawan, 83 Phil.
440), they are merged in the crime of treason.
When the accused is charged with treason and his act of arresting and detaining
guerrillas is proved, not only as the element of adherence to the enemy but also as the
element of giving aid or comfort, the accused cannot be considered guilty only of illegal
detention under Art. 267 of the Revised Penal Code. (People vs. Tuason, 84 Phil. 670)
But this rule would not preclude the punishment of murder or other common
crimes as such, if the prosecution should elect to prosecute the culprit specifically for
these crimes, instead of relying on them as an element of treason. (People vs. Prieto, 80
Phil. 143)

Treason by Filipino citizen can be committed outside of the Philippines.

 Treason can be committed by a Filipino who is outside of the Philippines, as Art.
114 says "in the Philippines or elsewhere."

Treason by an alien must be committed in the Philippines.

An alien residing in the Philippines can be prosecuted for treason. (Executive
Order No. 44, May 31, 1945) Therefore, an alien who is not residing in the Philippines
cannot commit treason.

Treason is a continuous offense.

Treason is of such a nature that it may be committed by one single act, by a
series of acts, or by several series thereof, not only in a single time, but in different
times, it being a continuous crime. (People vs. Victoria, 78 Phil. 129)

All overt acts the accused has done constitute but a single offense. (Guinto vs.
Veluz, 77 Phil. 801) Proof of one count is sufficient for conviction. (People vs. San
Juan, 89 Phil. 359)

12
TREASON
Art. 114

No person shall be convicted of treason unless on the

testimony of two witnesses at least to the same overt act or on
confession of the accused in open court. (Art. 114, par. 2)

Treason cannot be proved by circumstantial evidence or by the

extrajudicial confession of the accused.
The Revised Penal Code as well as the Rules of Court not authorize the conviction
of a person accused of treason if the evidence against him is circumstantial, however
strong or convincing it may be, or is only an extrajudicial confession.

Ways of proving treason.

A person may be convicted of treason on any of the following evidence only:
1. Testimony of two witnesses, at least, to the same overt act; or

2. Confession of the accused in open court. (Art. 114, par. 2, Revised Penal
Code)

The two-witness rule.

The testimony of two witnesses is required to prove the overt act of giving aid or
comfort. It is not necessary to prove adherence.
An overt act is defined as that physical activity, that deed that constitutes the
rendering of aid and comfort.
 The two-witness rule must be adhered to as to each and every one of all the
external manifestations of the overt act in issue. (People vs. Abad, 78 Phil. 766)
The treasonous overt act of doing guard duty in the Japanese garrison on one
specific date cannot be identified with the doing of guard duty in the same garrison on a
different date. Both overt acts, although of the same nature and character, are two
distinct acts. Either one, to serve as a ground for conviction, must be proved by two
witnesses. That one witness should testify as to one, and another as to the other, was
held not to be enough. (People vs. Agpangan, 79 Phil. 334)
Where two witnesses testified that the accused took part in the alleged
"zoning" for the purpose of picking out the guerrillas, "but their testimony
does not disclose that they were referring to the same act, place and moment

13

Art. 114 TREASON

of time, it cannot be said that one corroborated the other." (People vs. Flores,
et al, 85 Phil. 403)
But it is not required that their testimony be identical. Thus, one witness might
hear a gun report, see a smoking gun in the hand of the accused and see the victim fall.
Another witness, who was deaf, might see the accused raise and point the gun and see a
puff of smoke from it. The testimony of both would certainly be to the same overt act.
(Hauft vs. United States, 67 S. Ct. 874)

The two-witness rule is "severely restrictive."

The authors of the two-witness provision in the American
Constitution, from which our treason law was taken, purposely made it "severely
restrictive" and conviction for treason difficult. The provision requires that each of the
witnesses must testify to the whole overt act; or if it is separable, there must be two
witnesses to each part of the overt act. (People vs. Escleto, 84 Phil. 121)

The defendant should be acquitted if only one of the two witnesses is

believed by the court.
This provision is so exacting and so uncompromising in regard to the amount of
evidence that where two or more witnesses give oaths to an overt act and only one of
them is believed by the court or jury, the defendant, it has been said and held, is entitled
to discharge, regardless of any moral conviction of the culprit's guilt as gauged and
tested by the ordinary and natural methods, with which we are familiar, of finding the
truth. Natural inferences, however strong or conclusive, flowing from the testimony of a
most trustworthy witness or from other sources are unavailing as a substitute for the
needed corroboration in the form of direct testimony of another eyewitness to the same
overt act. (People vs. Adriano, 78 Phil. 563-567)

Illustration of a case where the two-witness rule is not complied with.

Witness A testified that he saw the defendant going to the house of Magno
Ibarra in search of the latter's revolver. Witness B testified that when Magno
Ibarra went to the garrison, the defendant required him (Ibarra) to produce his
revolver. It was held that the search for the revolver in the house of Ibarra is one overt
act and the requiring to produce the revolver in the garrison, another.

Although both acts may logically be presumed to have answered the same
purpose, that of confiscating Ibarra's revolver, the singleness of purpose is not enough to
make one of two acts.

14
TREASON
Art. 114

The theory that where the overt act is simple, continuous and composite, made up
of, or proved by several circumstances, it being not necessary that there be two witnesses
to each circumstance, is not well taken. (People vs. Abad, 78 Phil. 766)

It is sufficient that the witnesses are uniform in their testimony on the

overt act; it is not necessary that there be corroboration between them
on the point they testified.
While witness A.S. testified that the defendant, with a Japanese interpreter,
arrived at their house and inquired if his brother B.S. was at home and said that the
latter was wanted at the military police headquarters for questioning, witness E.S. did
not corroborate witness A.S. in this respect. Neither did witness A.S. corroborate E.S. as
regards the latter's testimony that B.S. was taking a bath and that B.S. said that the
defendant and his companion should wait. But said witnesses were uniform in their
testimony on the overt act that B.S. was arrested and the defendant actually aided in his
arrest. The two-witness rule was complied with. (People vs. Concepcion, 84 Phil. 789)

The two-witness rule is not affected by discrepancies in minor details

of the testimony.
The fact that the said witnesses were not uniform on the points whether or not
there were Japanese soldiers in the raiding party, or whether or not the persons arrested
and confined included not only the males but some women and children, is not sufficient
to entirely discredit their testimony, as the deficiency refers merely to minor details.
Neither may the negative testimony of E.E., an alleged victim of the raid, to the effect
that he did not see the appellant among the raiders prevail over the positive testimony of
M.F. and T.V. who, moreover, were not shown to have had any improper motive in
testifying against the appellant. (People vs. Lansanas, 82 Phil. 193)

Reason for requiring the two witnesses to testify to the same overt
act.
The special nature of the crime of treason requires that the accused be afforded
a special protection not required in other cases so as to avoid a miscarriage of justice.
The extreme seriousness of the crime, for which death is one of the penalties provided
by law, and the fact that the crime is committed on abnormal times, when small
differences may in mortal enmity wipe out all scruples in sacrificing the truth, require
that, at least, two witnesses must testify as to overt acts of treason, if the same should
be

15
 Art. 114 TREASON

accepted by the tribunals as legal basis to condemn a person as a traitor. (Concurring

Opinion of Justice Perfecto, People vs. Marcaida, 79 Phil. 295)

Adherence may be proved:

1. by one witness,
2. from the nature of the act itself, or
3. from the circumstances surrounding the act. (Cramer vs. U.S., supra, cited in
People vs. Adriano, 78 Phil. 563; People vs. Canibas, 85 Phil. 469)
Adherence to the enemy may be inferred from his act of arresting persons
suspected of being guerrillas, his being armed, and his being in company with armed
Japanese soldiers. (People vs. Icaro, 89 Phil. 12; People vs. Bernardino, 93 Phil.
940)

Reason why adherence to the enemy need not be proved by two

witnesses.
It seems obvious that adherence to the enemy, in the sense of a disloyal state of
mind, cannot be, and is not required to be, proved by deposition of two witnesses,
because what is designed in the mind of an accused never is susceptible of proof by
direct testimony.

Confession must be made in open court.

The confession means a confession of guilt. It is not only an admission of facts
made by the accused in giving his testimony after a plea of not guilty, from which
admissions of his guilt can be inferred. Thus, if the accused testified in his behalf after he
had pleaded not guilty that he had been carried off by force by the insurgent soldiers;
that he was forced to join them; that they made him a lieutenant and gave him a
revolver; and that he stayed with them two weeks, although it was against his will; there
was only an admission, but not a confession of guilt. (U.S. vs. Magtibay, 2 Phil. 705) It
means pleading guilty in open court; that is, before the judge while actually
hearing the case.

Extrajudicial confession or confession made before the investigators is not

sufficient to convict a person of treason.

Aggravating circumstances in treason.

1. Cruelty by subjecting guerrilla suspects to barbarous forms of torture before
putting them to death; and ignominy, by stripping the wife of her clothes and then
abusing her in the presence of her husband, a

16
TREASON
Art. 114

guerrilla suspect, are aggravating circumstances in treason. (People vs. Adlawan,

 83 Phil. 195)
2. Rapes, wanton robbery for personal gain, and brutality with which the killing or
physical injuries are carried out are regarded as ignominy and cruelty under
paragraphs 17 and 21 of Art. 14 of the Code. (People vs. Racaza, 82 Phil. 623;
People vs. Prieto, 80 Phil. 138)
3. But evident premeditation is not aggravating in treason, because in treason, adherence
and the giving of aid and comfort to the enemy is usually a long continued process
requiring reflective and persistent determination and planning. (People vs.
Racaza, supra)
4. Superior strength and treachery are circumstances inherent in treason. Treachery is
merged in superior strength. They are, therefore, not aggravating in treason.
(People vs. Adlawan, supra; People vs. Racaza, supra)

Art. 64 is not strictly applied to treason.

Ordinarily, when there are no mitigating and aggravating circumstances, the
divisible penalty is imposed in the medium period. (Art. 64)
The penalty for treason committed by Philippine citizens is reclusion perpetua to death
and a fine not to exceed P100,000. In determining the proper penalty for treason, the
amount or degree of aid or comfort given the enemy as well as the gravity of the separate
and distinct acts of treason committed by the accused, rather than the circumstances
aggravating or mitigating the offense, determine the period of the penalty to be imposed.
So, where there was no killing, not even torture of prisoners, the imposition of
imprisonment for 15 years, without reference to the mitigating or aggravating
circumstance, is proper. (People vs. Cana, 87 Phil. 577)
Note: This ruling was made when the penalty for treason committed by Filipino
citizens was still reclusion temporal to death.

The gravity or seriousness of the acts of treason considered.

Where the accused took part in the killing and torture of persons apprehended by the
Japanese forces through him, the penalty of reclusion perpetua or even death was
imposed. (People vs. Ortega, 92 Phil. 263)
Upon the accused whose acts in torturing and killing guerilla suspects were
characterized by vindictive cruelty and inhuman savagery, death is the proper penalty.
(People vs. Ingalla, 83 Phil. 239)
Considering that many deaths resulted from the defendant's adherence to the
enemy, the Supreme Court believes that the appropriate penalty

17

Art. 114 TREASON

should be reclusion perpetua besides fine of P10,000. (People vs. Castillo, 90 Phil.
298)

Defense of suspended allegiance and change of sovereignty, not

accepted.
Reasons:
 (a) A citizen owes an absolute and permanent allegiance to his Government;
(b) The sovereignty of the Government is not transferred to the enemy by mere
occupation;
(c) The subsistence of the sovereignty of the legitimate Government in a territory
occupied by the military forces of the enemy during the war is one of the
rules of International Law; and

(d) What is suspended is the exercise of the rights of sovereignty. (A.

Laurel vs. Misa, 77 Phil. 856)

Defense of obedience to de facto Government.

In addition to the defense of duress, lawful obedience to a de facto Government is
a good defense in treason. The Philippine Executive Commission, as well as the Republic
established by the Japanese occupation army in the Philippines, had all
the characteristics of a de facto Government. (Go Kim Cham vs.
Valdez, et al, 75 Phil. 113)

Defense of loss of citizenship by joining the army of the enemy.

People vs. Manayao

(78 Phil. 721)
Facts: The accused, being a Makapili, considered himself a member of the
Japanese armed forces. He contended that he thereby lost his Filipino citizenship under
paragraphs 3, 4 and 6 of Sec. 1 of Commonwealth Act No. 63 providing: "... a Filipino
may lose his citizenship x x x by accepting commission in the military, naval or air
service of a foreign country x x x."
Held: The accused cannot divest himself of his Philippine citizenship by the simple
expedient of accepting a commission in the military, naval or air service of such country.
If the contention of the accused would be sustained, his very crime would be the shield
that would protect him from punishment.

18
CONSPIRACY AND PROPOSAL TO COMMIT TREASON Art. 115

Defense of duress or uncontrollable fear.

In the eyes of the law, nothing will excuse that act of joining an enemy, but the
fear of immediate death; not the fear of any inferior personal injury, nor the
apprehension of any outrage upon property. (People vs. Bagalawis, 78 Phil. 174; People
vs. Villanueva, 104 Phil. 450)

Art. 115. Conspiracy and proposal to commit treason — 4

Penalty. — The conspiracy and proposal to commit the crime of treason

shall be punished respectively, by prision mayor 6
and a fine not
exceeding 10,000 pesos, and by prision correccional* and
a fine not exceeding 5,000 pesos.

How are the crimes of conspiracy and proposal to commit treason

committed?
Conspiracy to commit treason is committed when in time of war, two or more
persons come to an agreement to levy war against the Government or to adhere to the
enemies and to give them aid or comfort, and decide to commit it. (Arts. 8 and 114)

Proposal to commit treason is committed when in time of war a person who has
decided to levy war against the Government or to adhere to the enemies and to give them
aid or comfort, proposes its execution to some other person or persons. (Arts. 8 and 114)

Conspiracy or proposal as a felony.

Although the general rule is that conspiracy and proposal to commit a felony is
not punishable (Art. 8), under Art. 115 the mere conspiracy to commit treason is a
felony. The mere proposal to commit treason is also a felony. Both are punishable under
Art. 115.
The reason is that in treason the very existence of the state is endangered.

*The Indeterminate Sentence Law is not applicable.

5
See Appendix "A," Table of Penalties, No. 19.
6
See Appendix "A," Table of Penalties, No. 10.

19
MISPRISION OF TREASON
Art. 116

Example of conspiracy to levy war against the Government.

