Art . 45 .
Confiscation and confiscation and forfeiture of the
forfeiture of the proceeds or
instruments of the crime. — Every
penalty imposed for the
commission of a felony shall carry
with it the forfeiture of the
proceeds of the crime and the
instruments or tools with which it
was committed.
Such proceeds and instruments or
tools shall be confis- cated and
forfeited in favor of the
Government, unless they be the
property of a third person not
liable for the offense, but those
articles which are not subject of
lawful commerce shall be
destroyed.
No forfeiture where there is no
criminal case.
The ruling is based on the phrase
"every penalty imposed." A penalty
cannot be imposed unless there is a
criminal case filed, the case is tried,
and the accused is convicted.
The forfeiture of the proceeds or
instruments of the crime cannot be
ordered if the accused is acquitted,
because no penalty is imposed.
Courts cannot order the
confiscation of property belonging
to a third person if the latter is not
indicted.
Under Article 45 of the Revised
Penal Code, which authorizes the
proceeds of the crime and the
instruments or tools with which it was
committed except when they are "the
property of a third person not liable
for the offense," the court cannot
order the forfeiture of goods the
owner of which is not indicted
although there is sufficient ground to
hold him guilty of the acts for which
the accused has been convicted.
Instruments of the crime
belonging to innocent third
person may be recovered.
U.S. vs. Bruhez (28 Phil. 305)
Facts: Lorenzo Uy was an employee
and during the absence of his
employer and without the latter's
knowledge, Lorenzo Uy drew out a
check for P3,500 against the bank
account of the employer and used
the money consisting of seven P500
bills to bribe Bruhez.
Held: Where the money used to
bribe a customs official to permit the
illegal importation of opium belongs
to an innocent third party, it should
not be confiscated. The person who
owns the money used in the
commission of the crime has a right
to intervene in the proceeding in the
court having jurisdiction of the
offense for the purpose of
determining his rights in the
premises.
Confiscation can be ordered only
if the property is submitted in
evidence or placed at the disposal
of the court.
U.S. vs. Filart (30 Phil. 80)
Facts: The accused planned to sell
450 tickets, each representing a
chance on an automobile to be given
as a prize to the one who would draw
the lucky number. The trial court
ordered the confiscation of the
automobile and the money obtained
from the sale of the tickets which
were not before the court or in the
possession of any of the parties to
the action at the time the order of
confiscation was made.
Held: Where it appears that in a
prosecution for violation of the
Gambling Law, the automobile as
well as the money used in commit-
ting such violation was not in the
possession of the court, or of any of
the parties to the action, the court
has no jurisdiction to order the
confiscation of the property.
Articles which are forfeited, when
the order of forfeiture is al- ready
final, cannot be returned even in
case of an acquittal.
Com. of Customs vs. Encarnacion
(95 Phil. 439)
Facts: A crew member of the PAL,
coming from Madrid, brought with
him certain dutiable articles. As they
were not declared, the collec- tor of
Customs decreed that said articles
be forfeited to the Government. The
order of forfeiture became final. Said
crew member was charged with
violation of the Revised
Administrative Code for his failure to
declare dutiable articles, but after
trial, he was acquitted on the ground
of insufficiency of evidence, the
Court ordering at the same time the
Bureau of Customs to return to him
said articles upon prior payment of
the customs duties due thereon.
Held: The respondent judge erred in
ordering the release of the dutiable
articles, because said articles
already ceased to belong to the crew
member, as they had been forfeited
to the Government.
Confiscation and forfeiture are
additional penalties.
This Court has held in People vs.
Alejandro Paet y Velasco, 100
 Phil.
357, that where the penalty imposed
did not include the con- fiscation of
the dollars involved, the confiscation
or forfeiture of the said dollars as is
sought in the Government's appeal,
would be an additional penalty and
would amount to an increase of the
penalty already imposed, thereby
placing the accused in double
jeopardy. And under Rule 118 (now
Rule 122), Section 2, of the Rules of
Court, the Government cannot
appeal in a criminal case ifthe
defendant would be placed thereby
in double jeopardy.
When the accused has appealed,
confiscation and forfeiture not
ordered by the trial court, may be
imposed by the appel- late court.
in the case of People vs. Paet, 53
O.G. 668 and People vs. Sanchez,
supra, refused to entertain the
Government's appeal from the
refusal of the Court to decree such a
forfeiture, it did so, not because Art.
45 ofthe Penal Code did not apply
but exclusively on the ground that in
a criminal case wherein the accused
had not appealed, no appeal can be
interposed by the Government with a
view to increasing the penalty
imposed by the Court below; and
confiscation being an additional
penalty, the accused would be
placed twice in jeopardy of
punishment for the same offense,
should the Government's appeal be
entertained. But in the present case,
the accused's own appeal has
removed all bars to the review and
correction of the penalty imposed by
the court below, even if an increase
thereof should be the result.
Judgment modified by ordering that
the unlicensed money found in the
possession of the appellant be
declared forfeited to the
Government.
Chapter Four APPLICATION OF
PENALTIES
Section One. — Rules for the
application ofpenalties to the
persons criminally liable and for
the graduation of the same.
Art. 46. Penalty to be imposed
upon principals in general. — The
penalty prescribed by law for the
commission of a felony shall be
imposed upon the principals in
the commission of such felony.
Whenever the law prescribes a
penalty for a felony in general
terms, it shall be understood as
applicable to the consummated
felony.
Penalty prescribed in general
terms — general rule.
The penalty prescribed by law in
general terms shall be im- posed:
1. Upon the principals. 

