Criminal Law: Article 247: Bar Exams

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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 the 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.

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[2018] Rafa caught his wife, Rachel, in the act of having sexual intercourse with Rocco inside the maid’s room of their own house. Rafa shot both lovers in die chest, but they survived. Rafa charged Rachel and Rocco with adultery, while Rachel and Rocco charged Rafa with frustrated parricide and frustrated homicide.

In the adultery case, Rachel and Rocco raised the defense that Rafa and Rachel, prior to the incident in question, executed a notarized document whereby they agreed to live separately and allowed each of them to get a new partner and live with anyone of their choice as husband and wife. This document was executed after Rachel discovered that Rafa was cohabiting with another woman. Thus, they also raised the defense of in pari delicto. In the frustrated parricide and frustrated homicide cases, Rafa raised the defense that, having caught them in flagrante delicto, he had no criminal liability. Assuming that all defenses have been proven:

(a)Will the action for adultery prosper? (2.5%)

A – Answer:
No, the action for adultery will not prosper.

Under Article 333 of the Revised Penal Code, adultery requires that the husband must not have consented to or pardoned the infidelity. Consent, whether express or implied, is a bar to prosecution.

Rafa and Rachel executed a notarized agreement allowing each other to live separately and have other partners. This constitutes express consent to the extramarital relations. Since Rafa consented to Rachel’s relationship with another man, he cannot validly file a complaint for adultery.

Moreover, Rafa himself was cohabiting with another woman, showing mutual fault (in pari delicto), further negating his right to prosecute.

Thus, the charge for adultery will not prosper because Rafa consented to the infidelity, which bars criminal prosecution.

(b) Will the actions for frustrated parricide and frustrated homicide prosper? (2.5%

A – Answer:
No, the actions for frustrated parricide and frustrated homicide will not prosper.

Under Article 247 of the Revised Penal Code, a legally married person who surprises his spouse in the act of sexual intercourse with another and kills or inflicts serious physical injuries upon them in the act or immediately thereafter incurs only the penalty of destierro, or may even be exempt from punishment depending on the injuries. This provision is an absolutory cause that displaces liability for parricide, homicide, or their frustrated stages.

However, the law also provides that a person who has consented to the infidelity of the spouse is not entitled to the benefits of Article 247.

Rafa indeed caught Rachel and Rocco in flagrante delicto, and he acted immediately by shooting them. However, it is established that Rafa had expressly consented to Rachel’s infidelity through their notarized agreement allowing each other to have other partners.

Because of this prior consent, Rafa cannot invoke Article 247.

Thus, his act of shooting Rachel (his lawful wife) constitutes frustrated parricide, and shooting Rocco constitutes frustrated homicide.

Yes, the actions for frustrated parricide and frustrated homicide will prosper, because Rafa cannot avail of Article 247 due to his prior consent to the infidelity.

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[2016] Jojo and Felipa are husband and wife. Believing that his work as a lawyer is sufficient to provide for the needs of the 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 case given that the paramour was of the same gender as the erring spouse? (2.5%)

A – Answer:
Yes, Article 247 applies even if the paramour is of the same gender as the erring spouse.

Article 247 applies when a legally married person surprises his or her spouse in the act of committing sexual intercourse with another person and kills or inflicts serious physical injuries upon them in the act or immediately thereafter. The law does not distinguish as to the gender of the paramour.

Jojo is a legally married person who caught his wife in flagrante delicto engaging in sexual activity with Alma. The law uses the phrase “another person”, without qualification as to sex. Applying the rule ubi lex non distinguit, nec nos distinguere debemos (where the law does not distinguish, we should not distinguish), the gender of the paramour is immaterial.

Jojo acted immediately upon discovery by shooting Alma, thus satisfying the requirement of immediacy.

Therefore, Article 247 applies, notwithstanding that the paramour is of the same gender as the erring spouse, and Jojo’s liability is limited to destierro.

b) Is Felipa liable for adultery for having sexual relations with Alma?

A – Answer:
No, Felipa is not liable for adultery.

Under Article 333 of the Revised Penal Code, adultery is committed by a married woman who has sexual intercourse with a man not her husband. The law specifically requires that the paramour be a man.

