Tag Archives: destierro

Second Look on Article 247 of the Revised Penal Code

After finishing law school but before taking the Bar Exam, the author had the opportunity to take a second look on one of the frequently discussed Article in Criminal Law: “Death or physical injuries inflicted under exceptional circumstances.”

The author made a similar write-up on this during freshman days in law school titled “Adultery in Flagrante Delicto” dated 11 February 2013. You may view the post here:

Article 247 of the Revised Penal Code (RPC) is reproduced below:

ART. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

[Requisites before Article 247 of the Revised Penal Code may be applied; Discussion here limited on spouses]

Let us center our attention in the case of spouses although the article may also applicable to family members. The following are the elements:

  • Existence of a valid marriage;
  • One of the spouse (surprising spouse) caught the other (infidel spouse) in the act of sexual intercourse with a third person (paramour);
  • There is killing of, or infliction of serious physical injuries against, the infidel spouse and/or the paramour;
  • The killing or infliction of serious physical injuries happened almost instantaneously or immediately thereafter;
  • There was no facilitation of prostitution or consent to infidelity from the surprising spouse;

As to the parties – surprising spouse, infidel spouse, paramour – there is no issue as to the effects of Art. 247. But if the death or physical injury extends to a fourth, fifth or subsequent persons, the issue is “will the surprising spouse be liable?”

[Consequences of Art. 247 of the RPC: Is the offender criminally liable for his act, causing death or inflicting physical injury to a fourth, fifth, etc. person?]

Article 4 of the Revised Penal Code (RPC) provides:

ART 4. Criminal liability. – Criminal liability shall be incurred:

  1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended

  2. 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 an account of the employment of inadequate or ineffectual means.

It can be gleaned from the first paragraph above that if a person is committing a felony, he is liable to all the direct, natural and logical consequences of his act or omission. Otherwise, no criminal liability may prosper.

Hence, the core issue: “Does the act falling under Art. 247 of the RPC constitutes a FELONY?”

The author answers in the AFFIRMATIVE.

Acts or omissions punishable by law are felonies. (Art. 3, RPC) The act or omission must be defined and penalty must be prescribed therefor. Otherwise, nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it.

Going back to the provisions of Art. 247, a felony is established.


  • Killing of the infidel spouse and/or the paramour in the act or immediately after sexual intercourse, being caught in flagrante by the surprising spouse;
  • Inflicting serious physical injuries to the infidel spouse and/or the paramour in the act or immediately after sexual intercourse, being caught in flagrante by the surprising spouse;

PENALTY: Destierro.

Is Destierro a penalty? YES.

Under Art. 25 of the RPC, Destierro is classified as a correctional penalty. Art. 27 of the RPC provides for the duration of this penalty which shall be from six months and one day up to six years. Destierro is No. 8 from the most severe penalty (Death) prescribed in Art. 70 for purposes of successive service of sentence, but No. 7 insofar as graduated scales under Art. 71 of the RPC is concerned. Finally, any person sentenced to Destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated, as provided by Art. 87 of the RPC.

[The ruling in People v. Abarca appears to be a “stray” decision which cannot be relied on] 

There is a view that Destierro is NOT a penalty. Those who maintain this view heavily relied on the case of People v. Abarca (G.R. No. 74433, 14 September 1987), a Division case penned by Justice Sarmiento. The salient part of the decision reads:

“xxx It must be stressed furthermore that Article 247, supra, does not define an offense. Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. xxx”

This pronouncement apparently was lifted from the 1959 En Banc case of People v. Araquel (G.R. No. L-12629, 09 December 1959):

We, therefore, conclude that Article 247 of the Revised Penal Code 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. xxx”

I submit that the ruling in Abarca is a “stray” decision based on misapprehension of the import of the ruling in Araquel.

[The main issue in Araquel is the jurisdiction of the trial court and the applicability of double jeopardy]

In Araquel, the main issue is whether the accused is placed under double jeopardy considering he already pleaded guilty before the Justice of the Peace Court (now Municipal Trial Courts or MTC) and he is again charged for the same act before the Court of First Instance (now Regional Trial Court or RTC). In resolving the issue, the Supreme Court ruled that there was no double jeopardy because the Peace Court is without jurisdiction over the case:

“Conformably to the above finding, we hold that defendant was not tried by a court of competent jurisdiction when he was arraigned before the Justice of the Peace Court of Narvacan upon the amended complaint for “homicide under exceptional circumstances” filed against him by the chief of police of the municipality, and consequently, has not legally been placed in jeopardy in the present case.”