2. For consummated felony. 

In Art. 249, for instance, the penalty
of reclusion temporal is provided for
the crime of homicide. That penalty
is intended for the principal in a
consummated homicide.
Exception — when the law fixes a
penalty for frustrated or attempted
felony.
Whenever it is believed that the
penalty lower by one or two degrees
corresponding to said acts of
execution is not in proportion to the
wrong done, the law fixes a distinct
penalty for the principal in frustrated
or attempted felony.
Example:
The penalty prescribed by the Code
for robbery with homicide is reclusion
perpetua to death (Art. 294, No. 1);
but the penalty to be imposed upon
the offender in case the homicide
was consummated but the robbery
was attempted or frustrated is not
two degrees or one degree lower
than said penalty, but reclusion
temporal in its maximum period to
reclusion perpetua as prescribed in
Art. 297.
Graduation of penalties by
degrees or by periods.
The graduation of penalties by
degrees refers to stages of execution
(consummated, frustrated or
attempted) and to the degree of the
criminal participation of the offender
(whether as principal, accomplice, or
accessory).
The division of a divisible penalty into
three periods, as maximum, medium
and minimum, refers to the proper
period of the penalty which should be
imposed when aggravating or
mitigating circumstances attend the
commission of the crime.
A r t . 4 7 . In what cases the death
penalty shall not be imposed;
Automatic review of death penalty
cases. — The death penalty shall
be imposed in all cases in which it
must be imposed under existing
laws, except when the guilty
person is below (18) years of age
at the time of the commission of
the crime or is more than seventy
years of age or when upon appeal
or automatic review of the case by
the Supreme Court, the required
majority vote is not obtained for
the imposition of the death
penalty, in which cases the
penalty shall be reclusion
perpetua.
In all cases where the death
penalty is imposed by the trial
court, the records shall be
forwarded to the Supreme Court
for automatic review and
judgment by the court en banc,
within twenty (20) days but not
earlier than fifteen (15) days after
promulgation of the judgment or
notice of denial ofany motion for
new trial or reconsideration. The
transcript shall also be forwarded
within ten (10) days after the filing
thereof by the stenographic
reporter. (This provision is
rendered inoperative b RA 9346,
which prohibits the imposition of
death penalty)
Majority vote of the Supreme
Court is required for the imposi-
tion of the death penalty.
The vote of 8 members is required to
impose the death penalty.
Court of Appeals to Review Death
Penalty Cases.
Up until now, the Supreme Court has
assumed the direct appellate review
over all criminal cases in which the
penalty imposed is death, reclusion
perpetua or life imprisonment (or
lower but involving offenses
committed on the same occasion or
arising out of the same occurrence
that gave rise to the more serious
offense for which the penalty of
death, reclusion perpetua, or life
imprisonment is imposed).
While the Fundamental Law requires
a mandatory review by the Supreme
Court of cases where the penalty
imposed is reclusion perpetua, life
imprisonment, or death, nowhere,
however, has it proscribed an
intermediate review. If only to ensure
utmost circumspection before the
penalty of death, reclusion perpetua
or life imprisonment is imposed, the
Court now deems it wise and
compelling to provide in these cases
a review by the Court of Appeals
before the case is elevated to the
Supreme Court. Where life and
liberty are at stake, all possible
avenues to determine his guilt or
innocence must be accorded an
accused, and no care in the
evaluation of the facts can ever be
overdone. A prior determination by
the Court of Appeals on, particularly,
the factual issues, would minimize
the possibility of an error of
judgment. If the Court of Appeals
should affirm the penalty of death,
reclusion perpetua or life
imprisonment, it could then render
judgment imposing the
corresponding penalty as the
circumstances so warrant, refrain
from entering judgment and elevate
the entire records of the case to the
Supreme Court for the its final
disposition.
The 1987 Constitution merely
suspended the imposition of the
death penalty.
Section 19(1), Article III of the 1987
Constitution provides that:
"Excessive fines shall not be
imposed, nor cruel, degrading or
inhuman punishment inflicted.
Neither shall the death penalty be
imposed, unless, for compelling
reasons involving heinous crimes,
the Congress hereafter provides for
it. Any death penalty already
imposed shall be reduced to
reclusion perpetua."
A reading of said
 Section will readily
show that there is really nothing
therein which expressly declares the
abolition of the death penalty. The
1987 Constitution merely suspended
the imposition ofthe death penalty.
R.A. No. 7659 restored the death
penalty while R.A. No. 9346
prohibited the imposition of the
death penalty.
Republic Act No. 7659 which took
effect on 31 December 1993,
restored the death penalty for certain
heinous crimes. Republic Act No.
9346 which was enacted on June 24,
2006 prohibited the impo- sition of
the death penalty, and provided for
the imposition of the penalty of
reclusion perpetua in lieu of death.
Death penalty is not imposed in
the following cases:
1. When the guilty person is
below 18 years of age at the
time of the commission of the
crime. 
 the spur of the moment.
2. When the guilty person is
more than 70 years of age. 

