V The Revised Penal Code *

A BRIEF GENERAL REVIEW FEATURES College of Law, U. P.

By

PROFESSOR

FRANCISCO

CAPISTRANO,

The Revised Penal Code, which will take effect January 1, has properly been regarded as being in the main a conso. n of penal statutes in force at the time the work was ken. It is not a codification in the strict sense of the (Sinco, The Revised Penal Code, Phil. Law Journal, vol. o. 4, p. 166.) About one half of its 367 articles are proviof the old Penal Code (Spanish Penal Code of 1870), of which were rewritten; the other half, about thirty of are new provisions, consist of provisions of special laws, tten mainly in the light of pertinent provisions of the proCorrectional Code of 1916. About twenty five of the new provisions were taken from the proposed CorrecCode, and five were contributed by the Code Committee. -Code contains two books. Book One contains a prelimintitle, providing for the time when the Act takes effect and pplication of its provisions, and five other titles as follows: One-Felonies and circumstances which affect criminal .ty; Title Two-Persons criminally liable for Felonies; Three--Penalties; Title Four-Extinction of Criminal ity and of Civil Liability Resulting from Crime; and Title ivil Liability. Book Two, which deals with "Crimes and ties," has fifteen titles, as follows: Title one-Crimes National Security and the Law of Nations; Title Twoagainst the Fundamental Laws of the State; Title Three s Against Public Order; Title Four-Crimes Against e Interest; Title Five-Crimes Relative to Opium and Prohibited Drugs; Title Six-Crimes Against Public ; Title Seven-Crimes Committed by Public Officers; Eight--Crimes Against Persons; Title Nine-Crimes st Personal Liberty and Security; Title Ten-Crimes Property; Title Eleve~-Crimes Against Chastity; Tielve-:Crimes Against the Civil Status of Persons; Title n-Crimes Against Honor; Title Fourteen-Quasi Of; and Title Fifteen-Final Provisions, the repealing of which (Art. 367) repeals "the present Penal Code,

the Provisional Law for the application of its provisions," and several penal Acts of the former Philippine Commission and of the Philippine Legislature.
PARTICULAR 1. FEATURES

Exterritoriality of Penal Law. Article 2, a new provision based on Art. 2 of the proposed Correctional Code of 1916, extends the application of the provisions of the Code outside the territorial jurisdiction of the Philippines against those who "should commit an offense while on a Philippine ship or airship;" "should forge or counterfeit any coin or currency note of the Philippine Islands or obliga_ tions and securities issued by the Government of the Philippine Islands;" "should be liable for acts connected with the introduction into these Islands of the obligations and securities men. tioned;" "while being public officers or employees, should commit an offense in the exercise of their functions; or "should commit any of the crimes (treason and espionage, provoking war and disloyalty in case of war, and piracy and mutiny on the high seas,) against national security and the law of nations defined in Title One of Book Two of this Code." 2. Impossible Crimes now punished. Article 4, par. 2, a new provision contributed by the Code Committee, provides that criminal liability shall be incurred "by any person performing an act which would be an offense against persons or property were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means." This provision penalizes the so called "impossible Crime." For example, a person who attempts to poison another with common salt believing that it is arsenic, or one who performs acts upon a woman to cause abortion believing that the woman is pregnant when in fact she is not, will be guilty of an offense under this article. The act here performed by the offender undoubtedly shows a criminal intent, and reveals him as a criminal personality. The act in itself is not dangerous, but it reveals the danger which may proceed from the actor, who has stamped himself as a dangerous person to the commuriity and who, according to the positivist school of penal philosophy, should be punished. Cuello Calon, De1'echo Penal, pp. 375, 376; GMofalo, Oriminology, p. 294. The penalty, according to article 59, is myesto mayor(from 1 month and 1 day to 6 months) or a fine ranging frona 200 to 500 pesos, the court, in imposing the penalty, to b /n mind the social danger and the degree of criminality sho