In 1903, a junta was organized and a conspiracy entered into by a number of
Filipinos in Hongkong, for the purpose of overthrowing the Government by force of
arms and establishing in its stead a government to be known as the Republica Universal
Democratica Filipino; that one Primo Ruiz was recognized as the
titular head of this conspiracy and Artemio Ricarte as chief of the
military forces to be organized in the Philippines in furtherance of the plans of the
conspirators; that Ricarte came to Manila from Hongkong; that after his arrival in
Manila, he held a number of meetings whereat was perfected the conspiracy hatched in
Hongkong; that defendant Francisco Bautista took part in several of the meetings
whereat the plans of the conspirators w e discussed and perfected; and that at
e r

one of these meetings, Bautista, in answer to the question of Ricarte, assured him that
the necessary preparation had been made and that he "held the people in readiness."

Francisco Bautista, with another defendant, was convicted of the crime of

conspiracy to overthrow, put down, and destroy by force the Government. (U.S. vs.
Bautista, et al., 6 Phil. 581)

The two-witness rule does not apply to conspiracy or proposal to

commit treason.
The two-witness rule does not apply to this crime, because this is a separate and
distinct offense from that of treason. (U.S. vs. Bautista, et al., 6 Phil. 581)

Art. 116. Misprision of treason.'' — Every person owing

allegiance to (the United States or) the Government of the Philippine
Islands, without being a foreigner, and having knowledge of any
conspiracy against them, who 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. 8

"The Indeterminate Sentence Law is not applicable.

8
See Appendix "A," Table of Penalties, No. 10.

20
MISPRISION OF TREASON
Art. 116

Elements:

1. That the offender must be owing allegiance to the Government, and not a
foreigner.
2. That he has knowledge of any conspiracy (to commit treason) against the
Government.
3. That he 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.

Misprision of treason cannot be committed by a resident alien.

The offender must be owing allegiance to the Government, without being a
foreigner.

The conspiracy is one to commit treason.

The phrase "having knowledge of any conspiracy against them" has reference to
conspiracy to commit treason defined in Art. 115.
Art. 116 does not apply when the crime of treason is already committed by
someone and the accused does not report its commission to the proper
authority.
This is so because Art. 116 speaks of "knowledge of any conspiracy against" the
Government of the Philippines, not knowledge of treason actually committed by
another.

The offender in misprision of treason is pupished as an accessory to

treason.
The offender under Art. 116 is "punished as an accessory to the crime of
treason." Note that Art. 116 does not provide for a
penalty. Hence, the penalty for misprision of treason is two decrees lowe
r_than that provided for treason.

The offender is, however, a principal in the crime of misprision of treason.

But the offender in Art. 116 is a principal in the crime of misprision of treason.
Misprision of treason is a separate and distinct offense from the crime of treason.

21

Art. 117 ESPIONAGE

Article 20 does not apply.

Since the offender in misprision of treason is a principal in that crime, Art. 20
does not apply, even if the offender is related to the persons in conspiracy against the
government, because Art. 20 applies only to accessory.

Art. 116 is an exception to the rule that mere silence does not make a
person criminally liable.
The provision of Art. 116 is an exception to the general rule laid down in
connection with Art. 19 that a person who keeps silent as to what he knows about the
perpetration of an offense is not criminally liable, either as a principal, or as an
accomplice, or as an accessory. (U.S. vs. Caballeros, et al, 4 Phil. 350)

Art. 117. Espionage. — The penalty of prision correc

9

cional™ shall be inflicted upon any person who:

1. Without authority therefor, enters a warship, fort, or naval or
military establishment or reservation to obtain any information, plans,
photographs, or other data of a confidential nature relative to the
defense of the Philippine Archipelago; or
2. Being in possession, by reason of the public office he holds, of the
articles, data, or information referred to in the preceding paragraph,
discloses their contents to a representative of a foreign nation.
*
The penalty next higher in degree shall be
11

imposed if the offender be a public officer or employee.

Espionage, defined.
Espionage is the offense of gathering, transmitting, or losing information
respecting the national defense with intent or reason to believe that the information is to
be used to the injury of the Republic of the Philippines or to the advantage of any foreign
nation. (See the opening sentence of Sec. 1 and other sections of Commonwealth Act No.
616)

9
The Indeterminate Sentence Law is not applicable.
10
See Appendix "A," Table of Penalties, No. 10.
"See Appendix "A," Table of Penalties, No. 19.

22
ESPIONAGE
Art. 117

Two ways of committing espionage under Art. 117.

1. By entering, without authority therefor, a warship, fort, or naval or military
establishment or reservation to obtain any information plans, photographs or
other data of a confidential nature relative to the defense of the Philippines.

Elements:
(a) That the offender enters any of the places mentioned therein; (b) That he
has no authority therefor;
(c) That his purpose is to obtain information, plans, photographs or other data of
a confidential nature relative to the defense of the Philippines. (Guevara)
2. By disclosing to the representative of a foreign nation the contents of the articles, data
or information referred to in paragraph No. 1 of Art. 117, which he had in his
possession by reason of the public office he holds.

Elements:
(a) That the offender is a public officer;
(b) That he has in his possession the articles, data or information referred to in
paragraph No. 1 of Art. 117, by reason of the public office he holds;
(c) That he discloses their contents to a representative of a foreign nation.

To be liable under par. 1, the offender must have the intention to obtain
information relative to the defense of the Philippines.
If the accused has no such intention, even if he takes possession of plans or
photographs referred to in paragraph No. 1 of Art. 117, he is not liable under that
provision.
 Even under Com. Act No. 616, the offender in entering any of the places
mentioned in Sec. 1 thereof must have the purpose of obtaining information respecting
national defense.

It is not necessary that information, etc. is obtained.

Under the first way of committing espionage, it is not necessary that the
offender should have obtained any information, plans, etc. mentioned in paragraph
No. 1 of Art. 117. It is sufficient that he has the purpose to

23
Art. 117 ESPIONAGE

obtain any of them when he entered a warship, fort, or naval or military

establishment.

Persons liable in two ways of committing espionage.

Under paragraph No. 1 of Art. 117, the offender is any person, whether a
citizen or a foreigner, a private individual or a public officer.
When the offender is a public officer or employee, the penalty next higher in
degree shall be imposed.
Under paragraph No. 2, the offender must be a public officer who has in his
possession the article, data, or information by reason of the public office he holds.

Other acts of espionage are punished by Com. Act No. 616.

OUTLINE OF COMMONWEALTH ACT NO. 616

A n Ac t t o Punis h Espionag e an d Othe r Offense s

Against Nationa l Securit y

SEC. 1 . Unlawfull y obtainin g o r permittin g t o be obtaine d infor matio n affecting

nationa l defense .

Different ways of violating Section 1 :

a. By going upon, entering, flying over or otherwise by obtaining information
concerning any vessel, aircraft, work of defense or other place connected
with the national defense, or any other place where any vessels, aircraft,
arms, munitions or other materials for the use in time of war are being
made, or stored, for the purpose of obtaining information respecting
national defense, with intent to use it to the injury of the Philippines or to
the advantage of any foreign nation.
b. By copying, taking, making or attempting or inducing or aiding another to copy,
take, make or obtain any sketch, photograph, photographic negative, blue
print, plan, map instrument, appliance, document, writing or note of anything
connected with the national defense, for the same purpose and with like
 intent as in paragraph a.

c. By receiving or obtaining or agreeing or attempting or inducing or aiding

another to receive or obtain from any sources any of those data mentioned
in paragraph b, code book or signal book,

24
ESPIONAGE
Art. 117

knowing that it will be obtained or disposed of by any person contrary to

the provisions of this Act.

d. By communicating or transmitting, or attempting to

communicate or transmit to any person not entitled to receive it, by
willfully retaining and failing to deliver it on demand to any officer or
employee entitled to receive it, the offender being in possession of, having
access to, control over, or being entrusted with any of the data mentioned
in paragraph b, or code book or signal book.

e. By permitting, through gross negligence, to be removed from its proper place or

custody or delivered to anyone in violation of his trust, or to be lost, stolen,
abstracted or destroyed any of the data mentioned in paragraph b, code
book or signal book, the offender being entrusted with or having lawful
possession or control of the same.

SEC. 2 . Unlawfu l disclosin g of informatio n affecting nationa l defense .

Different ways of violating Section 2:

a. By communicating, delivering or transmitting or attempting or aiding or
inducing another to do it, to any foreign government or any faction or
party or military or naval force within a foreign country, whether
recognized or unrecognized by the Philippines, or to any representative,
officer, employee, subject or citizen thereof, any of the data mentioned in
paragraph b of Section 1 hereof, code book or signal book.
If committed in time of war, the penalty is death or imprisonment
for not more than 30 years.
b. In time of war, by collecting, recording, publishing or commu nicating or
attempting to elicit any information with respect to the movement, number,
description, condition, or disposition of any of the armed forces, ships,
aircraft, or war materials of the Philippines, or with respect to the plans
or conduct of any military, naval or air operations or with respect to any
works or measures undertaken for the fortification or defense of any
place, or any other information relating to the public defense, which
might be useful to the enemy.
The penalty is death or imprisonment for not more than 30 years.

25
 Art. 117 ESPIONAGE

SEC. 3. Disloyal acts or word s in tim e of peace .

Different ways of violating Section 3:

a. By advising, counselling, urging or in any other manner by causing
insubordination, disloyalty, mutiny or refusal of duty of any member of
the military, naval or air forces of the Philippines.
b. By distributing any written or printed matter which advises, counsels, or urges
such insubordination, disloyalty, mutiny, or refusal of duty.

SEC. 4. Disloya l acts or word s in tim e of war .

Different ways of violating Section 4:

a. By willfully making or conveying false reports or false statements with intent to
interfere with the operation or success of the Armed Forces of the
Philippines; or
b. To promote the success of its enemies, by willfully causing or attempting to
cause insubordination, disloyalty, mutiny or refusal of duty in the Armed
Forces of the Philippines; or

c. By willfully obstructing the recruiting or enlistment service. SEC. 5 .

Conspirac y t o violat e precedin g sections.

Requisites:
a. Two or more persons conspire to violate the provisions of sections one, two,
three or four of this Act;
b. One or more of such persons do any act to effect the object of the conspiracy.
Each of the parties to such conspiracy shall be punished as in said
sections provided in the case of the doing of the act the accomplishment of
which is the object of such conspiracy.

SEC. 6 . Harborin g o r concealin g violator s o f th e law. Requisites:

a. The offender knows that a person has committed or is about to commit an

offense under this Act;
b. The offender harbors or conceals such person, x x x. 2 6

ESPIONAGE
Art. 117

Other acts punished by Commonwealth Act No. 616.

1. Using or permitting or procuring the use of an aircraft for the purpose of
making photograph, sketch, etc. of vital installations or equipment of the
Armed Forces of the Philippines. (Sec. 9)
 2. Reproducing, publishing, selling, etc. uncensored copies of photograph, sketch,
etc. of the vital military, naval or air post, camp or station, without
permission of the commanding officer. (Sec. 10)
3. Injuring or destroying or attempting to injure or destroy war materials,
premises or war utilities when the Philippines is at war. (Sec. 11)
4. Making or causing war materials to be made in a defective manner when the
Philippines is at war. (Sec. 12)
5. Injuring or destroying national defense material, premises or utilities. (Sec. 13)
6. Making or causing to be made in a defective manner, or attempting to make or
cause to be made in a defective manner, national defense material. (Sec.
14)

Espionage distinguished from treason.

Espionage is a crime not conditioned by the citizenship of the offender. (Santos
vs. Misa, 76 Phil. 415) This is also true as regards treason, in view of the amendment to
Art. 114.
But treason is committed only in time of war, while espionage may be committed
both in time of peace and in time of war. Treason is limited in two ways of committing
the crime: levying war, and adhering to the enemy giving him aid or comfort; while
espionage may be committed in many ways. (Com. Act No. 616)

Section Two. — Provoking war and disloyalty in case of

war

What are the crimes classified as provoking war and disloyalty in case
of war?
They are:
1. Inciting to war or giving motives for reprisals.
2. Violation of neutrality.

27

Art. 118 INCITING TO WAR OR GIVING MOTIVES

FOR REPRISALS

3. Correspondence with hostile country.

4. Flight to enemy's country.

Art. 118. Inciting to war or giving motives for reprisals. —

The penalty of reclusion temporal shall be imposed upon any public
1

officer or employee, and that of prision mayor upon any 13

private individual, who, by unlawful or unauthorized acts, provokes or

gives occasion for a war involving or liable to involve the Philippine
Islands or exposes Filipino citizens to reprisals on their persons or
property.

Elements:
1. That the offender performs unlawful or unauthorized acts.
2. That such acts provoke or give occasion for a war involving or liable to involve the
Philippines or expose Filipino citizens to reprisals on their persons or property.

Examples:
The raising, without sufficient authorization, of troops within the Philippines for
the service of a foreign nation against another nation
The public destruction of the flag or seal of a foreign state or the public
manifestations of hostility to the head or ambassador of another state.

The intention of the offender is immaterial.

Viada says that to be liable for inciting to war or giving motives for reprisals, the
intention of the accused is immaterial.
If the unlawful or unauthorized acts of the accused provoke or give occasion for a
war or expose Filipino citizens to reprisals, the crime is committed regardless of his
intentions. The law considers the effects produced by the acts of the accused.
Such acts might disturb the friendly relation that we have with a foreign country,
and they are penalized even if they constitute a mere imprudence. (Albert)

12
See Appendix "A," Table of Penalties, No. 28.
13
See Appendix "A," Table of Penalties, No. 19.

28
VIOLATION OF NEUTRALITY
Art. 119

Committed in time of peace.

The crime of inciting to war or giving motives for reprisals is committed in time of
peace.

Penalty is higher when the offender is a public officer or employee.

If the offender is a private individual, the penalty is prision mayor. If the offender
is a public officer or employee, the penalty is reclusion temporal.
 Art. 119. Violation of neutrality. — The penalty of prision
correccional" shall be inflicted upon anyone who, on the
occasion of a war in which the Government is not involved, violates any
regulation issued by competent authority for the purpose of enforcing
neutrality.

Elements:
1. That there is a war in which the Philippines is not involved;
2. That there is a regulation issued by competent authority for the purpose of
enforcing neutrality;
3. That the offender violates such regulation.

Neutrality, defined.
A nation or power which takes no part in a contest of arms going on between
others is referred to as neutral. (Burril, L.D.)

There must be regulation issued by competent authority for the

enforcement of neutrality.
It is the violation of such regulation which constitutes the crime.

"See Appendix "A," Table of Penalties, No. 10.

