CRIMINAL LAW REVIEW 2013
Criminal Law – branch of division of law which defines crimes, treats
of their nature and provides for their punishment
Crime – act committed or omitted in violation of the law
2 injuries are committed:
1.) Injury committed against a person
- civil indemnity is awarded to the offended party on
the heirs
- personal injury against the private offended party
2.) Injury committed against the state
- Punishment is imprisonment
- Social injury against the state for the disturbance of
peace
Note: for every crime committed, it is more of an offense against the
state rather than against the private offended party.
Example:
A hit B. B sustained a fatal wound but he survived. Thereafter, B
filed frustrated homicide. The fiscal found probable cause. In the
information filed by the fiscal, the title is People of the Philippines vs
A.
The trial continued and the judge found the accused guilty beyond
reasonable doubt.
>The first penalty of the judge is imprisonment due to social injury.
Aside from this, B will pay a civil indemnity.
(Terms)Crime may be a:
1. FELONY – act/omissions punished by the Revised Penal
Code
2. OFFENSE – punished by a special law
3. ACTS/INFRACTIONS – punished by ordinances, local
legislation
Note that all three are under the umbrella term of Crime.
Legislative Department – power to enact penal laws
In case of emergency, president may issue a Penal Issuance Order
provided that there is a law granting it to the president.
Q: Is the power of Congress absolute?
A: No, there are limitations.
Limitations to the Power of Congress to enact Penal Laws:
1.) Penal law must be general in application otherwise it
would be violative of the Equal Protection Clause
2.) Must not partake the nature of an ex post facto law
3.) Not a Bill of Attainder
4.) Cannot impose cruel or excessive penalties or
punishments
(e.g. congress cannot amend article 308-309
death, by saying that henceforth that any who
commit theft will be given death. This is unusual
punishment so it is prohibited.)
Characteristics of Penal Laws:
1. Generality
- Persons to whom criminal law shall apply
2. Territoriality
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
- Place where penal law shall be applied
3. Prospectivity
- Time when it shall apply
1.) GENERALITY
- Penal laws shall be applied to all persons on being
within the Philippine territory whether they are
Filipino Citizens or foreigners regardless of any of
their personal circumstances
- Applicable to all so long as within the Philippines
- Applies to non-citizens since while they are within the
Philippines, they are given protection in the same way
that the government protects its own citizen
Exceptions to the GENERALITY characteristic:
a.) Generally Accepted Principles of PIL
- Heads of state, chief of state and other diplomatic
heads such as ambassadors and public ministers are
immune from the criminal jurisdiction of the country
where they are assigned. Since they are immune, they
cannot be arrested, prosecuted or punished.
(Diplomatic Immunity from Suit)
*consuls – not among those who enjoy the diplomatic
immunity from suit
Generally, consuls are subject to penal laws of the
country where they are assigned.
XPN: When there is a treaty or an agreement
between the home country of the consul and the
country where he is designated stating that the
consul is immune from the criminal jurisdiction of the
host country
Example: A is an employee in ADB, a foreigner economist. A Filipino
filed an oral defamation against the foreigner economist. The DFA
issued a letter and protocol to the court which states that ADB and
PH has an agreement that the ADB economist is immune from suit.
The SC held that it was erroneous that there was a decision
immediately to dismiss the case without adducing any evidence,
without informing the fiscal. SC ruled that diplomatic immunity is
only applied in the exercise of one’s function, but in this defamation
case, it immunity will not lie. Evidence first must be gathered to
determine if the act was done in the exercise of one’s functions.
b.) Laws of Preferential Application
- Laws which exempt certain individuals from criminal
prosecution
e.g. members of Congress are immune from libel,
slander and defamation for every speech made in the
House of Congress during a regular or special session
2.) TERRITORIALITY
- Penal laws shall be applicable only within the
Philippine jurisdiction including its atmosphere,
internal waters, etc.
GR: Crimes committed outside the Philippine
jurisdiction cannot be under Philippine courts
XPN: Art. 2 (RPC)
3.) PROSPECTIVITY
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- Penal laws shall only be applied from the time of
effectivity.
- Penal laws cannot be given retroactive application
GR: Penal laws shall apply prospectively
XPN: Art. 22 (RPC)
-penal laws may be given the retroactive effect if
favorable to the accused provided that the accused is
not a habitual criminal
2 Philosophies under the Criminal Law System:
1.) CLASSICAL/JURISTIC PHILOSOPHY
1.1. Basis of criminal activity is human free will
- Man is a moral creature which understands right from
wrong
- When he commits a wrong, he voluntarily does the
same, therefore, he shall be ready for the
consequences of his acts
1.2. Purpose of penalty is retribution
- Evolves from the maxim “an eye for an eye..”
therefore, for every crime committed, there is a
corresponding penalty based on the injury inflicted on
the victim
1.3. Determination of penalty is done mechanically
- Done mechanically since the punishment is
proportionate to the severity sustained by the victim
1.4. Emphasis is on the crime and not on the criminal
- …on the offense and not on the offender
2.) POSITIVIST/REALISTIC PHILOSOPHY
2.1. Basis of criminal liability is man’s social environment
“All men are born good, they only become evil
due to the influence of the community.”
- Crimes are a social phenomenon
2.2. Purpose of penalty is for purposes of rehabilitation
- Offenderis a socially sick individual who need to be
corrected not to be punished
2.3. Determination of penalty is done on the case to case
basis
2.4. Emphasis of the law is on the offender and not to the
offense
- …..on the criminal not on the crime
- great regard to the human element of the crime
- takes into consideration why the offender committed the
crime
3.) MIXED/ECCLECTIC PHILOSOPHY
- Crimes which are heinous/obnoxious in nature-
classical
- Crimes which are social/economic – positivist
RPC – Classical philosophy
- Merely copied from Spanish...French espoused
classical
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
- Although RPC is molded with classical philosophy, the
amendments are geared toward the positivist
philosophy
e.g.
a.) INDETERMINATE SENTENCE LAW – once served
the minimum of his penalty, eligible for parole
(rehabilitation)
b.) PROBATION LAW – 6 years and below, probation
report to probation officer
c.) RA 9346 –abolished death penalty
THEORIES/RULES CONCERNING CRIMINAL LAW:
1.) UTILITARIAN THEORY/PROTECTIVE
Magno v. CA
- Purpose of punishment is to protect the society from
actual/potential wrong doing
- Even in violation of special penal laws, wherein intent
does not matter, courts should see to it that
punishment shall only be imposed to actual/potential
wrongdoers.
- Potential wrongdoer was not Magno rather it was
Mrs. Heng. She should not have deposited the check
upon withdrawing the machineries. She was the one
who acted in bad faith.
SC: If Magno will be the one to be punished, then it
will bring about opportunism.
Magno was acquitted on the ground of good faith.
2.) DOCTRINE OF PRO REO
- Penal laws should always be construed liberally in
favor of the accused and strictly against the state.
3.) LENITY RULE
- Whenever a penal law or a provision of penal law is
susceptible of 2 interpretations, the one lenient to
the accused which will bring about acquittal and the
other one strictly against the accused which will bring
about conviction, the lenient interpretation shall
prevail.
Maxim: In case of doubt, rule always for the accused.
Constitution: Unless proven guilty, deemed innocent.
“Guilt must be proven.”
4.) EQUIPOSE RULE
- Whenever the evidence of the prosecution is equally
balanced with the evidence of the defense, the scales
of justice shall be titled towards the accused.
reason:
1. Presumption of innocence
2. Prosecution has the burden of proving
conviction beyond reasonable doubt
Conviction based on the strength of the evidence of the accused.
Q: What if what has performed was a perverted/immoral act but
there is no law which punishes the said act. Can the person be
prosecuted in court?
A: No, “nullem crimen nulla poena sine lege” there is no crime when
there is no law which punishes it.
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Q: Are there common law crimes in the Philippines?
A: Common law crimes are principles, usages and use of action
which the community considers as condemnable even if there’s no
law that punishes it.
There are no common law crimes in the Philippines since the
Philippines is a civil law country. Penal laws are enacted. They do not
evolve through time.
Art. 1. This Code shall take effect on January 1, 1932.
ARTICLE 1
RPC took effect on January 1, 1932 passed into law on December 8,
1930.
Article 2.Application of its provisions. - Except as provided in the
treaties and laws of preferential application, the provisions of this
Code shall be enforced not only within the Philippine Archipelago,
including its atmosphere, its interior waters and maritime zone,
but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into
these islands of the obligations and securities mentioned in the
presiding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security and
the law of nations, defined in Title One of Book Two of this Code.
Art. 2 of the RPC has 2 scopes of application –
1. intraterritorial application
- provides that the RPC shall enforced within the
Philippine archipelago, including its atmosphere, its
interior waters and maritime zone
2. extraterritorial application
‘Except as provided in the treaties and laws of preferential
application’What does this phrase means?
>This phrase means treaties entered with other countries, laws of
preferential palliation takes preference over the provision of the
RPC. Therefore, if there is any conflict between any agreement
entered into by the Philippines with another country, if it is in
conflict with any provisions of the RPC, the said agreement shall
prevail over the provision of RPC.
Remember the Larranaga case, based on the RPC, a person who is
convicted of a crime shall serve his sentence in the New Bilibid
prison, that is the national penitentiary. However, the Philippines
entered into an agreement with Spain. This agreement was ratified
by the Senate. As a result thereof, after Larranaga has been
convicted of kidnapping and serious illegal detention with rape and
homicide, considering that he has 2 citizenship – both Filipino and
Spanish. He was brought to Spain, and there he is serving his
sentence. Because based on that agreement, Spanish citizens who
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
are serving their sentence in the Philippines can be brought to Spain
and they are to serve their sentence there. Larranaga took
advantage because definitely, the facilities perhaps are better than
prison facilities here.
Extraterritorial Application:
st
1 : Those who should commit an offense while on a Philippine ship
or airship.
When is it a Philippine ship or airship?
>If it’s registered in the Philippines and under the Philippine laws.
Even if totally or wholly owned by a Filipino citizen, if it is not
registered in the Philippines it cannot be considered as a Philippine
ship/airship. It is only upon registration that this aircraft/vessel can
fly the Philippine flag. Therefore, it is registration which is the
operative act which makes it a Philippine ship/airship.
Now the law says, when a crime is committed on board a Philippine
ship/airship. The extraterritorial application of the RPC will apply. It
means even if the crime is committed in another place outside the
Philippine jurisdiction, still, the RPC will apply. So what is this
situation?
>This is a situation where a crime is committed on board a Philippine
vessel (pv) while it is outside Philippine territory but not in the
territory of another country. The pv is on waters of the Philippines, a
crime was committed on board.
What country will have jurisdiction?
>Obviously, the Philippines.
What if that pv is on the high seas or international waters and a
crime was committed on board the said pv. What country will have
jurisdiction over the said crime?
>Still the Philippines. Because of the extraterritorial application of
st
the RPC.it is the situation referred to as the 1 circumstance under
paragraph 2 of Art. 2. It is the situation where the Philippine ship is
outside the Philippine territory but not in the territory of another
country.
What if the pv is on the waters on Malaysia and a crime was
committed on board. What country will have jurisdiction?
>Malaysian courts will have the jurisdiction because of the
territoriality characteristic of criminal law.
Any exception?
>If the vessel is a Philippine war vessel or warship. Or it is a
Philippine warplane because a Philippine warship or war aircraft is
considered an extension of the Philippine sovereignty. Therefore,
wherever they may be, when a crime is committed on board a
Philippine war vessel or warplane, the Philippines will always have
st
jurisdiction and the reason is the 1 paragraph of Art. 2 of the RPC –
that is the intraterritorial application of the RPC because it is as the
crime is committed within the Philippine territory.
In so far as foreign merchant vessel is concerned. There are 2 rules:
French Rule – crimes committed on board while the foreign vessel
is on the water of another country is within the jurisdiction of the
flag country. That is the country where the country is registered.
EXCEPT when the crime committed affects the public order, the
peace and security of the host country, then the host country will
have jurisdiction over the said crime. Therefore, the French Rule
recognizes the jurisdiction of the country where the vessel is
registered.
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French Rule = flag country
English Rule – when a crime is committed on board a foreign
merchant vessel while on the waters of another country it is the
host country which will have jurisdiction over the said crime.
EXCEPT when the crime merely affects the internal management
of the vessel, then it is the flag country which will have
jurisdiction. In effect, the English Rule is territorial in nature.
Philippines adhere to the English Rule which is strictly territorial in
nature.
Ex. A foreign merchant vessel is on Manila Bay. A crime was
committed on board, the Philippines will have jurisdiction over the
said crime and criminal because we follow the English Rule.
nd
2 : Those who should forge or counterfeit any coin or currency
note of the Philippine Islands or obligations and securities issued
by the Government of the Philippine Islands.
rd
3 : Those who should be liable for acts connected with the
introduction into these islands of the obligations and securities
mentioned in the presiding number.
Ex. So X was in Japan. He counterfeited Philippine coins. He then
introduced these coins in to the Philippine Islands. Although the
crime has been committed in Japan, he can be held liable before
Philippine courts. This is necessary in order to maintain and preserve
the financial circulation and financial stability of the Philippines.
Otherwise, no other country would be interested in prosecuting him
except the Philippines because it is only the Philippines will be
affected by the said counterfeiting of coins.
th
4 : Those who while being public officers or employees should
commit an offense in the exercise of their functions.
This refers to public officers or employees who are working in
another country. While they are working in another country, they
committed a crime. If the crime committed by this public officers or
employees are in connection with the exercise of their functions.
They can be prosecuted before Philippine courts. But if the crime
they committed is in no way connected with the exercise of their
functions, then they should be prosecuted in the courts of the
country where they are assigned.
Ex.
OFW who lost his passport, he went to the Philippine Embassy in
Japan applying for a new passport. He has been going there back
and forth that it has not it was not yet approved or it was not yet
released. On his way out, he saw the approving authority (AA). He
talked to AA requesting and begging him that it be immediately
approved and released. He was invited to a coffee shop, while
having coffee, AA asked $500 from him and promised on that same
afternoon, his passport would be released. So the poor OFW gave
AA the $500. Where may this AA be prosecuted? Before Philippine
courts or before the courts of Japan?
>AA may be prosecuted before the Philippine courts. He did not
commit in effect a crime in approving the said passport because it
his obligation to approve the said passport. However, he would not
perform his obligation without a bribe. He would not perform his
function without the money given by the said OFW. So in effect, he
nd
committed bribery in its 2 form – he performs an act not
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
constituting a crime in connection with the exercise of his function
in consideration of the bribe money. So here, he committed bribery,
he can be prosecuted before Philippine courts. His act is in
connection with the exercise of his functions.
What if instead of the AA, here comes a Filipino filing clerk (FC)
inside the Philippine Embassy. The FC followed the OFW, the FC told
him that he can facilitate the release of his passport if he will him
$50. Desperate, the OFW gave him the money. However, that
afternoon,the passport was still not released. He wanted to file a
case against the FC.Where can he file a case? Before courts of Japan
or Philippines?
>It should be filed before the courts of Japan because the act
performed by FC has nothing to do with the exercise of his official
functions. In effect, what he has committed is estafa because he
made this OFW believe that he has the authority to facilitate the
release of the said passport but he did not have such qualification.
He committed estafa under Art.315(2)(a). Therefore, he should be
prosecuted before the courts of Japan.
What if there is this Philippine consul (PC). The PC told his secretary
(S) to work overtime. So S followed PC. In the evening, PC gave
coffee to S. Unknown to S, there was something mixed in the coffee
to make her unconscious. So after drinking the coffee, she became
unconscious and she was raped by PC. S now wanted to file a case
against PC. Where may she file the case?
>The act of rape committed has nothing to do with the exercise of
PC’s functions. Therefore, it should be filed before the courts of
Japan. However, it was committed inside the Philippine Embassy.
The Philippine Embassy which is considered an extension of the
Philippine sovereignty, then it is as if the crime was committed
within the Philippine territory. Therefore, S should file the case
before the Philippine courts because it is as if the crime was
committed within the Philippine archipelago. The reason for this is
the intraterritorial application of the RPC. But if the rape was
committed at any other place outside the Philippine Embassy, then
PC should be prosecuted before the courts of Japan because rape is
in no way connected with the exercise of his functions and a consul
does not enjoy diplomatic immunity.
th
5 : Those who should commit any of the crimes against national
security and the law of nations, defined in Title One of Book Two of
this Code.
Crimes against national security – treason, conspiracy/proposal to
commit treason, misprision of treason, espionage, enticing to war,
etc…If any of this crime is committed, even if it is done outside the
Philippine archipelago the offender can be prosecuted before the
Philippine courts.
Reason: extraterritorial application of the RPC.
Likewise, if the crime committed is against the Law of Nations (only
4 crimes – piracy, qualified piracy, mutiny and qualified mutiny) the
said offender can also be prosecuted before the Philippine courts.
Article 3. Definitions. - Acts and omissions punishable by law are
felonies (delitos).
Felonies are committed not only be means of deceit (dolo) but also
by means of fault (culpa).
There is deceit when the act is performed with deliberate intent
and there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
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FELONIES - are acts or omissions punishable by the RPC
When the law says ‘by law’, it means the RPC.
ACTS - refer to any body movement which has a direct connection to
the felony intended to be committed. It is an external act, an overt
act in connection with the felony intended to be committed.
Therefore, internal acts or mere criminal thoughts will never give
rise to a crime.
Ex. A lust for his neighbor. Whenever the neighbor would pass by
going to work, A would always look at the neighbor. And for the
whole day, he would think of the neighbor with nothing but lust. No
matter how criminal his thoughts are it will never give rise to a crime
because it is merely an internal unless he performs an external act
or an overt act related to acts of lasciviousness or attempted rape or
rape. The law requires an act.
OMISSION - is the failure of a person to perform an act or to do a
duty which is required by law
Ex. If a person found, any personal property on the street or on any
place and he failed to deliver the same to the owner or to the local
authorities. Under Art.308 he becomes liable for theft. Or if a person
was driving his vehicle, then he bumped and hit another person. And
instead of helping that person, he increased his speed and left. It is a
hit-and-run situation. Such fact that he failed to lend help and
assistance to that victim will aggravate his criminal liability under
Art. 365. So here, for failing to perform an act which is required by
law to be done. He commits a felony. So felonies are acts or
omissions punishable by the RPC.
2 kinds of felonies that are may be committed under Art. 3:
1.) Deceit/dolo/intentional felony – when the act is done with
deliberate intent
Elements:
1. Criminal intent on the part of the offender
2. Freedom of action in doing the act on the part of the
offender
3. Intelligence of the offender
An intentional felony is a voluntary act because it is committed by
means of deliberate intent.
2.) Fault/culpa/culpable felony– when the wrongful act results
from imprudence, negligence, lack of foresight or lack of
skill
Elements:
1. Criminal negligence
2. Freedom of action
3. Intelligence
Under Art. 365, a culpable felony is defined as one wherein the
offender, although without malice or deliberate intent caused an
injury to another by the means of negligence or imprudence.
Therefore, even a culpable felony is a voluntary act.
In so far as criminal law is concerned, voluntariness is actually the
concurrence of the 3 elements of intentional felony and the
concurrence of the 3 elements of culpable felony. In other words, in
so far as voluntariness of intentional felony is concerned, it is the
concurrence of criminal intent, freedom of action and intelligence.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
*Therefore, without voluntariness, there can neither be an
intentional felony nor a culpable felony.
A common element of both intentional and culpable felony is
freedom of action – there is freedom of action when the offender
performs the act on his own free will, without force, duress,
uncontrollable fear. So note if the offender performs the criminal act
but he did the act because there was this compulsion and irresistible
fear or under the impulse of an uncontrollable fear. There is no
criminal liability. They are exempting circumstances under Art. 12 of
the RPC because there is no freedom of action, an element of
voluntariness. There is neither an intentional felony nor culpable
felony because there is wanting of freedom of action, an element of
voluntariness.
On the other hand, intelligence is also a common element of
intentional and culpable felony. Intelligence is the mental capacity of
a person to know wrong from right and to appreciate the
consequences of one’s act. If the person acted without intelligence,
there is no criminal liability. So if the criminal act has been
committed by an insane, an imbecile or a minor, the said offender is
said to be exempted from criminal liability. Under Art. 12, they are
exempting circumstances, he is free of both intentional and culpable
felony because he acted without intelligence, an element of
voluntariness.
What is intent?
>INTENT is the use of a particular means to achieve the desired
result. You cannot see intent. It is an internal state of the mind.
So how is intent determined?
>intent is determined by the means employed by the offender in
committing the act or by the overt acts of a person constituting the
commission of the crime.
Ex. The use of a lethal weapon would show intent to kill on the part
of the offender although death did not arise. Taking the personal
property of another without the consent of the owner would show
intent to gain on the part of the offender.
2 kinds of intent:
1. General Criminal Intent (GCI)
2. Specific Criminal Intent (SCI)
GCI is presumed by law by the mere doing of an act. Therefore, the
prosecution does not have the burden to prove it.
SCI is just like an element, an ingredient of the commission of the
crime. Therefore, it must be proven by the prosecution beyond
reasonable doubt.
Ex. Intent to kill must be proven in frustrated/attempted homicide.
A and B were fighting. A was losing and so A shot B. B was hit on the
left arm. He was brought to the hospital. Thereafter, after B’s
release from the hospital, he filed a case against A for attempted
homicide. Since the case filed is attempted homicide. The
prosecution has the burden of proving intent to kill on the part of A
when he shot B and hit him on the left arm. Otherwise, if the
prosecution failed to prove intent to kill on the part of A. Then A can
only be convicted of serious/less serious/slight physical injuries
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depending on the date required for medical intervention or he
should be acquitted of the crime. Intent to kill must be proven.
But what if in the course of their fight, A was losing and so A took
out his pistol and he shot B. B was shot on the heart, a fatal wound,
a mortal wound was sustained because it was a vital organ which
was hit. A immediately bought B to the hospital. However, upon
arrival, he was pronounced dead. Therefore, the heirs of B filed a
case for homicide against A. A’s defense, I have no intention to kill B.
According to him, he only intended to threaten B because they were
fighting. Will this defense lie?
>A’s defense that he has not intent to kill B will not lie. The reason is
since the victim died, intent to kill becomes a GCI which is presumed
by law. Prosecution need not prove intent to kill in homicide,
parricide, murder, infanticide (HPMI) because the victim died. It is
only in the attempted and frustrated stages of the HPMI wherein
intent to kill is considered an element.
Why is it only in the consummated stage of HPMI that intent to kill is
presumed?
>Because the best evidence to prove intent to kill is that the victim
died. So it is presumed by law.
MOTIVE – the moving power which impels a person to do an act to
achieve the desired result
As a rule, motive is not material in determining the criminal liability
of the offender is identified, admits to the commission to the crime,
if the prosecution has direct evidence or eyewitness to the
commission of the crime, if crime committed is a culpable felony,
crime committed is not a special penal law.
XPNs: intent becomes material in determining the criminal liability
of the offender –
1. When the act of the offender would result to variant crimes
(to know what crime should be charged)
Ex. City mayor (CM) was jogging near the seashore. Here
comes X who went to CM and him. CM was not in the
performance of his official duty when he was shot.
Therefore, the act of X in killing and shooting CM may
result to variant crimes depending on the motive,
depending on the reason of X of killing. If the reason
is a personal grudge/vendetta, murder is committed.
But if the reason is because of CM’s past performance
of his duty, then the crime committed is direct assault
with homicide.
2. When the identity of the offender is doubtful
Ex. There are so many suspects, A, B, C, D and E. There’s
doubt as to who among the committed the crime.
Then motive will become material in determining the
criminal liability of the offender.
3. When the prosecution only has circumstantial evidence to
prove the commission of the crime
Ex. Who was the last person seen together with the victim
before he was killed? Why was he with the victim at
that time? What could be the motive behind the kill?
All of these must be taken into consideration because
there was no eyewitness, no direct evidence in the
commission of the crime.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
*Motive alone, however strong, will never bring about conviction.
But motive + circumstantial evidence, motive + supporting evidence
= conviction.
How is intent established? How is motive established?
Ex. A was walking. Then here comes B with a lead pipe and hit the
head of A with it. B hit it hard and thereafter ran away. A went to
the hospital, however, based on the medical certificate no injury
whatsoever was sustained by the head of A. So there was no injury.
Nevertheless, A filed a case for attempted homicide against B.
Therefore, intent to kill is incumbent to be proven by the
prosecution because the case filed is attempted homicide. Will B be
held liable for attempted homicide? Was there intent to kill?
>There was no intent to kill. Intent to kill is determined by the
following factors:
1. The nature and number of the weapon used by the offender in
the commission of the crime
2. The nature, number and location of wounds inflicted/sustained
by the victim
3. The manner of committing the crime
4. The acts, deeds or words stated by the offender before, during
or immediately after the commission of the crime
5. Proof of the victim (?)
Let us apply this in the case –
B hit A with a lead pipe. Was there motive?