the offender." On the other hand, the classical school of I philosophy, claims that an impossible attempt is not realan attempted crime because there could be no commencement the execution of that which is impossible to be executed, and t the acts performed are purely a manifestation of criminal t, but this alone is not sufficient for the imposition of a Ity. Cuello Cal6n, Derecho Penal, p. 375; Dec. Sup. Ct. of n, Nov. 26, 1879. No Penal Code in force in Continental Europe or South erica seems to contain a provision similar to Article 4, par. ol our Revised Penal Code. The proposed Italian Penal e of 1921, however, in Article 16, recognized the necessity ~unishing"the impossible crime. Jiminez Asua, Estudio Cridel Proyecto de Codigo Penal Italiano de 1921, p. 59. In connection, it is to be noted that Italy is recognized the Id over as the seat particularly of modern penal philosophy. auld seem, therefore, that while criminologists and courts Continental Europe and South America are s,till discussing subject as unsettled, we have gone farther, and without the bench and bar having had a real chance as yet to disthe matter, we have provided in our new Code a penalty the "impossible Crime." It must be stated, however, that has been a tendency to punish "impossible crimes" as atpted felonies, under the common and usual code provision the matter. Under our Code, there is an attempt i'When offender commences the commission of a felony directly by acts, and does not perform all the acts of execution which d produce the felony by reason of some cause or accident than his own spontaneous desistance." The highest Court rmany, in recent celebrated decisions, has held the existof an attempted infanticide in a case where it took place child born dead, and of an attempted abortion in a case e a person performed acts calculated to produce abortion, a woman who was not actually pregnant. These deci, ftowever, were combated by the majority of German comtors. French jurisprudence has declared in certain cases an impossible attempt constituted a punishable offense, as e case of a person who attempted to steal from an empty box:in 'a church, but in others, it has denied the existence PUJl.ishableact. Cuello Cal6n, Derecho Penal, p. 376, Note: In the common law, if the means are apparently and ably unfit, there is no attempted crime, but capability of sucis not essential to an attempt. It is also held that there . probable object within reach, as in the case of a thief

attempting to steal from an empty pocket, in which case there is an indictable offense because it is "public, indictable as a scandal and breach of public peace, irrespective of the question of personal loss." But it is held that where the object is absolutely non-existent, as where a person takes aim at a shadow or a tree, imagining it to be an enemy, there is no indictable of. fense, unless under circumstances disturbing public peace. Yet, where there is actual injury to the person or property of another, though, from circumstances exterior to the actor's will , this injury does not produce its immediate contemplated result , there is an offense. Thus, an attempt at miscarriage may be proved, though it turns out the woman was not actually pregnant; and an attempt at forgery could be sustained, although the forged paper attempted to be made could not by any possibility defraud. Wharton's Criminal Law, secs. 222 to 225. 3. State of necessity as a justifying circumstance. Article 11, par. 4, which according to a member of the Code Committee (Guevara, Comm. on the Revised Penal Code, p. 33) is an improvement on Art. 7, par. 8, of the old Penal Code, states that no criminal liability is incurred by "any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requi. sites appear present: first, that the evil sought to be avoided exists; second, that the injury feared be greater than that done to avoid it; third, that there be no other practical and less harmful means of preventing it." The old provision stated, "Any person who, in order to avoid an evil or injury, does an act which causes damage to the prope'Yty of another etc." The new provision merely says "damage to another," having omitted the words "the property of," which ommission is the improvement claimed by the Code Committee, which believed that the new provision would now cover physical injury, or homicide through necessity. The old provision was unanimously conceded to be applicable only to conflicts between property or rights, which demanded the destruction or injury of one or of some for the benefit of another or others, but not to a conflict between two lives which would demand the destruction of one in order that the other might be saved .. The act of one who in order to save his own life caused the death of another a in a shipwreck, is not a justified act, nor could such state of necessity be considered as a justifying circumstance because the right of the person sacrificed to live is just as legitima~e :: that of the one who caused his death. The person sacnfic was innocent, he did nothing to bring about the state of da

