Sons liable for killing man in flagrante sex with mom?

In a news report by GMA News,[1] a husband and his two sons physically injured a man and killed him after the latter was caught having sex with the husband's wife. The report says: "Napatay sa bugbog ang isang lalaki sa Mangatarem, Pangasinan matapos na mahuli raw sa akto na nakikipagtalik sa isang ginang. Ang nakapatay sa kaniya, ang mister at mga anak ng babae. Nagdilim na raw ang kaniyang paningin kaya binugbog ang biktima. Nakisali na rin daw ang dalawang anak na lalaki ng suspek."

For purposes of this discussion, it is presumed that the husband and wife in the report are legally married. At any rate, this presumption is supported by the law on evidence. Also, for academic purposes, it is presumed that the reporting is factually accurate because any change in the facts of the case may give rise to a different legal conclusion.The question now is the legal liability of the three: the husband and the two sons. Of course, when a person dies, the starting point would be the law on destruction of life under Act No. 3815 or the Revised Penal Code of the Philippines, which says:

Any person who, not falling within the provisions of article 246 shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.[2]

Article 246 refers to the killing of one's father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse. On the other hand, the phrase "without the attendance of any of the circumstances enumerated in the next preceding article" refers to Article 248.[3] 

Therefore, if the killing is not parricide or murder (also not infanticide), the crime would be homicide. However, according to the same law, 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.[4][5][6]

The husband of the female caught having sex with another man would benefit from the above-cited law, also known as "death or physical injuries inflicted under exceptional circumstances," because he is legally married to the wife and he surprised them (the wife and the other man) in the act of sexual intercourse. As a result of this, he, with the help of his two sons, killed the man. To the husband, no imprisonment can be imposed because the law only punishes him with the penalty of destierro which simply "means banishment or only a prohibition from residing within the radius of 25 kilometers from the actual residence of the accused for a specified length of time."[7] In fact, there are authors and experts in criminal law who would argue that destierro is not a penalty.[8][9]

Unfortunately for the two sons, Article 247 cannot apply to them as the plain language of the provision itself says that it applies to "any legally married person" in relation to "his/her spouse." In short, despite the understandable reaction by the two sons in beating up and killing their mother's lover, the protective shield provided by Article 247 does not extend to them.

Fortunately, though, Article 13[10] of the same law on mitigating circumstances may benefit the two sons. Particularly, the following circumstances may be used to lower the penalty to be imposed against them:
  1. That the offender had no intention to commit so grave a wrong as that committed;
  2. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation;
  3. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution; and
  4. Any other circumstance of a similar nature and analogous to those above mentioned.
Under number 4 above on analogous circumstances, Article 247 may be pleaded as an additional mitigating circumstance. It can be argued that Article 247 is analogous to number 2 above.

Number 4 applies only when the two sons actually voluntarily surrender to authorities, thereby allowing the government to save expenses in hunting them down. It must be emphasized that the essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture.[11]

Some would argue that "immediate vindication of a wrong" should also be considered a mitigating circumstance. However, the law says: "[t]hat the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural, or adopted brothers or sisters, or relatives by affinity within the same degrees." It must be recalled that adultery is punishable by "prision correccional" which is a correctional penalty, not an afflictive one.[12][13]

[1] Lalaking nahuli raw na nakikipagtalik sa ginang na 'di niya asawa, patay sa bugbog.

[2] ART. 249. Homicide.

[3] ART. 248. Murder.—Any person who, not falling within the provisions of article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:

  1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
  2. In consideration of a price, reward or promise.
  3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.
  4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity.
  5. With evident premeditation.
  6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

[4] ART. 247. Death or physical injuries inflicted under exceptional circumstances.






[10] ART. 13. Mitigating circumstances.


[12] ART. 9. Grave felonies, less grave felonies and light felonies.—Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with article 25 of this Code.

[13] ART. 25. Penalties which may be imposed.—The penalties which may be imposed, according to this Code, and their different classes, are those included in the following:


Capital punishment:


Afflictive penalties:

Reclusion perpetua,

Reclusion temporal,

Perpetual or temporary absolute disqualification,

Perpetual or temporary special disqualification,

Prision mayor.

Correctional penalties:

Prision correccional,

Arresto mayor,



Light penalties:

Arresto menor,

Public censure.

Penalties common to the three preceding classes:

Fine, and

Bond to keep the peace.


Perpetual or temporary absolute disqualification,

Perpetual or temporary special disqualification,

Suspension from public office, the right to vote and be voted for, the profession or calling,

Civil interdiction,


Forfeiture or confiscation of instruments and proceeds of the offense,

Payment of costs.