3. When upon appeal or
automatic review of the case
by the Supreme Court, the
vote of eight members is not
obtained for the imposition of
the death penalty.
Death penalty shall not be
imposed when guilty person is
over 70 years.
Exceptional cases in which the
death penalty was not im- posed.
1. Considering the
circumstances under which
the offense in question was
perpetrated in the light of the
deplorable con- ditions
existing in the national
penitentiary which had been
previously taken cognizance
of by this Court, imposition of
the penalty of death is
believed unwarranted.
2. Appellant has already been
detained for almost eight
years now and is presently
confined at the National
Peniten- tiary awaiting the
outcome of our review of the
judgment rendered by the trial
court. The facts of the case
tend to show that the crime
was not the result of any
deliberate and well-formed
nefarious conspiracy of a
criminal group. It was rather a
crime clumsily conceived on
Appellant obviously did not
fully realize the gravity of the
crime he and his companions
were embarking upon. The
extreme penalty of death
imposed on appellant is
inappropriate. Under the given
circumstances, the penalty
that should be imposed
should be reduced to life
imprisonment.
What is the justification for death
penalty?
Social defense and exemplarity
justify the penalty of death.
Death penalty not cruel and
unusual.
Punishments are cruel when they
involve torture or lingering death.
Cruel punish- ment implies
something inhuman and barbarous,
something more than the mere
extinguishment of life.
Rep. Act No. 296 can be given
retroactive effect.
Republic Act No. 296, providing that
eight justices must concur in the
imposition of death penalty is
retroactive.
Rep. Act No. 296 is procedural and
not substantive, and that it is
applicable to cases pending in the
courts at the time of the approval of
said Act and to crimes committed
before its approval.
In what crimes is death penalty
imposed?
In (1) treason, (2) piracy, (3) qualified
piracy, (4) qualified bribery, (5)
parricide, (6) murder, (7) infanticide,
(8) kidnapping and serious illegal
detention, (9) robbery with homicide,
(10) destructive arson, (11) rape with
homicide, (12) plunder, (13) certain
violations of the Dangerous Drugs
Act, and (14) carnapping.
"Death penalty shall be imposed
in all cases in which it must be
imposed under existing law."
The accused, without any
provocation, hacked to death three
girls in their house. The court refused
to impose the death penalty,
believing and stating that "a quick
death would seem to be too sweet a
medicine for him and he should be
put to death slowly but surely" and
imposed life imprisonment at hard
labor, without hope whatso- ever of
any pardon or reprieve.
Is the pronouncement of the court in
accordance with law?
No, because as long as the death
penalty remains in the statute books,
it is the duty of the judicial officers to
respect and apply the law regardless
of their private opinion.
The trial court must require the
prosecution to present evidence,
despite plea of guilty when the
crime charged is punished with
death.
The essence of judicial review in
capital offenses is that while society
allows violent retribution for heinous
crimes committed against it, it always
must make certain that the blood of
the innocent is not spilled, or that the
guilty are not made to suffer more
than their just measure of the
punishment and retribution. Thus, a
sentence of death is valid only if it is
susceptible of a fair and reasonable
examination by this court. This,
however, is impossible if no evidence
of guilt was taken after a plea of
guilty.
Where the penalty of reclusion
perpetua is imposed, in lieu of the
death penalty, there is a need to
perfect an appeal.
Since the death penalty's imposition
is now prohibited, there is a need to
perfect an appeal, if appeal is
desired, from a judgment of
conviction for an offense where the
penalty imposed is reclusion
perpetua in lieu of the death penalty
The records of all cases imposing
the penalty of death, reclu- sion
perpetua or life imprisonment
shall be forwarded by the Court of
Appeals to the Supreme Court for
review.
if the Court of Appeals should af- firm
the penalty of death, reclusion
perpetua or life imprisonment, it
could then render judgment imposing
the corresponding penalty as the
circumstances so warrant, refrain
from entering judgment and elevate
the entire records of the case to the
Supreme Court for its final
disposition.
Art. 48. Penalty for complex
crimes. — When a single act
constitutes two or more grave or
less grave felonies, or when an
offense is a necessary means for
committing the other, the penalty
for the most serious crime shall
be imposed, the same to be
applied in its maximum period.
(As amended by Act No. 4000.)
At least two crimes must be
committed.
Art. 48 requires the commission of at
least two crimes. But the two or more
grave or less grave felonies must be
the result of a single act, or an
offense must be a necessary means
for committing the other.
A complex crime is only one
crime.
although two or more crimes are
actually committed, they constitute
only one crime in the eyes of the law
as well as in the conscience of the
offender. The offender has only one
criminal intent. Even in the case
where an offense is a necessary
means for committing the other, the
evil intent ofthe offender is only one.
(People vs. Hernandez, 99 Phil. 515)
Hence, there is only one penalty
imposed for the commission of a
complex crime.
Two kinds of complex crimes:
1. When a single act constitutes
two or more grave or less
grave felonies. 

2. When an offense is a
necessary means for
committing the other . 

The first is otherwise known as
compound crime. The second is the
complex crime proper.
But ordinarily, both are referred to as
complex crimes
"When a single act constitutes
two or more grave or less grave
felonies."
Requisites:
1. That only a single act is
performed by the offender. 

2. That the single act produces
(1) two or more grave
felonies, or (2) one or more
grave and one or more less
grave felonies, or (3) two or
more less grave felonies. 

The single act of throwing a hand
grenade producing murder and
multiple attempted murders.
Guillen, by a single act of throwing a
highly explosive hand grenade at
President Roxas resulting in the
death of another person, committed
several grave felonies, namely:
. (1) murder, of which Simeon
Varela was the victim; and 
 murder were perpetrated by means
. (2) multiple attempted
murders, of which President
Roxas and four others were
the injured parties. (People vs.
Guillen, 85 Phil. 307, 318) 
 The infliction ofthe four fatal gunshot
Murder is committed when a person
is killed by means of ex- plosion.
(Art. 248) The penalty for the crime
committed is death, the maximum of
the penalty for murder, which is the
graver offense. The penalty for each
of the attempted murder is two
degrees lower, which is still an
afflictive penalty. The attempted
murders are grave felonies.
Placing a time bomb in a plane,
which caused it to explode in mid-air,
killing 13 persons therein, constitutes
a complex crime of multiple murder
and destruction of property.
No single act in the following
cases.
But when the acts are wholly
different, not only in themselves, but
also because they are directed
against two different persons, as
when one fires his revolver twice in
succession, killing one person and
wounding another (U.S. vs. Ferrer, 1
Phil. 56), or when two per- sons are
killed one after the other, by different
acts, although these two killings were
the result of a single criminal impulse
(People vs. Alfindo, 47 Phil. 1), the
different acts must be considered as
distinct crimes.
The eight killings and the attempted
of different acts. Hence, they cannot
be regarded as consti- tuting a
complex crime under Article 48 of the
Revised Penal Code.
wounds on Siyang and of the wound
in the palm of the mayor's right hand
was not the result of a single act.
The injuries were the consequences
of two volleys of gunshots. Hence,
the assaults on Siyang and the
mayor cannot be categorized as a
complex crime.
"Two or more grave or less grave
felonies."
In the case of a compound crime, the
offenses involved should be either
both grave or both less grave, or one
of them a grave felony and the other
less grave.
Light felonies produced by the
same act should be treated and
punished as separate offenses or
may be absorbed by the grave
felony.
1. Several light felonies resulting
from one single act — not
 complex.
Thus, in a collision between two
automobiles driven in a careless and
negligent manner, resulting in the
slight physical injuries of the
passengers and light felony of
damage to property, there is no
complex crime, because the crime of
slight physical injuries, as well as
that of damage to property, is a light
felony.
2. When the crime is committed
by force or violence, slight
physical injuries are absorbed.
The reason for the rulings is that the
slight physical injuries are the
necessary consequence of the force
or violence inherent in the crimes of
direct assault and rape. 