In this case, Felipa engaged in sexual relations with Alma, who is a woman. Since adultery requires sexual intercourse with a man, the essential element is lacking.

Although Felipa’s act may be morally or socially questionable, it does not fall within the legal definition of adultery under the Revised Penal Code.

Thus, Felipa is not criminally liable for adultery because the law requires that the sexual act be committed with a man, which is absent in this case.

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2001 No XIII. A and B are husband and wife. A is employed as a security guard at Landmark, his shift being from 11:00 p.m. to 7:00 a.m. One night, he felt sick and cold, hence, he decided to go home around midnight after getting permission from his duty officer. Upon reaching the front yard of his home, he noticed that the light in the master bedroom was on and that the bedroom window was open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom. He opened the door very carefully and peeped inside where he saw his wife B having sexual intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest himself free and jumped out of the window, A followed suit and managed to catch C again and after a furious struggle, managed also to strangle him to death. A then rushed back to his bedroom where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and rendered her unconscious. The police arrived after being summoned by their neighbors and arrested A who was detained, inquested and charged for the death of C and serious physical Injuries of B.

Is A liable for C’s death? Why? (5%)

A – Answer:
No, A is not liable for C’s death; Article 247 applies, and A is liable only to the extent of destierro.

Under Article 247 of the Revised Penal Code, a legally married person who surprises his spouse in the act of sexual intercourse with another and kills either or both of them in the act or immediately thereafter shall suffer only the penalty of destierro. The phrase “immediately thereafter” includes acts done during a continuous pursuit arising from the same impulse of outrage.

A is a legally married husband who caught B and C in flagrante delicto. Upon discovery, he immediately reacted and pursued C, who fled. The killing occurred during a continuous chase without interruption, showing that A acted under the same uncontrollable burst of passion triggered by the shocking discovery.

Jurisprudence recognizes that “immediately thereafter” includes such unbroken pursuit, provided there was no time for A to regain composure or reflect.

Thus, A is not criminally liable for homicide/murder for C’s death, but only subject to the penalty of destierro under Article 247.

|Is A liable for B’s injuries? Why? (5%)

A – Answer:
No, A is not criminally liable for the injuries inflicted on B.

Under Article 247 of the Revised Penal Code, if the legally married person inflicts physical injuries of any kind other than serious physical injuries, he or she is exempt from punishment.

The law further provides that if the requisites are present (surprise in the act of sexual intercourse and immediate reaction), the offender incurs only destierro for death or serious physical injuries, and no liability for lesser injuries.

A caught his wife B in flagrante delicto and immediately reacted. The facts state that he hit B with fist blows, rendering her unconscious, but there is no showing that the injuries were serious physical injuries.

Assuming the injuries are only less serious or slight, Article 247 applies, and A is exempt from punishment for such injuries.

Thus, A is not liable for B’s injuries, because under Article 247, physical injuries other than serious are exempt from punishment.

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1991 No. 14; At 10:00 o’clock in the evening of 10 November 1990, upon his arrival from Cebu City, Marco surprised his wife. Rosette, and her former boyfriend, Raul, both naked and in the act of illicit copulation. Raul got his revolver and, upon seeing the revolver, Marco ran toward the street, took a pedicab and proceeded to the house of his brother, a policeman, from whom he borrowed a revolver. With the weapon, he returned to his residence. Unable to find Raul and Rosette, Marco proceeded to a disco jointly owned and operated by Haul. It was already 11:00 o’clock that evening when he arrived at the joint. Upon seeing Raul with two (2) male companions, A arid B, drinking beer at one of the tables, Marco fired two (2) shots at Raul, who was hit on his forehead with one of the bullets; the other bullet hit A, injuring him on his stomach. As a consequence of the gunshot wound, Haul died instantaneously. Due to the timely medical attention given to him, A survived; he was, however, hospitalized for 45 days, Marco was prosecuted for Murder for the death of Raul and for frustrated murder in the case of A. The informations in both cases allege the qualifying circumstances of evident premeditation and treachery and the generic aggravating circumstance of nighttime. You are Marco’s lawyer. What would be your defense(s)?