29
CORRESPONDENCE WITH HOSTILE COUNTRY

Art. 120. Correspondence with hostile country. — Any

person, who in time of war, shall have correspondence with an enemy
country or territory occupied by enemy troops shall be punished:
1. By prision correccional, 15
if the correspondence
has been prohibited by the Government;
2. By prision mayor, if the correspondence be carried
16

on in ciphers or conventional signs; and

3. By reclusion temporal, if notice
17
or
information be given thereby which might be useful to the enemy. If the
offender intended to aid the enemy by giving such notice or
information, he shall suffer the penalty of reclusion temporal to death.
 18

Elements:
1. That it is in time of war in which the Philippines is involved;
2. That the offender makes correspondence with an enemy country or territory occupied
by enemy troops;
3. That the correspondence is either —
(a) prohibited by the Government, or
(b) carried on in ciphers or conventional signs, or
(c) containing notice or information which might be useful to the enemy.

Meaning of "correspondence."
Correspondence is communication by means of letters; or it may refer to the
letters which pass between those who have friendly or business relations.

15
See Appendix "A," Table of Penalties, No. 10.
16
See Appendix "A," Table of Penalties, No. 19.
17
See Appendix "A," Table of Penalties, No. 28.
18
See Appendix "A," Scale of Penalties.

30
FLIGHT TO ENEMY'S COUNTRY
Art. 121

Even if correspondence contains innocent matters, if the correspondence

has been prohibited by the Government, it is punishable.

If the correspondence with an enemy country or territory occupied by enemy

troops has been prohibited by the Government, the crime is committed even if the
correspondence or letter contains innocent matters, because of the possibility that some
information useful to the enemy might be revealed unwittingly.

Prohibition by the Government is not essential in paragraphs 2 and 3

of Art. 120.
The phrases "if such correspondence" or "if notice or information be given
thereby" in paragraphs 2 and 3, respectively, do not require that there should be
prohibition by the Government to make the correspondence. The word "such" in
paragraph 2 makes reference to the correspondence mentioned in the opening sentence
of Art. 120.

Circumstances qualifying the offense.

 The following must concur together:
a. That the notice or information might be useful to the enemy.
b. That the offender intended to aid the enemy.
Note: If the offender intended to aid the enemy by giving such notice or
information, the crime amounts to treason; hence, the penalty is the same as that for
treason.

Art. 121. Flight to enemy's country. — The penalty of arresto

mayor shall be inflicted upon any person who, owing
19

allegiance to the Government, attempts to flee or go to an enemy country when

prohibited by competent authority.

Elements:
1. That there is a war in which the Philippines is involved;

19
See Appendix "A," Table of Penalties, No. 1.

31
PIRACY IN GENERAL AND MUTINY ON THE HIGH
SEAS OR IN PHILIPPINE WATERS

2. That the offender must be owing allegiance to the Government; 3. That the
offender attempts to flee or go to enemy country; 4. That going to enemy country is
prohibited by competent authority.

An alien resident may be guilty of flight to enemy country.

An alien resident in the country can be held liable under this article. The law
does not say "not being a foreigner." Hence, the allegiance contemplated in this article
is either natural or temporary allegiance.

Mere attempt to flee or go to enemy country consummates the crime.

It should be noted that mere attempt to flee or go to enemy country when
prohibited by competent authority consummates the felony.

"When prohibited by competent authority."

Art. 121 must be implemented by the Government. If fleeing or going to an enemy
country is not prohibited by competent authority, the crime defined in Art. 121 can not
be committed.

Section Three. — Piracy and mutiny on the high seas in

 Philippine waters

Art. 122. Piracy in general and mutiny on the high seas or in Philippine
20

waters. — The penalty of reclusion perpetua shall be inflicted upon

71

any person who, on the high seas or in Philippine waters, shall attack or seize any
vessel or, not being a member of its complement nor a passenger, shall seize the
whole or part of the cargo of said vessel, its equipment, or personal belongings of
its complement or passengers.
The same penalty shall be inflicted in case of mutiny on the high seas or in
Philippine waters. (As amended by Sec. 3, Rep. Act No. 7659)

20
The Indeterminate Sentence Law is not applicable.
21
See Appendix "A," Scale of Penalties.

32
PIRACY IN GENERAL AND MUTINY
ON THE HIGH SEAS OR IN PHILIPPINE WATERS

Two ways or modes of committing piracy:

1. By attacking or seizing a vessel on the high seas or in Philippine waters;
2. By seizing in the vessel while on the high seas or in Philippine waters the whole or part
of its cargo, its equipment or personal belongings of its complement or passengers.

Elements of piracy:
1. That a vessel is on the high seas or in Philippine waters;
2. That the offenders are not members of its complement or passengers of the vessel;
3. That the offenders (a) attack or seize that vessel, or (b) seize the whole or part of the
cargo of said vessel, its equipment or personal belongings of its complement or
passengers.

Meaning of "high seas."

It does not mean that the crime be committed beyond the three-mile limit of any
state. It means any waters on the sea coast which are without the boundaries of
low-water mark, although such waters may be in the jurisdictional limits of a foreign
government. (48 C.J. 1207; footnote 13-a)
As the Supreme Court said in the case of People vs. Lol-lo, et al., 43
Phil. 19, "nor does it matter that the crime was committed within the jurisdictional
3-mile limit of a foreign state."
The Convention on the Law of the Sea defines "high seas" as parts of the seas
that are not included in the exclusive economic zone, in the territorial seas, or in the
internal waters of a state, or in the archipelagic waters of an archipelagic state.

Definition of piracy.
 It is robbery or forcible depredation on the high seas, without lawful authority
and done with animo furandi and in the spirit and intention of universal
hostility. (People vs. Lol-lo, et al., 43 Phil. 19)

Seizure of a vessel.

People vs. Catantan

(G.R. No. 118075, September 5, 1997)
Facts: Accused-appellant argues that in order that piracy may be committed it
is essential that there be an attack on or seizure of a vessel.

33
PIRACY IN GENERAL AND MUTINY ON THE HIGH
SEAS OR IN PHILIPPINE WATERS

He claims that he and his companion did not attack or seize the fishing boat of the
Pilapil brothers by using force or intimidation but merely boarded the boat, and it was
only when they were already on board that they used force to compel the Pilapils to
take them to some other place. Appellant also insists that he and Ursal had no
intention of permanently taking possession or depriving complainants of their boat. As
a matter of fact, when they saw another pumpboat they ordered the complainants to
approach that boat so they could leave the complainants behind in their boat.
Accordingly, appellant claims, he simply committed grave coercion and not piracy.
Held: We do not agree. Under the definition of piracy in PD No. 532 as well as
grave coercion as penalized in Art. 286 of the Revised Penal Code, this case falls
squarely within the purview of piracy. While it may be true that complainants were
compelled to go elsewhere other than their place of destination, such compulsion was
obviously part of the act of seizing their boat.

Mutiny is punished in Art. 122.

The last paragraph of this article provides that the same penalty provided for
piracy shall be inflicted in the case of mutiny on the high seas or in Philippine waters.
Mutiny is usually committed by the other members of the complement and may
be committed by the passengers of the vessel.

Definition of mutiny.
It is the unlawful resistance to a superior officer, or the raising of commotions and
disturbances on board a ship against the authority of its commander.
(Bouvier's Law Dictionary, Vol. 2, p. 2283)

Piracy distinguished from mutiny.

In piracy, the persons who attack a vessel or seize its cargo are strangers to said
vessels; while in mutiny, they are members of the crew or passengers.

While the intent to gain is essential in the crime of piracy, in mutiny, the offenders
may only intend to ignore the ship's officers or they may be prompted by a desire to
commit plunder.
Piracy and Mutiny, when considered as Terrorism.
Under Republic Act No. 9372, otherwise known as the Human Security Act of
2007, approved on March 6, 2007, a person who commits an act punishable as piracy
and mutiny under Art. 122 thereby sowing and

34
QUALIFIED PIRACY
Art. 123

creating a condition of widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to an unlawful demand shall be
guilty of the crime of terrorism, and shall suffer the penalty of forty (40) years of
imprisonment, without the benefit of parole.

Art. 123. Qualified piracy. — The penalty of reclusion

22

perpetua to death shall be imposed upon those who

23

commit any of the crimes referred to in the preceding article, under any
of the following circumstances:
1. Whenever they have seized a vessel by boarding or firing upon
the same;
2. Whenever the pirates have abandoned their victims without
means of saving themselves; or
3. Whenever the crime is accompanied by murder, homicide,
physical injuries, or rape. (As amended by RA.. No. 7659)

"Upon those who commit any of the crimes referred to in the

preceding article."
The word "crimes" in the quoted phrase in the opening sentence of Art. 123,
refers to piracy and mutiny on the high seas.
Piracy or mutiny is, therefore, qualified if any of the following circumstances is
present:
(a) Whenever the offenders have seized the vessel by boarding or firing upon the
same;
(b) Whenever the pirates have abandoned their victims withoujL ^
means of savjuG the 'Vf\fJ]!P ;c

(c) Whenever the crime is accompanied by murder, homicide, physical injuries, or

rape.
Paragraph 2 of Art. 123 specifically mentions "pirates" thereby excluding
mutineers from said paragraph. It would seem, however, that it should be in paragraph
1 where the word "pirates" should be specifically mentioned and not in
paragraph 2, because in paragraph 1, the mutineers,
 22
The Indeterminate Sentence Law is not applicable.
"See Appendix "A," Table of Penalties, No. 8.

35

Art. 123 PRESIDENTIAL DECREE NO. 532

being already in the vessel, cannot seize the vessel by boarding or firing upon the
same.

It is qualified piracy when the crime was accompanied by rape and

the offenders abandoned their victims without means of saving
themselves.
A boat, in which there were eleven men, women and children, arrived between
the islands of Buang and Bukid in the Dutch East Indies. There the boat was
surrounded by six vintas manned by twenty-four Moros all armed. The Moros first
asked for food, but once on the boat, took for themselves all of the cargo, attacked some
of the men, and brutally violated two of the women by methods too horrible to be
described. All of the persons on the boat, with the exception of the two young women,
were again placed on it and holes were made on it, with the idea that it would submerge,
but after eleven days of hardship and privation they were succored. Two of the Moro
marauders were Lol-lo and Saaraw who later returned to their home in Sulu,
Philippines. There they were arrested and were charged in the Court of First Instance of
Sulu with the crime of piracy.
Held: It cannot be contended with any degree of force that the Court of First
Instance of Sulu was without jurisdiction on the case. Piracy is a crime not against any
particular state but against all mankind. It may be punished in the competent tribunal
of any country where the offender may be found or into which he may be carried. Nor
does it matter that the crime was committed within the jurisdictional 3-mile limit of a
foreign state.
The crime of piracy was accompanied by (1) rape, and (2) the abandonment of
persons without means of saving themselves.
Lol-lo who raped one of the women was sentenced to death, there being the
aggravating circumstance of cruelty, abuse of superior strength, and ignominy, without
any mitigating circumstance. (People vs. Lol-lo and Saraw, 43 Phil. 19)

Before Art. 122 was amended by R.A. No. 7659, only piracy
and mutiny on high seas was covered by the RPC. The
commission of the acts described in Arts. 122 and/or 123 in
Philippine waters was punished as piracy under P.D. No. 532.
Under P.D. No. 532, any attack upon or seizure of any vessel, or the taking away
of the whole or part thereof or its cargo, equipment, or the personal belongings of its
complement or passengers, irrespective of the value thereof, by means of violence against
or intimidation of persons or force upon things, committed by any person, including a
passenger or member of the complement of said vessel, in Philippine waters, shall be

36
 PRESIDENTIAL DECREE NO. 532
Art. 123

considered as piracy. The offenders shall be considered as pirates and punished by the
penalty of reclusion temporal in its medium and maximum periods. If physical
injuries or other crimes are committed as a result or on the occasion thereof, the penalty
of reclusion perpetua shall be imposed. If rape, murder, or homicide is committed as a
result or on the occasion of piracy or when the offender abandoned the victims without
means of saving themselves, or when the seizure is accomplished by firing upon or
boarding a vessel, the mandatory penalty of death shall be imposed.

Note: Republic Act 9346 prohibited the imposition of the death

penalty. Thus, instead of the mandatory penalty of death under PD 532, reclusion
perpetua without eligibility for parole shall be imposed.

P.D. 532 covers any person while Art. 122 as amended covers only
persons who are not passengers or members of its complement.
To summarize, Article 122 of the Revised Penal Code, before its amendment,
provided that piracy must be committed on the high seas by any person not a member of
its complement nor a passenger thereof. Upon its amendment by Republic Act No. 7659,
the coverage of the pertinent provision was widened to include offenses committed "in
Philippine waters." On the other hand, under Presidential Decree No. 532
(issued in 1974), the coverage of the law on piracy embraces an y perso n including "a
passenger or member of the complement of said vessel in Philippine waters." Hence,
passenger or not, a member of the complement or not, any person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy
under Presidential Decree No. 532. There is no contradiction between the two laws.
There is likewise no ambiguity and hence, there is no need to construe or interpret the
law. All the presidential decree did was to widen the coverage of the law, in keeping with
the intent to protect the citizenry as well as neighboring states from crimes against the
law of nations. As expressed in one of the "whereas" clauses of Presidential Decree No.
532, piracy is "among the highest forms of lawlessness condemned by the penal statutes
of all countries." For this reason, piracy under the Article 122, as amended, and piracy
under Presidential Decree No. 532 exist harmoniously as separate laws. (People vs.
Tulin, G.R. No. 111709, August 30, 2001)

Piracy under PD 532, when considered as Terrorism.

Under Republic Act No. 9372, otherwise known as the Human Security Act of
2007, approved on March 6, 2007, a person who commits an act punishable under
Presidential Decree No. 532 (Anti-Piracy and Anti

37

Art. 123 PRESIDENTIAL DECREE NO. 532

Highway Robbery Law of 1974), thereby sowing and creating a condition of

widespread and extraordinary fear and panic among the populace, in order to coerce
the government to give in to an unlawful demand shall be guilty of the crime of
terrorism. (Sec. 3)
Qualified piracy is a special complex crime punishable by reclusion
perpetua to death, regardless of the number of victims.
The number of persons killed on the occasion of piracy is not material. P.D. No.
532 considers qualified piracy, i.e., rape, murder, or homicide is committed as a result
or on the occasion of piracy, as a special complex crime punishable by death, regardless
of the number of victims. (People vs. Siyoh, 141 SCRA 356)
Note: Qualified piracy is now punishable by reclusion perpetua to death.

Philippine waters and vessel, defined.

Philippine Waters. — It shall refer to all bodies of water, such as but not limited to,
seas, gulfs, bays around, between and connecting each of the Islands of the Philippine
Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters
belonging to the Philippines by historic or legal title, including territorial sea, the
sea-bed, the insular shelves, and other submarine areas over which the Philippines has
sovereignty or jurisdiction.

Vessel. — Any vessel or watercraft used for transport of passengers and cargo
from one place to another through Philippine waters. It shall include all kinds and types
of vessels or boats used in fishing.

