Mutilation

Art. 262.  Mutilation. — The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, or some essential organ of reproduction.  

Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods.  

MUTILATION means the chopping off of a part of the body which is not susceptible to grow again

•  Putting out of an eye does not fall under this definition. 

Two kinds of mutilation

1.  By intentionally mutilating another by  depriving  him, either  totally  or  partially, of some  essential organ for reproduction ; 

2.  By   intentionally  making  other   mutilation , that is, by  lopping  or  clipping  off  any part of the body  of the offended party,  other than the essential organ for reproduction, to deprive him of that part of his body. 

ELEMENTS

1. That there be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; 

2. That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. 

•  Castration consists of the amputation of whatever organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But according to this article, in order for “castration” to exist, it is         indispensable  that the “ castration ” be  made   purposely . The law does not look only to the result but also to the intention of the act. 

•  If the mutilation involves a part of the body, other than an organ for reproduction, such as the cutting of the outer ear or arm of the offended party, with a deliberate purpose of depriving him of the part of his body, it is other intentional mutilation, under the second paragraph of Art.262. 

•  If 2 people fight with a bolo and a body part (ex. ear) was cut-off, there is physical injuries only because there is no specific intent to chop-off the ear. But if he intended to cut it off, there is mutilation.

•  “Mayhem” is the term used for “other mutilation”  

•  The penalty when the victim of other intentional mutilation is under 12 years old shall be one degree higher than that imposed by law. 

•  The offender must have the intention to deprive the offended party of a part of his body. 

References: 

Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Slight Physical Injuries

Art. 266.  Slight physical injuries and maltreatment.  — The crime of slight physical injuries shall be punished:  

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period.  

2. By arresto menor or a fine not exceeding 20 pesos and censure when the offender has caused physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical assistance.  

3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury. 

Three kinds of slight physical injuries: 

1.  Physical injuries which incapacitated the offended party for labor from one to nine days or required medical attendance during the same period; 

 2.  Physical injuries which do not prevent the offended party from engaging in his habitual work or which did not require medical attendance; 

 3.  Ill-treatment of another by deed without causing any injury. 

A physical injury which incapacitates the offended party from working for 9 days and some hours without amounting to 10 days, is a slight physical injury. 

Examples: contusion on the face or black eye 

In the absence of evidence to show actual injury, as when the deceased died of other causes and there is no evidence as to how many days the deceased lived after the injury, the crime is only slight physical injury, it appearing that the wounds inflicted by the accused could not have caused death. 

Any physical violence which does not produce injury, such as slapping the face of the offended party, without causing dishonor, is slight physical injury 

Where the original information was for slight physical injuries, in the belief of the fiscal that the wound suffered by the accused would heal after 8 days but in the preliminary investigation conducted by the justice of the peace, it was found that the wound would heal after 30 days, the act which converted the crime into a more serious one had SUPERVENED after the filing of the original information, this supervening event can still be the subject of AMENDMENT or of a NEW CHARGE without necessarily placing the accused in double jeopardy. 

The jurisdiction of the RTC by virtue of the appeal is limited to the crime object of the judgment, from which the appeal has been taken. It has no jurisdiction to impose a sentence on the accused, on appeal from the MTC over which the MTC has no jurisdiction. 

Ill-treatment

is committed by the inflicting of pain although there is no wound

References: 

Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Less Serious Physical Injuries

Art. 265.  Less serious physical injuries.  — Any person who shall inflict upon another physical injuries not described in the preceding articles, but which shall incapacitate the offended party for labor for ten days or more, or shall require medical assistance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor.  

Whenever less serious physical injuries shall have been inflicted with the manifest intent to kill or offend the injured person, or under circumstances adding ignominy to the offense in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed.  

Any less serious physical injuries inflicted upon the offender's parents, ascendants, guardians, curators, teachers, or persons of rank, or persons in authority, shall be punished by prision correccional in its minimum and medium periods, provided that, in the case of persons in authority, the deed does not constitute the crime of assault upon such person.  

Matters to be noted in the crime of LESS SERIOUS physical injuries: 

1.  That the offended party is incapacitated for labor for ten days or more (but not more than 30 days) or needs medical attendance for the same period of time. 

2.  That the physical injuries must not be those described in the preceding articles. 

Qualified less serious physical injuries  

1.  A fine not exceeding P500, in addition to arresto mayor, shall be imposed for less serious physical injuries when: 

      a.  There is a manifest intent to insult or offend the injured person, or 

      b.  There are circumstances adding ignominy o the offense; 

2.  A higher penalty is imposed when the victim is either: 

        

      a.  The offender’s parents, ascendants, guardians, curators or teachers; or 

     b.  Persons of rank or persons in authority, provided the crime is not direct assault. 