h menaced the life of the other who chose to save himself. all commentators are agreed that although the act done in a case is not justified, nevertheless it is not punishable. real reason for its non-punishability, according to Cuello n is that the act is "outside th~ domain of the penal law", "it 'be accepted as an act which fate decrees, as an inevitable ortune." Without, therefore, discussing whether the words "damto another" now found in Art. 11, par. 4, would include de'on of life or physical injury through necessity or whether ordinary import would be limited to destruction of prop'Or riglats, as in the old Code, we merely point out that the d requisite stated in the article, namely, "that the infeared be greater than that done to avoid it," would prethe application of the article to the destruction of human n order to save another, for the reason that one life has as much right to live as another. However, as pointed the preceeding paragraph, homicide through necessity is unishable as being beyond the pale of the penal law, as . an inevitable misfortune. The same view is sustained the common law and even by the canon law. Wharton's 'nal Law, sees. 126, 641-642. It may also come under pting circumstance no. 6 of Article 12 of our Revised PeCode, which states that "Any person who acts under the Ise of an uncontrollable fear of an equal or greater injury", em.pt from criminal responsibility. CueUo Cal6n, Derecho p.316. It may be of interest to note that the new Spanish Penal of 1928, in article 60, preserved substantially the meaning import of Art. 7, par. 8, of the Code of 1870, which is the as our ola Penal Code, refusing thus to extend its scope omicide or physical injury through necessity on the ground, ding to the explanatory note (Exposici6n de Motivos), to do otherwise would be to sanction a principle which be aualified as egoistic and cruel. Alcubilla, Anuario de t p. 276. . Delay in delivery of person arrested to judicial author-

Artn~le 125, based on Art. 202 of the old Code and Art 93 Proposed Correctional Code, punishes any public offic,er ploY(~e "who shall detain any person for some legal ground ~alI fan to deliver such person to the proper judicial aues within the period of one hour." This provision has tacked 011 behalf of the constabulary and the police on

the ground that it would greatly hamper them in the perf ance of their duties i n making investigations of crime. On other hand, police methods under the provision in the old (Art. 202) providing for 24 hours, have been the subj numerous complaints and criticism, for which reason, pro the Code Committee reduced the time to one hour. Cl the time limit of one hour is not only arbitrary, but also reasonable. It may well happen that a peace officer haEs prehended a criminal in a remote barrio, 15 or 20 kilo distant from the poblaci6n which is accessible therefrom on foot or on horseback. How could he comply with the in such a case? Should he merely take down the crim' name and address and let him go, with instructions to at headquarters at his earliest convenience? That, of c would be absurd. On the other hand, the time of 24 hour vided for in the old Code is also arbitrary because the or detention may be made right in the poblaci6n, and light offense, in which case the discretion given to peac ficers to detain the person arrested for 24 hours would give to serious abuse on the part of the unscrupulous ones. believed that, instead of a fixed time limit, which neces must be arbitrary, the law should merely provide por pu ment in case of a "wrongful delay" so that each case will to be considered in the light of the particular circumstances. tending it, and both the police and the public should hay cause for complaint. In fact, Art. 93 of the Proposed Co tional Code does not fix a time but uses instead the expre "wrongfully delays" (dilatare indebidamente). On this ject the new Penal Law of New York, passed in 1931, vides as follows: "Sec. 1844. A public officer or other having arrested any person upon a criminal charge, who \ :fully and wrongfully delays, to take such person before a gistrate having jurisdiction to take his examination, is of a misdemeanor." Bender's Penal Law and Criminal C p. 371. 5. Legiskttive immunity from search. Article 145, which has merited much discussion and n ous press editorials, in part provides for the imposition 0 penalty of prisi6n correccional (6 mos. and 1 day to 6 "upon any public officer or employee who shall, while th gislature is in session, knowingly arrest or search ary me thereof, except in case such member has commit . ed a punishable under this Code by a penalty highe:' than mayor" (6 yrs. and 1 day to 12 yrs). The '~ode Co