The pronouncement that “Article 247 of the Revised Penal Code does not define and provide for a specific crime” doesn’t mean that the act is not felonious. The ruling in Araquel simply instructs us that while the penalty imposable is Destierro, it doesn’t mean that jurisdiction is solely dependent on the penalty imposable. In fact, we can infer from the same ruling that the act is ACTUALLY HOMICIDE. Thus, the doctrinal ruling in Araquel:

“… Consequently, a complaint or information charging homicide under the exceptional circumstances provided in Article 247 must fall under the jurisdiction of the Courts of First Instance, the offense charged being actually that of homicide. The fact that the exceptional circumstances are also pleaded — as was done in the amended complaint filed with the Justice of the Peace Court of Narvacan — would not affect the nature of the crime charged. For they are not integral elements of the crime charged but are matters which the accused has to prove in order to warrant the application of the benefit granted by the law. As unnecessary and immaterial averments to the crime charged, they may be stricken out as surplusage and still leave the offense fully described.”

This is the particular concept that made the ruling in Abarca confusing, if not misleading.

[The main issue in Abarca is the propriety of charge and the applicability of treachery as qualifying circumstance]

Recall the following FACTS:

Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. The accused missed his itineraries that day so he decided to go home. Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away. The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, got an M-16 rifle, and went back to his house but he was not able to find his wife and Koh there. He proceeded to the “mahjong session” as it was the “hangout” of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle hitting Koh, as well as Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong. Kingsley Koh died instantaneously. Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet Arnold’s  wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments.

The accused is found guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is sentenced to death.

In the above Abarca case, the issue is NOT really on the nature of Art. 247 but the alleged errors:





The defense believes that a conviction under Article 247 of the Revised Penal Code is proper instead of COMPLEX CRIME OF MURDER WITH DOUBLE FRUSTRATED MURDER. The Court believes so.

“We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred.”

To support the ruling that the trial court in convicting the accused of murder (as complexed with double frustrated murder), the Supreme Court cited Araquel that Article 247 does not define an offense, that PUNISHMENT IS NOT INFLICTED UPON THE ACCUSED, that the accused is BANISHED, but that is intended for his protection. Recall that the original purpose of this pronouncement in Araquel is to settle the issue of jurisdiction and double jeopardy.  Here in Abarca, the purpose is to establish that THERE IS, AND THERE CAN BE, NO MURDER because THERE IS NO CRIME TO QUALIFY AS MURDER.

“It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case.”

There is nothing in this pronouncement that Art. 247 is not felonious. What is meant by the Supreme Court is that Art. 247 is NOT A CRIME separate and distinct from homicide and physical injuries which is necessarily included under the same family of crimes against person. Up to this point of the decision, the Supreme Court is still consistent with its ruling with the En Banc case of Araquel.

In resolving the liability of the accused as to Spouses Amparado, the Supreme Court disagrees with the recommendation of the Solicitor General in finding of DOUBLE FRUSTRATED MURDER against the accused. Instead, there was a finding of NEGLIGENCE on the part of the accused. This is where the CONFUSION starts.

Having relied on the phrases “Article 247 of the Revised Penal Code does not define and provide for a specific crime” and “punishment is not inflicted”, the Supreme Court apparently have inadvertently made another phrase that leads to a very stray concept – “not a punishable act”.


[The phrase “not a punishable act” does not mean that the act is not felonious, but should be construed as “not being punished as a separate and distinct crime”]

The author humbly submits that the phrase “not a punishable act” is inaccurate because it could mean as “NOT A FELONY” following the basic rule that there is no felony if the act or omission is not punishable under the RPC. This has great implications when used with Articles 4 and 48 of the RPC. Applying Art. 4 of the RPC, if the person is committing a felony, he shall be criminally liable to the consequences thereof even if the result be different than that intended. Stated otherwise: if one is NOT committing a felony, he cannot be held criminally liable for all the direct, natural and logical consequences of his act or omission. In the case of Art. 48 of the RPC, if the single act constitutes two or more grave or less grave felonies (or when an offense is necessary means for committing the other), there will be no complex crime if there are only two resulting felonies but the other is in fact NOT a felony. Thus, the author respectfully recommends the reading of “not a punishable act” as “not being punished as a separate and distinct crime” to avoid confusion.  

