Death or Physical Injuries Under Exceptional Circumstances

A. Introduction.

1. Concept: It is the killing or wounding by one who surprised the spouse in the act of sexual intercourse with another, (called euphemistically Criminal Conversation or any illicit sex for that matter) or the minor daughter of the accused spouse and living with the accused spouse, in the act of sexual intercourse with her seducer

2. Article 247 does not define a crime but grants a privilege or benefit amounting to an exemption from punishment. Thus the commission of the crime under the situation contemplated would constitute an Absolutory Cause.

3. The killing or wounding is regarded as a justifiable outburst of passion.

4. The accused will be charged for parricide, Murder or Homicide or Physical Injuries, and it is up to the accused to prove the killing or physical injuries were under the circumstances conceived by Article 247. This is a matter of defense.

5.The sexual intercourse must be voluntary on the part of the offending spouse or daughter, otherwise the intercourse would constitute rape and the killing would become the justifying circumstance of defense of a relative.

B. Requirements for the Application of Article

1. The spouses must be legally married. If not the situation may only give rise to the mitigating circumstance of Passion or Obfuscation

2. In case the accused is the husband, he should not have promoted or facilitated the prostitution of his wife or daughter, or that the accused spouses had not consented to the infidelity of the other spouse.

3. Meaning of the  phrase” having surprised” (or element of surprise):

a). They were the offending spouses with the partner or the daughter and her seducer who were caught by surprise. The phrase does not refer to the accused spouse

b). This includes the situation where the offended spouse had prior suspicion or knowledge of the infidelity but simply resorted to a strategy to catch the guilty parties spouse in flagranti

c). The surprise must take place in the very act of sexual intercourse, during the criminal conversation, not during the preparatory acts or after the sexual act

d). QUESTION: Must the guilty spouse and partner be aware that they were “discovered” as to be literally surprised, or does Article 247 include situations where the offending spouses and partners were killed without them being aware they were discovered and caught in flagrante?

4. At what point must the killing of wounding take place? It must be either:

a). During the discovery: i.e simultaneously with the discovery

b). Or immediately thereafter:

(i). The strict traditional view held that there be no lapse of time from the discovery to the killing.

(ii). However, the better view is that Article 247 applies so long as there was no unnecessary interruption or break from the time of discovery to the pursuit and then to the moment of the killing or wounding. The discovery, pursuit, and killing must be one continuous process.

(iii). In the case of PP. vs. Abarca ( 153 SCRA 735) (one hour passed from the time of discovery to the time the accused went to look for a weapon, returned to look for the accused until he saw him inside a house playing mahjong) Article 247 was applied because although an interval of time elapsed, the law however does not require the killing to be instantly or simultaneous with the discovery, so long as the killing was the proximate result of the outrage which overwhelmed the accused or that the killing was when the accused was still acting under the influence of the infidelity

5. With respect to the killing of the daughter and her seducer, the daughter must be a minor and the sexual intercourse must be in the dwelling of the accused parent and not elsewhere

C. Effect if third persons are killed or wounded:

1. Per PP. vs. Abarca, a complex crime does not arise if a third person is killed or wounded from the act of the accused in shooting at the guilty spouse or the latter’s partner, but the accused may be held liable for reckless imprudence

2.Example: The accused shot at the offending spouse and partner but the bullet exited and killed a Peeping Tom. If it was proven the killing falls under Article 247, the accused will be liable for the death of the Peeping Tom only if it was proven his presence was known to the accused and who did not take precautions to see that other people will not be hit by the bullet.

D. Penalty:

1.If death or serious physical injuries resulted, the accused will be imposed the penalty of destierro, which is intended more to protect him from the retaliation of relatives of the victim, than as a punishment.

2. If what were inflicted were less serious or slight physical injuries, there is no criminal liability