Any person who aids or protects pirates or abets the commission of

piracy shall be considered as an accomplice.
Any person who knowingly and in any manner aids or protects pirates, such as
giving them information about the movement of police or other peace officers of the
government, or acquires or receives property taken by such pirates or in any manner
derives any benefit therefrom; or any person who directly or indirectly abets the
commission of piracy, shall be considered as an accomplice of the principal offenders
and be punished in accordance with the Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of these acts has
performed them knowingly, unless the contrary is proven.

38
REPUBLIC ACT NO. 6235
Art. 123

Acts inimical to civil aviation is punished by Republic Act No 6235.

EXCERPTS FROM REPUBLI C ACT NO. 6235

An Act Prohibiting Certain Acts Inimical to Civil Aviation

SECTION 1. It shall be unlawful for any person to compel a change in the

course or destination of an aircraft of Philippine registry, or to seize or usurp the control
thereof, while it is in flight. An aircraft is in flight from the moment all its external doors
are closed following embarkation until any of such doors is opened for disembarkation.
 It shall likewise be unlawful for any person to compel an aircraft of foreign
registry to land in Philippine territory or to seize or usurp the control thereof while it is
within the said territory.
SEC. 2. Any person violating any provision of the foregoing section shall be
punished by an imprisonment of not less than twelve years but not more than twenty
years, or by a fine of not less than twenty thousand pesos but not more than forty
thousand pesos.
The penalty of imprisonment of fifteen years to death, or a fine not less than
twenty-five thousand pesos but not more than fifty thousand pesos shall be imposed
upon any person committing such violation under any of the following circumstances:
1. Whenever he has fired upon the pilot, member of the crew or passenger of the
aircraft;
2. Whenever he has exploded or attempted to explode any bomb or explosive to
destroy the aircraft; or
3. Whenever the crime is accompanied by murder, homicide, serious physical
injuries or rape.
SEC. 3. It shall be unlawful for any person, natural or juridical, to ship, load or
carry in any passenger aircraft operating as a public utility within the Philippines, any
explosive, flammable, corrosive or poisonous substance or material.
SEC. 4. The shipping, loading or carrying of any substance or material
mentioned in the preceding section in any cargo aircraft operating as a public utility
within the Philippines shall be in accordance with regulations issued by the Civil
Aeronautics Administration.
SEC. 5. (Meaning of "explosive," "flammable," "corrosive" and
"poisonous")
SEC. 6. Any violation of Section three hereof shall be punishable by an
imprisonment of at least five years but not more than ten years or

39

Art. 123 REPUBLIC ACT NO. 6235

by a fine of not less than ten thousand pesos but not more than twenty thousand pesos:
Provided, That if the violation is committed by a juridical person, the penalty shall be
imposed upon the manager, representative, director, agent or employee who violated,
or caused, directed, cooperated or participated in the violation thereof: Provided,
further, That in case the violation is committed in the interest of a foreign corporation
legally doing business in the Philippines, the penalty shall be imposed upon its resident
agent, manager, representative or director responsible for such violation and in
addition thereto, the license of said corporation to do business in the Philippines shall
be revoked.

Any violation of Section four hereof shall be an offense punishable with the
minimum of the penalty provided in the next preceding paragraph.
SEC. 7. For any death or injury to persons or damage to property resulting from
a violation of Sections three and four hereof, the person responsible therefor may be
held liable in accordance with the applicable provisions of the Revised Penal Code.

XXX .
 (Approved on June 19, 1971)

The act of the accused in People vs. Ang Cho Kio, 95 Phil. 475, who
compelled the pilot to change the course of the airplane from Laoag to Amoy
instead of directing it to Aparri and, in not complying with such illegal
requirement, the accused discharged various revolver shots, killing him, could have been
punished under Section 2 of Republic Act No. 6235, had this law been already in effect.

Title Two
CRIMES AGAINST THE FUNDAMENTAL
LAWS OF THE STATE

Chapter One
ARBITRARY DETENTION OR EXPULSION,
VIOLATION OF DWELLING, PROHIBITION,
INTERRUPTION, AND DISSOLUTION OF
PEACEFUL MEETINGS AND CRIMES
AGAINST RELIGIOUS WORSHIP

What are the crimes against the fundamental laws of the State? They
are:
1. Arbitrary detention. (Art. 124)
2. Delay in the delivery of detained persons to the proper judicial authorities.
(Art. 125)
3. Delaying release. (Art. 126)
4. Expulsion. (Art. 127)
5. Violation of domicile. (Art. 128)
6. Search warrants maliciously obtained and abuse in the service of those
legally obtained. (Art. 129)
7. Searching domicile without witnesses. (Art. 130)
8. Prohibition, interruption, and dissolution of peaceful meetings. (Art. 131)
9. Interruption of religious worship. (Art. 132)
10. Offending the religious feelings. (Art. 133)

41
ARBITRARY DETENTION
 They are called crimes against the fundamental laws of the State, because they
violate certain provisions of the Bill of Rights (Article III) of the 1987 Constitution.
1. Section 1, Article III of the 1987 Constitution, provides that "no person shall be
deprived of x x x, liberty, x x x without due process of law, x x x."

Arts. 124,125 and 126 of the Code punish any public

officer or employee in those cases where an individual is unlawfully
deprived of liberty.
2. Section 6, Article III of the 1987 Constitution provides that "the liberty of
abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as
may be provided by law."

Art. 127 of the Code punishes any public officer or employee who
shall unlawfully expel a person from the Philippines or compel a person to
change his residence.

3. Section 2, Article III of the 1987 Constitution provides that "the right of the
people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purposes shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized."

Arts. 128, 129 and 130 of the Code punish any public officer or
employee who violates such rights.

4. Section 4, Article III of the 1987 Constitution, provides that "no law shall be passed
abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of grievances."

Art. 131 of the Code punishes any public officer or employee who
violates the right peaceably to assemble and petition the Government for
redress of grievances.

5. Section 5, Article III of the 1987 Constitution, provides that "no law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of
civil or political rights."

42
ARBITRARY
DETENTION

By Detaining a Person Art. 124

Arts. 132 and 133 punish violations of the right to free exercise and
enjoyment of religious profession and worship.
 Section One. — Arbitrary detention and expulsion

Classes of arbitrary detention:

(1) Arbitrary detention by detaining a person without legal ground. (Art. 124)
(2) Delay in the delivery of detained persons to the proper judicial authorities. (Art. 125)
(3) Delaying release. (Art. 126)
The penalties for the three classes of arbitrary detention are the same, as
provided in Article 124. Articles 125 and 126 do not provide penalties for their violation.
They make reference to the penalties provided for in Article 124.

Art. 124. Arbitrary detention. — Any public officer or

employee who, without legal grounds, detains a person, shall suffer:
1. The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period, if 1

the detention has not exceeded three days;

2. The penalty of prision correccional in its medium
and maximum periods, if the detention has continued more
2

than three but not more than fifteen days;

3. The penalty of prision mayor, if the detention has
3

continued for more than fifteen days but not more than six months; and
4. That of reclusion temporal, 4
if the detention shall
have exceeded six months.

'See Appendix "A," Scale of Penalties.

2
See Appendix "A," Table of Penalties, No. 15.
'See Appendix "A," Table of Penalties, No. 19.
<See Appendix "A," Table of Penalties, No. 28.

43

Art. 124 ARBITRARY DETENTION

By Detaining a Person

The commission of a crime, or violent insanity or any other

ailment requiring the compulsory confinement of the patient in a
hospital, shall be considered legal grounds for the detention of any
person.

Elements:
 1. That the offender if a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds. (U.S. vs. Braganza, et al., 10 Phil. 79;
Milo vs. Salonga, 152 SCRA 113; Astorga vs. People, G.R. No.
154130, October 1, 2003)

The offender in arbitrary detention is a public officer or employee.

The public officers liable for arbitrary detention must be vested with authority to
detain or order the detention of persons accused of a crime, but when they detain a
person they have no legal grounds therefor.
Such public officers are the policemen and other agents of the law, the judges or
mayors. A barangay captain and a municipal councilor are public officers.
If the detention is perpetrated by other public officers, the crime committed may
be illegal detention, because they are acting in their private capacity.
If the offender is a private individual, the act of detaining another is illegal
detention under Article 267 or Article 268.
But private individuals who conspired with public officers in detaining certain
policemen are guilty of arbitrary detention. (People vs. Camerino, CA-G.R. No. 14207-R,
Dec. 14, 1956)

When is there a detention?

Detention is defined as the actual confinement of a person in an enclosure, or in
any manner detaining and depriving him of his liberty. (People vs. Gungon, G.R. No.
119574, March 19 1998, citing People vs. Domasian, G.R. No. 95322, March
1, 1993; People vs. Flores, G.R. No. 116488, May 31, 2001) A person is detained when he
is placed in confinement or there is a restraint on his person. (U.S. vs. Cabanag, 8 Phil.
64)
Even if the persons detained could move freely in and out of their prison cell and
could take their meals outside the prison, nevertheless, if

44
ARBITRARY DETENTION

By Detaining a Person Art. 124

they were under the surveillance of the guards and they could not escape for fear of
being apprehended again, there would still be arbitrary detention. (People vs.
Camerino, supra)

Restraint resulting from fear.

Where the accused-mayor refused to allow a DENR team to go home despite their
pleas, and the refusal was quickly followed by the call for and arrival of almost a dozen
"reinforcements," all armed with military issue rifles, who proceeded to encircle the
team, weapons pointed at the complainants and the witnesses, and the team was instead
brought to a house where after dinner, some of the members were allowed to go down
from the house but not to leave the barangay, and the rest just sat in the
house until 2:00 a.m. when they were finally allowed to leave, it was held that the
restraint resulting from fear is evident. It was not just the presence of the armed men,
but also the evident effect these gunmen had on the actions of the team which proves that
fear was indeed instilled in the minds of the team members, to the extent that they felt
compelled to stay in the barangay. The intent to prevent the departure of the
complainants and witnesses against their will is clear. (Astorga vs. People, G.R. No.
154130, October 1, 2003)

"Without legal grounds."

The detention of a person is without legal ground: (1) when he has not committed
any crime or, at least, there is no reasonable ground for suspicion that he has committed
a crime, or (2) when he is not suffering from violent insanity or any other ailment
requiring compulsory confinement in a hospital.
Thus, in the following cases, the detention was without legal ground:
1. A barrio lieutenant, seeing his servant quarreling with his daughter, seized the
servant and an hour later sent him to the Justice of the Peace. The servant
was kept in detention from 5 p.m. to 9 a.m. the next day when he was
released by the Justice of the Peace.
Held: The barrio lieutenant was guilty of arbitrary detention, because he
detained the offended party without any reason therefor, such as the commission of the
crime, and without having the authority to do so. (U.S. vs. Gellaga, 15 Phil. 120)
Note: Merely quarreling is not a crime,
2. A Manila detective sergeant arrested Aquilino Taruc because of the suspicion
that he might be implicated in the plot to

45
ARBITRARY DETENTION
Art. 124
By Detaining a Person

assassinate the President and that he was related to Luis Taruc,

a Huh Supremo.
Held: Mere suspicion of his connection with any murderous plot is no ground
recognized by law for restraining the freedom of any individual. Lawlessness from
above can only lead to chaos and anarchy. (Taruc vs. Carlos, 78 Phil. 876)
3. In overtaking another vehicle, complainant-driver was not committing or had
not actually committed a crime in the presence of respondent-judge. Such
being the case, the warrantless arrest and subsequent detention of
complainant were illegal. (Cayao vs. del Mundo, A.M. No.
MTJ-93-813, September 15,1993)

Legal grounds for the detention of any person.

The following are legal grounds for the detention of any person: (a) The
commission of a crime;
(b) Violent insanity or any other ailment requiring the compulsory confinement of
the patient in a hospital. (Art. 124, par. 2)
Arrest without warrant is the usual cause of arbitrary detention.
A peace officer must have a warrant of arrest properly issued by the court in
order to justify an arrest. If there is no such warrant of arrest, the arrest of a person by
a public officer may constitute arbitrary detention.

Arrest without warrant — When lawful.

A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has probable cause to
believe based on personal knowledge of facts and circumstances that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another. (Sec. 5, Rule 113, Revised Rules of
Criminal Procedure)

46
ARBITRARY DETENTION

By Detaining a Person Art. 124

Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto
or immediately thereafter, while paragraph (c) refers to escaping prisoners. (Ilagan vs.
Enrile, 139 SCRA 349)

"In his presence".

The phrase "In his presence" in paragraph (a), construed - When the
officer sees the offense being committed, although at a distance, or hears the disturbance
created thereby and proceeds at once to the scene thereof, or when the offense is
continuing or has not been consummated at the time the arrest is made, the offense is
said to be committed in his presence. (U.S. vs. Samonte, 16 Phil. 516)
It has been established that petitioner's vehicle figured in a hit and run — an
offense committed in the "presence" of Manarang, a private person, who then sought to
arrest petitioner. It must be stressed at this point that "presence" does not
only require that the arresting person sees the offense, but also when he "hears the
disturbance created thereby and proceeds at once to the scene." (U.S. vs. Samonte, 16
Phil. 516, 519, citing 3 Cyc , 886; Ramsey v. State, 17 S. E., 613; Dilger v.
Com., 11 S. W., 651; State v. McAfee, 12 S. E., 435; State v. Williams, 15 S. E.,
554; and Hawkins v. Lutton, 70 N. W., 483) As testified to by Manarang, he
heard the screeching of tires followed by a thud, saw the sideswiped victim
(balut vendor), reported the incident to the police and thereafter gave chase to
the erring Pajero vehicle using his motorcycle in order to apprehend its driver After
having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan
bridge where he found responding policemen SP0 2 Borja and SP0 2 Miranda
already positioned near the bridge who effected the actual arrest of petitioner. (Padilla
vs. Court of Appeals, G.R. No. 12197, March 12, 1997)

Personal knowledge is required.