>In the problem, there was no motive.
Nature and number of weapon used?
>B used a lead pipe.
Nature, number and location of wound inflicted on the victim?
>The victim did not sustain any wound despite the fact that it was
hit with a lead pipe.
Manner of committing the crime.
>After hitting A once, B ran away. If he had intended to kill the
victim, he would have hit A several times.
Act, deeds and words made by the offender before, during or after
the commission of the crime.
>He just saw the victim, hit the victim thereafter ran away. All of
these would show there was no intent to kill on the part of said
offender.
Therefore, B should not be convicted of attempted homicide.
People v. Mapalo
SC convicted him only of ill treatment of another by deed, a form of
slight physical injury. Ill treatment of another by deed is the
circumstance wherein a person was hit or there was injury caused to
the person but there was no (?may umubo sa class at nasapawan
boses ni Ma’am o.O) On the other hand, how is motive proved?
>Motive is proved by the testimony of the witnesses as to the acts
or statements made by the accused before or immediately after the
commission of the crime. Ex. Before the killing of A, a witness saw B
threatening to kill A. Therefore, B would have the motive because of
his acts prior to the commission of the crime. Or right after the
killing of A, a witness saw B running away from the scene of the
crime laughing saying “finally, I have my revenge” there is the
motive. So here motive is established by the acts or statements
made by the accused prior to or after the commission of the crime.
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NOT DURING because in motive, there is no direct evidence. The >No. There is no unlawful aggression because there was
witness did not see how the crime was committed. no imminent or immediate danger on the life and property
st
of the said offender. 1 element is wanting.]
INTENT MOTIVE
moving power which The police officers A, B and C were dining in a restaurant when they
impels a person to do a noticed a group of men who are so noisy. And so A looked at them
specific act to achieve the and noticed that one of them, X had a gun tucked on his waist. So A
use of a particular means
went on the back of X and told him “I can see that you have a gun
to achieve a desired result desired result, therefore it
tucked on your waist. Do you have a license? I’m a police officer.” X
is the reason behind intent said “Yes sir, I have a license.” And A said “Show me your license.”
So X stood up and he tried to get his wallet from his pocket in order
a material element in immaterial to determine to show his license as requested by A. As he was picking his wallet,
determining the criminal the criminal liability of the he was turning around to look at A. The moment he faced A, A shot
liability of the accused offender him. X died. Prosecuted for homicide, A said he acted under mof. He
established by the thought, what X was picking was his gun and that he would be shot
established/proven by the
acts/statements made by by X. Therefore, in self-defense he shot X first. Will his defense of
overt act of the offender
the accused prior to or mof lie in his favor?
or by the means >1st element: wanting. Granting for argument that what X was
immediately after the
employed picking was the gun, will it constitute unlawful aggression such that
commission of the crime
self-defense would lie? NO. because the gun was not yet pointed at
A, it will not yet bring an immediate danger on the life
nd
2 element: present. Let’s say that A has the good intention.
What negates criminal intent? What may be a defense against rd
3 element: wanting. A was negligent, there was fault or
criminal intent?
carelessness on his part in ascertaining the true facts of the case. He
>it is mistake of fact.
was asking for the license and X said he has one. Definitely, what
would be shown to him would be the license not the gun.
MISTAKE OF FACT (mof) – is the misapprehension of facts on the
Therefore, since 2 elements are absent, A cannot invoke mof and he
person who caused injury to another
should be convicted for homicide for killing X.
If a person acted under mof, he is absolved of criminal liability
Can a crime be committed without criminal intent?
because he acted without criminal intent. That is, had the facts been
>Yes. There are 2 instances.
as he believed them to be, his act done would have been lawful and
1. Culpable Felony
justifiable.
2. When the crime is in violation of special penal laws
Before one may be absolved of criminal liability for having acted
ACTS MALA PROHIBITA
under mof, the following are elements:
- Acts which are only wrong because there is a law that
1. That the act done would have been lawful and justifiable had
prohibits and penalizes it
the facts been as the accused believed them to be
- Not inherently wrong
-had it been as he believed, the act performed would’ve
e.g. illegal possession of unlicensed firearms
amounted to a justifying or exempting circumstance
2. That the intention of the accused in doing the act must be
ACTS MALA IN SE
lawful
- Acts which are inherently evil or wrong
-he must be ignited by a noble or lawful or justifiable
- Wrong per se, even if there’s not law, it is evil
intent
e.g. killing another, taking the thing of another
3. That the mistake must be without fault, negligence, careless
on the part of the offender
MALA IN SE MALA PROHIBITA
-the offender cannot be negligent in ascertaining the true
Inherently evil, wrong Not inherently evil or
facts of the case and at the same time invoke mof
per se wrong
*mof although a defense in intentional felony cannot be a
Criminal liability is based Criminal liability is based
defense in culpable felony
on the intent or morality on the mere doing of the
Ex. US v. Ah Chong of the offender prohibited act
Ah Chong was acquitted because he acted under mistake of fact.
[M’Garcia: BUT that was because the case was decided a long time Good faith/lack of Good faith/lack of
ago. If the case is decided now, I doubt if there will be an acquittal. criminal intent is a valid criminal intent is not a
nd rd
Let’s go by the elements: 2 and 3 elements are present. defense valid defenses
Modifying circumstances Modifying circumstances
st
However, the 1 element is wanting - that the act done would have such as mitigating and are not considered in the
been lawful and justifiable had the facts been as the accused aggravating are imposition of penalty
believed them to be - the victim was only trying to enter. Will that considered by the court UNLESS otherwise
act already constitute unlawful aggression? in the imposition of provided by the special
penalty penal law

[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman] 7
 CRIMINAL LAW REVIEW 2013

Degree of the Degree of participation reason for the said act of killing B was because X lost control of his
participation of the by the offender not brake. Therefore, according to them, there was only imprudence
offender (principal, considered all and so X should only be held liable for reckless imprudence resulting
perpetrators of the act in homicide. The judge believed the defense. So in an information
accomplice or accessory)
are punished equally for an intentional felony of murder, the said court convicted X only
is considered in the of reckless imprudence resulting in homicide, a culpable felony. Is
imposition of the penalty the judge correct? Can the judge convict a person of a culpable
felony in an information that charges him of intentional felony?
Stage (attempted, The only stage >Yes. The reason is that a culpable felony is necessarily included in
frustrated or considered is the an intentional felony because a culpable felony is of lesser offense
consummated) is taken consummated stage. No than that of intentional felony.
into consideration in the attempted or frustrated
imposition of penalty stage. *A malum prohibitum is not necessarily included in malum in se.
Therefore, one cannot absorb the other. But a culpable felony by an
**Not all acts punishable by special penal laws are mala prohibita!! intentional felony.
There are some special penal laws which punish acts mala in se.
e.g. plunder is a special penal law yet the SC said plunder is Art. 4. Criminal liability. — Criminal liability shall be incurred:
malum in se. criminal intent matters. 1. By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
Garcia v. CA 2. By any person performing an act which would be an offense
Garcia was the head of the board of canvassers. The number of against persons or property, were it not for the inherent
votes of Sen. Pimentel was decreased. In decreasing the number of impossibility of its accomplishment or an account of the
votes, the said votes were not added to any candidate. So it did not employment of inadequate or ineffectual means.
favor any candidate. So according to him, he acted in good faith, no
criminal intent. But according to the other side, it is a special penal Proximate Cause Doctrine (PCD)
law, therefore they should be held criminally liable. What did the SC By any person committing a felony (delito) although the wrongful
say? act done be different from that which he intended.
>The act of decreasing or increasing a candidate’s vote although
punished by special penal law is a malum in se. it is inherently evil or Elements (Garcia)
wrong. 1. The intended act is a felonious act
2. The resulting act is a felony
What about in this case, it is a malum in se. And Garcia and company 3. The resulting act is the direct, natural and logical consequence of
said, they acted in good faith, they were already so tired, because of the felonious act of the offender
the counting. So how come they were still convicted?
>According to the SC: They should exercise extraordinary diligence in Therefore, for one to be criminally liable under the PCD, it is
the counting of the votes. Hence, they are still held criminally liable. necessary that the offender is performing a felonious act and since
The defense of good faith would not lie in their favor as board of he is performing a felonious act, he becomes liable for all the
canvassers. resulting crime although different from that which he intended.
Provided that the resulting felony is the direct, natural and logical
Can an act mala in se absorb an act mala prohibita? And vice versa? consequence of his felonious act. Otherwise stated, his felonious act
> Lonely v. People must be the proximate cause of the resulting felony.
Lonely and company, the head of marcopper company were charged
4 cases – violation of the water code of the Philippines, violation of For one to be criminally liable under the PCD, it is not necessary that
the Philippine mining act, violation of national pollution control the offender should have even touch the body of the victim. It
degree – all three are acts mala prohibita and one act malum in se – suffices that the felonious act performed by the offender has
that is violation of Art.365 reckless imprudence resulting to damage generated in the mind of the victim, fear for his life. By reason of
to property. Their contention was that the 3 other informations that fear for his life the victim performed acts, made risk that injured
involving violation of spl should already be quashed because they himself. The accused will become criminally liable.
are absorb by Art. 365. Anyway, the incident resulted from the same
act of polluting. What did the SC say? PROXIMATE CAUSE (PC) - the cause that sets in to motion all other
>SC: Acts mala in se cannot absorb acts mala prohibita. What makes causes and which unbroken by efficient intervening cause produces
an act malum in se is the presence of intent, deceit or dolo or fault the felony without which the felony would have not been
or culpa. On the other hand, what makes an act malum prohibitum committed. Therefore, for one to be criminally liable under the PCD,
is the fact that it’s in violation of a special penal law. Therefore, one it is necessary that the felonious act and the resulting felony must
cannot absorb the other. So they have to be prosecuted on all 4 not be broken by any efficient intervening cause. No efficient or
cases. supervening intervening cause must have broken the causal
connection between the felonious act of the offender and the
X killed B with the use of motor vehicle. X hit and bumped B. X was resulting felony.
charged with murder. So the information charges an intentional
felony of murder. Trial on merits ensued, after the prosecution EFFICIENT INTERVENING CAUSE (EIC) - an active force which is a
presented evidence, the defense presented evidence. The defense distinct act absolutely foreign from the felonious act of the offender.
was able to show, to prove beyond reasonable doubt that the Therefore, in order that an act is considered an EIC, it is necessary

[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman] 8
 CRIMINAL LAW REVIEW 2013
that it is totally foreign from the felonious act that is performed by
the offender.
PC is not always the immediate cause. At times it may be a remote
cause.
Ex. A was driving his car along SLEX followed by B, by C, by D, by E.
When A reached the tollgate, he stopped to pay the toll, so B
stopped as well as C and D. E however was very sleepy, he did not
put to stop so he hit D, D hit C, C hit B, B hit A. Because of the impact
the car of A sustained serious damage.
Q: What is the PC of the damage sustained by the car of A?
> the PC was E because it was the car of E which sets into motion all
other cars to bump each other. It was not the immediate cause
because the immediate cause was the car of B because it is the car
of B which hit the car of A. So a PC is not always the immediate
cause, at times it may be the remote cause.
Ex. A bus was going to Quezon, suddenly 4 men boarded a bus, 2
mean seated at front seats and the other 2 seated at back. While
they were traversing a zigzag portion on the road, the 4 men stood
up and announced a hold up. One passenger was so afraid of
holduper as he has a previous experience of holdupers. He was so
afraid that he opened a window and he jumped out of a window, he
fell on a cliff and he died.
Q: Are the holdupers liable for the death of the passenger?
> Yes. The holdupers in announcing a holdup are committing a
felonious act. The resulting act was a felony, the resulting felony was
the direct, natural and logical consequence of the feloniuos act of
the offenders. Were it not for the holdupers announcing a hold up,
there would be no fear on the mind of the passenger. But because
of the announcement, there was fear on the mind of passenger and
by reason of that fear, he made risk that caused his death. The
holdupers are liable for robbery with homicide because they are
liable for the death of the passenger.
Ex. X was having a siesta on the terrace of their house on a rocking
chair. Suddenly he was awakened by the noise of the children. He
found out that it was coming from the backyard of their house, saw
4 boys harvesting his mango tree. So he told the boys to come down
the tree, otherwise, he will be calling the police and let them be
arrested. The boys hurriedly went down the tree. One boy from the
top most portion of the tree jumped down and his head hit a big
stone. He suffered hemorrhage, thereafter he died.
Q: Is X criminally liable for the death of the boy?
First element, the intended act is a felonious act. He was not
committing a felonious act. He was just acting his right when he said
he will call the police considering that the boys were taking his
mangoes, they were committing theft. Therefore, he was just acting
within his right. Since X was not committing a felonious act, he
cannot be held criminally liable for the resulting felony.
So if you are given a problem, the first thing you should do is to
determine if the person is committing a felonious act. If not, a
person cannot be held liable for the resulting felony. If he is, then he
is liable for the resulting felony.
In the same case, X told the boys, if you will not come down I have
here my shotgun, I will shoot each one of you and he fired shots in
the air. The boys were so afraid and hurriedly went down, one of
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
them jumped, fell and suffered serious physical injuries because of
his broken legs.
Is X criminally liable for the injuries sustained by the boy?
> Yes. Because this time he was committing a felonious act. He was
threatening to shoot the children. It is a felonious act amounting to
grave threats. Therefore, this time he is criminally liable for the
resulting felony although different from that which he intended.
For one to be criminally liable under the PCD it is necessary that
there is no efficient intervening cause that has broken the chain
between the felonious act and the resulting felony.
Urbano vs. IAC
A case cited in People vs. Villacorta
Urbano and Villacorta were both not convicted of homicide. The 2
cases have almost similar facts.
People vs. Villacorta
January 23, 2002, there was a stabbing incident. Cruz was stabbed
by Villacorta on the left side of his body with a sharpened bamboo
stick. He was brought to the Tondo Medical Center. He was released
on the very same day as out patient because his wound was not
fatal. February 14, 2002 he was brought to San Lazaro Hospital. He
was already suffering from tetanus infection. A day after February
15 he died. The cause of his death was tetanus infection. Villacorta
was prosecuted for the crime of homicide for the death of Cruz. The
lower court convicted him.
SC: Citing Urbano case, he cannot be convicted of the crime of
homicide. Based on the expert testimony of the doctor, the
incubation period of the tetanus virus is within 14 days. In the case,
it took the victim 22 days before he died. Therefore the stab wound
was without tetanus virus. Cruz may have performed acts which
brought about the tetanus virus. The stabbing was only a remote
cause and the tetanus infection was the proximate infection which
brought about the death of the victim.
So Villacorta was only convicted of slight physical injuries because
they were not able to prove intent to kill. First, no evidence of motif.
Second nature and number of weapon used. A sharpened bamboo
stick, not even a little weapon made of metal. Third, the nature,
number and location of wound. It was only on the left side of the
body. Fourth, manner of committing the crime. After one stabbing,
there was no more. So from homicide, he was only convicted of
slight physical injury punished by the lowest penalty arresto menor,
1-30days or fine of not more than P200.
Urbano vs. IAC
Javier was hacked by Urbano on his right palm. Javier suffered an
incised wound and brought to the hospital. There was settlement.
Thereafter he was released. However, after 22 days he was brought
to the hospital, he was already suffering from tetanus poisoning. The
next day he died.
SC: same reasoning by the SC. The act committed by Javier after he
was released from the hospital, the fishing, going to the farm was
considered as the proximate cause that brought about the tetanus
virus on his incised wound. Therefore he was not convicted of the
crime of homicide but only physical injuries.
So it is necessary that there no EIC that will rate the causal
connection between the felonious act of the offender the resulting
felony.
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Ex. A and B were fighting. A stabbed B. B sustained a less serious
physical injuries. B was brought to the hospital, it was not a serious
wound, however, because of the negligence or careless treatment of
the doctor, this not serious wound became a very serious wound
which later on caused the death of B. The relatives of B filed a case
of homicide against A.
Is A liable of homicide for the death of B? Or would you consider the
careless treatment of the doctor as an EIC?
> A is liable for the death of B. The negligence or careless treatment
of the doctor cannot be considered as an EIC. The negligent
treatment of the doctor was an active force but it is not a distinct act
or fact absolutely foreign from the felonious act of the offender.
Because precisely he needed medical intervention, he needed
treatment of the doctor because he sustained a stab wound from A.
Therefore, there is a connection between the felonious act and the
medical treatment. It there for cannot be considered as an EIC. The
doctors negligence would only make him liable administratively but
not criminally.
Ex. A and B were friends. After farming while they were having a
drinking spree, they had a political discussion, A was pro Pnoy and B
was pro GMA. Their agreement heated, B stood up and broke a
bottle of beer, stabbed A. A was wounded. They parted ways. A was
on his way home when suddenly it rained. After it rained there was
lightning and A was hit by lightning. A died. The heirs of A filed a
case of homicide against B.
Is B criminally liable for the death of A?
> under the PCD, B is not criminally liable for the death of A because
there was an EIC that is the lightning. The lightning was an active
force which is a distinct act or fact absolutely foreign from the
felonious act of the offender which was the stabbing of the victim.
Therefore he cannot be held liable for the death of A but only
physical injuries sustained by the victim.
3 SITUATIONS WHEREIN A PERSON BECOMES CRIMINALLY LIABLE
FOR THE RESULTING FELONY ALTHOUGH DIFFERENT FROM THAT
WHICH HE INTENDED:
1. Abberatio Ictus - mistake in the blow
- situation wherein the offender directed a blow at his intended
victim but because of poor aim, the blow landed on another victim.
Ex. A saw his enemy B walking on the pedestrian lane. With intent to
kill, A pulled out his pistol and shot B. However, he has poor aim, he
is not a sharp shooter, so instead of hitting his target B, the bullet
landed on C. C died. B was not hit at all.
What are the crimes or crime committed by A?
> in so far as B is concerned, A is liable for attempted murder
because he intended to kill B. he already performed an overt act
when he fired the gun with intent to kill against B. there was
treachery, the victim was totally defenseless. However because of
poor aim it was C who died.
> in so far as C is concerned, the crime committed is homicide.
Therefore, of what crime will you charge and convict A?
> there are two crimes committed. Against B attempted murder,
against C homicide. But since this 2 crimes were brought about by a
single act, it will give rise to a complex crime under Art. 48. Under
Art. 48 when a single act constitutes two or more grave or less grave
felonies, we have compound crime or a complex crime.
The crime committed by A is attempted murder with homicide. This
is because it results from the single act of the crime.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Ex. A fired B, but because of poor aim, C was hit. C sustained a fatal
wound, a mortal wound. However, C was immediately brought to
the hospital and he survived because of immediate medical
intervention.
> in so far B is concerned, the crime committed is attempted
murder.
In so far as C, what crime is committed? Is it frustrated homicide?
> it is not frustrated homicide because in so far as Cis concerned,
there was no intent to kill on the part of C but since C suffered a
fatal wound but survived, he is liable for serious physical injuries.
Therefore the crime committed by A is a complex crime of
attempted murder with serious physical injuries. A single act
constitutes one grave felony which is attempted murder and one
less grave felony which is serious physical injuries.
What if he sustained a less serious wound?
> attempted murder with less serious physical injuries.
What if when C was hit by the bullet, C only sustained a slight
physical injury which is a light felony, are you going to complex?
> this time you cannot complex because under Art. 48, you can only
complex grave and less grave felonies. You cannot complex a light
felony. Therefore, there would be 2 cases filed separately.
Attempted murder in so far as B is concerned. Slight physical injury
in so far as C is concerned. So 2 informations, 2 cases must be filed
in the court.
2. Error in Personae - mistake in the identity
- it is a situation wherein the victim actually received the bullet but
he was mistaken to be the intended victim. The intended victim was
not at the scene of the crime.
Effects: it depends
1. If there is variance between the intended and actual crime
committed, mitigating
2. If none, no effect on the criminal liability of the offender
Ex. A and B were fighting A boxed B. It was a strong box that B fell on
the ground, his face facing the ground. A left the scene of the crime.
At that precise moment when A left, here comes the father of B who
saw his poor son boxed by A so he came to the rescue of his son and
went near him. To retaliate, B took out his balisong and stabbed the
person next to him thinking that it was still his opponent A but in
truth it was already his father. Let's say the father died.
What was the intended crime committed by B?
> homicide because he intended to kill A, the person who boxed
him.
What crime did he commit?
> parricide because he killed his own father.
Of what crime will you prosecute B?
> parricide because that is the that he actually committed.
Let's say that he is now charged of parricide. Trial on the merits
proceeded. The Judge found him guilty beyond reasonable doubt of
parricide. What penalty as a Judge would you impose on him?
> the penalty for parricide under Art. 246 is reclusion perpetua to
death whereas the penalty for homicide under Art. 249 is reclusion
temporal. Although he committed parricide. You have to impose
upon him the penalty which is lesser and that is reclusion temporal
but in its maximum period.
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Under Art. 49, in case of Error in Personae or Mistake in the Identity,
when there is a variance between the intended crime and the actual
crime committed, you have to compare the 2. Whichever has a
lesser penalty, that penalty has to be imposed.
In the case the intended felony is homicide but the actual felony is
parricide. Compare the penalty of the 2, although B should be
convicted of the crime of parricide, the penalty will be that of the
crime with a lesser penalty. That is reclusion temporal for homicide.
Ex. In the same problem, instead of the father coming to the rescue
of B, it was the friend of B who came to his rescue. So when A left,
the friend of B arrived and was the one stabbed by B and died.
Therefore, B killed his own best friend.
> the crime committed is homicide
What was hi intended crime?
> homicide
What crime did he actually commit?
> homicide because he killed his own best friend
What crime would you charge him of? After trial on the merits what
penalty will you impose?
> the penalty of homicide. Since there is no variance between the
intended felony and the felony actually committed. In this case,
Error in Personae will not mitigate the liability of the offender. Art.
49 will not apply.
3. Prater Intentionem - when the consequence went beyond the
intention; injurious result is greater than that intended.
- it is a situation wherein the offender directed the blow at his actual
victim, the victim received the blow. However, the injurious result is
far greater than what is intended by the victim.
Effect: it is always a mitigating circumstance because of Art. 13. The
offender has o intention to commit so grave a wrong as that
committed.
For Praeter Intentionem to be considered as a mitigating
circumstance, the prime element or requisite is that:
there must be a notable disparity between the means employed by
the offender and the resulting felony. That is out of the means
employed by the offender, no one could have anticipated or
foreseen that injurious result.
Ex. H arrived home and asked W what was their dinner and the W
answered that she has not yet cooked because she was watching
teleserye. Since the H was so tired, he got mad and elbowed the W.
The W fell on floor and her head hit the edge of the table and so she
suffered hemorrhage. Thereafter, she died.
What crime should H be prosecuted?
> parricide
H said he had no intention of killing his W, he only elbowed her.
However, since death is the result, it is a general criminal intent
which is presumed by law.
Would you give him the benefit of Praeter Intentionem?
> Yes, because no one could have foreseen that the mere act of
elbowing the W, death would result. There was a notable disparity
between the means employed, the act of elbowing the W, and the
resulting felony which is death or parricide. Therefore, he should be
given the benefit of mitigating circumstance.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Garcia vs. People
Garcia was convicted for the death of the victim.
SC: His act of mauling him was the proximate cause of his heart
attack. However, he was given the benefit of Praeter Intentionem.
Who would have anticipated that the mere act of mauling or boxing
him death would result. Therefore, there was Praeter Intentionem.
People vs. Noel Sales
Praeter Intentionem was not considered by the court.
The son was hit by a thick piece of a wood while he was tied on a
coconut tree. There was a crack on his head, became unconscious
and then he died. The father was convicted for parricide. According
to him he cannot be held liable for parricide. He claimed that he has
no intention to kill the child, he only intended to discipline his
children. However, since the victim died, death is considered a
general criminal intent which is presumed by law. Therefore, he
should be held liable of parricide.
Does the PCD apply?
> Yes. The father in beating the son with a thick piece of wood while
the child was tied on a coconut tree was already a felonious act.
Therefore the father should be liable for the resulting felony
although different from that which he intended.
Should the father be given the benefit of Praeter Intentionem?
> No. According to the SC, there was no notable disparity between
the act of the father hitting the said son with a thick piece of wood
while being tied on a coconut tree and the resulting felony which is
death. Considering the age of the child, such act of the father would
produce and indeed produce the death of the child. Therefore it
cannot b said that there is no intention to commit so grave a wrong
as that committed.
Impossible Crime Doctrine (ICD)
By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or an account of the employment of inadequate or
ineffectual means.
- one where the act would have amounted to a crime against
persons or property but it is not accomplished because of its
inherent impossibility or because of the employment of inadequate
or ineffectual means.