Examples of compound crime:
(a) The single act of Pama in
firing a shot, the same bullet
causing the death of two
persons who were standing
on the same line of the
direction of the bullet.
Homicide, which is the
unlawful killing of a person, is
punishable by reclusion
temporal, an afflictive penalty.
Hence, in killing two persons,
Pama committed two homi-
cides, which are two grave
felonies. (See Art. 9) Since
they were the result of one
single act of firing a shot, a
complex crime was
committed.
(b) The act of raping a girl,
causing her physical injuries
which required medical
attention for about twenty
days. (U.S. vs. Andaya, 34
Phil. 690) This is a complex
crime of rape with less
serious physical injuries.
(Arts. 266-A and 265 in
relation to Art. 48) The
Supreme Court considered
the crime of less serious
physical injuries (the
laceration of the genital parts
which required medical
attendance for about twenty
days) as necessary to the
commission of the crime of
rape.
With due respect, it is
believed that there being only
one act of forcible sexual
intercourse which pro- duced
the two crimes, the accused
committed a com- pound
crime.
Less serious physical injuries
is a less grave felony,
because it is punishable by
arresto mayor, a correctional
penalty. (See Art. 9)
Rape with homicide is a special
complex crime not covered by Art.
48.
When by reason or on the occasion
of the rape, a homicide is committed,
or when the rape is frustrated or
attempted and a homicide is
committed by reason or on the
occasion thereof, Art. 266-B shall
apply.
Likewise, the ruling in the case of
People vs. Acosta, 60 Phil. 158, that
raping a girl transmitting to her a
venereal disease which caused her
death or that killing the victim of rape
when she tried to shout, People vs.
Yu, 1 SCRA 199, is a complex crime
of rape with homicide under Art. 48,
is no longer controlling.
Under Art. 266-B, the facts in both
cases would constitute a special
complex crime of rape with homicide
punished with death.
When in obedience to an order
several accused simultane- ously
shot many persons, without
evidence how many each killed,
there is only a single offense,
there being a single criminal
impulse.
Note: The "single-criminal-impulse,"
"same motive" or the "single-
purpose" theory has no legal basis,
for Article 48 speaks of "a single act."
However, the theory is ac- ceptable
when it is not certain who among the
accused killed or injured each of the
several victims.
When it is within the scope of
possibility that the two victims
were killed by one and the same
missile.
When there is no evidence as to how
many wounds the victims received
and it is within the scope of
possibility that they were killed by
one and the same missile as they
were riding astride the same
carabao, and they were shot by the
accused in that position, in the
absence of a showing that the
victims died from more than one
bullet, the crime should be classified
as a complex crime of double
murder.
Thus, when the two victims each
received more than one bullet
wound, they were not close to each
other when fired at, and their bodies
were found in different places, the
ruling is not applicable. In such case,
the presumption is that the victims
were killed by different shots, and,
therefore, the accused are liable for
two separate murders.
There is no complex crime of
arson with homicide under Art. 48.
Applicable to crimes through
negligence.
Thus, a municipal mayor who
accidentally discharged his revolver
during a school program, killing a girl
and injuring a boy requiring medical
attendance for more than 30 days,
was found guilty of a complex crime
of homicide with less serious
physical injuries through reckless
imprudence.
The reason for this ruling is that in
view of the definition of felonies in
Article 3 of the Code, that is, "Acts
and omissions punishable by law,"
committed either "by means of deceit
(dolo)" or "by means of fault
(culpa),"it is clear that Art. 48 speaks
of “felonies”
 is applicable to
violations under Article 365 which
defines and penalizes criminal
negligence, a felony by means of
fault (culpa).
Held: The crimes of arson, homicide,
serious physical injuries, and
damage to property constitute a
complex crime within the mean- ing
of Art. 48
Held: The two deaths and several
serious physical injuries re- sulted
from his single act of reckless
driving. Hence, only one penalty
should be imposed upon him.
Theft of firearm and illegal
possession of same firearm do
not form a complex crime — they
are two distinct crimes.
Art. 48 speaks of two or more grave
or less grave felonies resulting from
a single act, which excludes crimes
punishable by special laws, like the
law punishing illegal possession of
firearms.
"When an offense is a necessary
means for committing the other.
Although the law uses the term
"offenses," the Supreme Court, in the
case of People vs. Araneta, 48 Phil.
650, held that this kind of complex
crime does not exist when the two
crimes are punished under different
statutes.
Requisites:
1. That at least two offenses are
committed. 

2. That one or some ofthe
offenses must be necessary
to com- mit the other. 

3. That both or all the offenses
must be punished under the
same statute. 

At least two offenses must be
committed.
Example:
Falsification of a public document by
an accountable officer (altering the
duplicate of the cedulas already
issued to other persons by erasing
the names originally written thereon
and writing in their places new
names) is an offense which is
necessary to commit malversation
(collecting P2.00 from each ofthem
and misappropriating the amount),
which is another offense. (People vs.
Barbas, 60 Phil. 241, 243) 
 The
falsification of the cedula certificate,
which is a crime under Art. 171, was
necessary to commit the crime of
malversation under Art. 217,
because the accused had to falsify
the duplicate of the cedulas to obtain
from the taxpayers the money which
he later misappropriated. 