aims responsibility for the words "or search" now appear. the article. Gue'L'ara, Comm. on the Penal Code, pp. 223 ~. The provision, fin.ds no counterpart, it is ?eli~ved,. in I American law, and IS of very doubtful constitutIOnalIty. t ~ shall not dwell upon it further ~cause Professor Sinco already written a paper on the subject. 6. Qualified and simple seduction, and consented abduction. Qualified seduction. Under 337, "the seduction of a virgin twelve years and under eighteen years of age, committed a person in public authority, priest, house-servant, domestic, dian, teacher, or any person who, in any capacity, shall be sted with the education or custody of the woman seduced, be punished by prisi6n correccional in its minimum and imum periods." Simple seduction. In article 338 "The seduction of a wowho is single or widow of good reputation, over twelve under eighteen years of age, committed by means of deceit, I be punished by arresto mayor." Consented abduction. Under article 343, "The abduction a virgin over twelve and under eighteen years of age, carout with her consent and with lewd designs, shall be punishwith prisi6n correcional in its minimum and medium pes." These articles are substantially the same as articles 443 446 of the old Penal Code. The word virgin in articles 337 and 343 appears as doncein the Spanish text of the law. But the character of being ella, according to the Supreme Court of Spain in coning articles 443 and 446 of the Code of 1870, is not required the law in the sense of "mujer que desconoce varon, sino de jer honesta y recatada, para establecer que la cualidad de lla debe reconocerse en la mujer soltera de vida honesta or al hecho cuando las pruebas 0 circunstancias procesano destruyen esa presunci6n". Dec. Sup. Ct. of Spain, May 1888, March 2, 1887, and June 4, 1896. The same requiret of mujer honesta was made as to simple seduction, punishunder art. 443 of the old Code. It, therefore, appears that use of i: e word 'virgin in articles 337 and 343 is improper, to avo d strid interpretation, the word doncella appearti' la islJ ~ext, should have been changed to mujer ho, as e r e~.' ;::pa.nishPenal Code of 1928 has done in art605, b06, and 612. The expression, in article 338, "woman sir. r\. or widow of good reputation," which in the Span a ;.rs ~IS "mujer soltera 0 viuda", seems to find r,

parallel in any Penal Code in force in Continental Europe South America. For simple seduction, the New Spanish nal Code, in article 605, uses the same term "mujer hones The Code Committee in drafting article 338 of the Revised nal Code probably had in mind Viada's words: "Si hubiera de difinir nosotros el estupro, diriamos que POl' el debe en derse, in general, el concubito 0 acceso carnal legitimo con jer soltera 0 viuda de buena fama, mayor de doce alios y me de veintitres." 3 Viada, 132. As the original Spanish text our law has seen it fit to use "donceUa" in articles 337 and 3 it should have used the same term in article 338, for, as sta the word merely means "mujer honesta" in penal jurispruden The English equivalent of "mujer honesta" or "doncella" as is used in the statute would probably be an "unmarried wo of good repute," but not a virgin. In this connection, it is teresting to note that most American statutes require that woman be of "previous chaste character," which has been fined to be not external reputation for chastity, but actual sonal possession of chastity: Wharton's Criminal Law, 2104. 7. Killing of spouse in act of adultery.

Article 247, which is similar to Art. 425 of the old Pe Code as amended by Act 3195, states that: "Any legally ried person who, having surprised his spouse in the act of co mitting sexual intercourse with another person, shall kill eit of them in the act or immediately thereafter, or shall inf!o upon them any serious physical injury, shall suffer the pena of destierro" (banishment for 6 mos. and 1 day to 6 years). provision of the old Code, on which Article 247 was based, unanimously criticized in Spain particularly during the last f years as being a cruel provision, indirectly authorizing the 0. fended spouse to take away the life of the adulterers. Aceo ingly, the new Spanish Penal Code, in article 5.23, merely co siders the act as having been executed under passion and fuscation as a special extenuating circumstance such that offended spouse will have to suffer the penalty for the offen committed, but lower by one degree. In the Philippines, wh adultery is a ground for divorce, there is added reason for sU pressing the antiquated and cruel provision preserved in arti 247 above quoted. The Code Committee, which was too mode in punishing the impossible crime, was, perhaps, quite an J;uated in preserving the provision of Article 423 of the 1n~nal Code.