•  Medical attendance or incapacity is required in less serious physical injuries 

•  The crime is less serious physical injuries even if there was no incapacity, but medical treatment was for 13 days. 

•  Physical injuries which do not prevent the offended party from engaging in his habitual work or require medical attendance are classified as SLIGHT. This is true even if the injuries were cured, but without medical attendance. 

•  But suppose the injuries, without medical attendance, were healed only after two months, it may be considered as illness for 30 days and thus SERIOUS PHYSICAL INJURIES. 

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Administering Injurious Substances or Beverages

Art. 264.  Administering injurious substances or beverages.  — The penalties established by the next preceding article shall be applicable in the respective case to any person who, without intent to kill, shall inflict upon another any serious, physical injury, by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity.  

ELEMENTS 

1.  That the offender inflicted upon another any serious physical injury; 

2. That it was done by knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind or credulity; 

3.  That he had no intent to kill. 

NOTES

•  If the offender had any intention to kill, the crime would be frustrated murder, the injurious substance to be considered as poison. 

•  If the accused  did not know of the injurious substances he administered , he is  not   liable  under this article. 

•  Administering injurious substance means the  introducing into the body  the substance. Throwing mordant chemicals or poisons on the face or upon the body is not contemplated in this article because it is not administering. 

•  This article does not apply when the physical injuries that result are less serious or slight because if specifically mentioned “any serious physical injuries” 

•  “Taking advantage of his weakness of mind or credulity” may take place in the case of witchcraft, philters, magnetism, etc. 

Source: 

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Serious Physical Injuries

Art. 263.  Serious physical injuries.  — Any person who shall wound, beat, or assault another, shall be guilty of the crime of serious physical injuries and shall suffer:  

1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured person shall become insane, imbecile, impotent, or blind;  

2. The penalty of prision correccional in its medium and maximum periods, if in consequence of the physical injuries inflicted, the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefor habitually engaged;  

3. The penalty of prision correccional in its minimum and medium periods, if in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days;  

4. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than thirty days. 

If the offense shall have been committed against any of the persons enumerated in Article 246, or with attendance of any of the circumstances mentioned in Article 248, the case covered by subdivision number 1 of this Article shall be punished by reclusion temporal in its medium and maximum periods; the case covered by subdivision number 2 by prision correccional in its maximum period to prision mayor in its minimum period; the case covered by subdivision number 3 by prision correccional in its medium and maximum periods; and the case covered by subdivision number 4 by prision correccional in its minimum and medium periods.  

The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement.  

How is the crime of serious physical injuries committed? 

1.  By wounding; 

 2.  By beating; or 

 3.  By assaulting; or 

 4.  By administering injurious substances. (Art. 262) 

•  The accused, while talking to X, drew X’s bolo from its scabbard. X got hold of the blade of his bolo, wounding himself. The accused was not found guilty of serious physical injuries because he did not wound, beat or assault X. 

•  Serious physical injuries may be committed by reckless imprudence or by simple imprudence or negligence. 

What are serious physical injuries? 

1.  When the injured person becomes insane, imbecile, impotent, or blind in consequece of the injuries inflicted; 

2.  When the injured person (a) loses the use of speech or the power to hear or to smell or loses an eye, a hand, a foot, an arm or a leg or (b) becomes incapacitated for work he was habitually engaged in as a consequence of the physical injuries inflicted; 

 3.  When the person injured (a) becomes deformed, or (b) loses any other member of his body, or (c) loses the use thereof or (d) becomes ill or incapacitated for the performance of work which he was habitually engaged for more than 90 days 

 4.  When the injured person becomes ill or incapacitated for labor for more than 30 days [but must not be more than 90 days], as a result of the injuries inflicted. 

•  Art. 263 is divided with specifications, in each case, of (1) the consequence of the injuries inflicted, (2) the nature and character of the wound inflicted, and (3) the proper penalty. 

•  If there was intent to kill when the offender inflicted any of the serious physical injuries described, the crime would be FRUSTRATED or ATTEMPTED murder, parricide or homicide, as the case may be. 

Physical Injuries distinguished from Attempted or Frustrated Homicide: 

Physical Injuries  Attempted or Frustrated 

Homicide 

Offender inflicts physical injuries.  ATTEMPTED HOMICIDE may be committed even if 

no physical injuries are inflicted. 