The phrase "necessary means"
does not mean "indispensa- ble
means."
The phrase "necessary means" used
in Art. 48 has been interpreted not to
mean indispensable means, because
if it did, then the offense as a
"necessary means" to commit
another would be an indispensable
element of the latter and would be an
ingredient thereof. The phrase
merely signified that, for instance, a
crime such as simple estafa can be
and ordinarily is committed in the
manner defined in the Penal Code;
but if the "estafador" resorts to or
employs falsification, merely to
facilitate and insure his committing
estafa, then he is guilty of the
complex crime of estafa through
falsification.
In complex crime, when the
offender executes various acts, he
must have a single purpose.
The accused received 17 money
orders with a letter, all in one
envelope, addressed to the offended
party. The accused presented them
to the post office for cashing on one
occasion, after having falsified the
signature of the remitter on each and
every one of the 17 money orders.
Held: In all the acts performed by the
accused, there was only one criminal
intent. To commit estafa, the
accused had to commit 17
falsifications. These falsifications
were necessary means to commit
estafa.
The crime committed is only one
complex crime of estafa through
multiple falsifications, and not
seventeen separate estafas and
seventeen separate falsifications.
But if a person falsified 27 vouchers,
not to commit estafa or malversation,
he is liable for 27 falsifications,
because the various acts of
falsification were not executed for the
attainment of a single purpose.
In this case, one or more offenses
are not necessary means for
committing the others
When in the definition of a felony one
offense is a means to com- mit the
other, there is no complex crime.
In murder where the killing of a
person is qualified by the
circumstance that it was committed
by means of fire or by means of
explosion (Art. 248, par. 3) which in
themselves are felonies defined and
penalized in Art. 321 and Art. 324, as
arson and crimes involv- ing
destruction, respectively, there is no
complex crime. The crime is murder,
plain and simple.
Subsequent acts of intercourse,
after forcible abduction with rape,
are separate acts of rape.
Where the complaining witness was
forcibly abducted by the four
accused and violated on board a
truck by one of them with the
assistance of the three others, and
after reaching a house in the
evening, the four of them alternately
ravished her inside the house three
times each and one each the
following morning, there was only
one forcible abduction with rape
which was the one com-mitted in the
truck, and the subsequent acts of
intercourse in the house against her
will are separate acts of rape. The
reason for the ruling is that when the
first act of rape was committed in the
truck, the crime of forcible abduction
was already consummated so that
each of the succeeding rapes
committed in the house cannot
legally be considered as still
connected with the abduction. The
crimes committed are one (1) forcible
abduction with rape and sixteen (16)
separate rapes.
No complex crime when trespass
to dwelling is a direct means to
commit a grave offense.
When trespass to dwelling (Art. 280)
is a direct means to commit a graver
offense, like rape, homicide or
murder, there is no complex crime of
trespass to dwelling with rape,
homicide or murder. The tres- pass
to dwelling will be considered as the
aggravating circumstance of unlawful
entry under par. 18, or of breaking a
part of the dwelling under par. 19,
ofArt. 14.
No complex crime, when one
offense is committed to conceal
the other.
Examples:
(a) After committing homicide,
the accused, in order to
conceal the crime, set fire to
the house where it had been
perpe- trated. (People vs.
Bersabal, 48 Phil. 439, 442)


Note: Setting fire to the
house is arson. (Art. 321)
But in this case, neither
homicide nor arson was
necessary to commit the
other. 