- it is not really a crime in the legal sense of the word because a
crime requires a substantive change in the outside world. Here the
act dis not ripen into a crime. It was not accomplished into a crime
because of its inherent impossibility. Nevertheless, the offender is
being punished because of his criminality and dangerousness. So
although objectively, no crime is committed, still the offender shall
be punished that is why he is convicted only of IC.
- the penalty of IC is only arresto mayor or a fine of P200-P500
depending on the criminality or dangerousness of the offender.
Elements for a person to be liable of IC
1. That the act done would have been an offense against persons or
property
2. That the act was done with evil intent
3. That the act was not accomplished because of its inherent
impossibility or the employment of inadequate or ineffectual means
4. That the act done should not constitute any other violation of the
RPC
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1.
Crimes against persons under Title 8, we have parricide, murder,
homicide, abortion, infanticide, duel, physical injuries, rape.
Crimes against property, we have robbery, brigandage, theft,
usurpation or occupation of real property, estafa or swindling,
malicious mischief, arson.
Only crimes against persons and property would an IC
2.
It is necessary that the offender in doing the act must be incited by
an evil intent.
3.
Intod vs. CA
Killing a person when it is already dead.
SC: discussed 2 kinds of inherent impossibility
2 KINDS OF INHERENTLY IMPOSSIBILITY
a. Legal Impossibility - there is legal impossibility when all
the intended acts even if committed would not have
amounted to a crime.
Ex. Intod vs. CA - Killing a person when he is already dead
Ex. X saw his enemy Y lying on a bench. He went to Y and stabbed Y
10x not knowing that Y had already long been dead for 2 hrs due to
a heart attack. Even if X performed all the acts amounting to
murder, still murder would not arise which is a crime against
persons because the victim is already deceased. He is no longer a
person in the eyes of criminal law. Therefore there is IC and what we
have is legal impossibility.
b. Physical and Factual Impossibility - when an extraneous
circumstance unknown to the offender prevented the
consignation of the crime. Here, there are circumstances
unknown to the offender, the inadequate control of the
offender which prevented the consignation of the crime.
Example given by SC in the case of Intod vs. CA
A person placed his hands inside the pocket of the polo of another,
intended to get the wallet of the said person but the pocket was
empty. It is an IC. Extraneous Circumstances unknown to the
offender prevented the consignation of the crime. Unknown to him
the wallet was not inside his pocket. S it is an IC because it would
have amounted to theft, a crime against property.
4.
It is necessary that the act done must not be a violation of any crime
under the RPC. Otherwise that person would be held liable of that
crime and not of an IC. So an impossible crime is a crime of last
resort. One should only file a case of IC if the act of the offender
does not constitute any other violation of the RPC.
Intod vs. CA
Intod accompanied by other men, wanted to kill Palampangan,
peppered the room his room with bullets. However, the intended
victim was not there. Only son in law and children were there but
they were not hit. Intod and his company were charged with the
crime of attempted murder up to the CA.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
SC: it was only an IC and what is present is only factual or physical
impossibility. Unknown to the offenders the intended victim was not
at the scene of the crime. It could have amounted to a crime against
persons which is murder. But it was inherently impossible because
the victim was not there.
This decision of the SC were criticized because under the 4th
element, the act must not constitute any other violation of the RPC.
When this accused peppered the house of Palampangan with
bullets, they did peppered the house with bullets. So they said, they
should be liable with malicious mischief because damage was done
to the house and not IC. SC retained its decision that it is an IC and
this case of Intod vs. CA was cited in the case of Jacinto vs. People.
Jacinto vs. People
A check which was supposed to be remitted was not remitted by the
offender, instead it was deposited. Since the check was not
remitted, Megaphone filed a case of qualified theft against he
employee. She was convicted before the lower court up to the CA.
SC: it was impossible crime citing the case of Intod vs. CA. They
acted amounting to qualified theft. However, unknown to the said
offender the check was not funded. Therefore, she was not able to
get the face value of the said check. Hence, physical circumstances
unknown to the offender prevented the consummation of the crime.
We have physical or factual impossibility.
What about the fact that the check was taken, was not remitted to
Megaphone?
> According to the SC theft has been defined under Art. 308 as the
taking of a property with intent to gain the personal property of
another. Therefore it is necessary that the property taken must have
value because the taking must be with intent to gain. The mere
taking of a check without value would not amount to theft because
the check without value is a worthless check. Hence, the SC said that
the crime committed is only an IC.
The penalty is arresto mayor or a maximum penalty of 6 months.
> the SC erased, did not include the 4th element of IC. That the act
done should not constitute any other violation of the RPC. Perhaps
because of the ruling in Intod vs. CA. It was deliberately deleted.
Art. 5. Duty of the court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. — Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable
by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons
which induce the court to believe that said act should be made the
subject of legislation.
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this Code
would result in the imposition of a clearly excessive penalty, taking
into consideration the degree of malice and the injury caused by
the offense.
There are no common law crimes in the Philippines.
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
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A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated
when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the
commission of a felony directly or over acts, and does not perform
all the acts of execution which should produce the felony by reason
of some cause or accident other than this own spontaneous
desistance.
2 PHASES IN THE COMMISSION OF THE CRIME
1. Subjective Phase - portion in the commission of the act wherein
the offender commences the commission of the crime after the time
that he still has control over his acts. He may or may not proceed in
the commission of the crime. He still has control over his acts
2. Objective Phase - from the moment the offender uses control
over his acts it is already in the objective phase of the commission of
the crime.
IN THE DEVELOPMENT OF A CRIME WE HAVE BOTH THE INTERNAL
AND EXTERNAL ACT
1. Internal Acts - are not punishable. Mere criminal thoughts will
never give rise to criminal liability. There must be an external act.
2. External Act - includes preparatory acts and acts of execution
a. Preparatory Acts - as a rule are not yet punishable because
they are not yet connected to a particular felony.
Ex. Conspiracy to commit a crime, proposal to
commit a crime -> merely preparatory acts.
Hence, as a rule they are not punishable
b. Acts of Execution - this is the actual act of committing the
crime and we have 3 stages, attempted, frustrated and
consummated.
Attempted Stage
- There is an attempt when the offender commences the
commission of a felony directly or over acts, and does not perform
all the acts of execution which should produce the felony by reason
of some cause or accident other than this own spontaneous
desistance.
- the offender is still in the subjective phase, the offender has still
control over his acts, he may proceed in the commission of the
crime or he may desist. The moment he desist on his own
spontaneous desistance then he will no longer be held criminally
liable.
Elements:
1. The offender commences the commission of the felony
directly by overt act
2. That he does not perform all acts of execution that would
have produced the felony
3. That his act was not stopped by his own spontaneous
desistance
4. That he was not able to perform all acts of execution by
reason of some cause or accident other than his own
spontaneous desistance
1.
OVERT ACT - refers to any external act which if allowed to continue
will naturally and logically ripen into a crime. What the law requires
is that the overt act must be directly connected to the intended
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
felony. The offender commences the commission of the crime
directly by overt act.
DIRECTLY BY OA - means that the OA performed by the offender
must be directly connected to the intended felony. The attempted
felony that is punished by law is one which is directly connected to
the over act performed by the offender although he has admitted
the crime
Poeple vs. Lamahag
A case cited in Baleros vs. People
A person intending to rob a store made an opening on the wall of
the store sufficient for his body to enter. His intention was to rob.
Before he could enter he was already apprehended.
Can he be liable of attempted robbery?
> No. Because his OA of making an opening on the wall of the store
is not an OA directly connected to robbery. It is only an OA directly
connected to trespassing. Hence, he can only be held liable for
attempted trespassing.
Although his intention was to commit robbery, once inside he may
rob, he may rape, he may kill, he may injure the owner of the store.
Therefore, it is not an act directly connected to robbery.
Baleros vs. People
The woman was awakened by a man pressing a cloth soaked with
chemical on her face. The man was on top of her, she struggled, she
was able to kick the man, the man jumped out of the window. She
called on the guard and then everyone came up to her. The case
filed against the man was attempted rape. The man was convicted
up to the CA of attempted rape.
Was there attempted rape?
SC: it is not attempted rape. The OA of pressing a cloth soaked with
chemical on the face of a woman is not an OA directly connected to
rape. The obvious intent was to make the woman unconscious but
once the woman is made unconscious, the man may rape, may
touch the private parts of the woman, or he may injure the woman,
or may rob the property of the woman. Therefore he cannot be held
liable for attempted rape.
SC: when the OA of a person is ambiguous in so far as the intended
felony is committed, what we have is an attempt to commit an
indeterminate offense which is a juridical standpoint insofar as the
RPC is concerned
INDETERMINATE OFFENSE - the OA of a person in relation to the
intended felony is ambiguous. It is necessary that the OA must be
necessarily connected to the felony. Only then he will be punished
of the said attempted felony.
2.
Rivera vs. People
The victim was mauled, hit with hollow blocks, Rivera brothers were
able to pin him down on the ground. Suddenly there was the siren of
the police, so the Rivera brothers fled. The medical certificate
showed that the victim only suffered superficial injuries, only slight
physical injuries, yet they were charged of attempted murder.
SC: it is attempted murder. The first element was present, they
boxed the victim, they mauled him, their intention was to kill him.
Second, they were not able to perform all acts of execution because
of the arrival of the police. Therefore, the non consummation of the
crime was because of a cause or accident other than the accused's
own spontaneous desistance.
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Why attempted murder? Why not slight physical injuries?
SC: there was intent to kill.
FACTORS TO BE CONSIDERED IN INTENT TO KILL:
1. Evidence of motif
2. The nature and number of weapons used by the offender
3. The nature, number and location of the wounds inflicted on the
victim
4. Manner of committing the crime
5. Acts and statements made by the offender before, during and
after the commission of the crime
SC:
1. There was an altercation, day prior to the said act was
committed, therefore the motive was to kill the victim
2. They mauled him all at the same time, he was totally
defenseless
3. Wounds inflicted were only superficial but the SC said that was
is because of the sudden arrival of the police
4. They were all in conspiracy with one another
Hence, it is attempted murder and not merely a slight physical
injury
Ex. A shot B. B evaded the blow. He was not hit.
What crime was committed?
> The crime committed was attempted homicide or murder as the
case may be. Even if the victim was not hit, since the act of
discharging the firearm was with intent to kill the victim, it was
already in the attempted stage. Such act of firing the fire arm was
already an OA directly connected to the act of homicide or murder
as the case may be.
Ex. A shot B with intent to kill, B sustained a wound, so he was hit.
However, the wound sustained by B was a non fatal wound.
What crime was committed by A against B?
> Attempted homicide or murder as the case may be. Because the
wound sustained was not fatal or non mortal. It requires another act
for the crime to be consummated. No one would die by a non mortal
or non fatal wound.
Ex. A shot B with intent to kill. B was hit on a vital organ. So he
sustained a fatal, mortal wound. However, he survived due to a
immediate medical intervention.
What crime was committed by A against B?
> It is already frustrated homicide or murder as the case may be.
Valenzuela vs. People
SC: if the wound sustained by the victim is a mortal wound but he
survived due to immediate medical intervention, the crime is in the
frustrated stage.
If the wound sustained by the victim is a non fatal or non mortal
wound, then the crime is only in the attempted stage. The reason is
that it is only when the wound sustained is mortal or fatal that it can
be said that the said offender has already performed all the acts of
execution which would produce the felony. However, the felony was
not produced by reason of a cause independent of his will that is the
immediate medical intervention.
If the wound sustained is non fatal, non mortal, the offender has not
yet performed all acts of execution, he must perform another act of
firing in order to consummate the crime. Therefore it is only in the
attempted stage of committing the felony.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Frustrated Stage
- when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator.
Ex. A wanted to kill his own father to get his inheritance immediately
and wanted to be rich. Went to drug store and bought poison.
Before going home, he went to the house of his friend and told his
friend "tonight I will be rich, I will be poisoning my father, I will be a
millionaire." After telling that to his friend, A ran to his house. Upon
reaching his house he was already taking the poison out of the
plastic. Meanwhile, the friend went to the police and told plan of A
to kill the father. The friend and the police went to the house of A
and the father. Upon reaching the house, they saw A in the act of
taking out the said poison from the plastic bag. A was arrested.
Is A liable of attempted parricide?
> No. He is not yet liable of attempted parricide. The act of buying
poison, taking out of the plastic are only preparatory act. It is not yet
an OA directly connected to parricide. He may use the poison not
really to kill the father, he may use it to kill insects or pests.
Therefore, he cannot be liable of attempted parricide.
A mixed the poison to the juice of the father and then he gave it to
his father. The father was about to drink the juice with poison.
However, since the father was clumsy, the glass fell from the hands
of the father.
Is A liable of attempted parricide?
> Yes. He already liable. The moment he poured the poison in the
juice of the father and he gave it to the father for him to drink, he
already performed an OA directly connected to parricide. However,
parricide was not consummated and he was not able to perform all
the acts of execution by reason of an accident. It was purely
accidental because the father was clumsy and the glass slipped from
his hands.
In the same problem, after mixing the poison in the juice, he gave it
to his father. The father was about to drink the juice with a poison
when A took pity on his father and had a change of heart. He
immediately grabbed the juice and threw it on the garden.
Is A liable of attempted parricide?
> No. He is not liable of attempted parricide. The act of mixing of the
poison with the juice is an OA directly connected to parricide,
however, he was not able to perform all acts of execution by reason
of his own spontaneous desistance. Therefore, he is absolved of
criminal lability. Because for one to be liable in the attempted stage,
the reason for the non consummation of the crime must not be his
own spontaneous desistance.
In the same problem, A mixed the poison with a juice and gave it to
his father. The father drank the juice and was poisoned. Suddenly,
he was already showing signs of being poisoned, he was chilling.
Upon seeing his father in that condition, A immediately
administered an antidote to his father, after that he immediately
rushed his father to the hospital. The father survived. The doctor
said, were it not for the antidote given by the son, the father would
have died.
Is the son liable of attempted parricide?
> He is not liable of attempted parricide. Because the moment the
father drank the juice, all the acts for the performance of the crime
has already been done. The offender has already performed all acts
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of execution necessary to consummate the crime. However, the
crime was not consummated.
Is the son liable of frustrated parricide?
> He is NOT also liable of frustrated parricide because in frustrated
parricide although the offender has already performed all the acts of
execution, the reason for the non consummation of the crime must
be a cause independent of his will. The reason for the non
consummation of the crime is the own will of the son. Therefore, the
son is not liable of frustrated homicide.
Definitely he is also not liable of consummated parricide.
> The son is liable of physical injuries depending on the required
medical intervention. 1-9 days slight physical injuries. 10-30 days
less serious physical injuries, more than 30 days serious physical
injuries.
Is there such crime as frustrated theft?
People vs. Valenzuela
SC: there is no such thing as frustrated theft. Under Art. 308, theft is
committed when the person takes the personal property of another
with intent to gain without violence, force or intimidation upon
persons or things without the consent of the owner.
Theft can admit only either an attempted and consummated stage
because the moment the offender gains possession of the personal
property of another, unlawful taking is already committed. Even if
he has no opportunity to dispose of the property and the moment
the unlawful taking is complete, theft is already consummated.
Hence, there can be no instance of frustrated theft. Up to 2006,
there is attempted, frustrated and consummated. But in 2007, the
SC said no, there can be no frustrated theft.
Ex. A woman went to Rustans and bought perfume. While she was
sitting and the saleslady was taking the perfume in the counter, she
saw a new line of lipsticks on a glass shelf. She went there but it was
locked. Saw the key on the table and opened it, took one and
slipped in inside her bag, closed the glass, placed the key back on
the table. The saleslady arrived and gave her the perfume. She was
about to leave Rustans when suddenly this certain device detected
and made a sound, so the unpaid lipstick was discovered.
What crime was committed?
> Consummated Theft. Even if she has not yet left Rustans, the
moment she took the lipstick from the glass shelf, taking is already
complete, theft is already consummated.
In the same problem, woman took a lipstick and slipped it inside her
bag. Suddenly she has a change of heart. She took the lipstick from
her back and placed it back on the glass shelf and the closed the
glass and locked it.
Did she commit any crime?
> yes. She is already liable of consummated rape. The moment she
took the lipstick from the glass shelf and placed it inside her bag,
taking is already complete, therefore, theft is already consummated.
Her change of heart would not amount to desistance. Too late.
Desistance will only lie in the attempted stage but never in the
consummated nor in the frustrated stage.
What is the effect of returning back the lipstick?
> There will only be NO civil liability. She will not be made to pay the
lipstick because she returned it but nevertheless, she is already
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
liable for consummated theft because unlawful taking is already
committed.
In the same case, the woman opened the glass shelf. She was about
to take the lipstick when suddenly there was this hand placed on top
of her hand before she could even get the lipstick. Unknown to her,
her acts were being seen on a CCTV camera and the head of the
administrative office immediately went to her upon seeing that she
was about to take the lipstick.
Is the woman liable of any crime?
> Yes. She is already liable of attempted theft. A note was posted on
the glass shelf saying, do not open, ask for assistance. The moment
she opened it with use of the key, it shows her intent to gain. It is on
the attempted stage because she has not yet taken possession of
the personal property of another.
Rape has no frustrated stage.
Ex. A woman was raped. She filed a case of rape against the man. In
her open court testimony, she said she was not sure if the
penetration was complete. Likewise in the medical certificate it
shows that her hymen was not lacerated, it was intact.
Can the said man be liable of consummated rape?
> Yes. Because according to the SC, Rape does not admit of any
frustrated stage. Rape is consummated the moment the penis has
touched the lips or the labia of the podendum of a woman's
genitalia. It is not necessary that there is full or complete
penetration nor a hymenal laceration. The hymen may remain intact
yet rape can be committed because what is required is the penis
must touch lips or the labia.
People vs. Lizada
The man was still in his shorts. His penis has not yet even touch the
genitalia of the girl. He only touched the private parts of the girl.
How come the conviction was for attempted rape and not mere acts
of lasciviousness?
SC: Attempted rape because the SC take into consideration the 3
other consummated rape that has been done by the stepfather on
the daughter. Considering that in these 3 former acts rape had been
consummated, the obvious intent of the stepfather is to rape the
girl. It just so happen that he saw the son peeping and so he went
out of the room. That is the reason given.
If that is the reason given without the said facts that there has been
consummated rape for the past 3 acts, it should only be acts of
lasciviousness or at least attempted rape if there in an intent to lie.
In the case, the stepfather was still in his shorts, the penis has not
yet touched even the outer portion of a woman's genitalia. Absent
the facts that there were 3 former consummated rape, it should only
be acts of lasciviousness. Because to amount to at least attempted
stage, it is necessary that the penis must touch at least the outer
portion to show intent to lie. The man was still in his shorts, how can
you know that there was intent to lie. It is only a different ruling
because there were 3 previous consummated rape and the SC
considered all these saying that the obvious intent of the stepfather
was also to rape the daughter.
People vs. Jalosjos
Jalosjos was charged with many cases. In one case, the penis has
only touched that outer portion which becomes hairy during
puberty, not yet the lips but that outer portion which becomes
hairy.
SC: it was only acts of lasciviousness.
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How did the SC distinguish acts of lasciviousness from attempted
rape. If the penis touches the said outer portion and there was an
obvious intent to lie with the girl, it is attempted rape. If no obvious
intent to lie or have carnal knowledge of the girl, it only acts of
lasciviousness.
That is only one of the cases because in other cases he was
convicted of consummated rape.
Material Crimes - if a crime admits stages of attempted, frustrated
and consummated
Formal Crimes - if a crime does not admit of any stage, it only
punishes a consummated stage
Ex. Adultery is a formal crime, it is a crime of consequence, a crime
of result, it admits no stages. There is no such thing as attempted or
frustrated adultery, only consummated.
Physical injuries does not admit attempted or frustrated stage
because it is based on the injury sustained by the victim.
Art. 7. When light felonies are punishable. — Light felonies are
punishable only when they have been consummated, with the
exception of those committed against person or property.
GR: Light felonies are punishable only when they are on their
consummated stage.
XPN: Against person or property
Art. 8. Conspiracy and proposal to commit felony. — Conspiracy
and proposal to commit felony are punishable only in the cases in
which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it.
There is proposal when the person who has decided to commit a
felony proposes its execution to some other person or persons.
Conspiracy is a bilateral act. The must be at least 2 persons who
agreed to the commission of the crime. Proposal to commit a crime
is a unilateral act. Only 1 person who has decided to commit the
felony proposes it to another person. Is that another person agreed
to the commit the crime, there is now conspiracy.
Conspiracy as rule is not a punishable act, likewise proposal to
commit a crime is not a punishable act because they are mere
preparatory acts.
Exception to the rule as provided for in the first paragraph of Art 8
when the law specially provides a penalty therefore. When the law
specially provides a penalty for the mere conspiracy or for mere
proposal then conspiracy and proposal to commit a crime are crimes
by themselves. They are punishable act.
If conspiracy or proposal to commit a crime are provided in penalties
by law, it is not necessary that there be an overt act committed. The
mere act of conspiring or proposing will already give rise to a crime.
Ex. conspiracy to commit treason, rebellion, sedition. In SPL
conspiracy to commit terrorism. It is mot necessary that there be
overt acts. They are punishable acts by themselves.
CONSPIRACY AS A MEANS OF COMMITTING A CRIME
If conspiracy is only a means of committing a crime it is not yet a
punishable act. The mere act of conspiring will make the offenders
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
co-conspirators but they are not yet punishable, they are not yet
criminally liable.
2 KINDS
1. Direct or Express Conspiracy - when the offenders or conspirators
met, planned, agreed, decided to commit a crime. There is a
preconceived plan prior to the commission of the crime.
For one to be criminally liable, it is necessary that he is not only a
part of the agreement, he must also be present at the time of the
commission of the crime. Even if he is part of the agreement if at
the time of the commission of the crime he failed to appear, such
failure on his part to appear at the scene of the crime would be
construed by law as a desistance. Therefore, even if he part of the
agreement he will not be liable as a conspirator.
Ex. A, B and C decided to kill X on a particular date and time. Onthe
said date and time, A and B arrived and killed X. However, C failed to
appear.
Although C was part of the agreement , he cannot be held criminally
liable as a conspirator for the crime of murder because he failed to
appear at the scene of the crime. His failure to appear is construed
by law as a desistance on his part.
In the same problem but all were present. A and B were about to kill
X but C performed acts preventing A and B from committing the
crime.
Although C was a conspirator, part of the agreement, although he
appeared at the scene of the crime. Since C performed acts trying to
prevent A and B from committing the crime, he cannot be held
criminally liable as a conspirator for the crime of murder in the said
case.
For a conspirator to be held liable, he must be part of the agreement
and he must be present at the scene of the crime to commit the
crime. His failure to appear is desistance and therefore, he cannot
be held criminally liable. Likewise even if he appeared at the scene
of the crime but he performed acts to prevent others from
committing the crime, he is also not criminally liable.
GR: Conspirators are liable only for the crime agreed upon. They are
not liable for any crime which is not agreed upon.
Ex. A, B and C decided to kill X. Went to the place where X will be
passing at night time. When they saw X, A B and C surrounded X and
they all stabbed X. When X was lying on the ground, A and B left. C
remained and took the valuables of X.
What is or are the criminal liabilities of A, B and C?
A, B and C are all liable for the crime of murder as conspirators
because it is the crime agreed upon.
Only C will be liable for the crime of theft. A and B cannot be held
liable for the crime of theft because theft was not a crime agreed
upon by all of them. Also, theft was committed in the absence of A
and B. Therefore, only C will be held liable for theft.
It cannot be robbery because the victim is already dead. There is no
longer force or intimidation to be used upon person or upon things if
the victim is already dead. The taking from the person is only theft
not robbery.
In the same problem, C took the valuables of X in the presence of A
and B. While he was taking them, A said what about the cellphone, B
what about the ring, here take it also.
Although theft was not a crime agreed upon, all of them will be held
liable of the crime of theft because although theft was not agreed
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upon, it was committed in the presence of A and B and they did not
perform acts to prevent C from committing theft.
Ex. A, B and C decided to injure X to teach him a lesson. When X
arrived, they surrounded him, boxed, punched, hit X. While X was
lying on the ground, seriously wounded, A inflicted a fatal wound by
kicking the neck of X. X died.
Who is liable for the death of X?
All of them are criminally liable for the death of X. They all agreed to
injure X. That was their agreement. The death of X however was the
natural consequence of their agreement to injure X. Therefore, even
if it is not their intended act, since it is the natural consequence of
the crime, they are all criminally liable for the death of X.
Ex. A, B and C decided to rob the house of X. They went inside the
house of X. They have already taken the valuables. On their way out
however, C pushed a chair. The chair fell on floor and created a
noise. The owner of the house was awakened and began shouting
upon seeing A, B and C. C shot the owner of the house. The owner
died.
What is or are the criminal liabilities of A, B and C? Who is liable for
the death of X? Are all of them liable for the death of X or is it only
C?