Under Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure, an officer
arresting a person who has just committed an offense must have probable cause to
believe based on personal knowledge of facts and circumstances that the person to be
arrested has committed it.
"Personal knowledge of facts" in arrests without a warrant must be based upon
probable cause, which means an actual belief or reasonable grounds of suspicion. (U.S.
vs. Santos, 36 Phil. 851.)
The court indicated in the case of People vs. Bati (G.R. No. 87429, August 27,
1990) that police officers have personal knowledge of the actual commission of the
crime when it had earlier conducted surveillance activities of the accused. Thus, it
stated:

47

Art. 124 ARBITRARY DETENTION

By Detaining a Person

"When Luciano and Caraan reached the place where the alleged
transaction would take place and while positioned at a street corner, they saw
appellant Regalado Bati and Warner Marquez by the side of the
street about forty to fifty meters away from them (the public officers). They saw
Marquez giving something to Bati, who, thereafter handed a wrapped object to
Marquez who then inserted the object inside the front of his pants infront of his
abdomen while Bati, on his part, placed the thing given to him inside his
pocket, (p. 2)
XXX XXX XXX

. . . Both Patrolman Luciano and Caraan actually witnessed the same

and their testimonies were based on their actual and personal knowledge of the
events that took place leading to appellant's arrest. They may not have been
within hearing distance, specially since conversation would expectedly be carried
on hushed tones, but they were certainly near enough to observe the movements
of the appellant and the buyer. (People vs. Bati, supra, citing People vs. Agapito,
G.R. No. 73786, October 12, 1987)

Probable cause.
Probable cause can be defined as such facts and circumstances which could lead a
reasonable discreet and prudent man to believe that an offense has been committed and
that the object sought in connection with the offense are in the place sought to be
searched. (Pendon vs. Court of Appeals, 191 SCRA 429 [1990]; Quintero vs.
NBI, 162 SCRA 467 [1988]; Burgos vs. Chief of Staff, 133 SCRA 815
[1984]. It must be within the personal knowledge of the complainant or the
witnesses he may produce and not based on mere hearsay. (Prudente vs.
Judge Dayrit, 180 SCRA 69 [1989]; Quintero vs. NBI, supra)

Probable cause was found to be present in the following instances:

 (a) where the distinctive odor of marijuana emanated from the plastic bag carried
by the accused (People vs. Claudio, 160 SCRA 646; 1988)
(b) where an informer positively identified the accused who was observed to be
acting suspiciously (People vs. Tangliben, 184 SCRA 220; 1990)
(c) where the accused who were riding a jeepney were stopped and searched by
policemen who had earlier received confidential reports that said accused
would transport a quantity of marijuana (People vs. Maspil, Jr., 188 SCRA
751; 1990).

48
ARBITRARY DETENTION

By Detaining a Person Art. 124

A crime must in fact or actually have been committed first.

In arrests without a warrant under Sec. 6(b), however, it is not enough that there
is reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. The fact of the commission of the offense must be
undisputed, x x x (People vs. Burgos, 144 SCRA 1)

When the person to be arrested is attempting to commit an offense.

Illustration:
A policeman, acting under orders of his chief who desired to put a stop to
pilfering in a certain locality, patrolled his district, and about midnight, seeing two
persons in front of an uninhabited house who afterward entered an uninhabited
camarin, arrested them without warrant, although no crime had been
committed. The policeman took them to the municipal presidencia where they were
detained in jail for six or seven hours before they were released.
Held: Prevention of crime is just as commendatory as the capture of criminals.
Surely the officer must not be forced to await the commission of robbery or other felony.
The rule is supported by the necessities of life. The applicable principles rest upon the
same foundation of reason and common sense. (U.S. vs. Santos, 36 Phil. 853)

When an offense has in fact just been committed, and he has probable
cause to believe based on personal knowledge of facts and
circumstances that the person to be arrested has committed it.
Illustration:
A Constabulary officer was engaged to marry a girl, but later the engagement
was broken. Thereafter, while the officer was passing in front of the girl's house, he was
assaulted by the girl's two brothers, after the girl had approached him in a friendly
manner, which she never did before. He suspected the girl had conspired with his
assailants and so he ordered her arrest and detention. The officer filed a complaint
against her and her brothers. For the arrest and detention of the girl, he was charged
with arbitrary detention.
 Held: The Constabulary officer was not guilty of arbitrary detention. (People vs.
Ancheta, 68 Phil. 415)

49

Art. 124 ARBITRARY DETENTION

By Detaining a Person

Note: The Constabulary officer, in ordering the arrest and detention of the girl,
had probable cause to believe that the girl participated in the assault as one of the
conspirators.
In arbitrary detention, the legality of the detention does not depend upon the
juridical and much less the judicial fact of a crime (the elements of the felony are
present and they were so found by the court), which at the time of the commission, is
not and can not definitely be determined for lack of necessary data and of jurisdiction,
but upon the nature of the deed. It is sufficient that the agent or person in authority
making the arrest has reasonably sufficient grounds to believe the existence of an act
having the characteristics of a crime and that the same grounds exist for him to believe
that the person sought to be detained participated therein. The obligation to make an
arrest by reason of crime, does not presuppose as a necessary requisite for the
fulfillment thereof, the indubitable existence of a crime. (People vs.
Ancheta, 68 Phil. 415)

Under Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure,

the actual commission of a crime by the person detained is not
necessary to justify his detention.
The legality of the detention of a person does not depend upon the actual
commission of a crime by him, but upon the nature of his deed when its characterization
as a crime may reasonably be inferred by the officer to whom the law at the moment
leaves the decision for the urgent purpose of suspending the liberty of that person. (U.S.
vs. Sanchez, 27 Phil. 442)

Illustration:
Two Bureau of Internal Revenue secret service agents, strangers in the
municipality, were seen acting suspiciously near the market place. The accused, two
policemen, called upon them to give an account of themselves and explain their
suspicious conduct, and at the same time demanded that they produce their cedulas,
which the agents were unable to do. Believing that their conduct and inability to
satisfactorily account for themselves justified the suspicion that they were in some way
connected with the recent robberies in the place, or that they were about to commit theft
or robbery, the accused placed the two men under arrest and took them forthwith to the
house of the justice of the peace, accused Battalones, informing the latter of the arrest of
the two men with them and asking him to decide what was proper to do. The justice of
the peace, without verifying the truth of the claims of the agents that they were of the
Bureau of Internal Revenue, ordered them taken to the municipal jail to be detained
until further orders.
Held: No charge of arbitrary detention can be maintained against the two
policemen. In the light of after events, the suspicion directed against
 50
ARBITRARY DETENTION

By Detaining a Person Art. 124

the secret service agents was not well founded, but viewing the facts as they
must have presented themselves to the policemen at the time of the arrest, they must be
held to have had reasonable grounds upon which to base their suspicions as to the
arrested men.
But the justice of the peace who arbitrarily and without investigation directed the
detention of the agents was held guilty of the crime of "detention arbitraria" through
negligence. The justice of the peace was not actuated by any special malice or ill-will
toward the prisoners, but he was willfully negligent of their rights. (U.S. vs. Battalones, et
al., 23 Phil. 46)

No reasonable ground if officer only wants to know the commission of

crime.
In a case where the accused was arrested and prosecuted for illegal possession of
opium, the witness testified that the only reason why he ordered the arrest of the accused
was that he was acting suspiciously. He did not say in what way the accused was acting
suspiciously or what was the particular act or circumstance which aroused his suspicion.
He caused the arrest because, as he said, "I wanted to see if he had committed a
crime." It was held that it was not a legal reason for making an arrest. (U.S. vs. Hachaw,
21 Phil. 514)

Note: There is no reasonable ground of suspicion that the accused committed an

offense.

That a police officer can make an arrest on mere complaint of the

offended party is a debatable question.

U.S. vs. Sanchez

(27 Phil. 442)

Facts: The municipal president and the acting chief of police of Caloocan,
Rizal, had information that two nights earlier, a robbery had occurred in a boat on the
river. Another robbery occurred in a billiard room. The acting chief of police acquired
the information that Benigno Aranzanso had been in that
billiard room that night of the robbery. The acting chief of police directed policeman
Sanchez to look for Benigno Aranzanso in order that he might be identified by the
boatmen in connection with the robbery committed in the boat. The description given of
the person who had been in the billiard room fitted Aranzanso. Policeman Sanchez
proceeded to arrest him in the cockpit on the next morning, took him to the town hall,
and detained him in the municipal jail until before nightfall of the same day, when he
was set at liberty by order of the municipal president. No warrant was previously issued
for his detention.

51

Art. 124 ARBITRARY DETENTION

 By Detaining a Person

Held: The arrest and detention of Benigno Aranzanso for the purpose
of identifying his person, were justified, since according to the acting chief of police
reasonable grounds existed for believing in the existence of a crime and suspicion
pointed to that individual.
It is, therefore, beyond dispute that defendant Sanchez did not commit the
crime charged against him.

Sayo vs. Chief of Police

(80 Phil. 859)

Facts: Upon complaint of one Bernardo Malinao, charging the petitioners with
having committed the crime of robbery, policeman Benjamin Dumlao
arrested the petitioners. When the petition for habeas corpus was heard, the petitioners
were still detained and the fiscal had not yet released them or filed against them an
information with the proper courts of justice.
Held: A police officer has no authority to arrest and detain a person charged with
an offense upon complaint of the offended party even though, after investigation, he
becomes convinced that the accused is guilty of the offense charged.
What the complainant may do in such case is to file a complaint with the city
fiscal or directly with the justice of the peace court.
The theory that police officers may arrest any person just for questioning or
investigation, without any warrant of arrest, represents an ideology incompatible with
human dignity. Reason revolts against it.

Dissenting opinion of Justice Tuason in the case of Sayo vs. Chief of

Police.
Section 6 of Rule 109 of the Rules of Court and Section 2463 of the Revised
Administrative Code, as well as the authorities I have quoted, show the fallacy of the
idea that the arresting officer knows, or should know, all the facts about the offense for
the perpetration, or supposed perpetration, of which he has made the arrest.

A police officer can seldom make arrest with personal knowledge of the offense
and of the identity of the person arrested sufficient in itself to convict. To require him to
make an arrest only when the evidence he himself can furnish proves beyond reasonable
doubt the guilt of the accused, would "endanger the safety of society." It would cripple
the forces of the law to the point of enabling criminals, against whom there is only moral
conviction or prima facie proof of guilt, to escape.

52
ARBITRARY DETENTION

By Detaining a Person Art. 124

He gave two examples:

1. A murder with robbery is reported to the police. An alarm is broadcasted giving a
description of the murderer. Later, a police officer is told that the wanted man is
in a store. He proceeds to the store and besides believing in the good faith of his
 informant, detects in the man's physical appearance some resemblance to the
description given in the alarm. Should the officer refrain from making an arrest
because he is not certain beyond reasonable doubt of the identity of the suspected
murderer?
2. A police officer is attracted by screams from a house where a robbery has been
committed. The officer rushes to the place, finds a man slain, is told that the
murderers have fled. The officer runs in the direction indicated and finds men
with arms who, from appearances, seem to be the perpetrators of the crime.
The people who saw the criminals run off are not sure those were the men
they saw as the night was dark.
The officer does not, under these circumstances, have to seek an arrest warrant or
wait for one before detaining the suspected persons. To prevent their escape, he can
arrest and bring them to the police station.

When the person to be arrested is a prisoner who has escaped.

In a petition for habeas corpus, it was alleged that Nicasio Salonga was arrested
without a warrant of arrest and that he was not accused of any crime. It appears that
Salonga was committed to prison under judgment of the Court of First Instance of
Manila for the crime of illegal discharge of firearm. He was confined in Muntinlupa
prison and upon being transferred to Camp Nichols under custody, he
effected an escape. It was held that being a prisoner who escaped, he can be arrested
without a warrant of arrest not only by the authorities but also by any private person.
(Salonga vs. Holland, et al., 76 Phil. 412, citing the Rules of Court)
Under Section 5(c), Rule 113, one of the instances when a person may be validly
arrested without warrant is where he has escaped from confinement. Undoubtedly, this
right of arrest without a warrant of arrest, is founded on the principle that at the time
of the arrest, the escapee is in the continuous act of committing a crime — evading the
serving of his sentence. (Paraluman vs. Director of Prisons, 22 SCRA 638)

Arbitrary detention thru imprudence.

The crime of arbitrary detention can be committed through imprudence.

The chief of police rearrested a woman who had been released by means of a
verbal order of the justice of the peace. The accused acted without

53

Art. 125 DELAY IN THE DELIVERY OF DETAINED PERSONS

malice, but he should have verified the order of release before proceeding to make the
re-arrest. The crime committed by the chief of police is arbitrary detention through
simple imprudence provided for and punished under Article 365, paragraph 2, of the
Revised Penal Code, in connection with Article 124, par. 1, of the same Code. (People
vs. Misa, C.A., 36 O.G. 3496)

Periods of detention penalized.

(a) If the detention has not exceeded 3 days.
(b) If the detention has continued more than 3 days but not more than 15 days.
 (c) If the detention has continued more than 15 days but not more than 6
months.
(d) If the detention has exceeded 6 months.
(Art. 124, Nos. 1 to 4)

The law does not fix any minimum period of detention.

In the case of U.S. vs. Braganza, 10 Phil. 79, a councilor and a barrio lieutenant
were convicted of arbitrary detention, even if the offended party was detained for less
than half an hour; and in the case of U.S. vs. Agravante, 10 Phil. 46, the detention
was only for one hour.

Art. 125. Delay in the delivery of detained persons to the proper

judicial authorities. — The penalties provided in the next preceding
article shall be imposed upon the public officer or employee who shall
detain any person for some legal ground and shall fail to deliver such
person to the proper judicial authorities within the period of: twelve (12)
hours, for crimes or offenses punishable by light penalties, or their
equivalent; eighteen (18) hours, for crimes or offenses punishable
by correctional penalties, or their equivalent; and thirty-six (36) hours,
for crimes or offenses punishable by afflictive or capital penalties, or
their equivalent.
In every case, the person detained shall be informed of the cause of
his detention and shall be allowed, upon his request, to communicate
and confer at any time with his attorney or counsel. (As amended by
Exec. Order No. 272)

54
DELAY IN THE DELIVERY OF DETAINED PERSONS
Art. 125

Elements:
1. That the offender is a public officer or employee.
2. That he has detained a person for some legal ground.
3. That he fails to deliver such person to the proper judicial authorities within:
a. twelve (12) hours, for crimes or offenses punishable by light penalties, or their
equivalent; or
b. eighteen (18) hours, for crimes or offenses punishable by correctional
penalties, or their equivalent; or
c. thirty-six (36) hours, for crimes or offenses punishable by afflictive
or capital penalties, or their equivalent.
If the offender is a private person, the crime is illegal detention.
A private individual who makes a lawful arrest must also comply with the
requirements prescribed in Art. 125. If he fails to do so, he shall be guilty of illegal
detention (Art. 267 or Art. 268), not arbitrary detention.
The periods of time in Art. 125 were applied to the arrests made by a private
person. (People vs. Sali, et al., C.A., 50 O.G. 5676)

"Shall detain any person for some legal ground."

Under Art. 125, the public officer or employee has detained the offended party for
some legal ground. The detention is legal in the beginning, because the person detained
was arrested under any of the circumstances where arrest without warrant is authorized by
law. The detention becomes illegal after a certain period of time, because the
offended party is not delivered to the proper judicial authority, within the period
specified by Art. 125.
If the detention of a person is not for some legal ground, it will be a case under
Art. 124, not under Art. 125.