When the offender had in his
possession the funds which he
misappropriated, the falsification
of a public or official docu- ment
involving said funds is a separate
offense.
The accused, a municipal treasurer
of Batac, Ilocos Norte, misap-
propriated f*741.24 belonging to the
public funds. He made it appear in
the payroll that several municipal
teachers ofBatac received their
salaries when in fact they did not
receive the sums indicated in the
payroll as received by them. It was
held that the accused was guilty of
malversation and falsification, two
separate crimes, because the
falsification was not a necessary
means for the commission of the
malversation, but was committed
only to conceal the malversation.
But when the offender had to falsify a
public or official document to obtain
possession of the funds which he
misappropriated, the falsifica- tion is
a necessary means to commit the
malversation.
No complex crime where one of
the offense is penalized by a
special law.
Illegal possession of firearm is not
a necessary means to commit
homicide.
The accused was previously
convicted of homicide for the perpe-
tration of which he used a .30 caliber
rifle. Later, he was prosecuted for
illegal possession of said firearm.
Held: The accused committed two
different acts with two sepa- rate
criminal intents, to wit, the desire to
take unlawfully the life of a person,
and the willful violation of the law
which prohibits the possession of a
firearm without the required permit.
Note: The other reason is that
homicide and illegal possession of
firearm are punished under different
statutes.
Illegal possession of firearm,
when considered a special ag-
gravating circumstance.
With the passage of Rep. Act No.
8294 on June 6, 1997, the use of an
unlicensed firearm in murder or
homicide is now consid- ered, not as
a separate crime, but merely a
special aggravating circumstance.
When two or more crimes are
committed but (1) not by a single
act, or (2) one is not a necessary
means for committing the other,
there is no complex crime.
The accused compelled the pilot to
direct the airplane from Laoag to
Amoy instead of Aparri, and for not
complying with such illegal demand,
the accused shot him to death.
Held: The accused committed two
separate crimes of frustrated
coercion (Arts. 6 and 286) and
murder (Art. 248). They do not con-
stitute a complex crime of grave
coercion with murder, because the
accused could have killed the pilot,
without necessity of compelling him
to change the route of the airplane;
the coercion was not neces- sary for
the commission of murder. Neither
was murder necessary to commit
coercion. The accused executed two
distinct acts, and not only one.
There is no complex crime of
rebellion with murder, arson,
robbery, or other common crimes.
But a rebel who, for some
independent or personal motives,
commits murder or other common
offenses in addition to rebellion, may
be prosecuted for and convicted of
such common offenses
The penalty for complex crime is
the penalty for the most serious
crime, the same to be applied in
its maximum period.
Thus, in the complex crime of direct
assault with homicide, the penalty for
homicide, being the more serious
crime, shall be imposed and the
penalty is to be applied in its
maximum period. The penalty for
direct assault is at most prision
correccional in its medium and
maximum periods; whereas, the
penalty for homicide is reclusion
temporal.
If the different crimes resulting from
one single act are punished with the
same penalty, the penalty for any
one of them shall be im- posed, the
same to be applied in the maximum
period.
The same rule shall be observed
when an offense is a necessary
means for committing the other.
When the homicide, physical injuries,
and the burning of a house are the
result of one single act of negligence,
there is only one penalty, but there
are three civil liabilities.
When two felonies constituting a
complex crime are punish- able by
imprisonment and fine,
respectively, only the penalty of
imprisonment should be imposed.
When a single act constitutes two
grave or less grave felonies, or one
grave and another less grave, and
the penalty for one is imprisonment
while that for the other is fine, the
severity of the penalty for the more
serious crime should not be judged
by the classification of each of the
penalties involved, but by the nature
of the penalties.
Even if the fine for damage to
property through reckless im-
prudence is f*40,000.00, an afflictive
penalty, and the penalty for physical
injuries resulting from the same act is
only four (4) months of arresto
mayor, a correctional penalty, the
latter penalty should be imposed.
This opinion is based on the
following observation:
 In the order
of severity of the penalties, arresto
mayor and arresto menor are
considered more severe than
destierro
 R.P.C.) and arresto menor
is higher in degree than destierro
(Article 71, R.P .C), even if both
arresto mayor and destierro are
classified as correctional penalties,
and arresto menor is only a light
penalty.
On the other hand, fine is not
included in the list of penalties in the
order of severity, and it is the last in
the graduated scales in Article 71 of
the Revised Penal Code.
Art. 48 applies only to cases
where the Code does not provide
a definite specific penalty for a
complex crime.
The accused inflicted less serious
physical injuries on the municipal
mayor in the cockpit where at the
time there were many people
present. There was a manifest intent
to insult the mayor and of adding
ignominy to the offense.
The prosecution charged the
accused with a complex crime of
serious slander by deed with less
serious physical injuries, because
Art. 359 considers as slander by
deed any act "which shall cast dis-
honor, discredit, or contempt upon
another person," and since said act
resulted in the infliction of less
serious physical injuries, it is also
covered by Art. 265.
Held: The act cannot come under
Art. 48 for the simple reason that in
this particular case, that act is
specifically covered by para- graph 2
of Art. 265.
When a complex crime is charged
and one offense is not proven, the
accused can be convicted of the
other.
Art. 48 does not apply when the
law provides one single penalty
for special complex crimes.
Thus, in robbery with homicide (Art.
294, par. 1), robbery with rape (Art.
294, par. 2), or kidnapping with
serious physical injuries (Art. 267,
par. 3), or kidnapping with murder or
homicide (Art. 267, last par.), or rape
with homicide (Art. 335), Art. 48 does
not apply because the Revised Penal
Code provides for one single penalty
for each of those special complex
crimes.
Special Complex Crime of
Kidnapping with Murder or Homi-
cide.
R.A. No. 7659 amended Art. 267 of
the Revised Penal Code by adding
thereto a last paragraph which
provides — When the victim is killed
or dies as a consequence of the
detention, or is raped, or is subjected
to torture or dehumanizing acts, the
maximum penalty shall be imposed.
This amendment introduced in our
criminal statutes the concept
of'special complex crime' of
kidnapping with murder or homicide.
It effectively eliminated the distinction
drawn by the courts between those
cases where the killing of the
kidnapped victim was purposely
sought by the accused, and those
where the killing of the victim was not
deliberately resorted to but was
merely an afterthought.
Consequently, the rule now is:
Where the person kidnapped is killed
in the course of the detention,
regardless of whether the killing was
purposely sought or was merely an
afterthought, the kidnapping and
murder or homicide can no longer be
complexed under Art. 48, nor be
treated as separate crimes, but shall
be punished as a special complex
crime under the last paragraph of
Art. 267, as amended by R.A. No.
7659.
Plurality of crimes.
Plurality of crimes consists in the
successive execution by the same
individual of different criminal acts
upon any of which no con- viction
has yet been declared. (Guevara)
Kinds of plurality of crimes.
There are two kinds of plurality of
crimes: (1) formal or ideal plurality,
and (2) real or material plurality.