The crime agreed upon was robbery. However, by reason or on the
occasion of robbery, homicide was committed. Therefore, the
resulting felony is a special complex crime. Under Art. 294 it is
robbery with homicide. Since the resulting felony is a special
complex crime, which cannot be separated from each other, all of
them can be held criminally liable of the special complex crime of
robbery with homicide.
Thus, base from the examples given, in case of direct or express
conspiracy, the conspirators are liable only for the crime agreed
upon.
XPNS:
1. When the other crime was committed in the presence of the
other conspirators and they did not perform acts to prevent its
commission.
2. When the other crime committed was the natural consequence of
the crime agreed upon.
3. When the resulting crime is a composite crime or a special
complex crime or a single indivisible complex crime.
Under the xpns, the other conspirators are liable for the crime
committed although not agreed upon.
In case of direct or express conspiracy, for one to be conspirator, it is
not necessary that he actually participate in the actual execution of
the crime. The participation of the conspirator may be direct or
indirect in the execution of the crime. Since there was a prior
agreement, mere presence at scene of the crime, mere exercise of
moral ascendancy over the others will already bring about criminal
liability as a conspirator because there was a prior agreement, there
was a pre conceived plan.
People vs. Carandang, Milan and Chua
All of them were charged of 2 counts of murder and 1 count of
frustrated murder. The only participation of Milan was to close the
door. It was only Carandang who shot the 3 police officers. Chua
instructed Milan to finish the 3rd police officer and Milan followed
him.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
SC: Although the participation of Milan was only to close the door,
Chua was only to order Milan to shoot the 3rd police officer, such
act of Chua showed that he exercised moral ascendancy over Milan.
Therefore, since what is present here is a prior agreement to kill the
police officers, mere exercise of moral ascendancy will already make
one a conspirator. It is not necessary that they actually participate in
the execution of the crime. Thus, all of them are held criminally
liable.
People vs. Garchitorena Direct proof is not necessary
SC: Direct proof is not necessary for one to become a conspirator
because conspiracy can be proven from the acts done or performed
prior, during or subsequent to the commission of the crime.
Ex. A, B and C alighted in the house of X, they were all armed with
armalites. They all went in front of the door. A knocked at the door.
When X opened the door, B fired at X. X fell on the floor. C kicked his
body inside and closed the door. All of them left still armed. Are they
all criminally liable or conspirators for the death of X? Are they
conspirators for the crime of murder?
Yes. It is evident here that there is a pre conceived plan prior to the
commission of the crime. Although the only participation of A was to
knock at the door and the only participation of C was to close the
door, it was obvious, there was a pre conceived plan. All of the,
arrived at the same time armed with armalites. They went in front of
the door, one knocked, one fired, one closed the door, left together
still armed. All of these showed that there was a pre conceived plan
to kill X. As such they are all liable as conspirators regardless of the
quantity and quality of their participation.
2. Implied or Inferred Conspiracy - deduced from the mode and
manner of committing the crime, there is no pre conceived plan
but the offenders acted simultaneously in a synchronized and
coordinated manner, their acts complimenting one another
towards a common criminal objective or design. They are all liable
as conspirators.
It may happen that the conspirators do not know each other. Since
the offenders acted in a synchronized and coordinated manner, a
conspiracy was established instantly, impulsively, at the spur of the
moment.
Ex. X was trying to stab Y. Y evaded all the blows. Z saw that X was
having a hard time stabbing Y. Z was an enemy of Y. So Z went at the
back of Y and held both hands of Y at the back and told X to stab Y
which X did.
Is Z a conspirator of X?
Yes. An implied conspiracy was established, instantly, impulsively, at
the spur of the moment. There was no pre conceived plan but the
act of Z of holding the hands of Y is a direct and positive overt act
showing that he has the same criminal design as That of X which is
to kill Y.
People vs.
In case of implied conspiracy, for one to be considered as a
conspirator, it is necessary that the offender actually participates in
the commission of the crime. Mere presence at the scene of the
crime, mere approval, mere acquiescence, mere knowledge of the
commission of the crime will not make one a conspirator absent any
active participation. Because the basis is on the acts performed by
the offender. Unlike a preconceived plan there was a prior
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agreement, therefore mere presence or exercise of moral
ascendancy will make one a conspirator. In implied the conspiracy is
established based on the acts performed. Therefore, if you do not
perform an act, if you are merely present then you cannot be held a
conspirator.
Ex. X was trying to stab Y. When Z saw that X was stabbing Y he
shouted "sige tirahin mo pa, sa kaliwa sa kanan..." X kept on
stabbing Y.
Is Z a conspirator of X?
No. Absent any active participation, mere approval, mere
acquiescence, mere knowledge of the commission of the crime will
not make one a conspirator in case of implied or inferred conspiracy.
When conspiracy is established whether direct or express, implied or
inferred, the act of one is the act of all. Therefore, all the
perpetrators in the crime will have one and the same penalty. The
same penalty will be imposed regardless of the quantity and quality
of the participation. The moment conspiracy is established, it is
immaterial to determine who inflicted because all of them will have
the same penalty.
If however, conspiracy is not established, the penalty will be
individual in nature depending on the act that they performed.
People vs. Bokingco
Bokingco killed Pasyon inside the apartment. At the time that he was
killing, Reynante was inside the main house, he was asking the wife
to open the vault of the pawnshop. After killing the husband,
Bokingco called Reynante and said "tara na, patay na siya!." They
fled at the same time. They were both charged for the crime of
murder. Convicted both of murder in the CA.
SC: there was no conspiracy between Bokingco and Reynante in
killing the husband. While one is killing the victim the other was
trying to commit another crime. They did not act in a synchronized
and coordinated manner. There was no evidence that there was a
pre conceived plan because one was committing another crime
different from the other.
They are one in escaping but not in the commission of the crime.
Since conspiracy was not established, the most that is established is
that they planned to commit 2 crimes simultaneously at the same
time. But the charge was only murder, there was no charge for
robbery. Therefore, Bokingco was convicted, Reynante was
acquitted of the crime of murder. So absent any evidence of
conspiracy, the liability is invidual.
2 KINDS OF MULTIPLE CONSPIRACY
1. Wheel or Circle Conspiracy - when a single person or group of
persons known as a hub, deals individually with another person or
group of persons known as the spokes.
2. Chain Conspiracy - usually involving the distribution of narcotics or
other contraband, in which there is successive communication
and cooperation in much the same way as with legitimate
business operations between manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and consumer.
Fernan vs. People
SC said what is present is a wheel or circle conspiracy. 4 persons
headed by the chief accountant acted as the hub. They enticed all
other 36 employees of the DPWH to be one with them in
committing fraud against the government. They falsified LAA's and
would negotiate it at a certain percentage, then one of them would
compute the general voucher, funds then will be issued as if
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
materials will be delivered for the construction. Fernan and
Torevillas were civil engineers of the DPWH, they signed tally sheets,
saying that there were deliveries when in fact these were ghost
deliveries. No actual deliveries of the materials.
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 Art. 25 of this Code.
Less grave felonies are those which the law punishes with penalties
which in their maximum period are correctional, in accordance
with the above-mentioned Art..
Light felonies are those infractions of law for the commission of
which a penalty of arrest menor or a fine not exceeding 200 pesos
or both; is provided.
3 kinds of felonies according to severity
1. Grave felonies
2. Less grave felonies
3. Light felonies
Art. 10. Offenses not subject to the provisions of this Code. —
Offenses which are or in the future may be punishable under
special laws are not subject to the provisions of this Code. This
Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.
Ex. What if a person convicted of a violation of a SPL? A issued a
check to B for payment of an obligation. B deposited but the check
bounced. Notice of dishonor was sent. After the trial on the merits,
A was found guilty of the violation of BP 22 beyond reasonable
doubt. Fine and payment of the value of the check. The court said in
case of non payment of the fine, the said convict shall suffer
subsidiary imprisonment.
Is the Judge correct? Can a person who violated a SPL and was
imposed with fine be made to suffer subsidiary imprisonment in
case of non payment of fine?
Subsidiary imprisonment is under Art. 39 of the RPC. Can you apply
the RPC to violations of SPL?
Yes because of Art. 10. As a rule, the RPC shall apply suppletorily or
supplementarily to the provisions of SPL unless the SPL provides
otherwise.
Example of "unless"
Sec. 98 of RA 9165. It is expressly provided that the provisions of the
RPC shall not apply to the violations RA 9165 or the 2002
Comprehensive Dangerous Drugs Act. The law uses the word shall.
XPN: If the offender is a minor. In that case if the minor is penalized
with life imprisonment to death, it will be considered as reclusion
perpetua to death and the nomenclature of the penalties in the RPC
will now be applied
CIRCUMSTANCES WHICH AFFECT THE LIABILITY OF THE OFFENDER
1. Justifying circumstances
2. Exempting circumstances
3. Mitigating Circumstances
4. Aggravating Circumstances
Art. 11. Justifying circumstances. — The following do not incur any
criminal liability:
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1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent
or repel it.
Third. Lack of sufficient provocation on the part of the person
defending himself.
2. Any one who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same degrees
and those consanguinity within the fourth civil degree, provided
that the first and second requisites prescribed in the next
preceding circumstance are present, and the further requisite, in
case the revocation was given by the person attacked, that the one
making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
circumstance of this Art. are present and that the person defending
be not induced by revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does not act
which causes damage to another, provided that the following
requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to
avoid it;
Third. That there be no other practical and less harmful means
of preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
Justifying circumstances
- infractions wherein the offender is said to have acted within the
bounds of law. He has not yet transgressed the law. Therefore there
is no crime committed, there is no criminal, there is no criminal
liablity, there is no civil liability.
The moment the offender or the accused invokes any of the acts
amounting to justifying circumstance, he is in effect admitting the
commission of the crime. But he wanted to evade criminal liability
by invoking justifying circumstances. Therefore in justifying
circumstance it is both an admission to the commission of the crime
and an avoidance of criminal liability.
Ex.
A killed B. A case of homicide was filed against A. A pleaded not
guilty during the arraignment. During the pre trial, the counsel of A
invoked self-defense. The moment the counsel said that their
defense is self-defense, a kind of justifying circumstance, the
procedure in trial would be inverted.
As a rule it is the prosecution that must first present evidence, it is
only after the prosecution has presented evidence that the defense
would present evidence.
If however the defense invoke any of the justifying circumstances,
the trial will be inverted. It is the defense that must first present
evidence. Because he in effect admits the commission of the crime.
He only wanted to avoid liability by saying that his act was justifying.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Therefore the burden of evidence is upon the defense to prove all
the elements, all the requisites of the justifying circumstance that he
is invoking.
If the defense failed to prove the evidence or requisites of justifying
circumstance that he is invoking, that will amount to conviction
because he already admitted to the commision of the crime.
1. Self-defense
SD does not only include defense of one's life. It also includes
defense of one's honor or chastity, defense of one's property
coupled with an attack on the person entrusted with the said
property. It is an encompassing term.
Elements of SD:
1. Unlawful Aggression - must come from the victim. The person
attacked by the person defending himself.
Aggression is said to be unlawful or present if the attack is
material, actual and places the life of the accused in imminent
and immediate danger. It must not only be a threat. It must be
present, about to happen.
2. Reasonable necessity of the means employed to prevent or repel
it.
When you say reasonable necessity it does not mean that when
the aggressor makes use of a bolo, the person defending must
also make use of a bolo. What the law requires is rational
equality. Rational is the means employed. Rationally necessary
to prevent or repel it.
Factors to be considered in order to be said that the means
employed is rationally necessary:
a. Nature and the number of the weapon used by the aggressor
b.Physical condition, size, weight and other personal
circumstances of the aggressor versus that of the person
defending himself
c. Place and location of the assault
All of these would determine if the means employed of the person
defending himself is reasonably necessary to prevent or repel the
aggression.
3. Lack of sufficient provocation on the part of the person defending
himself.
PROVOCATION - refers to any immoral act or conduct, unjustified
act or conduct which stirs a person to do wrong.
SUFFICIENT PROVOCATION - adequate to stir a person to do the
wrongful act and when it is proportionate to the gravity of the act
SC held in the ff circumstances that there is no sufficient provocation
on the part of the person defending himself:
- when no provocation at all was given
- when although provocation was given, it was not sufficient
- when although the provocation was sufficient, it did come from the
person defending himself
- although provocation came from the person defending himself, it is
not immediate or imminent to the aggression.
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Ex. A saw his enemy B. B was fast approaching to A with a gun on his
hand. Upon seeing that B was about 10 feet away, A immediately
pulled out his balisong and he spin B who was hit on the neck and
died.
There was no unlawful aggression. The mere act of holding a gun will
not constitute imminent and immediate danger on the life of the
person unless the said gun is aimed at the said person. Same with
bolo or any weapon. If it is just being held by a person, it will not yet
produce any imminent or immediate danger.
SC: For a bolo to produce imminent and immediate danger, it must
be held in a hacking position. Only then that it will produce unlawful
aggression.
In the example, B was only walking with a gun on his hand and it was
not yet pointed or aimed to the offender. Therefore, there was no
unlawful aggression.
If there is no unlawful aggression, that means that 2 is not present.
Although 3 would be present because there was sufficient
provocation on the part of the B.
Therefore, A should be convicted of homicide. Self defense would
not lie in his favor.
People vs Regalado
SC: the moment the the inceptive unlawful aggression cease to exist,
the person defending himself must not kill or wound the aggressor.
Retaliation is not a justifying circumstance.
The offended party or the victim, Roland shot allegedly the barangay
official Ramon. Ramon hit the back of the head of Roland with an ice
pick and continued hitting him so he would not gain balance. Wen
the accused hit the victim whatever inceptive unlawful aggression
has been started by the victim, it has already ceased to exist.
Therefore, the accused has no more right to wound or kill the victim.
Same reasoning in the case where the Neighbor had sexual
intercourse with the Wife when the Husband left to go fishing. The
W allowed it thinking he was her H but when the N finished, dressed
himself up and he told the W, "Osang, salamat!. " Upon hearing the
voice, the W realized that he is not her H so she immediately jumped
out of the bed, took the bolo and hacked the N. The N died.
Prosecuted for homicide. She invoked self defense, particularly
defense of honor and chastity.
Was there self defense?
> There was no self defense. The unlawful aggression already ceased
to exist because the sexual congress was already finished. There was
no more honor to protect.
If you were the judge, would you convict or acquit the accused?
> Yes, I would convict the accused for the crime of homicide, but I
will give the said victim the mitigating circumstances of immediate
vindication of a grave offense and sudden impulse of passion and
obfuscation. This to lower the imposable penalty.
Ex. A tried to stab B. B evaded the blow. In the course of said
struggle, B gained possession of the bolo or gun and fired at A. A
died. There was no self defense. Even if the unlawful aggression was
started by A, the moment B gained possession of the bolo or gun,
the unlawful aggression has already ceased to exist. There was no
more danger on the life of B. so when B fired, it was not an act of
retaliation which is justifying circumstance.
Ex. A woman was on her way home. Suddenly a man appeared,
boxed her, dragged her on a portion of a vacant lot, boxed her again,
pinned her down, undressed her. When the man stood up to
undressed himself, the woman took the moment to get the balisong
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
in her bag. When the man placed himself on top of the woman, the
woman stabbed the man. The man died. Prosecuted for homicide.
The woman invoked self defense particularly defense of ones honor
and chastity.
Is there self defense?
> Let's go by the requisites.
First, unlawful aggression. Was there unlawful aggression? Yes, the
man boxed her, dragged her, undressed her, pinned her down. This
is unlawful aggression sufficient to mean that she would be raped.
Second, reasonable necessity of the means employed to prevent or
repel the aggression. The man was unarmed.
Is it reasonably necessary for the woman to make use of the
balisong?
> Yes, because of the factors to be considered. Although the said
man has no arms, you must take into consideration of the personal
circumstances of the woman versus that of the man, the physical
circumstances. Likewise, you must take into consideration the place
and the occasion. It was 3 o'clock in the morning, nobody could give
help to the woman. The only means she could do to help herself and
prevent the act of rape would be to stab the man.
The second element is present.
Third, lack of sufficient provocation. It is present. The woman was
merely walking on her way home. Absolutely there was no sufficient
provocation coming from the woman.
Therefore, the woman was justified in killing the man. She acted in
self defense.
Ex. When the father went home, his son was crying. When he was
asked by his father why he was crying, he said he was slapped by the
neighbor. When he was asked why he was slapped, the son did not
answer. The father decided to inquire from the neighbor why he
slapped his son. Such inquiry angered the neighbor. The neighbor
who was at that time was gardening tried to hit the father with a
rake that he was using for gardening. The first blow and the second
blow were evaded. The neighbor tried to hit again the father for the
third time, the father saw a pointed stick on the ground, took it and
stabbed the neighbor. The neighbor suffered a fatal wound, brought
to the hospital and survived. The father was prosecuted for
frustrated homicide. He invoked self defense.
Is there self defense?
> First, there was unlawful aggression. The neighbor tried to hit him
with a rake 3 times. There was an image of danger from his life.
Second, reasonable necessity of the means employed to prevent or
repel the aggression. The father went to the house of the neighbor
without any arms and at the time he was attacked, he just saw a
pointed stick. That is the only means that he could avail at the
moment to protect himself. Therefore it was reasonably necessary
to use the said means.
Third, lack of sufficient provocation on the part of the person
defending himself. The act of the father inquiring from the neighbor
why he slapped his son was an act within his right. It cannot be
considered as sufficient provocation. It is the right of the father to
know why his son was hurt or injured by the neighbor.
Toledo vs. People
SC: there is no such thing as accidental self defense. You cannot
invoke self defense and accident at the same time. Because in self
defense it is direct and positive overt act in the name of self
preservation. The offender killed the victim so as to preserve his
own life. It is direct and positive. It cannot be done out of accident
imminence. Therefore, it is inconsistent with accident.
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The reason behind self defense stand ground when in the right.
Stand ground in the right means that where the said accused is
where he should be and his assailant is fast approaching, the law
does not require him to retreat because the moment he retreats he
runs the risk of being stabbed at the back.
2. Defense of a Relative
Elements:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel
it;
3. In case the provocation was given by the person attacked, the one
making the defense had no part therein.
Even if the relative, who was defended by the offender, was the one
provoked the offended party, the offender should took no part in
the provocation in said situation so as to justify the defense of a
relative.
3. Defense of a Stranger
Elements:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel
the attack;
3. The person defending be not induced by revenge, resentment, or
motive.
The 3rd element requires that the said offender must be
disinterested and not induced by any other motive, otherwise,
defense of a stranger will not lie.
Q: What if one night, A and B were on board a jeepney. Said jeepney
was flagged down by X. Upon reaching a dark portion of the street, X
pulled a balisong and declared a hold-up. X poked A with his
balisong and said “give me your cellphone”. A did not want to give
her cellphone to X. X was about to stab A when B, upon seeing that
the latter was about to stab B, immediately kicked X out of the
jeepney. X, who fell from the jeepney suffered physical injuries. B
was prosecuted for serious physical injuries. B invoked defense of a
stranger.
Answer:
>We should go by the elements:
1st: Unlawful aggression. Was there unlawful aggression?
A: Yes, X was about to stab A because A did not want to give her CP.
2nd: Reasonable necessity of the means employed to prevent or
repel said aggression
A: Yes. Note that B was unarmed. All that he did was he kicked X out
of the jeepney. It was necessary for him to do said act in order for
him to prevent the aggression
3rd: The offender was induced by revenge, resentment, or motive
A: Yes. In the problem, there was no showing that B knows X, so it
cannot be said that B is induced by any motive.
4. State of Necessity
“DOCTRINE OF STATE OF NECESSITY”
>It is noted that justifying circumstances are exempt from criminal
as well as civil liability. However, this paragraph of Art 11 is an
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
exception when it comes to civil liability. Civil liability is born not
only by the accused, but all those people who benefitted in this
state of emergence. Under Art. 101 of the RPC, “In cases falling
within subdivision 4 of Art 11, the persons for whose benefit the
harm has been prevented shall be civilly liable in proportion to the
benefit which they may have received.
Sample problem:
A pregnant woman met an accident. She was immediately brought
to the hospital. Because of the said dire situation, the doctor who
was in charge of the pregrant woman has to make a decision, that is
to save only one life, either the life of the woman or the baby that
she is carrying. The doctor chose to save the life of the woman.
Because of that, the foetus died. Prosecuted for abortion, the doctor
invoked the doctrine of state of necessity.
LET’S GO BY THE ELEMENTS:
1st: That the evil sought to be avoided actually exists;
In this case, the life of the baby and the mother is in danger
2nd: That the injury feared be greater than that to avoid it;
The injury (death of the pregnant woman) is greater than that of the
death of the foetus
3rd that there be no other practical and less harmful means of
preventing it
The situation was an emergency. The woman had no relatives with
her so the doctor has to decide immediately—either to save the life
of the mother or the foetus. Therefore the doctor should be
absolved from criminal liability.
What if on a taxi a family was on board. Said taxi was traversing
ESDA during nighttime. Suddenly, without any warning, a truck
appeared in front of him. If he would go forward, he would be
hitting the buses. If he swerved to the right, he would be hitting
bystanders. If he swerved to the left, he would hit a store. So the
taxi driver chose to swerve to the left, hit the store thereby causing
damage. Prosecuted for reckless imprudence resulting to damage to
property, the taxi driver involved the 4th justifying circumstances.
Elements:
1st: That the evil sought to be avoided actually exists;
Yes, there was a collision
2nd: That the injury feared be greater than that to avoid it;
Yes, there would be death or injury.
3rd that there be no other practical and less harmful means of
preventing it
Yes.
However, this time the taxi driver would be liable. Aside from these
3 requisites stated by the law, it should be added that the necessity
must not be due to the negligence or violation of the law by the
actor. In this case, there was a warning to the taxi driver not to enter
the street, yet he proceeded. It is through his negligence that caused
the state of necessity, therefore he is criminally and civilly liable.
5. Fulfilment of a duty or in a lawful exercise of a right or office
Elements:
1. Accused acted in the performance of a duty or in the lawful
exercise of a right or office.
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2. Injury caused or offense committed be the necessary
consequence of the due performance of duty or the lawful
exercise of such right or office.
Note that the injury is the necessary consequence of the lawful
exercise of duty
6. Obedience to an order issued by a superior for some lawful
purpose
Elements:
1. An order has been issued by a superior
2. Such order must be for some lawful purpose
3. Means used by the subordinate to carry out said order is lawful
SITUATION:
What if a warrant of arrest was issued by the court against X. The
chief of police handed the warrant to a group of police and
instructed them to arrest X, and if X would refuse to be arrested,
they can immobilize X. So the group headed by Police Officer Y
received an information that X lived in a certain province. Police
Officer Y, together with his group went to said province and was
able to verify that X actually lived there. Police Officer Y thereafter
went to the location of X. Police Officer Y, upon seeing X who was at
that time was cultivating the soil, immediately fired at X. Thereafter,
X dies. Prosecuted for murder, Police Officer Y invoked two justifying
circumstances: lawful duty and acted in obedience to a lawful order.
Elements:
In performance of a lawful duty
1st element: Accused acted in the performance of a duty or in the
lawful exercise of a right or office.
Yes, it is present. Accused acted in the performance of his duty. He
was ordered to arrest X by the chief of police by virtue of the
warrant of arrest issued by the court
2nd element: Injury caused or offense committed be the necessary
consequence of the due performance of duty or the lawful exercise
of such right or office.
No. Said element is absent. The killing of X is not necessary in the
performance of his duty.
Therefore, it cannot exempt him for liability.
How about obedience to a lawful order?
1st element: An order has been issued by a superior
Yes, it is a lawful order by his superior. The order was arrest and
immobilize X if he refuses to be arrested
2nd element: Such order must be for some lawful purpose
Yes, he was ordered to arrest X by virtue of a warrant of arrest
3rd: Means used by the subordinate to carry out said order is lawful
The 3rd element is absent in this case. The means employed is not
present
The means employed by Police Officer Y, where his order was arrest
and in case of resistance is to immobilize X was not performed.
BATTERED WOMAN SYNDROME
Anti-Violence against Women and their Children Act of 2004 (R.A.
9262)
What is A and B are husband and wife. They had been living for 12
years. In the course of their relationship, A would be hit by B for
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
every minor mistakes that she commit. The wife would always suffer
physical injuries and would often go to her psychiatrist. One time,
the husband arrived home and drunk. This time, he did not beat his
wife, but immediately went to the bedroom and slept. The wife took
this opportunity to kill her husband. She took a bolo and hacked her
sleeping husband. Upon seeing her husband dead, she wrapped him
with their blanket. Thereafter, she took her children and left the
house. After some time, the neighbors of the husband and wife
noticed a foul smell coming from the house. When they opened the
house, they saw the body of the husband. The wife was prosecuted
for parricide.
If you were the counsel, what will be your defense?
You can have the defense of the Battered Woman Syndrome.
What is a battered woman?
She is woman who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do
something he wants her to do without concern for her rights.