8. Civil Liability of the offender: Articles 100 to 111, providin~ in. t?e m.ain that every p:r.iminally liable for a felony IS CIVIllylIable, and that CIVIl n cr ipcludes restItutIOn, repara t' ., bTty IOn 0f th e d 'amage caused, 1 ad i~demnification of consequential damages, are substantially same as articles 18 to 20, and 119 to 126 of the old Penal ~e. These provisions are antiquated. Under said provisions, recovery can be had of the so called "daiios morales;" that o pain, mental suffering, etc. and in cases of murder or homi'de the settled jurisprudence in this country generally allows ,000.00 as damages to the heirs of the deceased, which unuestionably is grossly inadequate. There has been an utter eglect of the rights of the offended party, contrary to the modern tendency on the subject. Cuello Calan, Derecho Penal, p.471-476. Modern Penal Codes like those of Argentina (Art. 29) and Peru (Arts, 65 and 67) allow the recovery of "moral damages". The civil codes of Germany (secs. 347, 847- and 1,300) and of Austria (secs. 1293 to 1341), and the law od' obligations of Switzerland (art. 54) also allow "moral damages." French, Italian' and Spanish jurisprudence have also, of late, allowed the recovery of "moral damages." Cuello Calan, Derecho Penal, pp. 474 and note 7; 485 and note: 30. The new panish Penal Code, in article 75, allows indemnity for "daiios morales". In reference to Anglo-American law, it is of comon knowledge that "moral damages" are recoverable thereunder, and have been for a long time. Again it seems that, m respect to the civil liability of the offender, the Code Committee did not keep progress with the times. 9. Miscellaneous Provisions. Lack of time forbids a discussion of many interesting and noteworthy provisions of the Revised Penal Code. Only a brief statement of the substance of some of these provisions will be
made.

a. Art. 13, par. 2, considers extreme old age (over 70 ears) as a mitigating circumstance. Bta b. Article 14, par. 20, considers as an aggravating circum-

11 nee the commission of a crime "with the aid of persons unOr

er fifteen years of age or by means of motor vehicles, airships, other similar means."

~. Article 194 punishes with prisian correccional or a fine rn~lDg. from 300 to 10,000 pesos, or both, "any physician ~ntIst who shall prescribe opium for any person whose YSlcalcondition does not require the use of the same."

d. Article 268, no. 4, considers as murder the killing person "on the occasion of an earthquake, erupt ion of a cano, destructive cyclone, epidemic or any other public cala e. Article 273 punishes with prisi6n correccioruU in its nimum and maximum per:iods and a fine not exceeding 500 sos any person "who, under the pretext of reimbursing hi for a debt incurred by an ascendant, guardian or person trusted with the custody of a minor, shall, against the la will, retain him in his service." f. Article 275, no. 2, penalizes with arresto mayor one who shall fail to help or render assistance to another w he has accidentally wounded or injured." g. Article 289 punishes with arresto mayor and a fine exceeding 300 pesos "any person who, for the purpose of ganizing, maintaining or preventing coalitions of capital labor, strike of laborers or lockout of employers, shall em violence or threats in such a degree as to compel or force laborers or employers in the free and legal exercise of their dustry or work, if the act shall not constitute a more seriou fense in accordance with the provision of this code." h. Article, par. 5 and 6, punishes with arresto 1nayor a fine "Any person who shall accept any compensation gi him under the belief that it is in payment of services ren or labor performed by him, when in fact he did not ac perform such services or labor," and "Any person who being a surety in a bond given in a criminal or civil without express authority from the court or before the ca 'ation of his bond or before being relieved from the obli cO"ltraeted by him, shall sell, mortgage, or, in any other man incumber the real property or properties with which he anteed the fulfillment of such obligation." i. Article 335, par. 3, lowers the penalty for adultery degree "If tne person guilty of adultery committed this of~ while being abandoned without justification -by the off spouse." j. Article 341 punishes with prisi6n correcC'ioncLl"Any son who, in any manner, or under any pretext, shall engag the business or shall profit by prostitution or shall enlist services of women for the purpose of prostitution." k. Article 357 penalizes with arresto mayor or a fi from 200 to 2,000 pesos, or both, "Any reporter, editor or agel' of a newspaper, daily or magazine, who shall publish f connected with the private life of another and offensive honor, virtue and reputation of said person, even though