The offender has NO INTENT TO KILL  The offender has an INTENT TO KILL. 

•  Since the effect is the same: loss of power to procreate, the term impotent should include inability to copulate and sterility. 

•  The penalty shall be one degree higher than that imposed by law when the victim is under 12 year of age as per R.A. 7610. 

•  Under par. 1, the blindness must be of two eyes. 

Under par. 2, it covers the loss of one eye only. 

Under par. 2, it must be the loss of power to hear of both ears.  

•  If  loss of hearing is only as to one ear, it falls under par. 3. 

•  The loss of use of hand or incapacity for habitual work under par. 2 must be PERMANENT. 

All those mentioned in par. 2 are principal members of the body. 

•  Par. 3 covers any other member of the body that is not principal member of the body, such as fingers. 

•  However, where it was alleged in the information and proved that the loss of the use of three fingers also nd resulted in the loss of the use of the hand itself, it then falls under the 2 par. 

•  It is a serious physical injury when the offended party becomes deformed. 

DEFORMITY  requires: 

1.  Physical ugliness; 

 2.  Permanent and definite abnormality; and 

 3.  Conspicuous and visible. 

Loss of teeth (three incisors) is a visible deformity but loss of one incisor does not constitute deformity. 

However, loss of one tooth, which was visible and impaired the appearance of the victim is deformity. 

A front tooth is a member of the body, other than a principal member within the meaning of par 3 

•  Loss of both outer ears constitutes deformity. But if there is loss of power to hear of both ears as a result of the loss of both outer ears, the crime is punished under par. 2. 

The loss of the lobule of the ear is deformity. 

Loss of index and middle finger is either deformity or loss of a member (not principal one) of his body or use of the same. 

Loss of power to hear on the right ear only is loss of use of other part of body under par. 3. 

There is illness (according to par. 3 and 4) for a certain period of time, when the wound inflicted did not heal within that period. 

•  It would seem that if the injury would require medical attendance for more than 30 days, the illness may be considered as lasting for more than 30 days. The fact that there was medical attendance for that period of time shows that the injuries were not cured for that length of time. 

Note that the incapacity of the offended party refers to the work “in which he was habitually engaged.” 

•  Under par. 2 and 3, at  least , the offended party must have an  avocation  or  work  at the  time of the injury . 

•  “Work” includes  studies  or  preparation  for a  profession  

•   Incapacity  for a  certain  kind of  work   only , but  not  for  all  is a serious physical injury under par. 2 or 3. 

•  The  incapacity  must  show  that the  physical   injury  has  rendered  the offended party  incapable  of working in the fields which was the  occupation  in which  at   the   time  he had been  habitually   engaged . 

•  Paragraph 4 speaks of incapacity for any kind of labor. It does not refer to labor in which the offended party is engaged at the time the serious physical injuries were inflicted. The incapacity is for ANY KIND OF LABOR. 

•  Injury requiring hospitalization for more than 30 days is serious physical injuries under par. 4. 

•  Where the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of that period; otherwise, the offense is only slight physical injuries. 

•  There is no incapacity if the injured party could still engage in his work although less effectively than before. 

Ordinary physical injuries distinguished from mutilation 

Mutilation 


Caused purposely and deliberately to lop or clip off some part of the body so as to deprive the offended      
  

Physical Injuries 

This special intention is not present in the different kinds of physical injuries. 

•  QUALIFIED SERIOUS PHYSICAL INJURIES  is committed against any of the persons enumerated in the article defining parricide or with the attendance of any of the circumstances mentioned in the article defining murder. 

•  HOWEVER, serious physical injuries by excessive chastisement by parents are not qualified. 

Source: 

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Challenging to a Duel

Art. 261.  Challenging to a duel.  — The penalty of prision correccional in its minimum period shall be imposed upon any person who shall challenge another, or incite another to give or accept a challenge to a duel, or shall scoff at or decry another publicly for having refused to accept a challenge to fight a duel.  

  

Acts punished: 

1.  By challenging another to a duel. 

2.  By inciting another to give or accept a challenge to a duel. 

3.  By scoffing at or decrying another publicly for having refuses to accept a challenge to fight a duel. 

Persons responsible: 

1.  Challenger 

2.  Instigators 

ELEMENTS:


1. Previous agreement to engage in a combat;


2. Two or more seconds for each combatant; and


3. Choice of arms and other terms of agreement must be agreed upon by the seconds.

NOTES:

• Not all pre-agreed fights is a duel because the elements above must be complied with. 