>Battered women includes wives or women in any form of intimate
relationship with men.
>Furthermore, in order to be classified as a battered woman, the
couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once.
If it occurs a second time, and she remains in the situation, she is
defined as a battered woman.
>Note that battered woman syndrome is akin to akin to justifying. It
is even better that self-defense because in self defense, you have to
prove that the elements are present. However, in battered woman
syndrome, what should be proven is that the wife is suffering from
battered woman syndrome. It is through the expert testimony of the
psychiatrist who will prove that the wife is suffering from battered
woman syndrome. If this is proven, she is absolved from criminal
and civil liability.
>This is an actual case People vs Genosa wherein the wife was
prosecuted for parricide. However, in this case, RA 9262 was not yet
enacted, so the wife was convicted for parricide, but she was
entitled to mitigating circumstances.
Art. 12. Circumstances which exempt from criminal liability. — the
following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted
during a lucid
interval.
When the imbecile or an insane person has committed an act
which the law defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under fifteen, unless he has
acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80 of
this Code.
When such minor is adjudged to be criminally irresponsible, the
court, in conformably with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his family
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who shall be charged with his surveillance and education
otherwise, he shall be committed to the care of some institution or
person mentioned in said Art. 80.
4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
5. Any person who act under the compulsion of irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear
of an equal or greater injury. 7. Any person who fails to perform an
act required by law, when prevented by some lawful insuperable
cause.
1.
>Note that in this paragraph there are two exempting circumstance:
A. Imbecility
B. Insanity
• Imbecility is exempting under any circumstance.
• Insanity on the other hand is not exempting under any
circumstance because, if it can be shown that he committed the
crime in lucid interval, he is liable.
IMBECILE - is one who is already advanced in age but only have a
thinking of a child between 2 and 7. There is no intelligence, an
element of voluntariness.
INSANITY - on the other hand refers to the mental aberrational
background or disease of the mind and must completely impair the
intelligence of the accused. It is not exempting because it must be
proven that the felony was committed when the offender was
insane. There is lucid interval, and if an offender committed a crime
during his lucid interval, his insanity is not a defense.
Just like exempting circumstance, imbecility and insanity are both
admission and avoidance: A was charged with crime. He invoked
insanity. Hence he in effect admitting the crime. But he wanted to
be absolved of criminal liability by stating that he is insane so that he
will not have any criminal liability.
In your civil code, it is presumed that the person is sane. Therefore
the burden of evidence is on the defense. Therefore, all the accused
has to do is to prove that he was insane when he committed the
crime.
Situation:
A:
What if A killed B and stabbed him many times. A was prosecuted
for murder. The defense tried to prove that was he was insane. To
prove insanity, the defense presented the father of A, who testified
that his son would go out of their home naked and thereafter
return. Second, his son was in and out of the mental institution.
Third, his son would steal the jewelries of his mother and would sell
it at an extreme low price. These were the evidence presented by
the defense.
In this case, the accused cannot be considered to be insane. The
father’s testimony, instead of proving that A was insane, established
otherwise. First, an insane person would not know where his house
is. Second, A was in and out of the mental institution. Third, an
insane person would not know that a thing has a value (considering
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
the evidence that the son sold the jewelries of the mother at a low
price)
B:
What if A killed B. A stated that a week prior to the killing, he could
not sleep and there was a voice that kept nagging him, “Kill B, kill B.”
And so he killed B, so he followed the voice. He pleaded guilty but
his defense was insanity.
The Supreme Court ruled that he is not insane. Mere mental
disturbance, mere craziness is not the insanity contemplated by the
law. It is the insanity which would deprive the offender the capacity
to distinguish right from wrong and the consequences of his act.
In an old case, sleep walking or somnambulism is also considered as
akin to insanity. He did not know what he was doing at that time
when he killed the victim. Therefore, there is no criminal liability.
2 and 3
MINORITY
>The second and third circumstance was already amended by R.A.
9344 or the Juvenile Justice and Welfare Act of 2006. This refers to a
child in conflict of the law. A child in conflict with the law is a child
who is alleged as, accused of, or adjudged as, having committed an
offense under Philippine laws.
>Under the law, if a child committed a felony when he is 15 or
below, he is exempted from criminal liability. If he is over 15 but
below 18, but he did not act with discernment, he is exempted from
criminal liability. If he is over 15 but below 18 and he acted with
discernment, he is not exempted from criminal liability and he will
be prosecuted just like any other criminal.
>So, if the offender is 16, therefore he is over 15 but below 18, and
he committed a crime and acted with discernment. During the trial,
it was established and proven that he is guilty beyond reasonable
doubt. There is already a pronouncement of a judgment of civil
liability. Under Sec. 38, once the child who is under 18 years of age
at the time of the commission of the crime was found guilty of the
offense charged the court shall determine and ascertain any civil
liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the
court shall place the child in conflict with the law under suspended
sentence, without need of application. Provided however, that the
suspension of the sentence shall still be applied even if the juvenile
is already 18 years of age or more at the time of the pronouncement
of his guilt. Therefore, as long as he is 18 years and below at the
time of the commission of the crime, even if he is above 18 at the
promulgation of the judgment, he can still benefit from the
suspended sentence.
>Note that under Section 40 of said act, if a child is under suspended
sentence, the court shall decide to discharge or to extend the
sentence for a specific period of time or until the child attains the
maximum age of 21. Although there is automatic suspension, it is
tempered by Section 40. Therefore, the maximum limit is 21 years
old.
>This happened in People vs Sarcia and in People vs Mantalaba. In
the first case, the accused was convicted of statutory rape. In this
case, the SC ruled that the law should be given a retroactive
application. Section 36 of the act provided that persons who have
been convicted and are serving sentence at the time of the
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effectivity of the act and who were below 18 at the time of the
commission of the offense for which they were convicted and are
serving sentence shall be given a retroactive application of the act.
The SC also ruled that although the crime committed is a heinous
crime, the accused can still be given a suspension of the sentence.
Section 38 does not distinguish the nature of the crime, be it
heinous, capital, or light offense, the child is entitled to suspension
of sentence.
However, the SC ruled that considering the age of Sarcia (already
31), he cannot be given anymore the benefit of suspension.
Although he committed the crime when he was 17 years old, the
maximum age is 21.
The only benefit that was available to him was that he shall serve his
sentence in an agricultural camp and other trainingfacilities.
>The same case was applied in People vs Mantalaba. They have the
very same issues. The case is about the sale of illegal drugs involving
minors. In this case, the SC remanded the CA. The CA should have
suspended the sentence because at that time the law was enacted
and was on appeal to the CA, the accused was 20 years of age,
hence he is entitled to the automatic suspension of his sentence.
WHAT IS AN ACT OF DISCERNMENT?
>In the case of Madali vs People, there is an act of discernment
when the minor knows the consequences and circumstances of his
act. Discernment is that mental capacity of a minor to fully
appreciate the consequences of his unlawful act. Such capacity may
be known and should be determined by taking into consideration all
the facts and circumstances.
In this case, the accused who was 16 years old at the time of the
commission of the crime, warned the witness not to reveal their
hideous act, otherwise, he (accused) and his co-accused would kill
him. Therefore, he knew that killing the victim was a condemnable
act and should be kept in secrecy. He fully appreciated the
consequences for his unlawful act.
4.
Elements:
1. A person is performing a lawful act
2. With due care
3. He causes injury to another by mere accident
Note that although exempting, as a rule, there is no criminal liability
but there is civil liability. However, paragraph 4 (accident)is an
exception. There are no criminal liability and civil liability. Accident is
akin to justifying circumstance because the offender was performing
a lawful act with due care.
Situation:
A is a prisoner. He was about to be investigated and was escorted to
the investigation room. Before reaching the investigating room, A
grabbed the service pistol of the officer who was accompanying him
to the investigating room. The police tried to get back his pistol, and
in the course of the fight, the pistol was fired accidentally and A was
hit. Thereafter, A died. The police officer was prosecuted for
homicide.
Let’s go by the elements:
1st: a person is performing a lawful act
The police officer was trying to get back his property, and that is his
pistol.
2nd performing a lawful act with due care.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
He caused an injury by accident. He was performing an act with due
care, and there’s no other way to get back the pistol.
3rd: he causes an injury through accident
There was no intention on his part to kill A.
What if a police officer saw two men fighting on a street. They were
hitting each other. The police tried to pacify the two men, but they
wont stop. So what the police officer did was that he fired shots to
pacify the men. However, one of the stray bullets landed on the
child. Unfortunately the child died. The police officer was
prosecuted for homicide. As a defense, the police officer invoked
accident
Let’s go by the elements:
1st: a person is performing a lawful act
The police officer is performing a lawful act. The two men are
fighting on the street
2nd: performing act with due care
The second element is not present. Considering that it was a
community, he knew that a stray bullet would have landed on any
person. He should not have fired shots. The police officer is liable for
reckless imprudence resulting to homicide, a culpable felony.
5.
Elements:
1. There must be Compulsion is by means of physical force
2. Physical force must be irresistible
3. Physical force must come from a third person
In irresistible force, the offender must be reduced as a mere
instrument, that he is not acting in his will. Therefore, if he is acting
against his will, voluntariness is absent.
6.
Elements:
1. Existence of an uncontrollable fear
2. Fear must be real and imminent
3. Fear of an injury is greater than or equal to that committed
It is necessary by the means employed by the third person, it would
cause a person to suffer uncontrollable fear. Again, he is reduced as
a mere instrument such that he acted against his will. It is necessary
that such fear must be of imminence that an ordinary man cannot
stand. When there is an existence of uncontrollable force or fear
there is lack of freedom of action—an element of voluntariness.
Therefore, the person totally has no free will.
Even if there was force employed but the person has a choice to do
the act or not, this exempting provision will not lie.
Situation:
A farmer and his carabao was on his way home. On his way home,
he heard gun shots, so he went to the place where he heard the gun
shots. He hid behind a tree and saw two men shooting X. X way
already lying on the ground. The farmer was so shocked and afraid
that he tried to leave the place. However, when he was about to
leave, he stepped on the dried leaves and caused a noise. The two
men saw him. One of the men pointed the gun at the farmer and
told him to come near them. Afraid for his life, the farmer obeyed.
The men, pointing the gun at the farmer told him to bury X lying on
the ground. The farmer said, “No, I don’t want to.” “If you will not
bury X, we will shoot you”, said one of the men. The farmer was so
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afraid and so he dug the ground and buried X. Is the farmer
criminally liable together with the two men?
Let’s go by the elements
1st Existence of an uncontrollable fear
There was an uncontrollable fear. The farmer saw that the two men
shot X. If the two men can shoot X, they can also shoot him.
Therefore, there was an uncontrollable fear
2nd: Fear must be real and imminent
It was present. And the fear was present.
3rd Fear of an injury is greater than or equal to that committed
It was also present; his fear for his life satisfies this element. His life
is more important.
Therefore all the elements are present, he is not liable
SAME PROBLEM . “If you will not bury X, we will shoot and kill your
carabao”. The farmer was so afraid. His carabao was his only means
of living. And so, he buried X. Is he criminally liable together with the
two men?
1st Existence of an uncontrollable fear
There was an uncontrollable fear, it is real and imminent. The farmer
saw that the two men shot X. If the two men can shoot X, they can
also shoot the carabao. Therefore, there was an uncontrollable fear
2nd: Fear must be real and imminent
It was present. Fear was present in this case, as the men will shoot
his carabao, his only means of living.
3rd Fear of an injury is greater than or equal to that committed
The third element is wanting. The death of the carabao is not equal
to or greater than the life of the human.
What if in the same problem, the two men told the farmer that if the
farmer will not bury X, they will go to his house, rape his wife,
thereafter kill her and his children and burn his house. His family is
the most important people in his life. Therefore, he was constrained
to bury X. is he criminally liable?
1st Existence of an uncontrollable fear
Yes, it is present. Imagine, his wife would be raped, his children
would be killed and his house would be burned. Poor farmer.
2nd: Fear must be real and imminent
The 2nd element is not present. The fear is not present. It is in the
future, speculative. Imagine, the two men would still have to go to
the house of the farmer and look for his wife and children. By that
time, the farmer had already gone to his house and warned his
family. He could also have reported the killing of X. So his fear is not
real imminent. Imaginative not present.
This happened in the case of Vicky Ty. She was accused of issuing
bouncing checks. Vicky Ty’s defense was that she feared that her
ailing mother who was confined in the hospital would commit
suicide because of the hospital’s ill treatment. So she was compelled
to issue unfunded checks for her mother to be discharged. In this
case, yes there is an uncontrollable fear. However, her fear was not
real and imminent. It is mere imaginative, speculative. It is not now,
or not present.
How about state of necessity?
Let us go to the elements:
That the evil sought to be avoided actually exists
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Is the threat of the mother actually exist? No, because the threat is
in the future. Therefore state of necessity is not present. The
Supreme Court ruled that she was not in state of necessity. Because
she has several jewelries. She could have sold the jewelries to pay
for the hospital expenses
7. Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause.
The law requires the person to require a lawful act, but was
prevented because of an insuperable cause.
Note that it is one of the instances in exempting circumstances that
the actor is exempt from both criminal and civil liability. It is akin to a
justifying circumstance because what prevented the offender from
performing a lawful act is a lawful cause.
Elements:
1. An act is required by law to be done.
2. A person fails to perform such act.
3. Failure to perform such act was due to some lawful or insuperable
cause.
For example, there is a war in which the Philippines is involved. A, B,
and C conspired to commit treason against the government. A, one
of the conspirators went to the priest and confided to the priest that
there was conspiracy between B and C to commit treason against
the government. Despite knowledge on the conspiracy to commit
treason, the priest did not immediately divulge it to the police.
Under Art 116, the priest is criminally liable for misprision of
treason, for not divulging the conspiracy to commit treason.
However, the priest failed to perform such act due to a lawful cause.
Under your rules on evidence, a confession made to a priest is
considered as a privileged communication. Therefore the priest does
not incur any criminal liability.
Article 13.Mitigating circumstances. - The following are mitigating
circumstances;
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal liability
in the respective cases are not attendant.
2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80.
3. That the offender had no intention to commit so grave a wrong
as that committed.
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
5. That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.
6. That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily
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confessed his guilt before the court prior to the presentation of the
evidence for the prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the
will-power of the offender without however depriving him of the
consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.
Mitigating Circumstances (mc) are those circumstances which if
present or attendant in the commission of a felony would reduce
the imposable penalty because it shows lesser traversity or
criminality of the offender.
~There is a lesser criminality on the part of the offender because the
offender acted with the diminution of any of the elements of
voluntariness.
~There is a diminution on criminal intent, freedom of action or
intelligence.
~In exempting, there is a total absence of any of these elements of
voluntariness. That’s why the offender is exempted from criminal
liability.
~In mitigating circumstances, the offender is of no absence of
voluntariness but there is a diminution in voluntariness because of
diminution in any of the elements of voluntariness – criminal intent,
freedom of action or intelligence.
2 kinds of mc:
1. ordinary mitigating circumstance (omc)
- one which may be offset by a generic aggravating
circumstance (ac). If an omc is not offset by a generic
ac it would reduce the imposable penalty to its
minimum period.
2. privilege mitigating circumstance (pmc)
- one which cannot be offset by any ac and the effect
of pmc is to reduce the imposable penalty not only to
its period but by degrees one or more degrees. That’s
the effect of a pmc.
*If in the computation of penalties there’re aggravating
circumstances, mitigating circumstances, if there is a pmc,
that presence of pmc takes preference over all other
things. Before you can even the appropriate penalty, you
still have to first consider the presence of the pmc. That is
how important that is why it’s privileged.
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal liability
in the respective cases are not attendant.
This is the case when all the elements necessary to justify the act or
to exempt the criminal liability in their respective cases are not
attendant. In other words, we have incomplete justifying
circumstance (jc) or exempting circumstances (ec).
How would you know if an inc.jc or ec should be treated as an omc
or as a pmc?
>We have the ff. rules:
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
1. If majority of the elements necessary to justify the act or to
exempt from liability are present, then it’s treated as pmc.
2. If less than the majority is present, then it is an omc which can be
offset by a generic ac.
3. If the elements necessary to justify the act or to exempt from
criminal liability is only 2, the presence of 1 element is already a
pmc.
In case of inc. self-defense, inc. defense of a relative, inc. defense of
a stranger, there must always be unlawful aggression in order for
the mc to mitigate. If only the element of unlawful aggression is
present, the inc. self-defesnse should be treated as an omc. If aside
from unlawful aggression, another element but not all is present, it
is to be treated as a pmc. If all elements are present, then it is a jc.
Ex.A was running in a subdivision with a bolo, he was hacking all
those he passed by. So the residents called for police assistance. The
police arrived headed by police officer X. They called on A to put
down his weapon but A instead of laying down his weapon,
advanced towards the police with the bolo in his hands in a hacking
position in the act of hacking the police officers. So X immediately
fired at A. He hit the hands and legs of A. non-fatal wounds. A slam
on the ground face facing the ground. At that particular moment, X
went to A, got his bolo and then fired shot at the head of A and A
died. X was prosecuted for murder, police officer invoked 2 jc. We
have self-defense and fulfillment of duty. Is there self-defense or at
least inc. self-defense?
>There’s no self-defense because at the time X shot the head of A, A
was already lying on the ground. Whatever inceptive unlawful
aggression he has commenced, it has ceased to exist from the time
the fatal blow was inflicted on him. Therefore, there was no
unlawful aggression. Since unlawful aggression is the element that is
wanting. There’s no self-defense, neither is there inc. self-defense.
Second, is there fulfillment of duty or at least inc. fulfillment of
duty?
st
>There are only 2 elements in fulfillment of duty, 1 element - that
the accused acted in the due performance of his duty or in lawful
exercise of his proper office. It is present right because the police
officer went there because the residents asked for police assistance.
st
They went there to maintain peace and order. The 1 element is
nd
present. The 2 element – that the injury caused is an unavoidable
nd
consequence of the due performance of a duty. The 2 element is
absent. The act of X in shooting the head of A is not a necessary
consequence of the due performance of his duty. Therefore, based
on the rule that if there are only 2 elements necessary to justify the
act and the presence of 1 is already considered as the majority and it
is considered as a pmc. Therefore, in this case, there is an inc.
fulfillment of duty which is a pmc which may lower the imposable
penalty by degrees not only by period.
2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80.
There are 2 mc here:
1. minority
2. seniority
*Remember that if minority is not exempting, it is always and always
a pmc. Never an omc!
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So if the offender is over 15 but below 18, and he acted with
discernment, it is not exempting but it is a pmc.
How about seniority or being over 70 years of age?
>It is a mere omc.
[Prosecutor Garcia: In your book there are instances wherein
seniority shall be considered as a pmc, when the crime committed
by the person over 70y/o is punishable by death, death shall not be
imposed on him. Or when he has already been convicted it shall be
computed to reclusion perpetua. These provisions of the RPC are no
longer applicable at the moment. At the moment because we have
RA 9346 which prohibits the imposition of death penalty on whoever
be the offender. Then seniority, at the moment is only an omc. I am
emphasizing ‘at the moment’ because at the moment the reign of
P.Noy ends, the new president may bring back death penalty. Then
there will now be again a circumstance where seniority will be a
pmc. But at the moment, we have no death penalty that may be
imposed.]
3. That the offender had no intention to commit so grave a wrong
as that committed.
We have already studied this in Art. 4. This is praeterintentionem.
Elements:
1. that the offender committed a felony
2. there must be a notable or notorious disparity between the
means employed by offender and the result felony.
So for praetor intentionem, for this mc to lie, it is necessary that
there must be a notable or notorious disparity between the means
employed and the resulting felony. That is, out of the means
employed by the offender, no one could have anticipated that the
resulting felony would come.
Ex.A and B were fighting, A boxed B, B boxed A, A retaliated and
boxed B again. When A boxed B, B’s head hit a cemented wall and so
he suffered cerebral hemorrhage and thereafter caused his death. Is
A criminally liable for the death of B?
>Yes, because when he boxed B, he was committing a felonious act.
Therefore he is criminally liable for the resulting felony although it
be different from which he intended.
But can he be given the benefit of praeterintentionem that he has
no intention to commit so grave a wrong as that committed?
>Yes, because there was a notable disparity between the means
employed by the offender and the resulting felony. Who could have
anticipated that by the mere act of boxing death would result.
Therefore, he should be given the benefit of prater intentionem.
What if in the same problem A and B were fighting by means of fist,
the suddenly, A who was losing pulled out a balisong or a fan knife
and stabbed B on the neck, a fatal wound. B died. A was prosecuted
for homicide. He said he had no intention to commit a wrong so
grave as that committed, no intention to kill B. Will his defense lie?
Will the mc lie in his favor?
>No, because there was no notable disparity in the between means
employed – stabbing on the neck using a balisong or fan knife
resulting to death. In fact, the act of the victim of stabbing would
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
produce, and did produce the death of the victim. Therefore,
praeterintentionem would not lie in favor of the accused.
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
There must be a sufficient provocation or threat on the part of the
offended party and it must immediately precede the commission of
the crime.
Elements:
1. the provocation must be sufficient
2. it must originate from the offended party
3. requires that the commission or the provocation must be
immediate from the commission of the criminal act by the
person who was provoked
PROVOCATION is any unjust or immoral act or conduct on the part
of the offended party which is capable of inciting, exciting or
inflating(?) another.
When is provocation is sufficient?
>For provocation to be sufficient, there must be 2 elements.
st
1 – it must be adequate to stir a person to commit a wrongful
act
nd
2 – it must be proportionate to the gravity of the crime.
rd
The 3 element requires that the provocation must be immediate to
the commission of the crime.
The word immediate here does not allow a lapse of time. There
must be no lapse of time between the provocation and the
commission of the crime.
Ex. There was this long line of evacuees, victims of Pablo who are to
th
be given reliefs. A was 5 on the line, suddenly, X inserted himself in
front of A. This angered A, A told X to place himself at the end of the
line but X didn’t want because he was so hungry. This angered A,
and so A pulled out his bolo and hacked X at the back. A was
prosecuted for homicide, is the mc of sufficient provocation on the
part of the offended party justified?
>Yes, there was on the part of X. Nakakainis kaya. Nakapilakatapos
st
may sumingit. Sinonghindimaiinis, sinonghindimae-excite. So the 1
element is present, it is adequate to stir a person to commit a
nd
wrongful act. However the 2 element is absent – it is not
proportionate to the gravity of the act. The act of killing is not
proportionate to the act of X of placing himself in front of A in a long
line. Therefore, sufficient provocation as a mc is not present so as to
reduce the imposable penalty.
Urbano v. People
The victim has always been calling and teasing on the accused
Urbano. So there was a confrontation because whenever the victim
was drunk, he would defame Urbano. So there was a verbal
confrontation and ensued into a fight. In the said fight, Urbano was
losing because he was just a small man. However, he was able to
land one lucky punch on the face of the victim (parangsiPacquiao).
Because of the said lucky punch, the said victim was about to fall
unconscious on the ground. However, the other employees were
able to prevent him from falling on the ground. Nevertheless, he
became unconscious and later on regained consciousness. In and
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out of the hospital, later on he died. Is Urbano criminally liable for
the death of the victim?
>Yes, under Art. 4, because he was committing a felonious act.
Therefore he is criminally liable for the resulting felony although
different from that which he intend.
But there are 2 mc considered by the court to reduce the imposable
st
penalty.1 according to the court, there was sufficient provocation.
nd
2 , that the offender has no intention to commit so grave a wrong
as that committed. Who could have anticipated that out of one lucky
punch, death would result. There was a total disparity on the means
employed by the offender and the resulting felony.
How about sufficient provocation, is it present?
>The SC said yes. The provocation was on the part of the victim. He
would always call names and defame Urbano. Is it sufficient? Yes,
because what Urbano only did was to confront the victim verbally.
That was his first act, later on only did it ensue to a fight.
5. That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.
So this is the immediate vindication of a criminal offense.
Elements:
1. that there be a grave offense to the one committing the
felony, his spouse, ascendants, descendants, legitimate,
natural, or adopted brothers or sister, or relatives by affinity
within the same degree
2. it requires that the said act or grave offense must be the
proximate cause of the commission of the crime.
It is necessary that the commission of the crime was in immediate
vindication of the grave offense done to the one committing the
felony. This grave offense need not be a punishable act. It suffices
that it be any act unjust act, immoral act which cause the offender
sleepless nights and move him to vindicate himself.
nd
The 2 element requires that the commission of crime was in
immediate vindication of the grave offense. This time the word
immediate allows a lapse of time. Why?
>According to the SC, very funny reasoning, there was an erroneous
Spanish translation. Our RPC was copied from the Spanish Codigo
Penal, in there, the word used there was proximate. Yet when it was
translated in the RPC, the word used was immediate. SC said wrong
translation. It is sufficient that the said grave offense must be the
proximate cause of the commission of the crime. Immediate allows
the lapse of time, but not too long a time that would cause the
offender to recover his normal equanimity.