Art. 48 provides for two cases of
formal or ideal plurality of crimes.
There is but one criminal liability in
this kind of plurality.
In real or material plurality, there are
different crimes in law as well as in
the conscience of the offender. In
such cases, the offender
 shall be
punished for each and every offense
that he committed.
Example of real or material
plurality.
A stabbed B with a knife. Then, A
also stabbed C. There are two
crimes committed. Note that there
are two acts performed.
Plurality of crimes distinguished
from recidivism.
In recidivism, there must be
conviction by final judgment of the
first or prior offense; in plurality of
crimes, there is no conviction of any
of the crimes committed.
Plural crimes of the formal or ideal
type are divided into three groups.
A person committing multiple crimes
is punished with ONE penalty in the
following cases:
1. When the offender commits any of
the complex crimes defined in Art. 48
of the Code.
2. When the law specifically fixes a
single penalty for two or more
offenses committed.
Examples:
(1) Robbery with homicide (Art.
294); 
 appellant to commit also the
(2) Kidnapping with serious physical
injuries. (Art. 267, par. 3) 
 necessary to justify the finding that,
3. When the offender commits
continued crimes.
Continued crime.
A continued (continuous or
continuing) crime is a single crime,
con- sisting of a series of acts but all
arising from one criminal resolution.
A continuing offense is a continuous,
unlawful act or series of acts set on
foot by a single impulse and
operated by an unintermittent force,
however long a time it may occupy.
(22 C.J.S., 52)
Although there is a series of acts,
there is only one crime com- mitted.
Hence, only one penalty shall be
imposed.
Examples of continued crimes:
1. Thus, a collector ofa commercial
firm misappropriates for his personal
use several amounts collected by
him from different persons. There is
here one crime only, because the
different and successive
appropriations are but the different
moments during which one criminal
resolution arises and a single
defraudation develops.
But if it does not appear that when
the malversa- tion and the
falsification were committed on April
30, it was already the intention of the
falsification and the malversation of
May 2, 1931, the same being
although they were committed on
different dates, a single intention
determined the commission ofboth,
the appellant is liable for each and
every one ofthose offenses.
The series of acts born of a single
criminal impulse may be
perpetrated during a long period
of time.
It was held that the different acts of
sending letters of demand for money
with threats to kill and burn the
house of the offended party
constitute only one and the same
crime of grave threats born of a
single criminal impulse to attain a
definite objective.
A continued crime is not a While in real or material plurality,
complex crime.
because the offender in continued or
continuous crime does not perform a
single act, but a series of acts, and
one offense is not a necessary
means for committing the other.
Not being a complex crime, the
penalty for continued crime is not to
be imposed in the maximum period.
There is no provision in the Revised
Penal Code or any other penal law
defining and specifically penalizing a
continuing crime. The principle is
applied in connection with two or
more crimes committed with a single
intention.
A continued crime is different
from a transitory crime.
A continued, continuous or
continuing crime is different from a
transitory crime in criminal procedure
to determine venue. An exam- ple of
transitory crime, also called a
"moving crime," is kidnapping a
person for the purpose of ransom, by
forcibly taking the victim from Manila
to Bulacan where ransom was
demanded. The offenders could be
prosecuted and tried either in Manila
or in Bulacan.
Distinguish real or material
plurality from continued crime.
In real or material plurality as well as
in continued crime, there is a series
of acts performed by the offender.
each act performed by the offender
constitutes a separate crime,
because each act is generated by a
criminal impulse; in continued crime,
the different acts consti- tute only
one crime because all of the acts
performed arise from one criminal
resolution.
Art. 49. Penalty to be imposed
upon the principals when the
crime committed is different from
that intended. — In cases in which
the felony committed is different
from that which the offender
intended to commit, the following
rules shall be observed.
1. If the penalty prescribed for
the felony committed be
higher than that
corresponding to the
offense which the accused
intended to commit, the
penalty corresponding to
 the latter shall be imposed
in its maximum period.
2. If the penalty prescribed for
the felony committed be
lower than that
corresponding to the one
which the ac-cused
intended to commit, the
penalty for the former shall
be imposed in its maximum
period.
3. The rule established by the
next preceding paragraph
shall not be applicable if the
acts committed by the guilty
person shall also constitute
an attempt or frustration of
another crime, ifthe law
prescribes a higher penalty
for either of the latter
offenses, in which case the
penalty provided for the
attempt or the frustrated
crime shall be imposed in
the maximum period.
Art. 49 has reference to the
provision of the 1st paragraph of
Art. 4.
Art. 49 applies only when there is a
mistake in the identity of the victim of
the crime, and the penalty for the
crime committed is different from that
for the crime intended to be
committed.
Paragraph 1 of Art. 4 covers (1)
aberratio ictus (mistake in the blow),
(2) error in personae (mistake in the
identity of the victim), and (3) praeter
intentionem (where a more serious
consequence not intended by the
offender befalls the same person).
(1) Aberratio ictus —
 Example: A
fired his gun at his father, with intent
to kill him, but he missed and hit C,
killing the latter.
In this case, two crimes were actually
committed: (1) homicide, of which C
was the victim; and (2) attempted
parricide, of which A's father was the
offended party. One who fires a gun
at his father with intent to kill is guilty
of attempted parricide, even if the
latter is not injured at all.
The two crimes actually committed
were the result of a single act;
hence, A committed a complex crime
of consummated homicide with
attempted parricide. There being a
complex crime, Art. 48, not Art. 49, is
applicable.
(2) Error in personae —
Examples:
A, thinking that the person walking in
a dark alley was B, a stranger, fired
at that person, who was killed as a
result. It turned out that person was
C, the father ofA.
In this case, the crime actually
committed is parricide, punishable by
reclusion perpetua to death. The
crime which A intended to commit is
homicide, punishable by reclusion
temporal. In view of rule No. 1
provided for in Art. 49, the penalty for
homicide shall be imposed in its
maximum period.
But suppose that A wanted to kill his
father and waited for the latter in a
dark alley where he used to pass in
going home; when A saw a person
coming and think- ing that he was his
father, A shot him; and it turned out
that that person was a stranger. In
this case, A should be punished with
the penalty for homicide to be
applied in its maximum period.
From the foregoing examples and
discussions, it will be noted that the
rules stated in paragraphs 1 and 2 of
Art. 49 cannot apply to cases
involving aberratio ictus or praeter
intentionem.
On the other hand, in error in
personae, since only one crime is
pro- duced by the act of the offender,
there could be no complex crime,
which presupposes the commission
of at least two crimes. In the two
examples of error in personae, it will
be noted that only one person was
affected by the single act of the
offender; hence, only one crime was
produced. For this reason, it is Art.
49, and not Art. 48, that is applicable.
Art. 49 is applicable only when the
intended crime and the crime
actually committed are punished
with different penalties.