• A challenge to fight, without contemplating a duel is not a “challenging to a duel.” The person making the challenge  must have in mind a formal combat to be concerted between him and the one who challenged in the presence of two or more seconds . 

• A person who had ill-feelings and moved by hatred, the accused challenged the offended party to a duel, inciting the latter to accept said challenge by uttering: “Come down, let us measure your prowess, we shall see whose intestine will come out. You are a coward if you do not come down.” The offended party refused to come down and accept the challenge. Later when the accused saw the offended party running toward a nearby house, the accused chased him but desisted upon seeing that the offended party had a companion. The accused was found guilty only of LIGHT THREATS. 

References: 

Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Responsibility of Participants in a Duel

Art. 260.  Responsibility of participants in a duel.  — The penalty of reclusion temporal shall be imposed upon any person who shall kill his adversary in a duel. If he shall inflict upon the latter physical injuries only, he shall suffer the penalty provided therefor, according to their nature.  

In any other case, the combatants shall suffer the penalty of arresto mayor, although no physical injuries have been inflicted.  

The seconds shall in all events be punished as accomplices.  

DUEL - is a formal or regular combat previously concerted between two parties in the presence of two or more seconds  of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight. 

Acts punished: 

1.  By killing one’s adversary in a due. 

 2.  By inflicting upon such adversary, physical injuries. 

 3.  By making a combat although no physical injuries have been inflicted. 

Who are liable in a duel? 

1.  The person who killed or inflicted physical injuries upon his adversary or both combatants in any other case, as principals. 

 2.  The  seconds, as accomplices. 

•  If death results, the penalty is the same as that of homicide. 

•  Must the penalty be that for physical injuries only when the agreement is to fight to the death? Art. 260 makes no distinction and the rule is that we must not distinguish if the law does not distinguish. 

       

•  The general principle is that when there is intent to kill, the inflicting of physical injuries is either attempted or frustrated homicide. The penalty for duel, when a person kills his adversary is the same as that for homicide because when death results, the intent to kill is conclusively presumed. 

 •  When there is an agreement to fight to the death, there is intent to kill on the part of the combatants. However, the Code disregards the intent to kill in considering the penalty for duel when only physical injuries are inflicted. 

•  If NO PHYSICAL INJURIES are inflicted in a duel, the penalty to be imposed upon the combatants is arresto mayor. On the other hand, if a person inflicted upon his adversary in a duel, physical injuries only, he shall suffer the penalty provided therefore, according to their nature. 

•  If a person inflicted slight physical injuries upon his adversary in a duel, the penalty is arresto menor and not arresto mayor. 

•  Par. 3 applies only when no physical injuries are inflicted by either of the combatants on the other. In which case, both of the combatants shall be punished by arresto mayor. 

Source: 

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Abortion Practiced by a Physician or Midwife

Art. 259.  Abortion practiced by a physician or midwife and dispensing of abortives.  — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.  

Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos.  

  

ELEMENTS

1.  That there is a  pregnant   woman  who has  suffered  an  abortion ; 

 2.  That the abortion is  intended ; 

 3.  That the offender, who must be a  physician  or  midwife ,  causes  or  assists  in causing, the  abortion ; 

 4.  That said physician or midwife takes advantage of his or her scientific knowledge or skill. 

• Penalty of Intentional Abortion is imposed in its maximum on the physician or midwife. This is so, because they incur a heavier guilt in making use of their knowledge for the destruction of human life, where it should be used only for its preservation. 

As to PHARMACISTS, the elements are: 

1.  That the offender is a pharmacist; 

 2.  That there is no proper prescription from a physician; 

 3.  That the offender dispenses any abortive. 

•  This article does not require that the pharmacist knows that the abortive would be used to cause abortion. What is punished is the dispensing of abortive without the proper prescription from a physician. 

•  If the physician knew that the abortive would be used to cause an abortion and abortion resulted from the use, the physician would be an ACCOMPLICE in the crime of ABORTION. 

•  The act constituting the offense is dispensing abortive without the proper prescription from a physician. NOT NECESSARY that the abortive be ACTUALLY USED. 

Republic Act 4729  

(June 28, 1966) 

regulates the sale, dispensation, and/or distribution of contraceptive drugs and devices. 

§1  It shall be unlawful for any person, partnership or corporation to sell, dispense or otherwise distribute whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner. 