6. That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation.
Paragraphs 4 and 5are related to that is paragraph –otherwise
known as sudden impulse of passion and obfuscation.
Elements:
1. there be an act both unlawful and sufficient to produce
passion and obfuscation
2. requires the act that would produce passion and obfuscation
must not be far removed from the commission of the crime
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
by the considerable length of time during which the offender
might have recovered his normal equanimity
st
1 element requires that there must be an unlawful act sufficient to
produce passion and obfuscation on the part of the accused.
Therefore, passion and obfuscation on the part of the accused must
arise from a lawful sentiments because an unlawful act was
committed against him.
nd
2 element requires also the immediateness. It is necessary that it
must be done immediately because the law says the commission of
the act which produced the passion and obfuscation must not be far
removed from the commission of the crime by a considerable length
of time.
What if A attempted on the virtue of the wife of B, B learned about
this from a neighbor. When B learned about this, 4 days after, he
went to A and hacked A to death. Is the crime committed, or is the
mc of sudden impulse of passion and obfuscation and immediate
vindication of grave offense present?
>In the case of People v. Resbuscano(?), the SC said NO because 4
days had already lapsed. According to the SC, 4 days is already a long
time for the said offender to have recovered from his normal
equanimity.
Equanimity- calmness, composure
More so in the case of People v. Arnas, in this case, from the time of
the discovery of the adultery of the wife, to the time of the killing, 2
weeks had already lapsed, the SC said such 2 weeks is too long a
time for such offender to have recovered already his normal
equanimity.
In the case of People v. Romera, the SC said par.4 - sufficient
provocation on the part of the offended party, par.5 - immediate
vindication of grave offense, par.6 – sudden impulse of passion and
obfuscation are related to each other such that in the commission of
the crime, all three present, or any 2 are present, if they are based
on the same facts and circumstances they should be appreciated
only as 1 mc, not 2 or 3. Why is it important?
>It is important because in the computation of the penalties, if you
consider them as 3, you will be wrong in the penalties.
*So again note, if 4, 5 and 6 are all present or if any 2 is present and
they are all based on the same facts and circumstances, they should
only be treated as 1 mc.
Ex. Husband and wife were about to have dinner. Then someone
was calling the name of the husband outside their house. The wife
opened the door, upon opening, the neighbor who was calling the
name tried to hack the wife. Good enough, the wife was able to
reach and close the door and the wife was not hacked. The neighbor
however with a use of a bolo continuously hacked the wooden or
the bamboo door and walls of the house. And so, considering that
his house was being damaged, the husband was forced to go outside
to confront the neighbor. He used the kitchen door. He called the
neighbor and asked what was the reason why he was hacking. The
neighbor instead of answering tried to hack the husband. They
struggled for the possession of the bolo, and in the course the
husband gained possession of the bolo. Once in the possession of
the bolo, the husband hacked the neighbor. The neighbor suffered a
fatal wound but was brought to the hospital by the husband and so
he survived. Husband was prosecuted for frustrated homicide, the
st
husband as a defense invoked 2 mc – 1 , there was sudden impulse
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nd
of passion and obfuscation, 2 that there was sufficient provocation
on the part of the offended party immediately preceded the action.
Is sudden impulse of passion and obfuscation present? Is sufficient
provocation present?
>Yes, they are both present. There is sufficient provocation because
of the act of the neighbor trying to hack the wife. And his act of
continuously hacking the wooden door and walls of the house – that
is sufficient provocation.
How about sudden impulse of passion and obfuscation?
>Yes, it is also present. The act of the neighbor trying to hack the
wife and his act of continuously hacking the wooden door and walls.
Now these 2 mc are based on the same facts and circumstances. So
if the question is ‘what are the mc present?’ or ‘is the mc of sudden
impulse of passion and obfuscation present? Is the mc of sufficient
provocation present?’
>Yes. Yes.
But if the question is ‘what mc would you consider?’ >Although both
are present, you should only consider them as 1 mc.
7. 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;
There are 2 mc here:
1. Voluntary surrender
2. Voluntary plea of guilt
If both are present, you have to consider always 2 mc. They have
different elements and would always arise from different set of facts
and circumstances. Therefore, they are always separate and distinct
from each other.
Voluntary surrender - the elements are:
1. that the offender had not actually arrested
2. that the offender had voluntarily surrendered himself to a
person in authority or his agent
3. such surrender must be voluntary
So it is necessary that the offender has not yet been arrested. It is
necessary that he surrender to a person in authority or his agent.
The surrender must be voluntary.
When is surrender voluntary?
>Surrender is said to be voluntary when it is done spontaneously
and unconditionally either because he has this feeling of remorse
and wanted to admit his guilt or he wanted to save the government
that much needed time or effort which will be incurred in looking for
him.
Ex. A case was found against B in the fiscal’s office. A warrant of
arrest was requested, the fiscal found probable cause. The
information filed in court, the court agreed with the fiscal, a warrant
of arrest was issued. B got a tip from the court employee that a
warrant of arrest was now in possession of the police officers. And
so B upon learning that there was already an issued warrant of
arrest, immediately went to the police station and surrendered
himself to the authorities. Then trial against him proceeded, and
after trial on the merits, he was convicted. But the judge did not
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
consider voluntary surrender in reducing his imposable penalty. Is
the judge correct? >The judge is wrong because voluntary surrender
is present as a mc. Although there is already a warrant of arrest
issued. The police officers have not yet gone out looking for him.
Therefore, any surrender would still be considered as voluntary
surrender even if there is already a warrant of arrest against the said
offender.
Voluntary plea of guilt - the elements are:
1. That guilt tendered is confessed spontaneously and
unconditionally
2. That he confesses guilt in open court that is before the court
tried his case
3. The confession that was made before the presentation of the
evidence for the prosecution
Ex. A was charged with the crime of frustrated murder. During the
plea bargaining, with the consent of the judge, the fiscal and the
offended party, he said that he had plead guilty to attempted
murder. And so he pleaded guilty to attempted murder. The judge
rendered judgment without considering voluntary plead of guilt so
as to reduce his penalty. Is the judge correct?
>Yes. For said plea of guilty to be considered voluntary, it must be
done spontaneously. Spontaneously, it must be the original crime
charged.
What if A was charged as a principal in the crime of robbery. He
pleaded guilty with the consent of the judge, the fiscal and the
offended party to the crime of robbery but merely as an accomplice.
The judge rendered judgment because of the plea of guilt. The judge
did not consider the said plea of guilt as mitigating. Is the judge
correct?
>Yes, the judge is correct because when he pleaded guilt as an
accomplice, his plea of guilt was not done unconditionally.
What if A was prosecuted for the crime of reckless imprudence
resulting in homicide and multiple physical injuries. He was driving
his vehicle, bumped a person and injured several others. During
arraignment, he immediately pleaded guilty. The judge rendered
judgment. In rendering judgment, the judge did not consider the
voluntary plea of guilt as mitigating. Is the judge correct?
>Yes. The judge is correct because in the case of a culpable felony, in
case of quasi-offenses, under Art. 365 the judge may or may not
consider these mc in the imposition of penalty. If the judge consider
it or if the judge did not consider it, that is the decision of the judge.
Under Art. 365, the court is not mandated to consider the rules, the
decision is based on the sound discretion whether or not to consider
the mc.
8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.
This is the mc of physical defect.
For this mc to lie in favor of the accused, it is necessary that there
must be a connection, a relation between the physical defect and
the crime committed. It is necessary that the said physical defect
must have restricted his use of action, defense or communication
with his fellow being.
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Ex.A is a cripple, he has no legs, he always position himself near the
Quiapo church. He was on board a skateboard. So he often stays
there, and his work was to snatch the handbags of any churchgoers.
And so one time, he snatched the handbag of a churchgoer and
thereafter, he sped away on board his skateboard. He was
thereafter arrested, will his physical defect of being crippled, a man
with no legs, be mitigating?
>No. because his physical defect has no relation at all to the crime
he has committed.
What if A is a blind man, blind beggar, near the Quiapo church. One
time he was begging for alms, suddenly, he was scraped on his head
with a wound, it was so strong that he fell on the ground wounded.
Angry, he stood up, took his cane and retaliated by hitting the
person next to him, not knowing that it was not the person but an
innocent passerby. The innocent passerby suffered less physical
injuries. So the blind beggar was prosecuted for less serious physical
injuries. Is the mc of physical defect present so as to reduce the
imposable penalty?
>Yes. His being blind restricted his means of action, defense or
communication with his fellow being. His intention was to hit the
person who scraped him with the wound. But because of he could
not see, he hit an innocent passerby. There was a relation between
the physical defect and the crime committed. Therefore, it will
mitigate his criminal liability.
9. Such illness of the offender as would diminish the exercise of the
will-power of the offender without however depriving him of the
consciousness of his acts.
So this is illness. It is necessary that the said illness must diminish
the exercise of the will-power of the offender. But it must not
deprive him of his consciousness of his act because if it will deprive
him of consciousness of his act, then it is exempting not merely
mitigating.
Ex.A is a kleptomaniac, he has this urge to steal. Now, his urge is to
steal diamonds. So one time he was in a party, he was talking to a
lady with diamond earrings, diamond necklace, diamond watch,
diamond bracelet. Then after the conversation, the lady went to the
restroom. Upon looking at the mirror, she shouted, she was
shocked, the diamond earring, necklace, watch and bracelet were all
gone. It was already taken by the said accused. Prosecuted for theft,
will his illness mitigate his criminal liability? >Yes. It diminishes his
exercise of his will-power without however depriving him of
consciousness. He knew that he was committing theft, he knew that
he was taking the personal property of another but he cannot
control, he has a diminished self-control to prevent the commission
of the crime. It will only mitigate, reduce the imposable penalty but
it will not exempt from criminal liability.
10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.
st
Any other circumstance which is similar in nature from the 1 to the
th
9 paragraph, then it is also considered as a mc.
Ex. A public officer who has malversed public funds, voluntarily,
voluntary returned the public funds, it is akin to voluntary surrender.
Or what if a person is already of 65 years of age, sickly, suffering
from a disease it can be said to be akin or similar to seniority. It will
mitigate his criminal liability.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Article 14. Aggravating circumstances. - The following are
aggravating circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt or with insult to the
public authorities.
3. That the act be committed with insult or in disregard of the
respect due the offended party on account of his rank, age, or sex,
or that is be committed in the dwelling of the offended party, if the
latter has not given provocation.
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
5. That the crime be committed in the palace of the Chief Executive
or in his presence, or where public authorities are engaged in the
discharge of their duties, or in a place dedicated to religious
worship.
6. That the crime be committed in the night time, or in an
uninhabited place, or by a band, whenever such circumstances
may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to
have been committed by a band.
7. That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or
persons who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall
have been previously convicted by final judgment of another crime
embraced in the same title of this Code.
10. That the offender has been previously punished by an offense
to which the law attaches an equal or greater penalty or for two or
more crimes to which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price,
reward, or promise.
12. That the crime be committed by means of inundation, fire,
poison, explosion, stranding of a vessel or international damage
thereto, derailment of a locomotive, or by the use of any other
artifice involving great waste and ruin.
13. That the act be committed with evidence premeditation.
14. That the craft, fraud or disguise be employed.
15. That advantage be taken of superior strength, or means be
employed to weaken the defense.
16. That the act be committed with treachery (alevosia).
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There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which
the offended party might make.
17. That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance of a crime a wall,
roof, floor, door, or window be broken.
20. That the crime be committed with the aid of persons under
fifteen years of age or by means of motor vehicles, motorized
watercraft, airships, or other similar means. (As amended by RA
5438).
21. That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for
its commissions.
Kinds of aggravating Circumstances:
1. Generic
2. Specific
3. Inherent
4. Qualifying
1. Generic Aggravating Circumstance
- are those that applies generally to all crimes
Example:
1. Nightime- it can be applied to crimes against persons,
crimes against property, crimes against chastity and
applied to all other crimes.
2. Recidivism
2. Specific Aggravating Circumstance
- are those that apply only to certain or particular crimes.
Example: Treachery (Par.16 Art. 14)
- can only be considered or appreciated in crimes against
persons
3. Inherent Aggravating Circumstance
- which of necessity follow the commission of the crime
because they are considered as elements in the
commission of the crime, therefore they are considered
inherent in the commission of the crime.
- if they are present in the commission of the crime they
are no longer considered so as to increase the penalty
because they are considered as elements
4. Qualifying Aggravating Circumstance
- are those which either change the nature of the crime to
bring about a more serious for a higher penalty or even
without changing the nature of the crime it would impose
a higher penalty.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Example:
1. Art. 248
- the circumstances therein present would qualify the
killing of a person from homicide to murder
- presence of treachery, evident premeditation, cruelty in
killing would make a crime not of homicide but would be
qualified to murder
• Unlike justifying, exempting and mitigating circumstances, which are
not stated or alleged in the information, aggravating circumstances
must be alleged in the information. Even if they are proven in trial
but they are not alleged in the information, they cannot be
considered against the person. They must be both alleged and
likewise proven during trial, so as not to deprive the accused of
right to know the nature of the accusation against him.
• In case of qualifying aggravating circumstance, for example, A killed
B there was treachery, it was done in consideration of a price,
reward or promise, there was also cruelty, so there are three
qualifying aggravating circumstances present. Only one of them will
qualify the killing to murder. So if treachery is already proven, the
crime committed is already murder. Cruelty and the other
circumstance of in consideration of a price, reward or promise shall
only be considered as generic aggravating circumstances.
Par. 1. That advantage be taken by the offender of his public
position.
- this aggravating circumstance can be applied only if the
offender is a public officer.
- the offender use the prestige, influence or ascendency of his
office in the commission of the crime or to facilitate the
commission of the crime.
Example:
1. Police officer A was having a drinking spree with his friends
outside his house. In the course thereof, they were discussing about
the alleged shoot out in Quezon. According to the police officer,
since he was a police officer, it was a shoot out. But according to his
friend it was a rob out. They were arguing, exchanging views until
the police officer got mad. At that time, he had with him his pistol.
He used his service pistol and shot his friend who thereafter died. Is
the said act of killing done by taking advantage of his public
position?
- this aggravating circumstance is not present. It is not
present because the said offender, public officer, did not use or
misuse his public office. He did not use the influence, the
ascendency or the prestige of his office in order to commit the
crime. Even not being a public officer he could have killed his friend
in the same situation . He could even have used another weapon,
not necessarily his service pistol.
* Under Art. 14, taking advantage of his public position is a generic
aggravating circumstance. However, under Art. 62 (as amended by
RA 7659), the fact the crime was committed by taking advantage of
his public position is a special aggravating circumstance because the
maximum penalty prescribed by law shall be the one imposed.
Par. 2. That the crime be committed in contempt of or with insult
to the public authorities.
Elements:
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1. That the public officer or public authority is engaged in the
exercise of his function;
2. That the public authority is not the person against whom
the crime is committed;
3. That the offender knows him to be a public authority;
4. That the presence of the public authority did not prevent
the offender from the commission of the crime.
1. That the public officer or public authority is engaged in the
exercise of his function.
• Who is a public authority?
- Public authority or a person in authority is any person directly
vested with jurisdiction whether an individual or some
members of court or governmental commissioner. It is
necessary that he has the duty to govern and execute the laws.
Example: Mayors, barangay chairman
- police officer is merely an agent of a person in authority
2. That the public authority is not the person against whom the
crime is committed.
- if he is the person against whom the crime is committed, such fact
that the crime was committed in contempt of the public authority is
an element because the crime committed would be direct assault. In
direct assault, in contempt of or with insult to public authority is an
element, no longer an aggravating circumstance.
3. That the offender knows him to be a public authority.
- there must be knowledge on the part of the offender
that the said person is a public authority. Otherwise, it cannot be
said that he disrespected the said person as a public authority if he
has no knowledge that he is a public authority.
4. That the presence of the public authority did not prevent the
offender from the commission of the crime.
• What if the barangay chairman was in a restaurant having
dinner with his wife because it was there wedding anniversary.
Suddenly here comes A, B and C who are constituents of the
barangay chairman. Upon seeing the chairman, they greeted
him and even congratulated him and his wife upon learning
that they were celebrating their wedding anniversary. They
seated next to the table of the chairman and ordered food. In
the giving of the food, there was an argument between A and
the waiter. The argument immediately became a heated one. A
took the table knife and stab the waiter. The waiter suffered
serious physical injuries. Prosecuted for frustrated homicide. In
the prosecution for said crime, is the aggravating circumstance
of in contempt of or with insult to public authority present?
- it is not present because the first element is absent. The
first element, that the public officer or public authority is
engaged in the exercise of his function. At the time of the
commission of the crime, yes he was there but he was in a
private act. He was not engaged in the exercise of his
function, hence it cannot be said that the said offender
insulted the said public authority.
• What if the public authority was the city mayor who was inside
his office. Suddenly he heard commotion on the ground floor.
He looked out his window, he saw his two supporters having an
argument. A and B were having an argument over a parking
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
space. The mayor went down the building and talked to both A
and B. He told them to shake hands and forget everything. Then
he told A to just allow B to park his car anyway there was
another parking space available. This angered A because he
thought that the mayor was siding with B. A took out his
balisong and stabbed the mayor. Is the aggravating
circumstance of in contempt of or with insult to public authority
present?
- it is present but it is not an aggravating circumstance but
an element of the crime because the crime committed is
direct assault. It is direct assault because the public
authority at the time of the attack was engaged in the
performance of his functions. Since the crime committed
was against the public authority himself, the fact that it
was committed in contempt of or with insult to the said
public authority is an ingredient of the crime.
• What if in the same problem instead of stabbing the said
mayor, A felt insulted with the mayor’s words that he is giving
the parking space to B so this angered A. A stabbed B. B died. Is
the aggravating circumstance of in contempt of or with insult to
public authority present?
- this time, it is present. The mayor’s act of pacifying A and B
was engaged in his official functions. He was not the
person against whom the crime was committed. A was a
supporter, therefore he knew mayor was a person in
authority. Yet, the presence of the mayor did not prevent
A from committing the crime against B. Hence, the second
aggravating circumstance is present.
Par.3. That the act be committed with insult or in disregard of the
respect due to the offended party on account of his rank, age or
sex, or it be committed in the dwelling of the offended party, if
the latter has not given provocation.
• There are four aggravating circumstances under this paragraph:
1. Disregard of rank
2. Disregard of age
3. Disregard of sex
4. Crimes committed in dwelling of the offended party
• These four aggravating circumstances can be appreciated singly
or collectively if present in the commission of the crime.
• Disregard of rank, disregard of age and disregard of sex can
only be considered in crimes against persons and crimes against
chastity. You do not consider these in crimes against property;
you do not consider these in crimes against public interest.
They can only be considered in crimes against persons and
crimes against chastity.
• Disregard of rank
- Rank refers to a high social standing, a high position in the
society. For this to be considered as an aggravating
circumstance, it is necessary that the offender be of lower
rank than that of the offended party.
Example:
1. A student attacking a professor. There was a disregard of
rank of the said professor.
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2. An employee attacking his employer. There was a
disregard of rank of the said employer.
• Disregard of age
- Age here refers to both minority and senority.
Example:
1. The offended party is 95 years old. A killed him by
hitting his head for 25 times with a lead pipe.
Obviously, there was disregard of his age. Considering
his age, whereas even one hit of the lead pipe could
have already killed the said old man but he was hit 25
times showing disregard of the age of the old man.
2. What if a child is 4 years old. He was stabbed 25
times, thereafter his body was placed inside a dram
filled with water and then the dram was covered.
There was disregard of age. The victim was a minor
and therefore any attack, just 1 stab, could have killed
the minor. But he was stabbed 25 times; not only
that, he was also submerged and the drum was
covered, which shows disrespect of age.
*** If there was disrespect of age and there was also
treachery, the aggravating circumstance to be considered
is treachery because it absorbs disrepect of age.
• Disrespect of sex
- Disrespect of sex refers to the female sex. This is inherent
in the crime of rape and in certain crimes involving
chastity.
• Crimes committed in dwelling of the offended party
- Dwelling is considered as aggravating circumstance if the
crime is committed inside the dwelling of the offended
party, that is, the offended party was inside his dwelling at
the time of the commission of the crime and he has not
given any provocation.
- If the crime is committed inside the dwelling of the
offended party, it is as an aggravating circumstance
because it shows the greater perversity of the offender
than when the crime is committed in any other place. It is
because the constitution itself provides that a man’s
abode must be respected and therefore when a crime is
committed inside the house dwelling it shows the greater
criminality on the part of the offender.
- Even however, if a crime is committed:
1. inside a house dwelling, still dwelling cannot be considered as
aggravating if the offended has given provocation
2. if the offender and the offended party are living in the same
dwelling
3. dwelling is inherent in the commission of the crime.
So in these three instances, even if the crime is committed inside the
dwelling of the offended party, dwelling is not considered as an
aggravating circumstance.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
• Dwelling includes the dependencies, the staircase and the
enclosures therein. It need not be owned by the offended
party, it suffices that the offended party uses it for rest and
comfort. E.g., a room being rented by the lessee or a tenant;
room where a person is living as a bedspacer.
• What if A who lives in a nipa hut was sitting at the staircase
when B came and forcibly drag her to another house, 1
kilometer away from A’s house, where she was raped by B. Is
the aggravating circumstance of dwelling present?
- The aggravating circumstance is present even if the crime
was committed in another place far from the dwelling, the
aggression started in the dwelling of the offended party.
The aggression that started in the dwelling of the offended
party when she was dragged from the said staircase, that
aggression cannot be divided from the commission of said
crim. So even if it grounds were consummated in another
place for as long as aggression started in the dwelling, still
dwelling is an aggravating circumstance.
• What if husband and wife were already about to sleep, then
they heard someone calling the name of the husband outside
the house. The husband rose from the bed and looked out the
window to see who was calling him. Upon looking at the
window suddenly there were gun fires. The husband fell
lifeless. The wife, also went to the window and looked out to
see who killed her husband. She was also fired at. Is the
aggravating circumstance of dwelling present?
- Yes, dwelling is an aggravating circumstance. It is not
necessary for dwelling to be aggaravating that the perpetrator
of the crmed was able to get in. It suffices that the offended
party or the victim is inside his house. The assailant may device
ways and means to commit the crime from the outside.
• What if there was this woman. She is 95 years old; a woman of
high standing in the society. She was a former department
secretary. She is living alone in her house. One time here
comes X. X wanted to rob the valuables inside the house of the
said old woman. X entered the said house and he was able to
get the valuables from the vault of the house. He was about to
leave the house when accidentally pushed the chair. By reason
thereof, the woman was awaken. The woman upon seeing X
begun screaming. X then fired at the woman 50 times. The
woman died. Are the aggravating circumstances of disregard of
rank, disregard of age, disregard of sex and dwelling present?
- The first three circumstances are not present because the
crime committed is robbery with homicide, under article
10 which is a crime against property. Disregard of rank,
age and sex are not applicable to any other crimes but
only to crimes against person and crimes against chastity.
Since the crime committed is a crime against property,
therefore, disregard of rank, age and sex cannot be
considered against the accused.
- Dwelling can be considered against the accused because
the crime committed robbery with homicide is a form of
robbery with violence against or intimidation of persons.
Dwelling is only inherent in robbery with use of force upon
things but dwelling is not inherent in case of robbery with
violence against or intimidation of persons just like
robbery with homicide. So in this case, only dwelling
should be considered as an aggravating circumstance.
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Par. 4. That the act be committed with abuse of confidence or
obvious ungratefulness.
There are two aggravating circumstances:
1. Abuse of confidence
2. Obvious ungratefulness
• Abuse of confidence
Elements:
1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a crime
against the offended party;
3. That the abuse of confidence facilitated the commission of
the crime
Example:
A and B have been living here in Manila for 4 years. Suddenly
here comes X. X was there former neighbor in Batangas. He told
A and B “I am looking for work here in Manila, can I live in your
house while I am looking for work?” Since he was a good
neighbor back then A and B trusted X and allowed X to live
inside their house. X now sleeps in the house of A and B while
he was looking for work here in manila. One time A and B were
out of the house in their respective works. The only person left
in the house was X and their daughter who was only 9 years
old. While the couple were out, X molested and raped the said
daughter. Is the aggravating circumstance abuse of confidence
present in this case?
- Yes, it is present. X was there because A and B trusted him,
yet he abused such trust and confidence and instead
facilitated the commission of the crime. Therefore this
aggravating circumstance is present.
• Obvious Ungratefulness:
- ungratefulness means the offender has no gratitude, does not
even know how to say thank you.
Elements:
1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a crime
against the offended party;
3. That the act be committed with obvious ungratefulness
Example:
A was selling kettles and other kitchenwares on the street
under the heat of the sun. A goes from one house to another
under the heat of the sun. He was so thirsty already so he
knocked on the gate of the house of X. X opened the gate and A
told X that he was so thirsty. X being a good person, allowed A
to go inside their house and asked him to take a sit while he get
him a glass of water. When he came back, he was not only
holding a glass of water but also brought some biscuits.
