While preparing for my lecture to be delivered at the Villasis Law Center in its pre-bar review, I

surveyed the bar questions given in criminal law from 2013 to 2019. To my surprise, the most common
question came from Article 247 – Death or physical injuries under exceptional circumstances. To illustrate,
in 2015 and 2016 bar exams, bar candidates were asked to answer these questions:
Problem 1
“Procopio, a call center agent assigned at a graveyard shift, went home earlier than usual. He
proceeded immediately to their bedroom to change his clothes. To his surprise, he found his wife Bionci in
bed making love to another woman Magna. Enraged, Procopio grabbed a knife nearby and stabbed Bionci,
who died.
a) What crime did Procopio commit? Explain.
b) Assuming that Procopio and Bionci were common-law spouses, will your answer be the same? Explain.”
(2015 bar exam)
Problem 2
“Jojo and Felipa are husband and wife. Believing that his work as a lawyer is sufficient to provide
for the needs of their family, Jojo convinced Felipa to be a stay at-home mom and care for their children.
One day, Jojo arrived home earlier than usual and caught Felipa in the act of having sexual intercourse with
their female nanny, Alma, in their matrimonial bed. In a fit of rage, Jojo retrieved his revolver from inside
the bedroom cabinet and shot Alma, immediately killing her.
a) Is Art. 247 (death or physical injuries inflicted under exceptional circumstances) of the Revised Penal
Code (RPC) applicable in this case given that the paramour was of the same gender as the erring spouse?
b) Is Felipa liable for adultery for having sexual relations with Alma?” (2016 bar exam.)
As a prosecutor, I have never come across an actual case involving a husband killing his wife or the lover
while having sexual intercourse which, thus, calls for the application of said article. There are only a handful
of decisions of the Supreme Court dealing with this “infamous” article. And yet, bar examiners have the
“propensity” to ask examinees about this “crime.”
Absolutory cause
Article 247 is an absolutory cause that recognizes the commission of a crime but for reasons of
public policy and sentiment there is no penalty imposed. It does not define and provide for a specific crime,
but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical
injuries under the circumstances therein mentioned
The absolutory cause under said Article exists when (1) a legally married person surprises his spouse in the
act of committing sexual intercourse with another person; (2) that he kills any of them or both of them in the
act or immediately thereafter; and (3) that he has not promoted or facilitated the prostitution of his wife or
that he or she has not consented to the infidelity of the other spouse.
Sexual intercourse, the core element
Among the three elements, the most vital is that the accused must prove that he killed his wife and
her paramour in the act of sexual intercourse or immediately thereafter. The privilege is conditioned on the
fact that the husband surprised his wife in the act of committing sexual intercourse with another person. To
invoke the privilege, the husband must have caught or surprised the supposed offenders in the very act of
committing adultery. In other words, it is required that the act of killing or inflicting of injury must be made
while the wife and her lover are engaged in sexual intercourse. So, when the husband merely saw the wife
and lover in bed naked, or when the wife and lover were having “foreplay” or “postplay, or when the lover
was buttoning his trousers, the husband is not justified in killing or injuring the wife or her lover since the
element of sexual intercourse is no longer present.
In other words, the core element here is the sexual intercourse. Once sexual intercourse is absent, the
absolutory cause would not exist. Thus, if the killing was committed by the husband when his wife and the
lover were no longer engaged in sexual intercourse, then, he is liable for parricide since the killing is no
longer justifying.
In Problem No. 1, Procopio is liable for parricide for killing his wife. He is not entitled to absolutory cause
because he did not surprise his wife in the act of having sexual intercourse. For purposes of this article, the
phrase “sexual intercourse” means a sexual activity between male and female persons. There is no sexual
intercourse between persons of the same gender, or between a male and another male, or a female and
another female. In question (b), Procopio is thus liable for homicide or murder, as the case may be. Parricide
is not committed since he and Bionci were not married. Parricide is a crime where both the offender and the
victim are related either by blood or by marriage.
In Problem No. 2, the article is also not applicable since Jojo’s wife was not engaged in a sexual
intercourse (within the meaning and ambit of the law) at the time of the killing. Technically, there can be no
sexual intercourse between two female persons. In the problem, the wife was with another woman (Alma) at
the time Jojo caught them in bed doing the basest act of infidelity. Hence, Felipa is not liable for adultery
since she did not have “sexual intercourse” with Alma.
Reference: Criminal Law Concepts and Jurisprudence, Book II, F.M. Nojara, 2020 edition, Central
Bookstore, citing SC decisions.