Lino vs. Fuguso

(77 Phil. 937-939)

Facts: Pascual Montaniel was arrested without warrant by the police officers of
Manila on November 8,1946, for inciting to sedition, and Pacifico Deoduco,
on November 7,1946, for resisting arrest and disobedience to police orders.
On November 11 when this petition for habeas corpus was filed, these two
petitioners were still under arrest. They were thus held in confinement for three and
four days, respectively, without warrants and without charges formally filed in court.
The papers of their cases were not transmitted to the City Fiscal's Office until
late in the afternoon of November.

55

Art. 125 DELAY IN THE DELIVERY OF DETAINED PERSONS

Upon investigation by that office, no sufficient evidence was found to warrant

the prosecution of Pascual Montaniel for inciting to sedition and of
Pacifico Deoduco for resisting arrest, but both remained under custody
because of informations filed with the municipal court charging Montaniel with unjust
vexation and Deoduco with disobedience to an agent of a person in authority. And so
far, no warrants of arrest or orders of commitment are shown to have been issued by
the municipal court pursuant to the informations thus filed.
Held: Under these facts, the detention of Pacifico Deoduco and Pascual
Montaniel is illegal. Even assuming that they were legally arrested without warrant on
November 7 and 8,1946, respectively, their continued detention became illegal
upon the expiration of six hours without their having been delivered to the corresponding
judicial authorities.
Note: Before E.O. No. 272, the detention of a person legally arrested without a
warrant becomes illegal upon the expiration of:
a) six (6) hours, for crimes or offenses punishable by light penalties, or their
equivalent; or
 b) nine (9) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent; or

c) eighteen (18) hours, for crimes or offenses punishable by afflictive or

capital penalties, or their equivalent.

Art. 125 does not apply when the arrest is by virtue of a warrant of
arrest.
Art. 125 applies only when the arrest is made without warrant of arrest. But the
arrest must be lawful.
If the arrest is made with a warrant of arrest, the person arrested can be detained
indefinitely until his case is decided by the court or he posts a bail for his temporary
release.
The reason for this is that there is already a complaint or information filed against
him with the court which issued the order or warrant of arrest and it is not necessary to
deliver the person thus arrested to that court.

Disposition of person arrested without a warrant.

In cases falling under paragraphs (a) and (b) of Section 5, Article 113, the
person arrested without a warrant shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.
(Sec. 5, Rule 113, Revised Rules of Criminal Procedure)

56
DELAY IN THE DELIVERY OF DETAINED PERSONS
Art. 125

Section 7, Rule 112 of the Revised Rules of Criminal Procedure states that:
"When a person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation, the complaint or information may be filed by
a prosecutor without need of such investigation provided an inquest has been conducted
in accordance with existing Rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace officer directly
with the proper court on the basis of the affidavit of the offended party or arresting
officer or person."

"Shall fail to deliver such person to the proper judicial authorities."

It will be noted that what constitutes a violation of Article 125 is the failure to
deliver the person arrested to the proper judicial authority within the period specified
therein.
The delivery to the judicial authority of a person arrested without warrant by a
peace officer, does not consist in a physical delivery, but in making an accusation or
charge or filing of an information against the person arrested with the corresponding
court or judge, whereby the latter acquires jurisdiction to issue an order of release or of
commitment of the prisoner, because the arresting officer can not transfer to the judge
and the latter does not assume the physical custody of the person arrested. (Sayo vs.
Chief of Police of Manila, 80 Phil. 859)

Duty of detaining officer is deemed complied with upon the filing of the
complaint with the judicial authority.

People vs. Acosta

(C.A., 54 O.G. 4742)
Facts: Pointed to as among those who laid hands on the two policemen, were
Hipolito Mamuric, Tiburcio Portacio, Perfecto Garcia, Ursulo Diego and
Feliciano Cruz. They were arrested and confined in the municipal jail that night. On
the following morning, a complaint for assault upon agents of persons in authority was
filed against them with the justice of the peace. After the filing of the complaint at 8
o'clock that morning, no action for the preliminary investigation, as required by law,
was taken and Mamuric, Portacio, Diego and Cruz remained in jail for 6 days without
the benefit thereof.
The entry in the police blotter showed that Mayor Acosta ordered their arrest
and detention.

57

Art. 125 DELAY IN THE DELIVERY OF DETAINED PERSONS

Did Mayor Acosta commit an infraction of Art. 125?

Held: The answer is positively in the negative. Mamuric and others who were
jailed with him on the evening of June 17, 1958, were delivered to the judicial
authority upon the filing of the complaint for assault against them at 8 o'clock in the
morning of the following day.
As the duty of the detaining officer is deemed complied with upon the filing of
the complaint, further action rests upon the judicial authority. It is for the judicial
authority to determine
" x x x whether there is reasonable ground to believe that an offense has been
committed and the defendant is probably guilty thereof, so as to issue a warrant of
arrest and to hold him for trial." (Sec. 1, Rule 8, Rules of Court)
Justice of the Peace Abaya said that after receiving the complaint in this case, he
advised the complainant, Chief of Police, to release the defendants but Mayor Acosta
objected because it would be hard to locate them later if they go into hiding. Judge
Abaya was mistaken. He need not give any advice at all. It was perfectly within his
power, as justice of the peace with whom the complaint was filed, to release, or issue
warrant of arrest against, the persons complained of after conducting the investigation
as required by the rule.

"Proper judicial authorities."

The term "judicial authorities", as used in Art. 125, means the courts of justice or
judges of said courts vested with judicial power to order the temporary detention or
confinement of a person charged with having committed a public offense, that is, the
"Supreme Court and such inferior courts as may be established by law." (Section 1,
Article VIII of the 1987 Constitution)
 The judicial authorities mentioned in Section 125 of the Revised Penal Code
cannot be considered to include the fiscal of the City of Manila or any other city, because
they cannot issue a warrant of arrest or of commitment for temporary confinement of a
person surrendered to legalize the detention of the person arrested without warrant.
(Sayo vs. Chief of Police, supra)

Detained person should be released when a judge is not available.

Where a judge is not available, the arresting officer is duty-bound to release a
detained person, if the maximum hours for detention provided under Article 125 of the
Revised Penal Code has already expired. Failure to cause the release may result in an
offense under Art. 125. (Albior vs. Auguis, A.M. No. P-01-1472, June 26,
2003)

58
DELAY IN THE DELIVERY OF DETAINED PERSONS
Art. 125

Waiver of the provisions of Art. 125.

Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception. (Sec. 7, par. 2, Rule 112,
Revised Rules of Criminal Procedure)

Circumstances considered in determining liability of officer detain ing

a person beyond legal period.
For the purpose of determining the criminal liability of an officer detaining a
person for more than the time prescribed by the Revised Penal Code, (1) the means of
communication as well as (2) the hour of arrest and (3) other circumstances such as the
time of surrender and the material possibility for the fiscal to make the investigation and
file in time the necessary information, must be taken into consideration. (Sayo vs. Chief
of Police of Manila, 80 Phil. 861)
Thus, when the accused were arrested for direct assault, punishable by a
correctional penalty, on the evening of June 17, 1953, the complaint could not
normally been filed earlier than 8 o'clock in the morning of June 18, because
government offices open for business usually at 8 o'clock in the morning and close at 5
o'clock in the afternoon. (People vs. Acosta, C.A., 54 O.G. 4742)

Violation of Art. 125 does not affect legality of confinement under

process issued by a court.
A was arrested and detained for theft. The arresting officer filed the complaint
with the City Fiscal only after 24 hours. An information for theft against A was filed
with the court on the same day by the fiscal. Warrant of arrest was issued by the court.
Held: The failure of the arresting officer to deliver the person arrested to the
judicial authority within the time specified in Article 125, does not affect the legality of
the confinement of the petitioner who is detained because of the warrant subsequently
issued by a competent court when an information was filed therein. (Lino vs. Fuguso, et
al, 77 Phil. 933; Gunabe, et al. vs. Director of Prisons, 77 Phil. 993)
As a matter of fact, a violation of Art. 125 is not considered as one of the
grounds on which one can predicate a motion to quash the information under Rule
113, Sec. 2 of the Rules of Court (Sec. 3, Rule 117 of the 1985 Rules on Criminal
Procedure). (People vs. Mabong, 100 Phil. 1069)

59

Art. 125 DELAY IN THE DELIVERY OF DETAINED PERSONS

The illegality of detention is not cured by the filing of the information in court.
The detaining officer is liable under Art. 125, even if an information was filed
with the court, because a violation had already been committed before the information
was filed.

Fiscal not liable, unless he ordered detention.

If the city fiscal does not file the information within the period of six hours
prescribed by law and the arresting officer continues holding the prisoner beyond the
six-hour (nine-hour, or eighteen-hour) period, the fiscal will not be responsible for
violation of said Article 125, because he is not the one who has arrested and illegally
detained the person arrested, unless he has ordered or induced the arresting
officer to hold and not release the prisoner after the expiration of said period. (Sayo vs.
Chief of Police of Manila, 80 Phil. 863)
If no charge is filed by the fiscal in court within the period fixed in Art. 125, the
arresting officer must release the detainee; otherwise, he will be guilty under Art. 125.

Remedy where warrant improperly issued.

If the accused was illegally detained because he was arrested without a
preliminary examination, what should have been done was to set aside the warrant of
arrest and order the discharge of the accused, but without enjoining the municipal judge
from conducting a preliminary examination and afterwards properly issuing a warrant
of arrest. (Alimpoos vs. Court of Appeals, 106 SCRA 159)

Rights of the person detained:

1. He shall be informed of the cause of his detention; and
2. He shall be allowed, upon his request, to communicate and confer at anytime with his
attorney or counsel. (Art. 125, par. 2)

Public officer or employee is liable for preventing the exercise of the

right of attorneys to visit and confer with persons arrested.
Any public officer or employee who shall obstruct, prohibit, or otherwise prevent
an attorney entitled to practice in the courts of the Philippines from visiting and
conferring privately with a person arrested, at any hour of the day or, in urgent cases, of
the night, said visit and conference being requested by the person arrested or by another
acting in his behalf, shall be punished by arresto mayor. (Rep. Act No. 857)
 60
DELAY IN THE DELIVERY OF DETAINED PERSONS
Art. 125

Reason for the provisions of Article 125.

Article 125 of the Revised Penal Code is intended to prevent any abuse resulting
from confining a person without informing him of his offense and without permitting
him to go on bail. (Laurel vs. Misa, 76 Phil. 372)

Art. 125 distinguished from Art. 124

In arbitrary detention under Art. 124, the detention is illegal from the beginning;
in arbitrary detention under Art. 125, the detention is legal in the beginning but the
illegality of the detention starts from the expiration of any of the periods of time
specified in Art. 125, without the detained prisoner detained having been delivered to the
proper judicial authority.

DETENTION UNDE R REPUBLI C ACT No . 9372.

Time for delivery of detained persons prescribed in Art. 125 does

not apply to suspected terrorists who are detained under Republic Act
9372.
A person charged with or suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism shall be delivered to the proper judicial authority within
a period of three days counted from the moment the said charged or suspected person
has been apprehended or arrested, detained, and taken into custody by the said police, or
law enforcement personnel, without the police or law enforcement personnel having said
person in custody incurring any criminal liability for delay in the delivery of detained
persons to the proper judicial authority. However, the arrest of the suspects must result
from the surveillance under Sec. 7 and examination of bank deposits under Sec. 27. (See
Sec. 18, R.A. 9372)

Under Republic Act 9372, a judge must be notified before a

suspected terrorist is detained.
Before detaining the person suspected of the crime of terrorism, the police or law
enforcement personnel concerned must present him or her before any judge at the
latter's residence or office nearest the place where the arrest took place at any time of
the day or night.
It shall be the duty of the judge, among other things, to ascertain the identity of
the police or law enforcement personnel and the person/s they have arrested
and presented before him/her, to inquire of them the reasons why they have
arrested the person and determine by questioning and personal observation whether
or not the suspect has been subjected to any physical, moral and psychological torture
by whom and why. The judge

61

Art. 125 DELAY IN THE DELIVERY OF DETAINED PERSONS

shall then submit a written report of what he/she had observed when the subject was
brought before him to the proper court that has jurisdiction over the case of the
person arrested. The report shall be submitted within three (3) calendar days from the
time the suspect was brought to his/her residence or office.
Immediately after taking custody of a person charged with or suspected of
the crime of terrorism or conspiracy to commit terrorism, the police or law
enforcement personnel shall notify in writing the judge of the court nearest the place of
apprehension or arrest: Provided, That where the arrest is made during Saturdays,
Sundays, holidays, or after office hours, the written notice shall be served at the
residence of the judge nearest the place where the accused was arrested.
The penalty of 10 years and 1 day to 12 years of imprisonment shall be imposed
upon the police or law enforcement personnel who fails to notify the judge as provided
in the preceding paragraph. (Sec. 18)

Period of Detention in the Event of an Actual or Imminent Terrorist

Attack.
In the event of an actual or imminent terrorist attack, suspects may not be
detained for more than 3 days without the written approval of a municipal, city,
provincial or regional official of a Human Rights Commission or judge of the municipal,
regional trial court, the Sandiganbayan or a Justice of the Court of Appeals nearest the
place of the arrest. If the arrest is made during Saturdays, Sundays, holidays, or after
office hours, the arresting police or law enforcement personnel shall bring the person
thus arrested to the residence of any of the officials mentioned above that is nearest the
place where the accused was arrested. The approval in writing of any of the said officials
shall be secured by the police or law enforcement personnel concerned within 5 days
after the date of detention of the persons concerned: Provided, however, That within 3
days after the detention the suspects, whose connection with the terror attack or threat is
not established, shall be released immediately. (Sec. 19)

Penalty for Failure to Deliver Suspect to the Proper Judicial Authority

within Three Days.
The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed
upon any police or law enforcement personnel who has apprehended or arrested,
detained and taken into custody of a person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism and fails to deliver such charged or
suspected person to the proper judicial authority within the period of 3 days. (Sec. 20)

62
DELAYING RELEASE
Art. 126

Art. 126. Delaying release. — The penalties provided for

in Article 124 shall be imposed upon any public officer or
employee wh o delays for the period of time specified therein the
performance of any judicial or executive order for the release of a
prisoner or detention prisoner, or unduly delays the service of the notice
of such order to said prisoner or the proceedings upon any petition for
the liberation of such person.

Three acts are punishable under Art. 126.

1. By delaying the performance of a judicial or executive order for the release of a
prisoner.
2. By unduly delaying the service of the notice of such order to said prisoner.

3. By unduly delaying the proceedings upon any petition for the liberation
of such person.

Elements:
a. That the offender is a public officer or employee;
b. That there is a judicial or executive order for the release of a prisoner or detention
prisoner, or that there is a proceeding upon a petition for the liberation of such
person.
c. That the offender without good reason delays: (1) the service of the notice of such
order to the prisoner, or (2) the performance of such judicial or executive order
for the release of the prisoner, or (3) the proceedings upon a petition for the
release of such person.