As Marco’s lawyer, the best defenses would revolve around Article 247, but must be carefully argued due to the lapse of time.

A – Answer (Defenses):

Marco may raise the following defenses:

Article 247 (Death under exceptional circumstances) – as a privileged defense (though weak due to delay)
Passion and obfuscation – as a mitigating circumstance
Denial of qualifying circumstances (treachery and evident premeditation)

Under Article 247, RPC: Applies when a spouse catches the other in the act of sexual intercourse and kills in the act or immediately thereafter → penalty is destierro.

Article 13(6), RPC: Passion and obfuscation is mitigating when the act is committed under an impulse so powerful as to naturally produce loss of self-control.

Murder (Art. 248): Requires qualifying circumstances such as treachery or evident premeditation, which must be clearly proven.

1. Article 247 (Primary Defense – but likely NOT applicable)

Marco caught his wife in flagrante delicto, satisfying the first requirement.

However:

He ran away,
Borrowed a gun,
Returned after about one hour,
Went to another location (disco),

👉 This shows a cooling-off period and time for reflection.

❌ Thus, Article 247 will likely NOT apply because:

The killing was no longer “immediately thereafter”
The act was already deliberate and retaliatory

2. Passion and Obfuscation (Strong Defense)

Marco acted under:

Extreme shock and humiliation
Emotional disturbance from catching his wife in the act

Even with some lapse of time, courts may still consider:

The continuing emotional turmoil
The provocation was grave and immediate

👉 This can mitigate liability

3. No Treachery

Treachery requires:

Sudden attack
No chance for victim to defend himself

Here:

Raul was in a public place (disco)
No showing that the attack was consciously planned to ensure execution without risk

👉 Treachery is not clearly established

4. No Evident Premeditation

Requires:

Time when decision was made
Overt act showing persistence
Sufficient lapse of time for reflection

Although there was a lapse of time:

The act was driven by emotional impulse, not calm reflection

👉 Courts often rule:

Passion negates evident premeditation

5. Injury to A (Frustrated Murder)

A was not the intended victim
No showing of intent to kill A specifically

👉 Liability may be reduced to:

Less serious physical injuries or
At most frustrated homicide, not murder

Thus, Marco’s best defenses are:

❌ Article 247 (likely not applicable due to delay)
✅ Passion and obfuscation (mitigating)
❌ No treachery
❌ No evident premeditation

👉 Therefore:

Liability should be reduced to homicide (not murder) for Raul
And frustrated homicide or physical injuries for A, both mitigated by passion and obfuscation

🎯 Bar Tip:

When Article 247 fails due to delay, always fall back on:
👉 Passion and obfuscation + absence of qualifying circumstances

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1988 No. 7: Pedro Orsal and the wife of accused Juan Santos started having illicit relations while the accused was in Manila reviewing for the 1983 Bar Examinations and his wife was left behind in Davao City. In the morning of July 15, 1984, the accused went to the bus station in Davao City to go to Cagayan de Oro City to fetch his daughter, but after he failed to catch the first trip in the morning, and because the 2:00 o’clock bus had engine trouble and could not leave, the accused, after passing the residence of his father, went home and arrive at his residence at around six o’clock in the afternoon. Upon reaching his home, the accused found his wife Laura, and Pedro Orsal in the act of sexual intercourse. When the wife and Pedro Orsal noticed the accused, the wife pushed her paramour who got his revolver. The accused, who has then peeping above the built in cabinet in their room, jumped down and ran away. He went to the house of his PC soldier-friend, and neighbor, got his (soldier’s) M-16 rifle and immediately, it was almost 6:30 p.m. then, went back to his house. Not finding his wife there, he went to the hangout of Pedro Orsal and found the latter playing mahjong there. The accused fired at Pedro three times with his rifle, hit him and two bystanders. Pedro died instantaneously of wounds in the head, trunk, and abdomen. The two bystanders were seriously injured but survived.

a) Can Juan Santos be held guilty for homicide for the death of Pedro Orsal? Explain.

A – Answer:
Yes, Juan Santos can be held liable for homicide (not Article 247) for the death of Pedro Orsal.