How about this part of the ruling:

 “The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony.
But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados.”

It is true that the accused is NOT COMMITTING MURDER, as earlier discussed, because Art. 247 is NOT a separate and distinct felony than that of homicide and physical injuries. Not being a separate and distinct felony (from homicide) but only an extraordinary circumstance, we cannot apply any qualifying circumstance for the act of killing for it to be Murder. This can still be acceptable. However, the Supreme Court went further:

“This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words (“an waray labot kagawas,”) that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. xxx”

The author respectfully disagrees. The act of killing the paramour (and/or the infidel spouse) in contemplation of Art. 247 is very much an ILLEGAL ACT (felonious) as any homicide or physical injuries. Otherwise, it should have been placed under Art. 11 on Justifying Circumstances where generally the enumeration are not considered crimes.

In fact, the very ruling of the Supreme Court in Abarca appears to contradict itself.  If the act of killing the paramour is not an illegal act (meaning, not felonious), why would the Supreme Court still consider the killing (punished by Destierro) in the complex crime under Art. 48 of the RPC in imposing the penalty?

“For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellant arresto mayor (in its medium and maximum periods) in its maximum period, arresto being the graver penalty (than destierro).”

This could only mean that the killing of the paramour is felonious. Otherwise, Art. 48 of the RPC should not be made applicable. Thus, the author submits that the proper charge should be COMPLEX CRIME OF HOMICIDE UNDER ART.247 AND LESS SERIOUS PHYSICAL INJURIES. Since in complex crimes under Art. 48 of the RPC, the penalty for the most serious crime shall be imposed in its maximum period, the penalty of Destierro under Art. 247 of the RPC shall give way to Arresto Mayor in Less Serious Physical Injuries.

The discussion on Art. 365 of the RPC regarding criminal negligence is (almost) totally unnecessary.

So how do we treat Art. 247 of the RPC if it is not a felony, not a lawful act, not a modifying circumstance (justifying, exempting, mitigating, aggravating, alternative), and cannot be a considered as a qualifying circumstance?

It is an 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. (People v. Macal, G.R. No. 211062, 13 January 2016, People v. Oyanib, G.R. Nos. 130634-354, 12 March 2001; People v. Talisic, G.R. No. 97961 05 September 1997) Explaining the rationale for this, the Supreme Court held:

“. . . . The vindication of a man’s honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But killing the errant spouse as a purification is so severe that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter.” (People v. Wagas, G.R. No. 61704, 08 March 1989)


To wrap the lengthy discussion, we have to realize that the act of killing or inflicting physical injuries under Art. 247 of the RPC, is FELONIOUS. Thus, criminal liability attaches to the consequences of the act defined in said Article, in relation to Art. 4 of the RPC. Being felonious, if the surprising spouse killed the infidel spouse and paramour, say by shooting them, and the bullets likewise caused deaths and injuries to other persons within the premises, the surprising spouse shall be criminally liable even if there is no criminal intent against for such collateral deaths and injuries.

If in the act of killing (by shooting) the infidel spouse and paramour managed to evade the bullets which caused injury to other persons nearby, will the surprising spouse be criminally liable? The answer is YES, because at that time the surprising spouse is committing a felony, pursuant to the first paragraph of Art. 4 of the RPC.

The benefit of Art. 247 of the RPC, as an absolutory cause, shall apply only to death or injury caused to the infidel spouse and paramour. It shall not extend to fourth, fifth and etc. persons. This discussion may be applied by analogy in case of the surprising parents (in lieu of surprising spouse), their daughters under 18 years of age living with the surprising parents (in lieu of infidel spouse) and the seducer (in lieu of the paramour), mutatis mutandis.

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Posted by on May 31, 2017 in Criminal Law


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