Example of delaying release.

For failure to prosecute, because the witness of the prosecution did not appear,
the case was dismissed and the justice of the peace gave an order to release the accused.
The jailer refused to release the accused, notwithstanding that order of release, until
after several days.

Wardens and jailers are the public officers most likely to violate Art.
126.
The public officers who are most likely to commit the offense penalized in Art.
126 are the wardens and peace officers temporarily in charge of the custody of
prisoners or detained persons.

63

Art. 127 EXPULSION

Art. 127. Expulsion. — The penalty of prision

correccional* shall be imposed upon any public officer
or employee who, not being thereunto authorized by law, shall
expel any person from the Philippine Islands or shall compel such
person to change his residence.

Two acts are punishable under Art. 127:

 1. By expelling a person from the Philippines.
2. By compelling a person to change his residence.

Elements:
a. That the offender is a public officer or employee.
b. That he expels any person from the Philippines, or compels a person to change
his residence.
c. That the offender is not authorized to do so by law.

"Not being thereunto authorized by law."

Only the court by a final judgment can order a person to change his residence.
This is illustrated in ejectment proceedings, expropriation proceedings and in the
penalty of destierro.
Hence, the Mayor and the Chief of Police of Manila cannot force the prostitutes
residing in that City to go to and live in Davao against their will, there being no law that
authorizes them to do so. These women, despite their being in a sense, lepers of society,
are nevertheless not chattels, but Philippine citizens, protected by the same
constitutional guarantees as are other citizens. (Villavicencio, et al. vs. Lukban, et al.,
39 Phil. 778)

Section Two. — Violation of domicile

What are the crimes known as violation of domicile? They

are:

1. Violation of domicile by entering a dwelling against the will of the owner

thereof or making search without previous consent of the owner. (Art. 128)

5
See Appendix "A," Table of Penalties, No. 10.

64
VIOLATION OF DOMICILE
Art. 128

2. Search warrants maliciously obtained and abuse in the service of those legally
obtained. (Art. 129)
3. Searching domicile without witnesses. (Art. 130)

Art. 128. Violation of domicile. — The penalty of

prision correccional in its minimum period shall be imposed
6

upon any public officer or employee who, not being authorized by

judicial order, shall enter any dwelling against the will of the owne r
thereof, search papers or other effects found therein without the previous
consent of such owner, or, having surreptitiously entered said dwelling,
and being required to leave the premises, shall refuse to do so.
If the offense be committed in the nighttime, or if any papers or
effects not constituting evidence of a crime be not returned immediately
after the search made by the offender, the penalty shall be prision
correccional in its medium and maximum periods. 7

Acts punishable under Art. 128.

1. By entering any dwelling against the will of the owner thereof; or
2. By searching papers or other effects found therein without the previous consent of
such owner; or
3. By refusing to leave the premises, after having surreptitiously entered said dwelling
and after having been required to leave the same.

Elements common to three acts:

a. That the offender is a public officer or employee.
b. That he is not authorized by judicial order to enter the dwelling and/or to
make a search therein for papers or other effects.

The offender must be a public officer or employee. If the offender who

enters the dwelling against the will of the owner

6
See Appendix "A," Table of Penalties, No. 11.
'See Appendix "A," Table of Penalties, No. 15.

65

Art. 128 VIOLATION OF DOMICILE

thereof is a private individual, the crime committed is trespass to dwelling. (Art. 280)

"Not being authorized by judicial order."

A public officer or employee is authorized by judicial order when he is armed
with a search warrant duly issued by the court. Hence, he is not being authorized by
judicial order, when the public officer has no search warrant.

"Against the will of owner."

It will be noted that to constitute a violation of domicile, the entrance by the
public officer or employee must be against the will of the owner of the dwelling, which
presupposes opposition or prohibition by said owner, whether express or implied. If the
entrance by the public officer or employee is only without the consent of the owner of
the dwelling, the crime is not committed. Neither is the crime committed if the owner of
the dwelling consented to such entrance. (People vs. Luis Sane, C.A., 40 O.G., Supp. 5,
113)
Right of officer to break into building or enclosure.
An officer, in order to make an arrest either by virtue of a warrant, or without a
warrant as provided in section 5, may break into any building or enclosure where the
person to be arrested is or is reasonably believed to be, if he is refused admittance
thereto, after announcing his authority and purpose. (Sec. 11, Rule 113, Revised Rules of
Criminal Procedure)

The reason for this provision is that "while it may be true in general that 'a
man's house is his castle,' it is equally true that he may not use that castle as a
citadel for aggression against his neighbors, nor can he, within its walls, create such
disorder as to affect their peace." (U.S. vs. Vallejo, 11 Phil. 193)

A peace officer without search warrant cannot lawfully enter the

dwelling against the will of the owner, even if he knew that someone in
the dwelling is having unlawful possession of opium.
But the mere fact that a visitor of the house of another is suspected of having
unlawful possession of opium, is no excuse for entry into the house by a peace officer for
the purpose of search against the will of its owner and without search warrant. (U.S. vs.
De los Reyes, 20 Phil. 467)
Suppose that the opium found, after search without the previous consent of the
owner of the house, belonged to said owner, and the peace

66
VIOLATION OF DOMICILE
Art. 128

officer had no search warrant, is the peace officer liable for violation of domicile?
Yes, the peace officer is liable for violation of domicile. No amount of
incriminating evidence, whatever its source, will supply the place of search warrant.
(McLurg vs. Brenton, 123 Iowa, 368, cited in dissenting opinion in Moncado
vs. People, 80 Phil. 25)

"Search papers, etc. without previous consent of such owner."

When the detectives secured the previous consent of the owner of the house to the
search without warrant, they are not liable. (People vs. Sane, C.A., 40O.G.,
Supp. 5, 113)
When one voluntarily submits to a search or consents to have it made upon his
person or premises, he is precluded from later complaining thereof. The right to be
secure from unreasonable search may, like every right, be waived and such waiver may
be made either expressly or impliedly. (People vs. Malasugui, 63 Phil. 221; Rodriguez vs.
Villamiel, 65 Phil. 231)
Silence of the owner of the dwelling before and during the search, without search
warrant, by a public officer, may show implied waiver.

Meaning of "search" as used in this article.

 Two policemen were charged with violation of domicile. What they did was to
enter the house of the complainant and look for the pen knife which the latter carried
when they followed him. Nobody prohibited or prevented their entrance to said house
whose doors were open, and the alleged search was limited to looking at what was in the
sala and the kitchen. It was held that the fact of looking at what was in the sala and
the kitchen of the house to see if the pen knife was there, cannot be strictly considered as
the search of papers and other effects punished by Art. 128. (People vs. Ella, et al.,
C.A., 49 O.G. 1891)
But when the owner of the house had objected to the intended entrance of and
search by a barrio lieutenant who entered and proceeded to search the house, inspecting
some jars and baskets therein found, there was a violation of domicile. (U.S. vs.
Macaspac, 9 Phil. 207)

"Papers or other effects found therein."

Art. 128 is not applicable when a public officer searched a person outside his
dwelling without search warrant and such person is not legally arrested for an offense,
because the papers or other effects mentioned in Art. 128 must be found in the dwelling.

67
Art 129 SEARCH WARRANTS MALICIOUSLY
OBTAINED, AND ABUSE IN THE SERVICE OF
THOSE LEGALLY OBTAINED

In such case, the crime committed by the public officer is grave coercion, if
violence or intimidation is used (Art. 286), or unjust vexation, if there is no violence or
intimidation. (Art. 287)

"Having surreptitiously entered said dwelling."

This is probably an instance where a public officer or employee may commit
violation of domicile even if the entrance is only without the consent of its owner; that
is, the offender surreptitiously entered the dwelling. But in this case, what constitutes
the crime is the refusal of the offender to leave the premises when required to do so —
not the entrance into the dwelling.

Circumstances qualifying the offense:

(1) If the offense is committed at nighttime; or
(2) If any papers or effects not constituting evidence of a crime are not returned
immediately after the search made by the offender.

Art. 129. Search warrants maliciously obtained, and abuse in the

service of those legally obtained. — In addition to the
liability attaching to the offender for the commission of any
other offense, the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period and a 8

fine not exceeding 1,000 pesos shall be imposed upon any public officer
or employee who shall procure a search warrant without just cause, or,
having legally procured the same, shall exceed his authority or us e
unnecessary severity in executing the same.

Acts punishable in connection with search warrants. 1.

By procuring a search warrant without just cause.
2. By exceeding his authority or by using unnecessary severity in executing a search
warrant legally procured.

"See Appendix "A," Table of Penalties, No. 8.

68
SEARCH WARRANTS MALICIOUSLY OBTAINED, t
AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED

Elements of procuring a search warrant without just cause: a.

That the offender is a public officer or employee.
b. That he procures a search warrant.
c. That there is no just cause.

Search warrant defined.

A search warrant is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer, commanding him to search
for personal property described therein and bring it before the court. (Sec. 1, Rule 126,
Revised Rules of Criminal Procedure)

Personal property to be seized.

A search warrant may be issued for the search and seizure of the following
personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (Sec. 3,
Rule 126, Revised Rules of Criminal Procedure)

Requisites for issuing search warrant.

A search warrant shall not issue except upon probable cause in connection with
one specific offense to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which may be
anywhere in the Philippines. (Sec. 4, Rule 126, Revised Rules of Criminal Procedure)

Examination of complainant.
The judge must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath, the complainant and the
witnesses he may produce on facts personally known to them and attach to the record
their sworn statements together with any affidavits submitted. (Sec. 5, Rule 126,
Revised Rules of Criminal Procedure)

69
9 SEARCH WARRANTS MALICIOUSLY OBTAINED,
AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED

Right to break door or window to effect search.

The officer, if refused admittance to the place of directed search after giving
notice of his purpose and authority, may break open any outer or inner door or
window of a house or any part of a house or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him when unlawfully detained therein.
(Sec. 7, Rule 126, Revised Rules of Criminal Procedure)

Search of house, room or premise to be made in presence of two

witnesses.
No search of a house, room or any other premises shall be made except in the
presence of the lawful occupant thereof or any member of his family or in the absence
of the latter, in the presence of two witnesses of sufficient age and discretion residing in
the same locality. (Sec. 8, Rule 126, Revised Rules of Criminal Procedure)

Validity of search warrant.

A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall
be void. (Sec. 10, Rule 126, Revised Rules of Criminal Procedure)

A receipt for the property seized.

The officer seizing property under the warrant must give a detailed receipt for the
same to the lawful occupant of the premises in whose presence the search and seizure
were made, or in the absence of such occupant, must, in the presence of at least two
witnesses of sufficient age and discretion residing in the same locality, leave a receipt in
the place in which he found the seized property. (Sec. 11, Rule 126, Revised Rules of
Criminal Procedure)

Probable cause, defined.

It is such reasons, supported by facts and circumstances, as will warrant a
cautious man in the belief that his action, and the means taken in prosecuting it, are
legally just and proper. (U.S. vs. Addison, 28 Phil. 580; Corro vs. Lising, 137
SCRA 541)
 Probable cause for a search is denned as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the object sought in connection with the offense are in the place
sought to be searched. (Burgos vs. Chief of Staff, 133 SCRA 800)

70
SEARCH WARRANTS MALICIOUSLY OBTAINED, i
AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED

When is a search warrant said to have been procured without just

cause?
A search warrant is said to have been procured without just cause when it
appears on the face of the affidavits filed in support of the application therefor, or
through other evidence, that the applicant had every reason to believe that the search
warrant sought for was unjustified.
Example: A peace officer wanted to verify a report that some corpse was
unlawfully buried in a monastery. Instead of stating to that effect, he alleged in an
affidavit that opium was hidden in the premises. If no opium was found, the officer is
guilty under this article. (Guevara)

Test of lack of just cause.

The true test of lack of just cause is whether the affidavit filed in support of the
application for search warrant has been drawn in such a manner that perjury could be
charged thereon and affiant be held liable for damages caused. The oath required must
refer to the truth of the facts within the personal knowledge of the applicant for search
warrant or his witnesses, not of the facts "reported to me by a person whom I consider
to be reliable." (Alvarez vs. Court, et al., 64 Phil. 33)
The fact that the search warrant was obtained for the purpose of extorting money
from the owner of the premises to be searched, is circumstantial evidence of illegal
procurement of search warrant. (People vs. De la Pena, et al., 97 Phil. 669)

"In addition to the liability attaching to the offender for the

commission of any other offense."
The public officers procuring a search warrant without just cause may also be
held liable for perjury if they made a willful and deliberate assertion of falsehood in the
affidavits filed in support of the application for search warrant.
It will be noted that in view of the phrase quoted, even if the crime of perjury
was a necessary means for committing the crime of search warrant maliciously
obtained, they cannot form a complex crime. They are separate and distinct crimes, to
be punished with their respective penalties.

Evidence obtained in violation of Sections 2 and 3 (formerly Sections

3 and 4) of Article III (formerly Article IV) of the 1987 Constitution is
not admissible for any purpose in any proceeding.
Thus, when papers or effects are obtained during unreasonable searches and
seizures, or under a search warrant issued without probable
 71
9 SEARCH WARRANTS MALICIOUSLY OBTAINED,
AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED

cause and not in accordance with the procedure prescribed, or in violation of the
privacy of communication and correspondence, the papers or effects thus obtained are
not admissible if presented as evidence.
It follows that as the search of the petitioners' premises was violative of the
Constitution, all the firearms and ammunition taken from the raided compound are
inadmissible in evidence in any of the proceedings against the petitioners. These articles
are "fruits of the poisonous tree." As Judge Learned Hand observed, "Only in case the
prosecution which itself controls the seizing officials, knows that it cannot profit by their
wrong, will the wrong be repressed." Pending determination of the legality of such
articles, however, they shall remain in custodia legis, subject to such appropriate
disposition as the corresponding courts may decide. (Alih vs. Castro, 151 SCRA
279)
The Moncado ruling (80 Phil. 1) that illegally seized documents, papers and
things are admissible in evidence, must be abandoned. The exclusion of such evidence is
the only practical means of enforcing the constitutional injunction against unreasonable
searches and seizures. The non-exclusionary rule is contrary to the letter and spirit of
the prohibition against unreasonable searches and seizures. If there is competent
evidence to establish probable cause of the commission of a given crime by the party
against whom the warrant is intended, then there is no reason why the applicant should
not comply with the constitutional requirements. If he has no such evidence, then it is
not possible for the judge to find that there is a probable cause; hence, no justification
for the issuance of the warrant. The only possible explanation for the issuance in that
case is the necessity of fishing for evidence of the commission of a crime. Such a fishing
expedition is indicative of the absence of evidence to establish a probable cause.
(Stonehill vs. Diokno, 20 SCRA 383)

Search and seizure without warrant as an incident to lawful arrest is

legal.
Sec. 12, Rule 126, of the Revised Rules on Criminal Procedure provides that
a person lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant.