Article 247 applies only if the killing is done “in the act or immediately thereafter” after surprising the spouse in sexual intercourse. If there is a cooling-off period or time for reflection, the article does not apply, and the offender is liable for the proper crime (e.g., homicide or murder).

Under Article 249, homicide is committed when a person kills another without qualifying circumstances.

Although Juan caught his wife and Pedro in flagrante delicto, he:

Ran away from the scene
Went to a friend’s house
Borrowed an M-16 rifle
Returned later and even went to another place (mahjong area)

👉 These acts show:

Time for reflection
Deliberation
A break in the emotional impulse

Thus, the killing was no longer immediate, but already retaliatory and deliberate.

❌ Therefore, Article 247 does NOT apply

Since no qualifying circumstance is clearly established, the crime is homicide, not murder.

Juan Santos is criminally liable for homicide for the death of Pedro Orsal because the requisites of Article 247 are absent due to the lapse of time and intervening acts showing reflection and revenge.

b) What offense did Juan Santos commit with regard to the two bystanders? Explain.

A – Answer:
Juan Santos is liable for serious physical injuries, not frustrated homicide or murder, with respect to the two bystanders.

Under the Revised Penal Code:

Serious physical injuries (Art. 263) are committed when the injuries require medical attendance for more than 30 days or incapacitate the victim for labor for the same period.
Criminal liability depends on intent. If there is no intent to kill the victim, the crime is physical injuries, not homicide or murder.
When unintended victims are injured, liability is determined by the actual intent and resulting harm.

Juan fired at Pedro with intent to kill him. The two bystanders were not the intended targets.

Although they were hit and seriously injured (hospitalized and survived), there is no showing that Juan intended to kill them.

👉 Thus:

No intent to kill the bystanders → ❌ no frustrated homicide/murder
Injuries were serious → ✔️ serious physical injuries

Juan Santos is liable for serious physical injuries with respect to the two bystanders, since they were not the intended victims and there was no intent to kill them.

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1985 No. 9 Feeling homesick and terribly missing his wife after a long absence, Ronald, without notice, came home from Saudi. Arriving at their residence, he immediately proceeded to their bedroom where he saw his wife lying on their bed under a mosquito net locked in embrace with his compadre Dante Ayala He immediately drew his gun but was beaten to a draw by Dante whose bullet felled him. Prosecuted for Homicide for killing Ronald, Dante set up self-defense but was nevertheless convicted.

(A) In the above given case, supposing Ronald shot Dante and his (Ronald’s) wife, while Dante was on top of the latter, thus killing both of them, will you grant him the benefit of Article 247 of the Revised Penal Code? Explain.

Answer:

Yes, Ronald should be granted the benefit of Article 247.

Article 247 applies when a legally married person surprises his or her spouse in the very act of sexual intercourse with another and, as an immediate reaction, kills either or both of them. The law recognizes that such a situation produces a sudden and overwhelming emotional impulse that may deprive the person of self-control, and therefore reduces the penalty to destierro.

In this case, Ronald arrived home unexpectedly and immediately went to the bedroom where he found his wife and Dante in the act of sexual intercourse, with Dante on top of his wife. The discovery was direct and unequivocal. Upon seeing this, Ronald instantly shot both of them. There was no interruption, no departure from the scene, and no time for reflection or planning. The act was clearly done in the heat of passion arising from the shocking discovery.

Since all the requisites of Article 247 are present—legal marriage, actual sexual intercourse, and an immediate reaction—the provision applies. Thus, Ronald is not liable for parricide and homicide or murder, but only subject to the penalty of destierro.

1983 No, 10 Having caught A in flagrante delicto doing the sex act with his [B’s] wife, B shot and killed A while the latter was still in the compromising act. B was sentenced to reclusion perpetua for murder after a protracted trial. It was only on appeal that he was given the proper penalty of destierro under Article 247 of the Revised Penal Code. During the pendency of the case, the accused was under preventive detention which lasted for about eight years. What is the philosophy of the legal provision imposing the penalty of destierro for the above crime?