, tion be made in connection with or under the pretext bIIca is necessary m t he narra t' IOn 0f any . d'lCla or ad"mmlS. . I t 't JU af~e proceedings wherein such facts have been -mentioned." II Article 363 punishes with arresto mayor "any person h 'by' any act not constituting per~ury, shall directly or inir~tlY incriminate or impute to an innocent person the com'ssion of a crime. m. Article 364 punishes with arresto mayor or a fine not ceeding 200 pesos any person guilty of "any intrigue which s for its principal purpose to blemish the honor or reputaion of a person." n. Article 365 punishes with prisi6n correccional in its medium and maximum periods (2 yrs. 4 mos. 1 day to 6yrs.) the crime of homicide though "imprudence or negligence and ith violation of the Automobile Law." 10. A few notew01thy features of the New Penal Code of pain of 1928. It is only natural that certain new features of the Spanish Penal Code of 1928 be noted, at least for comparison with our Revised Penal Code, Some of these have already been mentioned in the foregoing discussion, a. The new Spanish Penal Code has abolished subsidiary imprisonment in case of insolvency, or inability to pay a fine or indemnity, because it creates an odious inequality between the rich and the poor, and, gives facilities for the payment of fines imposed, which may be made by installments and from the income of the convict's property or business or of his personal labor out of or in prison. Arts. 179 to 183; Alcubilla, Anuario del 1928, pp. 275, 3-14-315. Our Revised Penal Code has retained subsidiary imprisonment in case of insolvency at the rate of P2.50 per day and further provides that "the subsidiary .iability which the convict may have suffered by reason of his Insolvency shall not relieve him from reparation of the damage ~used, nor from indemnification for the consequential damages an ,case his financial circumstances should improve; but shall reheve him from pecuniary liability as to the fine." Art. 39. b. For the purpose of putting an end to an old and cenurable custom, which is that of trying to influence judges and adrni~istrative officers in the decision of pending cases, the new P~l1lsh Penal Code, in article 425, punishes what are termed .recommendaciones punibles;" that is, recommendations made ~udges, justices, and administrative officers to. do any act or InCur in any omission which because of its being unjust Dstitutes prevarication of duty, as defined in articles 413 to

:0

424. See also article 814, punish ing similar but less acts as misdemeanors. A provision like the foregoing, it is believed, is nee the Philippines, where the pernicious custom referred prevails as a heritage from Spain. c. The new Spanish Penal Code has abolished the pe penalties. The lon~est prison term of imprisonment pro for is thirty years. Arts. 108 et. seq. Our Revised Penal still provides for reclusion perpet1la and perpetual absol special disqualification. Art. 25. d. Articles 538 and 539 penalize persons for conta ing others with venereal diseases: They are as follows: 538. Quien sabiendo que se encuentra atacado de una enf dad sexual en su periodo contagioso infectare a otro po intersexual 0 de otra manera sera castigado con la pena d meses y un dia a un ano de prision. Si el hecho se rea entre conyuges, solamente podra ser perseguido a instan . parte"; "Art. 539. Sera castigado con la pena de dos m un dia a un ana de prisi6n 0 de multa de 2,000 a 10,00 pe el que, conociendo la enfermedad sifilitica 0 contagiosa qu dece un nino lactante, 10 entrega a erial' 0 toma una n con dicho fin y ocasiona el contagio de esta." Some such provisions are, undoubtedly, needed country. e. Article 819 punishes the so called "piropo", a pa not unknown in th~ Philippines due to Spanish influence. article provides: "El que, aun con proposito de galanter dirigiere a una mujer con gestos, ademanes 0 frases grose chabacanas, 0 la asedie con insistencia molesta de palabra () escrito, sera castigado con la pena de arresto de cinco a v dias 0 multa de 50 a 500 pesetas." CONCLUSION Like any other human, undertaking the Revis~d Penal is not free from defects. or criticism, some of which have touched upon in the foregoing discussion. In some respec is extremely modern, but in other respects it is quite antiqu On the whole, however, the Revised Penal Code is a fine pi work.