A lawful arrest may be made without warrant in certain cases and in any of those
cases a search may lawfully be made to find and seize things connected with the crime as
its fruits or as the means by which it was committed. (Alvero vs. Dizon, 76 Phil. 637)

72
SEARCH WARRANTS MALICIOUSLY OBTAINED ;
AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED

Peace officers may enter the house of an offender who committed an

offense in their presence.
 Peace officers are authorized to make arrests without warrant for breaches of the
peace committed in their presence, and may enter the house of an offender for such
purpose, provided the unlawful conduct is such as to affect the public peace. (U.S. vs.
Vallejo, et al, 11 Phil. 193)

Search and seizure of vessels without a search warrant legal.

Search and seizure without search warrant of vessels and aircraft for violations of
the customs laws have been the traditional exception to the constitutional requirement of
a search warrant, because the vessel can be quickly moved out of the locality or
jurisdiction in which the search warrant must be sought before such warrant could be
secured; hence, it is not practicable to require a search warrant before such search or
seizure can be constitutionally effected. (Roldan, Jr., etc. and the Philippine Navy
vs. Hon. Area, etc., et al, 65 SCRA 336)

Elements of exceeding authority or using unnecessary severity in

executing a search warrant legally procured:
a. That the offender is a public officer or employee.
b. That he has legally procured a search warrant.
c. That he exceeds his authority or uses unnecessary severity in executing the
same.

Example of exceeding authority in executing search warrant.

If the public officer, in executing a search warrant for opium, seized books,
personal letters, and other property having a remote or no connection with opium, even
if he believed or suspected that they had some relation with opium, such public officer
may be held liable under Art. 129. (Uy Kheytin, et al. vs. Villareal, et al, 42
Phil. 886)
But the possession of contraband articles, like firearm without license, is a
flagrant violation of the law and the contraband can be seized without a writ.
(Magoncia vs. Palacio, 80 Phil. 770)

Example of using unnecessary severity in executing search warrant.

If in searching a house, the public officer destroys furniture therein without any
justification at all, he is guilty under Article 129, as having used unnecessary severity
in executing the search warrant.

73

Art. 130 SEARCHING DOMICILE WITHOUT WITNESSES

Art. 130. Searching domicile without witnesses. —

The penalty of arresto mayor in its medium and maximum periods 9

shall be imposed upon a public officer or employee who, in cases where

a search is proper, shall search the domicile, papers, or other
belongings of any person, in the absence of the latter, any member of
his family, or in their default, without the presence of two witnesses
residing in the same locality.

Elements:
1. That the offender is a public officer or employee.
2. That he is armed with search warrant legally procured.
3. That he searches the domicile, papers or other belongings of any person.
4. That the owner, or any member of his family, or two witnesses residing in the same
locality are not present.

"In cases where a search is proper."

This clause means that the public officer at the time of the search is armed with a
search warrant legally procured.
In violation of domicile under Art. 128, the public officer has no authority to
make a search; in searching domicile without witnesses (Art. 130), the public officer has
a search warrant.

"Shall search the domicile, papers, or other belongings of any person."

The word "search" means "to go over or look through for the purpose of finding
something; to examine." Note that the thing searched by the offender is the "domicile,"
the "papers" or the "other belongings" of any person. The
public officers may examine the papers for the purpose of finding in those papers
something against their owner; or his other belongings for the same purpose. But as the
crime denned in Art. 130 is one of the forms of violation of domicile, the papers
or other belongings must be in the dwelling of their owner at the time the search is made.

"See Appendix "A," Table of Penalties, No. 6.

74
PROHIBITION, INTERRUPTION, AND DISSOLUTION
OF PEACEFUL MEETINGS

Art. 130 does not apply to searches of vehicles or other means of transportation,
because the searches are not made in the dwelling.

Search without warrant under the Tariff and Customs Code does not
include a dwelling house.
The Code authorizes persons having police authority under Section 2203 of the
Tariff and Customs Code to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling house; and also to inspect, search and
examine any vessel or aircraft and any trunk, package, box or envelope or any person on
board, or stop and search and examine any vehicle, beast or person suspected of holding
or conveying any dutiable or prohibited article introduced into the Philippines contrary
to law, without mentioning the need of a search warrant in said cases. (Sections 2208,
2210 and 2211, Tariff and Customs Code) But in the search of a dwelling house, the Code
provides that said "dwelling house may be entered and searched only upon
warrant issued by a judge or justice of the peace." (Papa vs. Mago, 22 SCRA
857)

Section 8, Rule 126 of the Revised Rules of Criminal Procedure

reiterates Article 131.
Section 8, Rule 126 of the Revised Rules of Criminal Procedure provides that —
"No search of a house, room or any other premises shall be made
except in the presence of the lawful occupant thereof or any member of his
family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality."
This provision is consistent with the present Article. As previously worded, no
search of a house shall be made except in the presence of at least one competent witness,
a resident in the neighborhood. This particular amendment to the Rules was made to
conform the provision to the present Article and was introduced to address the
confusion brought about by differences in the law as found in the Rules of Court and the
Revised Penal Code concerning witnesses to a search.

Section Three. — Prohibition, interruption, and

dissolution of peaceful meetings

Art. 131. Prohibition, interruption, and dissolution of peaceful

meetings. — The penalty of prision correccional in

75
Art 131 PROHIBITION, INTERRUPTION, AND
DISSOLUTION OF PEACEFUL MEETINGS

its minimum period shall be imposed upon any public officer or employee
1 0

who, without legal ground, shall prohibit or interrupt the holding of a

peaceful meeting, or shall dissolve the same.
The same penalty shall be imposed upon any public officer or employee
who shall hinder any person from joining any lawful association or from
attending any of its meetings.
The same penalty shall be imposed upon any public officer or employee
who shall prohibit or hinder any person from addressing, either alone or
together with others, any petition to the authorities for the correction of abuses
or redress of grievances.

What are the acts punished in connection with peaceful meetings,

associations, and petitions?

1. By prohibiting or by interrupting, without legal ground, the holding

of a peaceful meeting, or by dissolving the same.
2. By hindering any person from joining any lawful association or from attending any of
 its meetings.
3. By prohibiting or hindering any person from addressing, either alone or together with
others, any petition to the authorities for the correction of abuses or redress of
grievances.

Elements common to the three acts punishable:

1. That the offender is a public officer or employee;
2. That he performs any of the acts mentioned above.

A private individual cannot commit this crime.

Only a public officer or employee can commit this crime. If the offender is a
private individual, the crime is disturbance of public order denned in Art. 153.

'See Appendix "A," Table of Penalties, No. 11.

76
PROHIBITION, INTERRUPTION, AND DISSOLUTION Art 131 OF
PEACEFUL MEETINGS

To commit the crime defined in the first paragraph of Art. 131, the
public officer must act without legal ground.
Note the phrase "without legal ground" and the word "peaceful" describing the
meeting in the first paragraph of Art. 131.
Hence, to constitute a violation of the 1st paragraph of Art. 131, (1) the meeting
must be peaceful, and (2) there is no legal ground for prohibiting, or interrupting or
dissolving that meeting.

Right to peaceful meeting is not absolute.

The right to freedom of speech and to peacefully assemble, though guaranteed by
our Constitution, is not absolute, for it may be regulated in order that it may not be
"injurious to the equal enjoyment of others having equal rights, nor injurious to the
right of the community or society," and this power may be exercised under the "police
power" of the state, which is the power to prescribe regulations to promote the good
order or safety and general welfare of the people.
Thus, the action taken by the respondent who refused to allow the use of the
kiosk, part of the public plaza, by the members of the Watch Tower Bible and Tract
Society, whose tenets and principles are derogatory to those professed by the Catholics,
is not unconstitutional as an abridgment of the freedom of speech, assembly, and
worship, considering that in view of the proximity of the kiosk to the Catholic church,
such meeting, if allowed, might result in the happening of untoward incidents and
disturbance of peace and order. (Ignacio, et al. vs. Ela, 99 Phil. 347)

When the meeting to be held is not peaceful, there is legal ground for
prohibiting it.
 Facts: Petitioner addressed a letter to the Mayor of Manila requesting permit
to hold a public meeting. This meeting was to be held by the Communist Party.
Previously, in public meetings held by the said Communist Party, seditious speeches
were delivered urging the laboring class to unite in order to be able to overthrow the
government. Petition was denied.

Is the denial of the petition a violation of this article?

Held: No. Inasmuch as the doctrine and principles advocated by the Communist
Party were highly seditious in that they suggested and incited rebellious conspiracies
and disturbed and obstructed the lawful authorities in their duties, the denial of the
petition to hold a public meeting is legal. The mayor was justified in prohibiting the
holding of such meeting by refusing to issue a permit for that purpose. (Evangelista vs.
Earnshaw, 57 Phil. 255)

77
PROHIBITION, INTERRUPTION, AND DISSOLUTION
OF PEACEFUL MEETINGS

The right to peaceably assemble is not absolute and may be

regulated.
Respondent Mayor possesses reasonable discretion to determine or specify the
streets or public places to be used for the assembly in order to secure convenient use
thereof by others and provide adequate and proper policing to minimize the risks of
disorder and maintain public safety and order; Respondent Mayor has expressly stated
his willingness to grant permits for peaceful assemblies at Plaza Miranda during
Saturdays, Sundays and holidays when they would not cause unnecessarily great
disruption of the normal activities of the community and has further offered Sunken
Gardens as an alternative to Plaza Miranda as the site of the demonstration sought to
be held. (Navarro vs. Villegas, 31 SCRA 371)
It is a settled principle growing out of the nature of well-ordered civil societies
that the exercise of the rights to freedom of speech and to peaceably assemble and
petition the government for redress of grievances is not absolute for it may be so
regulated that it shall not be injurious to the equal enjoyment of others having equal
rights nor injurious to the rights of the community or society. The power to regulate the
exercise of such other constitutional rights is termed the sovereign "police power,"
which is the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and the general welfare of the people. (Gallego vs.
People, 8 SCRA 813)

There is no legal ground to prohibit the holding of a meeting when the

danger apprehended is not imminent and the evil to be prevented is not
a serious one.
Thus, the fact "that there is a reasonable ground to believe, basing upon previous
utterances and upon the fact that passions remain bitter and high, that similar speeches
will be delivered tending to undermine the faith and confidence of the people in their
government and in the duly constituted authorities, which might threaten breaches of the
peace and disruption of public order," is not a legal ground for refusing the permit to
hold a public meeting for the purpose of petitioning the government for redress of
grievances by holding an "indignation rally." To justify suppression of free speech, there
must be reasonable ground to believe that the danger apprehended is imminent and that
the evil to be prevented is a serious one. (Primicias vs. Fugoso, 80 Phil. 71)

Interrupting and dissolving a meeting which is not peaceful.

When a parade was about to be held, Crisanto Evangelista spoke before the
people, raising his fist and accusing the big ones of persecuting

78
PROHIBITION, INTERRUPTION, AND DISSOLUTION
OF PEACEFUL MEETINGS

and oppressing them. Then shouts were heard from the audience saying: "Let us
fight them." Then Ramos shouted, "Let us fight them until death." Evangelista and
Ramos were arrested. The Constabulary also dispersed the people by using a water
pump. Held: The act of the Constabulary was proper, the meeting not being peaceful.
(People vs. Evangelista, 57 Phil
372)

The offender must be a stranger, not a participant, in the peaceful

meeting.
Thus, where during the meeting of municipal officials called by the mayor, the
chief of police kept on talking although he had been asked by the mayor to sit down, and
there was a heated exchange of words among the mayor, a councilor and the chief of
police, and in the ensuing confusion, the crowd watching the proceeding dispersed and
the meeting was eventually dissolved, the chief of police is not guilty under Art. 131, but
under Art. 287, for unjust vexation. (People vs. Calera and Cantela, C.A., 45 O.G. 2576)

Interrupting and dissolving the meeting of municipal council by a

public officer is a crime against a legislative body, not punished under
Art. 131.
Nobody has the right to dissolve through violence, the meeting of a municipal
council under the pretext of lack of notice to some members of the council, which was
not apparent. Any stranger, even if he be the municipal president himself or the chief of
police must respect that meeting. The disturbance or interruption and the consequent
dissolution of the meeting of the municipal council is a violation of Sec. 1 of Act No.
1755, which is similar to Arts. 143 and 144 of the Revised Penal Code. (People vs. Alipit,
et al, 44 Phil. 910)
Note: The case of People vs. Calera and Cantela, supra, involves a meeting of
municipal officials, not of the municipal council.

The person talking on prohibited subject at public meeting contrary to

agreement that no speaker should touch on politics may be stopped.
Thus, where on the occasion of the celebration of the anniversary of the
Commonwealth, a public meeting was held and the speakers in that meeting were
enjoined beforehand not to talk about politics but when the offended party
spoke, he attacked the mayor, saying that he should not be reelected, the mayor who
ordered that the offended party should suspend his speech is not liable for interrupting
a peaceful meeting, even if confusion
 79

Art. 132 INTERRUPTION OF RELIGIOUS WORSHIP

ensued among the persons in the audience and they left the meeting. (People
vs. Yalung, CA-40 O.G., Supp. 11, 83)

But stopping the speaker who was attacking certain churches in

public meeting is a violation of Art. 131.
The Chief of Police who ordered the speaker in a public meeting of the Iglesia ni
Cristo, then attacking the Catholic and Aglipayan churches, to stop and fired two shots
in the air which dispersed the crowd and stopped the meeting, is liable under Article
131. (People vs. Reyes, et al., C.A.-G.R. No. 13633-R,
July 27, 1955)

Section Four. — Crimes against religious worship

What are the crimes against religious worship?

They are:
1. Interruption of religious worship. (Art. 132)
2. Offending the religious feelings. (Art. 133)

Art. 132. Interruption of religious worship. — The pen

alty of prision correccional in its minimum period shall be imposed
11

upon any public officer or employee who shall prevent or disturb the
ceremonies or manifestations of any religion.
If the crime shall have been committed with violence or threats,
the penalty shall be prision correccional in its medium and maximum
periods. 12

Elements:
1. That the offender is a public officer or employee.
2. That religious ceremonies or manifestations of any religion are about to take place or
are going on.
3. That the offender prevents or disturbs the same.

11
See Appendix "A," Table of Penalties, No. 11.
12
See Appendix "A," Table of Penalties, No. 15.

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