However A suddenly, brought out his knife and stabbed X and
thereafter robbed him. Is the aggravating circumstance obvious
ungratefulness present?
- Yes. Instead of showing gratitude for having been allowed
to enter the house and given a glass of water with biscuits,
he instead took advantage of the goodness of the man and
committed the crime of killing and robbery. There was
obvious ungratefulness on the part of the offender.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Par. 5. That the crime be committed in the palace of the Chief
Executive, or in his presence, or where public authorities are
engaged in the discharge of their duties or in a place dedicated to
religious worship.
• There are four aggravating circumstances. If the crime is
committed in any of these places it is considered as an
aggravating circumstance because it shows on the part of the
offender lack of respect on these places.
1. In the palace of the Chief Executive
- regardless of whether there is a public affair or official
affair going on, if a crime is committed it is aggravating.
2. In the presence of the Chief Executive
- even if the Chief Executive is playing golf in Baguio, still it is
considered as aggravating because of the lack of respect to
the chief executive.
3. Where the Public Authorities are engaged in the discharge
of their duties
- it is not only necessary that the said places are where
public authorities are engaged in the discharge of their
duties, it is also necessary that at the time of the
commission of the crime, the public authorities are
actually engaged in the performance of their duties.
4. In a place dedicated to religious worship
- even if there is no religious ceremony on going, for as long
as the said crime is committed in said place dedicated to
religious worship it is aggravating because of lack of
respect on said place.
• In order however for these aggravating circumstances to be
considered, it is necessary that the offender deliberately sought
the said place to commit the crime because otherwise it cannot
be said that he disrespected the place.
Example:
1. A and B are chefs in Malacanang. They are outdoing each other in
trying to prepare the best meal for P-noy. One time, both of them
were preparing lunch for the president. Suddenly they had an
argument. In the course thereof, A stabbed B. B suffered a fatal
wound but he survived. Prosecuted for frustrated homicide. Is the
aggravating circumstance that the crime was committed in the
palace of the Chief Executive present?
- No, it is not present. Because he works there, he lives there. It
cannot be said that he sought the said place in order to commit the
crime. It cannot be said that he went to said place in order to
commit the crime or can it be said that he disrespected the said
place.
2. What if many farmers were having a rally outside the DAR. They
started the rally around 6am, it is now 8pm, they were still there.
The officials and employees had already left, so the farmers were
there still having their rally. They set tents and prepared to sleep
there. In the course thereof, 2 farmers argued at each other. In the
course of their argument one farmer jumped into the fence and
went inside the DAR. The second farmer followed him and when the
second farmer was able to catch up with the first farmer, he killed
the latter. Is the aggravating circumstance that the crime was
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committed in a place where the Public Authorities are engaged in the
discharge of their duties present?
- no, it is not present. Although DAR is a place where the Public
Authorities are engaged in the discharge of their duties, at the time
of the commission of the crime, the officials and employees are not
in the actual performance of their duties. Under this aggravating
circumstance, it is not only necessary that the said places are where
public authorities are engaged in the discharge of their duties, it is
also necessary that at the time of the commission of the crime, the
public authorities are actually engaged in the performance of their
duties.
Par. 6. That the crime be committed at the nighttime or in an
uninhabited place, or by a band, whenever such circumstances
may facilitate the commission of the crime.
Whenever more than three armed malefactors shall have
acted together in the commission of the offense, it shall be
deemed to have been committed by a band.
- There are three aggravating circumstances:
1. Nighttime
2. Uninhabited place
3. Band
• Nighttime
- from sunset to sunrise
- in order for these aggravating circumstances to be
considered, it is necessary that the offender deliberately
sought the darkness of the night. He deliberately sought to
cover in darkness either to facilitate the commission of the
crime or to insure or afford impunity.
- To facilitate the commission of the crime, he use the cover
of darkness, so that his actual perpetration of the crime
will be unmolested. He cannot be disturbed. Therefore,
there is an assurance that crime will be consummated. To
insure or afford impunity he sought to cover in darkness so
that no one will be able to recognize him.
- Even if the offender sought nighttime, the moment the
scene of the crime has been illuminated by any light, rule
out nighttime as an aggravating circumstance.
Example:
In the commission of the crime, A decided to kill B, his enemy.
A knew that B would pass by the place wherein there were no
light posts. A waited for B in the said place. Upon the moment B
arrived A left his post and was about to stab B when suddenly a
tricycle passed by and the light coming from the tricycle
illuminated the scene of the crime. Even if A deliberately sought
nighttime, nighttime is not aggravating because a light
illuminated the scene of the crime. Whenever any light has
illuminated the scene of the crime, rule out nighttime as an
aggravating circumstance.
- light coming from the tricycle, from any vehicle, nearby
house, light posts or even from the moon, for as long as
the scene of the crime has been illuminated, nighttime is
not aggravating.
• An uninhabited place
- Means a place which is isolated from the others or located
far from others. However this is not the requirement for it
to be considered aggravating.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Requisites:
1. That in the place where the crime was committed there
was a remote possibility for the victim to receive some
help
2. That the offender deliberately sought the uninhabited
place in order to facilitate the commission of the crime.
Example:
A, B and C are fishermen. Around 3 am, they all went out fishing on
their respective boats. They were sailing 5 meters away from each
other. Suddenly X sprung out of the water and he stabbed A. In the
prosecution for killing of A, is the aggravating circumstance of
uninhabited place present?
- Yes it is present. First, in the place where the crime was
committed, there was very little, remote possibility for A to receive
some help. Because B and C must still swim before they could
render help or assistance to A. Before they could have swum and
reached A, A is already dead. Therefore there was very litter or
remote possibility for the victim to be saved. The said accused X
deliberately sought the place in order to facilitate in the commission
of the crime because he suddenly appeared from the water.
Therefore the aggravating circumstance of uninhabited place is
present.
• By a band
- for the aggravating circumstance of by a band to be present,
the law says where more than three armed malefactors shall
have acted together in the commission of the offense, it shall
be deemed to have been committed by a band. Therefore,
there must be at least 4 armed men in the commission of the
crime or they must have acted together in the commission of
the crime.
Example:
A, B, C, D and E all armed with knives, killed X. The information
stated that A, B, C, D and E conspired with one another and as a
band they committed the crime of murder against X. during the
presentation of evidence, conspiracy was proven beyond
reasonable doubt. Likewise, band as an aggravating
circumstance was proven beyond reasonable doubt. Thus the
judge convicted A, B, C, D and E for the crime of murder as
conspirators. The judge also considered the aggravating
circumstance of by a band. The counsel for the accused filed a
motion for the consideration, questioning the consideration of
the aggravating circumstance of by a band. According to the
counsel, conspiracy has already been considered therefore by a
band can no longer be considered by the court. Is the counsel’s
contention correct?
- No, the counsel’s contention is wrong. Even if the court
already considered conspiracy, by a band may still be
considered by the court because conspiracy is a means of
committing a crime. It means they have the same criminal
liability. On the other hand, by a band is an aggravating
circumstance. One does not absorb the other, therefore,
both maybe considered and appreciated by the court.
Par. 7. That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic, or other
calamity or misfortune.
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- it is considered as an aggravating circumstance because on
occasion of these calamities, the offender took advantage
of the said occasion in order to commit the crime.
Par. 8. That the crime be committed with the aid of armed
men or persons who insure or afford impunity.
• “with the aid of armed men”
- the armed men aided the offender in the commission of
the crime. The aid given by the armed men maybe a direct
or indirect participation in the commission of the crime.
• armed men distinguished from by a band
1. a. In case of a band, the law requires a number of persons,
that is, at least 4 armed malefactors.
b. In case of with the aid of armed men, there is no
requisite as to the number of armed men who aided
the actual perpetrator of the crime.
2. a. In case of a band, it is necessary that the armed men
must have acted together in the actual commission
of the crime.
b. In case of with the aid of armed men, it is not necessary that the
armed men acted together in the commission of the crime because
the armed men merely aided the actual perpetrator of the crime
and their participation may either be a direct or indirect
participation in the commission of the crime.
Par. 9. That the accused is a recidivist.
A recidivist is one whom at the time of his trial
for one crime, shall have previously been convicted by
final judgment of another crime embraced in the same
title of this Code.
• Who is a recidivist?
- A recidivist is one whom at the time of his trial for one crime,
shall have previously been convicted by final judgment of
another crime embraced in the same title of this Code.
Elements:
1. that the offender is on trial for an offense;
2. That he was previously convicted by final judgment of
another crime;
3. That both the first and second offenses are embraced in
the same title of the code;
4. That the offender is convicted of the second offense
charged.
• In case of recidivism, there must be at least 2 convictions. 1
conviction must be by conviction by final judgment. The second
conviction must be for the second time for which he is on trial.
Example:
A has been convicted of the crime of attempted homicide. The judge
found him guilty beyond reasonable doubt, therefore, he was
convicted. The judgment became final and executory, therefore he
was behind bars. He served out his sentence. Once out of prison cell,
he lived a good life. However, after 25 years, he engaged in a fight
and killed the other man. By reasonable doubt he was charged with
and convicted of the crime of murder. Can the judge consider
recidivism as an aggravating circumstance in imposing the penalty
for murder?
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
- Yes, because both homicide and murder are embraced in
the same title of the code. The fact that 25 years had
lapsed from the time of the first crime to the second crime
is immaterial because recidivism is imprescriptible. There
is no time limit between the first crime for which he has
been convicted by final judgment and the second crime for
which he is also convicted.
Par. 10. That the offender has been previously punished for an
offense to which the law attaches an equal or greater penalty or
for two or more crimes to which it attaches a lighter penalty.
• This is likewise considered as reiteracion or habituality.
Elements:
1. That the accused is on trial for an offense;
2. That he previously served sentence for another crime to
which the law attaches an equal or greater penalty or for
two or more crimes to which it attaches a lighter penalty;
3. That he is also convicted of the new offense.
• Under the second element there are two situations. The first
situation is that, he has already served out the sentence, he has
already been punished for a crime. If it is only one crime it is
necessary that the said crime must carry a penalty equal to or
greater than the second crime. But if there are two crimes for
which he had been previously punished, it is necessary that
they carry a lighter penalties than the new crime for which he is
convicted.
• Like recidivism, in reiteracion there must at least be two
convictions. But unlike recidivism, where there is a conviction
by final judgment of the first crime, in case of reiteracion it is
necessary that there has already been a service of sentence.
Example:
1. A has been convicted of the crime of homicide. Convicted by
final judgment, he was placed behind bars. He served out his
sentence. Once out of prison, he committed forcible abduction.
Homicide is punished by reclusion temporal. Forcible abduction
is now on trial. The penalty prescribed by law for forcible
abduction is also reclusion temporal. The judge found him
guilty for forcible abduction. Can the judge consider reiteracion
as an aggravating circumstance in imposing the penalty for
forcible abduction?
- Yes because the penalty for the crime of homicide where
he has already served out his sentence is equal to the
penalty for forcible abduction, both reclusion temporal.
Therefore, reiteracion or habituality can be considered.
3. B committed forcible abduction. He was convicted by final
judgment. He served out his sentence. He is now out of
prison. Once out of prison, he committed falsification of
public document. He is on trial for the said falsification of
public document. The judge found him guilty beyond
reasonable doubt. In imposing the penalty for falsification
of public document, can judge consider reiteracion as an
aggravating circumstance?
- Yes, because the penalty for forcible abduction is reclusion
temporal, which is higher than the penalty for falsification
of public document committed by a private individual
which is only prision correccional. Therefore, reiteracion or
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habituality should be considered by the court in imposing
the penalty for falsification of public document.
4. B committed falsification of public document. Convicted,
served out the sentence. After service of sentence, he is
out of prison, he engaged in a fight and killed his
opponent. His now on trial for homicide. The judge found
him guilty beyond reasonable doubt. Can the judge
consider reiteracion as an aggravating circumstance?
-No because the crime for which he has served out his
sentence carries a penalty lighter than that of the second
crime. The law requires that if it is only one crime, it must
carry a penalty equal to or greater than the second crime
he committed.
5. A slapped B. B filed a case for slight physical injuries
against A. He was convicted and served out his
sentence for slight physical injuries which is arresto
menor. Once out of prison, he was still mad at B. He
deliberately caused damage to the property of B. B now
filed a case of malicious mischief against A. The judge
found him guilty beyond reasonable doubt for malicious
mischief. Can the judge consider reiteracion as an
aggravating circumstance?
- No because slight physical injuries which carries with it
the penalty of arresto menor is lighter than malicious
mischief which carries with it the penalty of arresto mayor.
Therefore the judge cannot consider reiteracion as an
aggravating circumstance. He was convicted of malicious
mischief and placed behind bars.
After service of sentence, he is now out of prison. Once
out of prison, he was still mad at B. therefore he made
sworn affidavits stating false statements against B. B filed
a case of perjury against A. he is now on trial for the crime
of perjury. The judge found him guilty beyond reasonable
doubt. Can the judge consider reiteracion as an
aggravating circumstance?
- Yes, because the first two crimes, the penalties of which
were already served out, carry lighter penalties than the
third crime: slight physical injuries, arresto menor;
malicious mischief arresto mayor. Therefore reiteracion
can be considered.
Par. 11. That the crime be committed in consideration of a price,
reward, or promise.
- If the price, reward or promise, as a circumstance is
present in the killing of a person, it is not considered as a
generic aggravating person but a qualifying aggravating
circumstance. It is one of the qualifying circumstances
under Art.248.
- This aggravating circumstance should be considered both
against the person who made the offer and the person
who accepted the price, reward or promise. Therefore, it is
to be considered both against the principal by inducement
and the principal by direct participation.
- To be considered against the principal by inducement, it is
necessary that the price, reward or promise must be the
prime reason for the principal by direct participation
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
committed the crime. That without the price, reward or
promise, the principal by direct participation would not
have committed the crime.
Par. 12. That the crime be committed by means of inundation, fire,
poison, explosion, stranding of a vessel or international damage
thereto, derailment of a locomotive, or by the use of any other
artifice involving great waste and ruin.
- the offender makes use of inundation, fire or explosion in
order to commit the crime. It is a means to commit the
crime. If these means are used in killing a person, it is not a
generic aggravating circumstance, it is a qualifying
aggravating circumstance under article 248. It qualifies the
killing to murder.
Par. 13 That the act be committed with evidence premeditation.
• Evident premeditation
- It is the stubborn adherence to a decision to commit a
crime.
- It implies a deliberate plans before or after the
commission of the crime.
Requisites:
1. The time when the offender determined to commit the
crime;
2. An act manifestly indicating that the culprit has clung to
his determination;
3. Sufficient lapse time between the determination and
execution, to allow him to reflect upon the consequences
of his acts.
Example:
A slapped B two times in front of the public. B felt so humiliated so
he told A “the next time I see you, I will kill you!” B went home and
searched for his gun. He found the same and kept it under his pillow,
waiting for the time to kill A. A month has lapsed. B while walking
saw A. upon seeing A, he immediately run to his house, went to his
bedroom and took the gun under his pillow. He raised back to A and
shot him. Is the aggravating circumstance of evident premeditation
present?
- First, the time when the offender determined to commit
the crime. That is the time when B told A “the next time I
see you, I will kill you!”
Second, an overt act manifestly indicating that he has clung to his
determination. He brought a gun. It is an overt act showing that he
has clung to his determination.
Third, a sufficient lapse time between the determination and
execution. A month has passed. That is sufficient for him to cool off,
to reflect upon the consequences of his acts. Therefore, evident
premeditation was present in the commission of the crime.
Par. 14. That the craft, fraud or disguise be employed.
• There are three aggravating circumstances:
1. Craft
2. Fraud
3. Disguise
• Craft
- intellectual trickery or cunning resorted to by the accused
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Example:
The accused knocked at the door. He knows that only the maid
was at home. He told the maid that he was a relative of the
owners of the house who came from the province. He was
allowed to enter the house, thereafter he committed a crime of
robbery. There was cunning or intellectual trickery resorted to
by the accused for he tricked the maid to consummate the
crime of robbery.
• Fraud
- it means deceit
- it is manifested by the use of insidious words or
machinations resorted to by the accused so that the
offended party will perform an act that will make the
offender do the crime easily.
Example:
The offended party was about to sleep on the upper portion of
the house because the lower portion is a store. The offender
called over the owner, saying that he was going to buy
something. The owner went down the house and opened the
store. However, upon opening the store, he was stabbed and
robbery was committed. There was fraud as manifested by the
insidious words or machinations, resorted to by the offender.
• Disguise
- ways and means resorted to by the accused to conceal his
identity.
- Stockings, bonnet or anything that could be used so that
one could not be recognized.
- If despite disguise he is recognized, rule out disguise as an
aggravating circumstance, it did not serve its purpose.
Par. 15. That advantage be taken of superior strength, or means be
employed to weaken the defense.
• abuse of superior strength
Requisites:
1. That there be a notorious inequality of forces between the
offender and the offended party in terms of their age, size
and strength;
2. That the offender took advantage of this inequality of
forces to facilitate the commission of the crime.
• Inequality of forces
Example: Offender enjoys numerical superiority over that of the
offended party
• The mere fact that there was numerical superiority does not
automatically mean that there is abuse of superior strength.
Under the second element, evidence must show that the
offender deliberately took advantage of their strength to
facilitate the commission of the crime.
Par. 16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the
crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which
the offended party might make.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Elements:
1. That the offender deliberately adopted the particular
means, method or form of attack employed by him.
2. That at the time of the attack, the victim was not in a
position to defend himself.
• the essence of treachery is the suddenness and
unexpectedness of the act to unexpecting and unarmed victim
who has not even the slightest provocation. The victim must be
totally without defense.
• If the victim was able to put out any defense, no matter how
minor, treachery is not present.
Example:
A was about to stab B but he was able to parry the blow, that is
already a defense on his part. He was able to run away, that is
already considered as a defense. Treachery is no longer
present. It is necessary that the offended party or the victim
must be totally without defense.
• What if the attack is a frontal attack?
- even if it is a frontal attack, if it is so sudden, unexpected,
such that the offended party would not be aware of it and
was not able to put up any defense, there is still treachery.
Example:
A and B were walking towards each other. When near enough,
B suddenly stabbed A. It was a frontal attack yet obviously
there was treachery. A was totally defenseless and B
deliberately and consciously adopted the means in the
commission of the crime.
• Whenever the offended party is a minor, there is always
treachery because the minor is always defenseless.
Example:
Victim is 17 years of age, but a big, macho man, full of muscles.
Is there treachery?
- the Supreme Court held that whenever the offended party
is a minor, there is always treachery. Minority here does
not refer to the statutory definition of minority, that is,
being below 18 years of age. Minority here is with
reference to the sense of helplessness of the victim. So it
is necessary that the victim is helpless.
Example:
1. A prisoner arrived at the police station. Upon removal of
his handcuffs, he immediately grab the pistol of the
arresting officer. Thereafter he went out pointing the said
gun. Upon seing a woman who was getting inside the PNP
station, he shot the woman. The woman died. Is the
aggravating circumstance of treachery present?
- the aggravating circumstance of treachery is not present
it is a mere chance encounter. The first element is wanting. There is
no showing the offender deliberately adopted the particular means,
method or form of attack employed by him in killing the woman.
2. A was found on the street. He has 10 stab wounds all at the back.
No one saw the commission of the crime. However A witness
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claimed that he saw X leaving the place with a weapon full of blood.
X was arrested. Is treachery present?
- No, treachery is not present because the
witness failed to observe the start or the commencement
of the attack. For treachery to arise it is necessary that he
must be present at the commencement of the attack in
order to know whether the offended party was totally
defenseless.
***People vs. Bukinco and leviste case
o SC: Since no one saw the commencement of the
attack, treachery is not present.
3. The witness saw A and B were holding on X. Both his
hands were held at the back by A and B. He was being
attacked by Y. The witness did not see how the attack
commenced but only that he was attacked by Y while his
hands were held by A and B. Is there treachery?
- yes, in the case of People vs Tabuena (?!?), SC held that
there was treachery. The witness did not see the
commencement of the attack, however, he saw that there
was restraint on the person of X. What the witness saw
was that the hands of the victim were being held at the
back while he was being attacked. That suffices because
there was restraint on the person of the victim. The SC
held that even the witness did not observe the
commencement of the attack, since there was restraint on
his person, he was totally defenseless, treachery is present
according to the Supreme Court.
Par. 17. That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.
• Ignominy
- a moral circumstance which add to the injury suffered by
the victim. It is humiliation, embarrassment, moral killing.
• People vs. Domingo
A raped B. before killing B, A raped B in the presence of his
father. Before A raped B in the presence of his father, he used a
flashlight to examine the genitalia of B likewise in the presence
of the father. Is the aggravating circumstance of ignominy
present?
- Yes it is present. The examination of the genitalia of the
victim is not necessary in the commission of the crime of
rape. Such act of the offender merely add to the moral
pain, moral suffering of the victim, especially it was done
in the presence of the father. Therefore ignominy is
present.
• People vs. ________________
A raped B. B filed a case of raped against A. when B testified in
court, that when A raped her, he used the dog style position.
The entry of the penis was from behind, not the normal act in
having sexual intercourse. RTC did not consider ignominy.
However, the SC held that it was erroneous for the RTC not to
have considered ignominy as an aggravating circumstance.
• People vs Fernandez.
A woman victim of rape was found in a vacant lot. Her genitalia
was full of mud. SC held that there was ignominy. The placing of
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
mud in the genitalia add moral pain, moral suffering to the
victim.
Par. 18. That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance is effected
by a way not intended for the purpose
Par. 19. That as a means to the commission of a crime a wall,
roof, floor, door, or window be broken.
Example:
1. A was on vacation. B knew that A was on vacation. He
saw that the window on the third floor of the house was
open. He got a ladder and placed it in the window, climbed
it and entered the house. then he took the valuables, got
out through the window. Is the aggravating circumstance
of unlawful entry present?
- No, it is not present. The reason is that, the fact
that a crime was committed after an unlawful entry is
inherent in the commission of the crime because the crime
committed is robbery under Art.299, robbery with use of
force upon things. The essence of robbery, is in the act of
unlawful entry. The entry was done through a means not
intended for anything that is to a window. Thus, the fact
that a crime was committed after an unlawful entry is not
an aggravating circumstance.
2. A was passing by the house of B. Suddenly he saw
through the window, two cellphones being charged.
Interested on the cellphones, he broke the window
entered his hand and took the cellphones. Is the
aggravating circumstance, that as a means to the
commission of the crime the window was broken present?
- Yes it is present because the crime committed is theft
only and not robbery. The crime committed was theft not
robbery because the offender did not enter the house. For
robbery to arise it is necessary that the offender enter the
said place and take the cellphones. He only broke the
window, entered his hand and took the cellphones.
Therefore the crime committed is theft. In theft, the fact
that a window was broken is not inherent it is an
aggravating circumstance.
Par. 20. That the crime be committed with the aid of persons under
fifteen years of age or by means of motor vehicles, motorized
watercraft, airships, or other similar means. (As amended by RA
5438).
• If the crime committed makes use of minors under 15 years of
age, it shows the greater perversity of the offender because he
knows that minors cannot be arrested. Persons below 15 years
of age cannot be prosecuted, it is among the exempting
circumstances. Therefore, it shows greater perversity.
• If the crime is committed with the use of motor vehicle in
killing a person, it is a qualifying aggravating circumstance
under article 248. If the motor vehicle is used in the
commission of any other crime, it is a mere generic
aggravating circumstance.
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Par. 21. That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for
its commissions.
Elements:
1. That at the time of the infliction of the physical pain, the
offended party is still alive.
2. That the offender enjoys and delights in seeing his victim suffer
gradually by the infliction of the physical pain.
• If ignominy refers to the moral pain, cruelty pertains to the
additional physical pain other than that which is necessary in
the commission of the crime.
Example:
A person was found dead with several wounds all over his body. Is
the fact that he has several wounds on different parts of his body
mean that there was cruelty?
- No. the fact that there was 25-50 wounds cannot immediately
mean that there was cruelty in the commission of the crime. It is
necessary to determine, whether first, he was still alive at the time
the physical pain was inflicted; second, did the offender enjoy and
delight in seeing his victim suffer gradually by the infliction of the
physical pain. If there were defense wounds, cruelty cannot be
appreciated.
• Ignominy vs. Cruelty
1. a. Ignominy, the victim suffered moral pain.
b. Cruelty pertains to physical pain or physical suffering.
2. a. Ignominy, the victim can either be alive or dead
b. Cruelty, it is necessary that the victim was still alive
*** in addition to article 14
1. A killed B by means of an unlicensed firearm. B died and A was
arrested. The firearm was recovered. Two cases were filed against A:
murder or homicide as the case maybe and illegal possession of
unlicensed firearm under PD. 1866 as amended by RA 8294. Are the
charges correct?