Answer:

The philosophy behind Article 247 is rooted in the law’s recognition of human frailty and emotional disturbance under extreme provocation.

The law does not justify the act of killing; it still considers the act unlawful. However, it acknowledges that a person who surprises his or her spouse in the very act of sexual intercourse with another is placed in a situation of extraordinary emotional shock, capable of producing a loss of reason and self-control. In such a moment, the offender acts not out of cold intent or criminal perversity, but under an overpowering impulse of passion and outrage.

Because of this, the law adopts a policy of compassion rather than strict retribution. Instead of imposing severe penalties like reclusion perpetua for murder or parricide, it reduces the penalty to destierro, which is merely a form of banishment. This reflects the idea that while the act cannot be condoned, the offender is less morally culpable than one who kills with deliberation, treachery, or criminal intent.

Thus, the philosophy of Article 247 is to temper justice with mercy, recognizing that the law must consider not only the act but also the psychological and emotional condition of the offender at the time of its commission.

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1978 No. IX-a Juan came upon his wife and Isabelo in a secluded place covered with underbush. His wife was getting up while Isabelo was standing and zipping up his pants. Isabelo took to his heels when he saw Juan, who chased him with a balisong knife. Unable to catch up with Isabelo, Juan returned to his wife and, completely obfuscated by what he had seen, stabbed her repeatedly with the knife, killing her immediately. Juan’s defense at the trial was his having surprised his wife under circumstances indicative of carnal intercourse with Isabelo, and claimed that he should be acquitted. Decide with reasons.

Answer:

Juan should not be acquitted, but he is entitled to the benefit of Article 247, hence liable only to the extent of destierro, not parricide.

Article 247 requires that the spouse be surprised in the act of sexual intercourse or under circumstances clearly indicating that the sexual act has just been committed, and that the killing be done in the act or immediately thereafter.

In this case, Juan did not actually see the sexual act itself, but he found his wife getting up and Isabelo zipping up his pants in a secluded place. These circumstances strongly indicate that sexual intercourse had just been consummated. Jurisprudence recognizes that actual witnessing of the act is not indispensable, provided the circumstances clearly show that the parties were caught in flagrante delicto or immediately after the act.

Juan immediately reacted by chasing Isabelo, and when he failed to catch him, he returned and, still under the same uncontrollable impulse of passion, stabbed his wife. There was no sufficient cooling-off period; his actions formed part of a continuous chain of events triggered by the shocking discovery.

Thus, although Juan is not entitled to acquittal, the law mitigates his liability. Instead of being liable for parricide, he is covered by Article 247 and should suffer only the penalty of destierro.

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1977 No. VI-b. The husband having discovered his wife in sexual intercourse with her paramour, immediately fired upon the latter inflicting on him less serious physical injuries. The same bullet that hit the paramour also hit a stranger killing him instantly. 1) Did the husband incur criminal liability in wounding the paramour? 2) Will you make the husband liable for the death of the stranger? Reason out your answers to the two questions.

Answer:

1) Did the husband incur criminal liability in wounding the paramour?

No, the husband did not incur criminal liability.

Under Article 247 of the Revised Penal Code, if a legally married person surprises his spouse in the act of sexual intercourse with another and inflicts physical injuries other than serious physical injuries, he is exempt from punishment.

In this case, the husband caught his wife in flagrante delicto and immediately shot the paramour, causing only less serious physical injuries. Since all the requisites of Article 247 are present and the injury is not serious, the law expressly provides that he is exempt from criminal liability.

2) Will you make the husband liable for the death of the stranger?

Yes, the husband is criminally liable for the death of the stranger, but only for homicide through reckless imprudence.

Article 247 applies only to the spouse and the paramour. The stranger is not covered by the exceptional circumstance. While the husband may be exempt or privileged with respect to the paramour, this benefit does not extend to third persons.

The killing of the stranger was not intentional but resulted from the husband’s act of firing his gun. Hence, liability arises from negligence or imprudence, making him liable for homicide through reckless imprudence.

Conclusion:
The husband is not liable for the injury to the paramour due to Article 247, but he is liable for the death of the stranger, since the law’s protection does not extend to third persons.