Crimes Mala In Se vs. Crimes Mala Prohibita

1. Distinguish between crimes mala in se and crimes mala prohibita.
2. May an act be malum in se and be, at the same time, malum prohibitum?

Suggested Answer:

1. Crimes mala in se are felonious acts committed by dolo or culpa as defined in the Revised Penal Code. Lack of criminal intent is a valid defense, except when the crime results from criminal negligence. On the other hand, crimes mala prohibita are those considered wrong only because they are prohibited by statute. They constitute violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society.

2. Yes, an act may be malum in se and malum prohibitum at the same time. In People vs. Sunico, et al, (CA 50 OG 5880) it was held that the omission or failure of election inspectors and poll clerks to include a voter's name in the registry list of voters is wrong per se because it disenfranchises a voter of his right to vote. In this regard it is considered as malum in se. Since it is punished under a special law (Sec.101 and 103, Revised Election Code), it is considered malum prohibitum.


1999 Bar Exam Question

1. Distinguish "Mala In Se" from "Mala Prohibita".

 In "mala in se", the acts constituting the crimes are inherently evil, bad or wrong, and hence involves the moral traits of the offender; while in "mala prohibita', the acts constituting the crimes are not inherently bad, evil or wrong but prohibited and made punishable only for public good. And because the moral trait of the offender is involved in "mala in se", modifying circumstances, the offender's extent of participation in the crime, and the degree of accomplishment of the crime are taken into account in imposing the penalty; these are not so in "mala prohibita" where criminal liability arises only when the acts are consummated.


2001 Bar Examination Question

Briefly state what essentially distinguishes a crime mala prohibita from a crime mala
in se.

In crimes mala prohibita, the acts are not by nature wrong, evil or bad. They are punished only because there is a law prohibiting them for public good, and thus good faith or lack of criminal intent in doing the prohibited act is not a defense.

In crimes mala in se, the acts are by nature wrong, evil or bad, and so generally condemned. The moral trait of the offender is involved; thus good faith or lack of criminal intent on the part of the offender is a defense, unless the crime is the result of criminal negligence. Correspondingly, modifying circumstances are considered in punishing the offender.


2003 Bar Exam Question

Distinguish, in their respective concepts and legal implication, between crimes mala in se and crimes mala prohibita.

In concept: Crimes mala in se are those where the acts or omissions penalized are inherently bad, evil or wrong that they are almost universally condemned.

Crimes mala prohibita are those where the acts penalized are not inherently bad, evil or wrong but prohibited by law for public good, public welfare or interest and whoever violates the prohibition are penalized.

In legal implications: In crimes mala in se, good faith or lack of criminal intent/negligence is a defense, while in crimes mala prohibita, good faith or lack of criminal intent or malice is not a defense; it is enough that the prohibition was voluntarily violated.

Also, criminal liability is generally incurred in crimes mala in se even when the crime is only attempted or frustrated, while in crimes mala prohibita, criminal liability is generally incurred only when the crime is consummated.

Also, in crimes mala in se, mitigating and aggravating circumstances are appreciated in imposing the penalties, while in crimes mala prohibita, such circumstances are not appreciated unless the special law has adopted the scheme or scale of penalties under the Revised Penal Code.



2000 Bar Exam Question 

Mr.Carlos Gabisi, a custom guard, and Mr.Rico Yto, a private individual, went to the office of Mr.Diether Ocuarto, a customs broker, and represented themselves as agents of Moonglow Commercial Trading, an importer of children's clothes and toys. Mr.Gabisi and Mr.Yto engaged Mr.Ocuarto to prepare and file with the Bureau of Customs the necessary import entry and internal revenue declaration covering Moonglow's shipment. Mr Gabisi and Mr.Yto submitted to Mr.Ocuarto a packing list, a commercial invoice, a bill of lading and a sworn import duty declaration which declared the shipment as children's toys, the taxes and duties of which were computed at P60,000.00. Mr.Ocuarto filed the aforementioned documents with Manila International Container Port. However, before the shipment was released, a spot check was conducted by customs senior agent James Bandido, who discovered that the contents of the van (shipment) were not children's toys as declared in the shipping documents but 1,000 units of cassette recorders with taxes and duties computed at P600,000.00. A hold order and warrant of seizure and detention were then issued by the District Collector of Customs. Further investigation showed that Moonglow is non-existent. Consequently, Mr.Gabisi and Mr.Yto were charged with and convicted for violation of Sec.3(e) of R.A. 3019 which makes unlawful among others, for public officers to cause any undue injury to any party, including the government in the discharge of official functions through manifest partiality, evident bad faith or gross inexcusable negligence. In their motion for reconsideration, the accused alleged that the decision was erroneous because the crime was not consummated but was only at an attempted stage, and that in fact the government did not suffer any undue injury.

a. Is the contention of both accused correct? Explain.
b. Assuming that the attempted or frustrated stage of the violation charged is not punishable, may the accused be nevertheless convicted for an offense punished by the Revised Penal Code under the facts of the case? Explain.

Yes, the contention of the accused that the crime was not consummated is correct, RA 3019 is a special law punishing acts mala prohibita. As a rule, attempted violation of a  special law is not punished. Actual injury is required.

Yes, Both are liable for attempted Estafa thru Falsification of Commercial Documents, a complex crime.


2005 Bar Examination Question

Distinguish malum in se from malum prohibitum.

In crimes mala in se, an act is by nature wrong, evil or bad, and so generally condemned. The moral trait of the offender is involved; thus, good faith or lack of criminal intent on the part of the offender is a defense, unless the crime is the result of criminal negligence. Correspondingly, modifying circumstances are considered in punishing the  offender.

In crimes malum prohibitum, an act is not by nature wrong, evil or bad. Yet, it is  punished because there is a law prohibiting them for public good, and thus good faith or lack of criminal intent in doing the prohibited act is not a defense.

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