§2  For the purpose of this Act: 

a.  “Contraceptive drug” is any medicine, drug, chemical or potion which is used exclusively for the 

purpose of preventing fertilization of the female ovum; and 

b.  “Contraceptive device” is any instrument, device, material or agent introduced into the female 

reproductive system for the primary purpose of preventing contraception. 

§3  Any person, partnership or corporation, violating the provision of this Act shall be punished with a fine of 

not more than five hundred pesos or an imprisonment of not less than six months or more than one year or 

both, in the discretion of the Court. 

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Abortion Practiced by the Woman Herself of by her Parents

Art. 258.  Abortion practiced by the woman herself of by her parents. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so.  

Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods.  

If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods.  

ELEMENTS

1.  That there is a pregnant woman who has suffered an abortion; 

 2.  That the abortion is intended; 

 3.  That the abortion is caused by – 

        a.  The pregnant woman herself; 

        b.  Any other person, with the pregnant woman’s consent; 

                                                  

        c.  Any of her parents, with her consent for the purpose of concealing her                  dishonor. 

• Only the woman or any of her parents is liable under Art. 258, if the purpose of the latter is to conceal her dishonor. 

• Liability of the pregnant woman is mitigated if the purpose is to conceal her dishonor. 

• If committed by any of the parents of a pregnant woman and with consent of such woman to conceal her dishonor, the penalty is the same as that for the woman who practiced abortion upon herself without such purpose of concealing her dishonor. 

vs. INFANTICIDE

•  No mitigation for the parents of the pregnant woman, unlike in infanticide. 

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Unintentional Abortion

Art. 257.  Unintentional abortion. — The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally.  

ELEMENTS

1. There is a pregnant woman; 

2. Violence is used upon such pregnant woman without intending an abortion; 

3. Violence is intentionally exerted; 

4. As a result of the violence the fetus dies, either in the womb or having expelled therefrom

Unintentional abortion is committed only by violence

•  Where a man pointed a gun to a pregnant woman threatening to kill her and because of the fright she suffers an abortion, the offender is guilty of THREATS only. 

Violence must be intentionally exerted

•  A truck driver who accidentally hit a calesa that caused the pregnant woman riding the calesa to have an abortion three days after was liable for UNINTENTIONAL ABORTION THRU RECKLESS IMPRUDENCE. 

•  If the offender does not know that the woman is pregnant, and abortion results from a felonious violent act, it is unintentional abortion.

Is there unintentional abortion by means of intimidation?

•  None. IA results only from physical violence, not intimidation. Hence, thrusting a gun against a pregnant woman in a quarrel would bring about other light threats but not unintentional abortion.

In short, unintentional abortion is:

a. by violence (physical) and not intimidation;

b. by strangers, NOT by the pregnant woman.

Is the accused liable for abortion even if he did not know that the woman was pregnant?

•  Even though it was not the criminal intent of the defendant to cause the abortion, the fact that without any apparent reason whatsoever, he maltreated T, presumably not knowing that she was pregnant, as author of the abuse which caused the miscarriage, he is liable not only for such maltreatment but also for abortion. 

Complex crime of homicide with unintentional abortion

•  Where the accused, in becoming angry with a pregnant woman, struck her with his fist, causing her to fall to the ground and when she got up, hit her again a second time causing her to fall again resulting in a premature delivery of one of her twin babies, the other not having been born because the woman died is liable for HOMICIDE with UNINTENTIONAL ABORTION.

•  However, mere boxing on the stomach, taken together with immediate strangling of the victim in a fight is not sufficient proof to show an intent to cause abortion. In fact, the accused must have merely intended to kill the victim but not necessarily to cause an abortion. Appellant should be held guilty of the complex crime of parricide with unintentional abortion.

Complex crime of parricide with unintentional abortion

•  A husband who with violence kills his pregnant wife, thus, occasioning the death of the fetus, is guilty of PARRICIDE WITH UNINTENTIONAL ABORTION. 

No intention to cause abortion, no violence, Art. 256 or 257 does not apply, no abortion of any kind. 

The husband gave to his pregnant wife a bitter substance because she was suffering from stomach trouble. The wife suffered an abortion as a result. Husband is not liable because abortion was not intended and it could not be unintentional abortion for there was no violence used.

Can the woman commit unintentional abortion upon herself?