The rules prescribed in paragraphs 1
and 2 of Art. 49 contemplate of
cases where the intended crime and
the crime actually commit- ted are
punished with different penalties by
reason of relationship between the
offender and the offended party,
which qualifies one of the crimes.
If the intended crime and the crime
actually committed are pun- ished
with the same or equal penalties, Art.
49 is not applicable.
Thus, if A, intending to kill B, a
stranger, actually killed C, another
stranger, Art. 49 is not applicable,
because whether it was B or it was C
who was killed, the crime committed
was homicide. There is no difference
in the penalty.
Art. 49 distinguished from Art. 48.
In Art. 49, the lesser penalty is to be
imposed, to be applied in the
maximum period (Pars. 1 and 2); in
Art. 48, the penalty for the more or
most serious crime shall be imposed,
the same to be applied in its
maximum period.
Rule No. 3 in Art. 49 is not
necessary.
The rule in paragraph 3 of Art. 49 is
not necessary because the cases
contemplated in that paragraph may
well be covered by Art. 48, in view of
the fact that the same act committed
by the guilty person, which gives rise
to one crime, also constitute(s) an
attempt or a frustration of another
crime.
A r t . 5 0 . Penalty to be imposed
upon principals of a frustrated
crime. — The penalty next lower in
degree than that prescribed by law
for the consummated felony shall
be imposed upon the principals in
a frustrated felony.
A r t . 5 1 . Penalty to be imposed
upon principals of attempted
crime. — The penalty lower by two
degrees than that pre- scribed by
law for the consummated felony
shall be imposed upon the
principals in an attempt to commit
a felony.
Art. 52. Penalty to be imposed
upon accomplices in a consum-
mated crime. — The penalty next
lower in degree than that pre-
scribed by law for the
consummated felony shall be
imposed upon the accomplices in
the commission of a
consummated felony.
Art. 53. Penalty to be imposed
upon accessories to the
commission of a consummated
felony. — The penalty lower by
two degrees than that prescribed
by law for the consummated
felony shall be imposed upon the
accessories to the commission of
a con- summated felony.
Art. 54. Penalty to be imposed
upon accomplices in a frustrated
crime. — The penalty next lower in
degree than that prescribed by law
for the frustrated felony shall be
imposed upon the accomplices in
the commission of a frustrated
felony.
Art. 55. Penalty to be imposed
upon accessories of a frustrated
crime. — The penalty lower by two
degrees than that pre- scribed by
law for the frustrated felony shall
be imposed upon the accessories
to the commission of a frustrated
felony.
A r t . 5 6 . Penalty to be imposed
upon accomplices in an attempted
crime. — The penalty next lower in
degree than that prescribed by law
for an attempt to commit a felony
shall be imposed upon the
accomplices in an attempt to
commit the felony.
Art. 57. Penalty to be imposed
upon accessories of an attempted
crime. — The penalty lower by two
degrees than that pre- scribed by
law for the attempt shall be
imposed upon the accessories to
the attempt to commit a felony.
Diagram of the application of Arts.
50 to 57.
"0" represents the penalty prescribed
by law in denning a crime, which is to
be imposed on the principal in a
consummated offense,
accordance with the provisions of
Article 46. The other figures
represent the degrees to which the
penalty must be lowered, to meet the
different situations anticipated by
law.
In Articles 50, 51, 52 and 53 of the
Revised Penal Code, the basis for
reduction of the penalty by one or
two degrees, is invariably the penalty
prescribed by law for the
consummated crime, while under
Articles 54 and 55, the basis for the
reduction is the penalty prescribed
by law for the frustrated felony; and
under Articles 56 and 57, the basic
penalty to be used for reduction by
one or two degrees is that
for the attempted felony. From all of
these, it will also be observed that in
making any reduction by one or two
in degrees, the basis used is that
already prescribed, not as already
reduced. It will also be noticed that
under Article 51, the penalty for an
attempted crime is that for the
consummated felony, reduced by
two degrees, not the penalty for the
frustrated felony, reduced by one
degree.
Examples:
A is convicted of attempted homicide
for having shot B with intent to kill the
latter, but without inflicting a mortal
wound.
The penalty for consummated
homicide is reclusion temporal. (Art.
249, Book II, Revised Penal Code)
The penalty lower by one or more
degrees is indicated in Scale No. 1 of
Art. 71. The crime committed by A
being attempted homicide, the
penalty to be imposed on him is that
penalty lower by two degrees than
reclusion temporal (No. 3 in Scale
No. 1, Art. 71), and the penalty two
degrees lower is prision correccional
(No. 5 in the same Scale No. 1).
To find the penalty for frustrated
homicide, which is one degree lower
than reclusion temporal, use also
Scale No. 1 of Art. 71, and that
penalty one degree lower is prision
mayor (No. 4 in the Scale).
A, as principal, B, as accomplice,
and C, as accessory, are convicted
of consummated homicide. The
penalty for A is reclusion temporal,
he being the principal. (Art. 46) The
penalty for B is prision mayor, the
penalty next lower in degree than
that prescribed for the consummated
homicide. (Art. 52) The penalty for C
is prision correccional, it being two
degrees lower than that prescribed
for consummated homicide. (Art. 53)
In the examples, the penalty for the
principal in the attempted homicide,
and the penalties for the principal,
accomplice and acces- sory in the
commission of consummated
homicide shall be imposed in the
proper period and shall be subject to
the provisions of the Indeterminate
Sentence Law.
Exceptions to the rules
established in Articles 50 to 57.
cases where the law expressly
prescribes the penalty for a
frustrated or attempted felony, or to
be imposed upon accomplices or
accessories.
The penalty for frustrated parricide,
murder, or homicide may be two
degrees lower; and the penalty for
attempted parricide, murder, or
homicide may be three degrees
lower.
The courts, in view of the facts of the
case, may impose upon the person
guilty of the frustrated crime of
parricide, murder, or homicide, a
penalty lower by one degree than
that which should be imposed under When there is mitigating or
aggravating circumstance, the
the provisions of Art. 50; and may
penalty is lowered or increased by
reduce by one degree, the penalty period only, except when the penalty
which under Art. 51 should be is divisible and there are two or more
imposed for an attempt to commit mitigating and without aggravating
any of such crimes. (art 250) circumstances, in which case the
penalty is lowered by degree.
What are the bases for the
What is a period of penalty?
determination of the extent of
penalty to be imposed under the One of the three equal portions-
Revised Penal Code? minimum, medium and maximum, of
a divisible penalty (Art 65)
1. The stage reached by the
crime in its development A period of a divisible penalty,
(either attempted, frustrated or when prescribed by the Code as a
consummated). 
 penalty for a felony, is in itself a
2. The participations therein of degree.
the persons liable. 

In Art. 140, the penalty for the leader
3. The aggravating or mitigating
of a sedition is prision mayor in its
circumstances which at-
minimum period and fine.

 tended the commission of
the crime. 

It being a degree, the penalty next
lower than that penalty is prision
In the different stages of execution in
correccional in its maximum period.
the commission of the crime and in
the participation therein of the
persons liable, the penalty is
graduated by degree.

What is a degree in relation to

penalty?

A degree is one entire penalty, one

whole penalty or one unit of the
penalties enumerated in the
graduated scales provided for in Art.
71. Each of the penalties of reclusion
perpetua, reclusion temporal, prision
mayor, etc., enumerated in the
graduated scales of Art. 71, is a
degree.