•  The woman herself cannot commit unintentional abortion because it is always committed by STRANGERS. Note that it is required that the violence be voluntary which resulted in the intended abortion. Hence, it is always intentional abortion that the woman commits upon herself. For example: a pregnant woman committed suicide. She did not die but abortion followed. What crime was committed? NONE. There is no Unintentional Abortion because this crime requires physical violence committed by strangers. There is not Intentional Abortion because the woman's act of committing suicide is not intended to commit abortion but to kill her own self. There is no criminal liability under Art. 4 paragraph 1 because she was not committing a felony when she attempted suicide, as suicide is not a felony. 

INTENTIONAL vs. UNINTENTIONAL ABORTION

•  There must be intent to bring about abortion to make it INTENTIONAL ABORTION. If there is no intent to bring about abortion, then it is UNINTENTIONAL ABORTION. A person who subjects a woman to violence is liable for all the consequences thereof. Unintentional abortion is committed if abortion results because of that violence.

•  If the crime is the product of imprudence as when due to negligence, violence is committed against the pregnant woman, it is reckless or simple imprudence resulting to unintentional abortion. 

HOW:         IA - with our without violence

                 UA - with violence (physical)

WHO:         IA - by strangers, by the woman herself or her parents

                 UA - by strangers only

KNOW:       IA - stranger KNOWS of the pregnancy of the woman

                 UA - he may or may not know of the pregnancy

MODALITY:   IA - always DOLO because intent to commit abortion is inherent

 UA - may be dolo or culpa because the unintentional refers to the abortion, not to the violence inflicted by another person which may be intentional violence or culpable violence

References: 

Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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Intentional Abortion

Art. 256.  Intentional abortion.  — Any person who shall intentionally cause an abortion shall suffer:  

1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman.  

2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman.  

3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented. 

ELEMENTS

1.  That there is a pregnant woman; 

2.  That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 

3.  That as a result of the use of violence, drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; 

4.  That the abortion is intended. 

ABORTION

Abortion is the willful killing of the fetus in the uterus or the violent expulsion of the fetus from the material womb which results in the death of the fetus. 

FETUS MUST DIE IN CONSUMMATED ABORTION

•  If the  fetus   survives  in spite of the  attempt to kill  it or the  use of violence, abortion is  not consummated. If   abortion  is  intended  and the  fetus  does  not   die, it is frustrated intentional abortion  when  all acts of execution  have been  performed  by the offender. 

•  If abortion is not intended and the fetus  does not die, in spite of the  violence    intentionally    exerted, the crime may  only be physical injuries. There is  NO FRUSTRATED UNINTENTIONAL ABORTION, in view of lack of intention to cause abortion. 

FETUS MAY BE OVER OR LESS THAN SIX MONTHS OLD

•  Under the RPC, abortion ordinarily means the expulsion of the fetus before the sixth month or before the term of its viability, that is, capable of sustaining life. 

•  But, as long as the fetus dies as a result of the violence used or the drugs administered, the crime of abortion exists, even if the fetus is full term. 

WAYS OF COMMITTING INTENTIONAL ABORTION 

1.  By using any  violence  upon the  person  of the  pregnant woman  

2.  By acting, but  without  using  violence, without  the  consent  of the woman (By administering drugs or beverages upon such pregnant woman without her consent)

3.  By acting (by administering drugs or beverages) with the consent of the  pregnant woman

PENALTY

•  The person who intentionally caused the abortion is liable under Art. 256. The woman is liable under Art. 258, if she consented to the abortion caused on her. If she did not consent, she is not liable. 

•  Art. 256, par.3 which provides for the least penalty, “if the woman shall have consented” to the act causing the abortion, should be construed in relation to that in par. 2 of Art. 256, because the absence of consent of the woman is mentioned in connection with a case where the offender acted “without using violence.” 

ABORTION vs. INFANTICIDE

In Abortion 

1.  The fetus is still drawing life from its mother;

2.  The umbilical chord is not yet cut; or

3. The baby had an intra-uterine life of less than 7 months and is killed  within 24 hours.

In Infanticide 

1.  The victim is already a person;

2.  The umbilical chord is already cut and the infant is still alive;

3.  The baby had an intra-uterine life of less than 7 months and it is killed after 24 hours.

In both cases, the killing by the woman to conceal dishonor is an extenuating circumstance. - only available to MOTHER and MATERNAL GRANDPARENTS

KINDS OF ABORTION

1. Intentional abortion - includes:

      - abortion practiced by pregnant woman herself or her parents (Art 258)

      - abortion practiced by physician or midwife

2. Unintentional abortion

References: 

Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed. 

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