-No, under section 1 of PD. 1866 as amended by RA 8294 if
homicide or murder is committed with the use of an unlicensed
firearm, such use of unlicensed firearm shall be considered as an
aggravating circumstance. Therefore, there shall only be the charge
of murder or homicide as the case maybe. The use of the unlicensed
firearm shall be alleged in the information as an aggravating
circumstance.
2. A killed B by means of an unlicensed firearm. An information was
filed charging A with the crime of homicide. It is alleged in the
information that A shot B with the use of unlicensed firearm. During
trial the same was proven. Judge convicted A for the crime of
murder and considered the use of unlicensed firearm as a generic
aggravating circumstance. The judge opined that Section 1 of PD.
1866 as amended by RA 8294 is silent as to what kind of aggravating
circumstance the use of firearms. The principle that penal laws
should be construed liberally in favor of the accused should be
applied. Is the judge correct?
- No, the judge is wrong because the SC has long ruled that
the use of the unlicensed is a special aggravating circumstance
which cannot be offset by any mitigating circumstance.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
3. A father and son had an argument. The son shot his father with an
unlicensed firearm. The father died. Two cases were filed against the
son: parricide and illegal possession of unlicensed firearm. The fiscal
opined that under section 1 of PD. 1866 as amended by RA 8294 if
homicide or murder is committed with the use of an unlicensed
firearm, such use of unlicensed firearm shall be considered as an
aggravating circumstance. It did not provide for parricide, therefore
two cases should be filed. Is the fiscal correct?
- No, the fiscal is wrong. SC has already ruled, that the
words homicide and murder in the said law is used in its generic
sense. Therefore it includes all kinds of killing where the penalty
prescribed by law is the same as murder which is reclusion perpetua
to death. The penalty prescribed by law is reclusion perpetua to
death.
4. A killed B. thereafter he chopped the body of B. because of the
manner employed by the accused in killing the victim, the police
suspected that he was under the influence of prohibited drugs. He
was brought to the PNP crime laboratory for forensic examination.
the results provided that he was under the influence of prohibited
drugs. What is the effect of the positive result of the said
examination on the commission of the crime of the said accused?
- Under Section 25 of RA 9165, when a crime is committed
by an offender under the influence of dangerous drugs, such state
shall be considered as a qualifying aggravating circumstance.
Therefore, it will bring about a change in the nature of the crime to a
more serious crime with a higher penalty.
• Illegal possession of unlicensed firearm- special aggravating
circumstance.
Positive result in the use of dangerous drugs- qualifying
aggravating circumstance.
Art. 15. Their concept. — Alternative circumstances are those
which must be taken into consideration as aggravating or
mitigating according to the nature and effects of the crime and the
other conditions attending its commission. They are the
relationship, intoxication and the degree of instruction and
education of the offender.
The alternative circumstance of relationship shall be taken into
consideration when the offended party in the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into consideration
as a mitigating circumstances when the offender has committed a
felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony but when the
intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.
Alternative circumstances are those circumstances which can either
be aggravating or mitigating, depending on their effect in
commission of the crime.
3 Alternative Circumstance:
1. Relationship;
2. Intoxication;
3. Degree of Instruction or Education
Relationship
- Is considered as an alternative circumstance when the
offender is related to the offended party as his spouse,
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ascendants, descendants, legitimate, illegitimate, natural,
adopted brothers ,sisters or relatives by affinity within the
same degree.
When is relationship considered as mitigating?
In crimes against property. Ex.: Crime of Arson; Culpable Insolvency.
It is considered as a mitigating citcumstance.
But in certain crimes against property such as theft estafa or
swindling and malicious mischief, relationship is exempting.
Under article 332 if the crime committed is theft, estafa or
swindling, and malicious mischief, relationship[ exempts the
offender from criminal liability. Therefore, if in these three cases
relationship is exempting, then all other Crimes against property,
relationship is a mitigating circumstance.
In crimes against persons, relationship is mitigating if the offender is
of a higher degree than that of the offended party, and the crime
committed is less physical injury, or slight physical injury. If the
crime committed is serious physical injury, it’s always an aggravating
circumstance.
Relationship is inherent in the crime of parricide.
Intoxication
What is intoxication?
- When the offender has taken such amount of liquor of
sufficient quantity as to affect his mental capacity to
determine the consequences of his act.
Under Article 15, intoxication is considered as a mitigating
circumstance if it is not habitual or subsequent to the plan to
commit the felony
On the other hand, intoxication is considered as an aggravating
circumstance if it is habitual and it is done subsequent to the
commission of a crime. The offender deliberately takes liquor
because he used it as a stimulant for him to commit the crime.
He was so nervous he cannot commit the crime, so he takes
liquor form him to have the strength to commit the crime.
Degree of Instruction and Education
As a rule: a low degree of education or instruction is considered
as a mitigating circumstance.
Exception: if the crime committed is inherently evil or wrong.
Ex.: Killing a person, molesting a woman, taking the personal
property of another. Such is as wrong as to a learned man as it
is to an ignorant man.
A high degree of education is considered as an aggravating
circumstance. If the offended makes use of his high degree of
education in facilitating the commission of the crime.
Ex.: A lawyer committing estafa by falsifying a deed of absolute
sale. The lawyer makes use of his high degree of education in
order to commit the crime.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
However, in a case where a lawyer kills another person in
the course of an argument, his high degree of education has
nothing to do with the commission of the crime. Therefore in
this case, it cannot be considered as an aggravating
circumstance.
Absolutory Causes and Extenuating Circumstance
Absolutory Causes
- Are those circumstance which have the effect of
exempting a person from criminal liability but which are
outside Article 12
- Have the same effect as exempting circumstances, as it
exempts the offender from criminal liability
Ex.: Mistake of fact, Intigation, Accessories in Light
felonies.
Extenuating Circumstances
- Same effect as mitigating circumstance but not included in
Article 13, to lower the imposable penalty
Ex.: Infanticide
A mother killed her own child less than 3 days old in order
to conceal her dishonor. The penalty here will be lowered
by 2 degrees, from reclusion perpetua to death, the
penalty will be prision mayor.
I mentioned Instigation, as an absolutory cause. In
instigation, the mens rea originated from the mind of the public
officer who only lured the offender to commit the crime. On other
hand, entrapment is not an absolutory cause because entrapment
refers to ways and means resorted to by the public officer in order
to trap and capture a criminal in flagrante delicto. Here, the mens
rea originated from the mind of the offender
People vs Naelga: Distinction between instigation and entrapment
Instigation Entrapment
Mens rea originated from the Mens rea/evil intent originated
mind of the public officer from the mind of the offender
An absolutory cause by reason Not an absolutory cause
of public policy
The public officer is liable as a The public officer is not
principal by inducement criminally liable.
PERSONS CRIMINALLY LIABLE
Art. 16. Who are criminally liable. — The following are criminally
liable for grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices
Principals
Art. 17. Principals. — The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
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3. Those who cooperate in the commission of the offense by
another act without which it would not have been accomplished.
Kinds:
1. Principal by direct participation
- Must necessarily be present in the scene of the crime
because he is the one who actually executed the crime.
Without him, the crime will not be committed.
2. Principal by induction of inducement
- May or may be present in the scene of the crime. If there’s
evidence to prove that without his inducement, the crime
would not have been committed, still he can be criminally
liable.
- The inducement must be the primary reason why the
crime was committed.
- Inducement may come in different forms:
a. Giving of price, reward or promise;
b. By employing force, command or ascendancy
which is being followed by the principal by direct
participation.
3. Principal by indispensable cooperation
- He must be at the scene of the crime because he must
perform another act without the crime would not have
been
Accomplices
Art. 18. Accomplices. — Accomplices are those persons who,
not being included in Art. 17, cooperate in the execution of
the offense by previous or simultaneous acts.
- Cooperate in the commission of the crime by previous of
simultaneous acts
- The participation is only minor in character. It only
provides material and moral aide in an efficacious manner
but not in an indispensable manner.
- If the act performed by the offender facilitated the
commission of the crime, but it is not indispensable in the
commission of the crime, with or without said act
nevertheless, the crime had been committed, the offender
is merely an accomplice
Requisites to be an accomplice:
1. There must be community of design
- The accomplice had been informed of the criminal design
of the offender and having been informed, he concurs
with the said criminal design. He’s not part of the
conspiracy but he knows and concurs with the design
because he was informed of the same only after the
principal had come up with agreement.
2. That he performs the acts previous or simultaneous to the
commission of the crime; and
3. That the acts performed by the principal is related to the
acts performed by the accomplice.
Ex.: A, B, C, D, and E decided to rob a bank. Based on their
agreement, A.B, and C will be the ones to enter the bank. D will
serve as lookout. E will serve as the driver of the vehicle. They
committed the crime on the date agreed upon. What are the
liabilities of A, B, C, D, and E?
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
A: All of them are liable as principals by direct participation,
because all of them are authors of the criminal design.
Ex2: What if, A.B and C decided to rob the bank. On the agreed
time and place, they were already about to go to the bank, but
suddenly they realized they have no vehicle. So the flagged
down a taxi. They informed the taxi driver of their criminal
design, to which the taxi driver agreed for his car to be used as
a getaway vehicle. while on their way to the bank, they
realized that they needed a lookout. They saw a balut vendor
and asked him, “Can you be our lookout? The moment you see
a police coming, shout baluuuuut!” The said vendor agreed to
the said criminal design. After robbing the bank, A B C and the
balut vendor boarded the taxi. Criminal liability of each?
A: A B and C are liable as principal by direct participation, while
the taxi driver and the balut vendor are liable as accomplices.
They are accomplices since A B C already agreed on the criminal
design before they informed the two of the same and the latter
concurred by performing simultaneous acts or subsequent to
the commission of the crime.
NOTE: So no matter how minor the participation is of an
offender, if he is an author of the criminal design, even if he
only acted as a lookout, still he is liable as a principal by direct
participation
Accessories
Art. 19. Accessories. — Accessories are those who, having
knowledge of the commission of the crime, and without
having participated therein, either as principals or
accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit
by the effects of the crime;
2. By concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its
discovery.
3. By harboring, concealing, or assisting in the escape of the
principals of the crime, provided the accessory acts with abuse
of his public functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt to take the
life of the Chief Executive, or is known to be habitually guilty
of some other.
Does the accessory know the criminal design?
No. what he knows is the commission of the crime.
Despite knowledge that the crime has been committed, he take
part subsequent to its commission.
First Act: By profiting themselves or assisting the offender to
profit by the effects of the crime.
Ex.: A, by means of deceit, was able to take the diamond ring of
his friend. So A swindled his friend by means of deceit. After
taking the ring, she went to B. A told B “B, I have here a
diamond ring, I swindled it from my friend and I’m selling it to
you for only 10k. B bought the said ring and displayed it to his
shop to have it sold. Later B was found in possession of the said
ring. Is be liable as an accessory?
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A: YES.
Ex.2: What if A , went to a pawnshop, broke in, took all the
jewelries. A told B “I am selling this to you for only 20k.” B bought
the same. He told A “This are the jewelries from my friend’s
pawnshop right?” A said, Yes. IS B an accessory and a fence?
A: YES
Who is a fence?
A: Under P.D. 1612, a fence includes any person, firm, association
corporation or partnership or other organization who/which
commits the act of fencing.
“Fencing" is the act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which
he knows, or should be known to him, to have been derived from
the proceeds of the crime of robbery or theft.
Elements of fencing:
1. That the crime of robbery or theft has been committed;
2. That the said person was found in possession of the said
article or items which are the proceeds of the crime;
3. That there was on the part of such person, the intent to
gain either for himself or for another;
4. That the said person knows or it should have been known
to him that the article is the product of robbery or theft.
Q: If you were the fiscal, what case would you file against him?
Would it be as on accessory or as a fence?
A you can only file either of the two. It’s better to file fencing.
Because it is easier to prove. While in accessory, he must first know
that the crime has been committed. In fencing, it is not necessary
that he knows.
Section 5 of PD 1612 provided a prima facie presumption of fencing.
The burden of evidence is shifted on the accused
nd
2 act: By concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its discovery.
Q: what do we mean by body of the crime?
A: Do not answer corpus delicti! It means that a fact has been
committed by someone. It has 2 elements:
1. Proof of occurrence of a certain event;
2. Proof of person’s criminal liability.
Ex: A stabbed B. thereafter, he buried the deceased body of B. X
witnessed A’s act of killing B. the moment A buried the body of B
under the ground, is the body of the crime gone?
A: NO. the body of the crime does not refer to the physical body of
the victim.
rd
3 act: By harboring, concealing, or assisting in the escape of the
principals of the crime, provided the accessory acts with abuse of his
public functions or whenever the author of the crime is guilty of
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
treason, parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other.
NOTE: If the accessory who harbored and concealed or assisted in
the escape of the of the principal is a private individual, the law
specifies the crime committed, which is PD 1829, otherwise known
as Obstruction of Justice.
Ex.: The principal committed swindling or estafa. X harbored the
principal despite knowing the latter committed estafa. X cannot be
considered as an accessory because estafa or swindling is not among
rd
the crimes mentioned in the second part of the 3 act. So what is
the criminal liability of the friend?
A: HE is liable under PD 1829
Obstruction of Justice is committed by any person who willfully and
lawfully obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal cases.
Ex.: What if A and B sisters. They had a housemaid, X. A and B were
cruel to X, for a minor mistake they would slap, boxed or injure her.
One time, A went to work. When she arrived home, she saw the
deceased body of X. A and B placed the deceased body in a sack and
placed it on the trunk of their car. However, someone witnessed
their act who immediately called the police, reporting that he saw 2
women putting a sack in the truck wherein 2 feet were protruding
from the said sack. A and B were prosecuted and both convicted for
murder. The Supreme Court however said that only B is liable, not
for murder but only for homicide. When A arrived, the housemaid
was already dead.
But how about A’s act of trying to place the deceased body inside
the trunk of the car in order to prevent the discovery of the crime?
A: her act constitutes that of an accessory. But she falls under Article
20 since she is related to the offender.
Art. 20. Accessories who are exempt from criminal liability. — The
penalties prescribed for accessories shall not be imposed upon
those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters,
or relatives by affinity within the same degrees, with the single
exception of accessories falling within the provisions of paragraph
1 of the next preceding article.
When is an accessory exempted from criminal liability?
A:
1. When the crime committed is a light felony;
2. When the said accessory is the spouses, ascendants,
descendants, legitimate, natural, and adopted brothers
and sisters, or relatives by affinity within the same degrees
PENALTIES
- Refers to punishment, imposed by lawful authority upon a
person who has committed an intentional felony or a
culpable felony
- Prescribed by law, enacted by Congress.
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Art. 21. Penalties that may be imposed. — No felony shall be Indemnification,

punishable by any penalty not prescribed by law prior to its Forfeiture or confiscation of instruments and proceeds of the
commission. offense,
Payment of costs.
- This is in consonance on the provision of the Constitution
on ex post facto law. Death
- Under RA 9346, death penalty cannot be imposed.
2 kinds of penalties: - Sen 2 of RA 9346: in lieu of death penalty it shall be
reclusion perpetua in case of violation of the RPC and life
1. Principal; and imprisonment in case of violation of Special Penal Laws.
2. Accessory - SEC. 3. Person convicted of offenses punished with
reclusion perpetua, or whose sentences will be reduced to
Principal penalties reclusion perpetua, by reason of this Act, shall not be
- Are penalties prescribed by law or precribed by the court eligible for parole under Act No. 4180, otherwise known as
the Indeterminate Sentence Law, as amended.
Accessory penalties
- Those which are necessarily included in the imposition of Reclusion Perpetua
principal penalties.
Reclusion Perpetua Life Imprisonment
Art. 73. Presumption in regard to the imposition of accessory Penalty imposed in case of Penalty imposed in case of
penalties . — Whenever the courts shall impose a penalty violation of the RPC violation of Special Penal Laws
which, by provision of law, carries with it other penalties, Carries a fixed duration: 20 to 40 No fixed duration
according to the provisions of Articles 40, 41, 42, 43 and 44 of years
this Code, it must be understood that the accessory penalties Carries with it accessory penalty
Does not carry any accessory
are also imposed upon the convict. penalty
Life imprisonment is distinct and independent from reclusion
Ex.: The judge need not state the accessory penalty, civil perpetua.
interdiction and perpetual absolute disqualification because
these two necessarily follow the principal penalty of reclusion Reclusion Temporal
perpetua. - Duration is 12 years and 1 day to 20 years

Art. 25. Penalties which may be imposed. — The penalties Perpetual or Temporary Absolute Disqualification
which may be imposed according to this Code, and their Perpetual or Temporary Special Disqualification
different classes, are those included in the following: - Both a principal and accessory penalty
Scale
Principal Penalties Art. 30. Effects of the penalties of perpetual or temporary absolute
Capital punishment: disqualification. — The penalties of perpetual or temporary
Death. absolute disqualification for public office shall produce the
Afflictive penalties: following effects:
Reclusion perpetua,
Reclusion temporal, 1. The deprivation of the public offices and employments which
Perpetual or temporary absolute disqualification, the offender may have held even if conferred by popular election
Perpetual or temporary special disqualification,
Prision mayor. 2. The deprivation of the right to vote in any election for any
Correctional penalties: popular office or to be elected to such office.
Prision correccional,
Arresto mayor, 3. The disqualification for the offices or public employments and
Suspension, for the exercise of any of the rights mentioned.
Destierro.
Light penalties: In case of temporary disqualification, such disqualification as is
Arresto menor, comprised in paragraphs 2 and 3 of this article shall last during the
Public censure. term of the sentence.chanrobles virtual law library
Penalties common to the three preceding classes:
Fine, and 4. The loss of all rights to retirement pay or other pension for any
Bond to keep the peace. office formerly held.chanrobles virtual law library

Accessory Penalties
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,
Art. 31. Effect of the penalties of perpetual or temporary special
disqualification. — The penalties of perpetual or temporal special
disqualification for public office, profession or calling shall produce
the following effects:

[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman] 44
 CRIMINAL LAW REVIEW 2013
1. The deprivation of the office, employment, profession or calling
affected;
2. The disqualification for holding similar offices or employments
either perpetually or during the term of the sentence according to
the extent of such disqualification.
Art. 32. Effect of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. — The
perpetual or temporary special disqualification for the exercise of
the right of suffrage shall deprive the offender perpetually or
during the term of the sentence, according to the nature of said
penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall
not be permitted to hold any public office during the period of his
disqualification.
Art. 33. Effects of the penalties of suspension from any public
office, profession or calling, or the right of suffrage. — The
suspension from public office, profession or calling, and the
exercise of the right of suffrage shall disqualify the offender from
holding such office or exercising such profession or calling or right
of suffrage during the term of the sentence.
Prision Mayor
Prision Correccional
Arresto mayor
Suspension
- Both principal and accessory penalty
- Art. 27: Prision correccional, suspension, and destierro. —
The duration of the penalties of prision correccional,
suspension and destierro shall be from six months and one
day to six years, except when suspension is imposed as an
accessory penalty, in which case, its duration shall be that
of the principal penalty.
Destierro
- Principal penalty
- Art 27: see above
- Art. 87: Destierro. — Any person sentenced to destierro
shall not be permitted to enter the place or places
designated in the sentence, nor within the radius therein
specified, which shall be not more than 250 and not less
than 25 kilometers from the place designated.
- Also involves deprivation of liberty
Arresto Menor
Public Censure
- Principal penalty
- Has no fixed duration
Fine
- A pecuniary penalty which is imposed by the court in case
of the judgment of conviction
Art. 26. When afflictive, correctional, or light penalty. — A fine,
whether imposed as a single of as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds 6,000 pesos; a
correctional penalty, if it does not exceed 6,000 pesos but is not
less than 200 pesos; and a light penalty if it less than 200 pesos.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Bond to keep the peace
- A principal penalty
Art. 35. Effects of bond to keep the peace. — It shall be the duty of
any person sentenced to give bond to keep the peace, to present
two sufficient sureties who shall undertake that such person will
not commit the offense sought to be prevented, and that in case
such offense be committed they will pay the amount determined
by the court in the judgment, or otherwise to deposit such amount
in the office of the clerk of the court to guarantee said
undertaking.
Civil Interdiction
- Under article 40 to 41, civil interdiction is an accessory
penalty that follows the principal penalty of death,
reclusion perpetua and reclusion temporal.
Art. 34. Civil interdiction. — Civil interdiction shall deprive the
offender during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of
any ward, of marital authority, of the right to manage his property
and of the right to dispose of such property by any act or any
conveyance inter vivos.
A person under civil interdiction can make a last will and testament
because the effect of the same is mortis causa or after the death of
such person, which is not prohibited.
Forfeiture and Confiscation of Instruments and Proceeds of the
Crime
- Accessory penalty
Art. 45. Confiscation and forfeiture of the proceeds or instruments
of the crime. — Every penalty imposed for the commission of a
felony shall carry with it the forfeiture of the proceeds of the crime
and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be property of a
third person not liable for the offense, but those articles which are
not subject of lawful commerce shall be destroyed.
Payment of cost
Cost- expenses of litigation
Art. 37. Cost; What are included. — Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they
be fixed or unalterable amounts previously determined by law or
regulations in force, or amounts not subject to schedule.
Who shall pay the cost?
If an accused is convicted of a crime, cost shall be adjudged against
him. However, in case of acquittal, each party must bear his own
lost.
Preventive Imprisonment
- The detention of accused while the case against him is on
going trial either because the crime he committed is a
non-bailable offense and evidence of guilt is strong; or the
crime committed is a bailable offense but he does not
have the funds.
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Q: Can the period of preventive imprisonment undergone by Art. 94. Partial Extinction of criminal liability. — Criminal liability is
the accused be credited to his final sentence? extinguished partially:
1. By conditional pardon;
A: Yes

Art. 29. Period of preventive imprisonment deducted from Pardon granted by the offended Pardon granted by the
term of imprisonment. — Offenders who have undergone party (Art. 23) President (Art. 36)
preventive imprisonment shall be credited in the service of Does not extinguish criminal Extinguishes criminal liability
their sentence consisting of deprivation of liberty, with the full liability, whether public or
time during which they have undergone preventive private crime.
imprisonment, if the detention prisoner agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon Except: Art. 266-C (Marital Rape)
convicted prisoners, except in the following cases: pardon granted by the wife to
the husband in case of rape,
1. When they are recidivists or have been convicted previously extinguish criminal action and
twice or more times of any crime; and penalty
Extinguishes civil liability as it is does not extinguish civil liability
2. When upon being summoned for the execution of their deemed a waiver
sentence they have failed to surrender voluntarily. Pardon must be made before can only be granted after
the institution of the conviction by final judgment.
If the detention prisoner does not agree to abide by the same prosecution of the case and only
disciplinary rules imposed upon convicted prisoners, he shall in private crimes
be credited in the service of his sentence with four-fifths of
the time during which he has undergone preventive Pecuniary Liabilities
imprisonment. (As amended by Republic Act 6127, June 17,
1970). Art. 38. Pecuniary liabilities; Order of payment. — In case the
property of the offender should not be sufficient for the payment
Whenever an accused has undergone preventive of all his pecuniary liabilities, the same shall be met in the
imprisonment for a period equal to or more than the possible following order:
maximum imprisonment of the offense charged to which he 1. The reparation of the damage caused.
may be sentenced and his case is not yet terminated, he shall 2. Indemnification of consequential damages
be released immediately without prejudice to the 3. The fine.
continuation of the trial thereof or the proceeding on appeal, 4. The cost of the proceedings.
if the same is under review. In case the maximum penalty to
which the accused may be sentenced is destierro, he shall be Pecuniary Liabilities Pecuniary Penalties (Art. 25)
released after thirty (30) days of preventive imprisonment. (As Those imposed by the court in Those imposed by the court in
amended by E.O. No. 214, July 10, 1988). case of conviction but not as a case of conviction – Fine and
penalty payment of cost
Can the period of preventive imprisonment be deducted in case of
destierro? Subsidiary Penalty
Yes. Because destierro also involves deprivation of liberty and has a - Is a substitute penalty for fine and fine alone.
fixed duration of 6 months and 1 day to 6 yeears - Either the penalty of the court must be a fine and the
convict must be insolvent. Absent such statement in the
NOTE: If detention has already exceeded the possible maximum judgment, the convict cannot suffer subsidiary penalty.
imprisonment of the offense charged but his case is not yet - Not a principal penalty nor an accessory penalty, but only
terminated, file a case for Habeas Corpus for the immediate release a substitute penalty for fine.
of the accused. - Rate has been amended by RA 10159 which states: "If the
convict has no property with which to meet the fine
PARDON mentioned m paragraph 3 of the next preceding
Art. 36. Pardon; its effect. — A pardon shall not work the article, he shall be subject to a subsidiary personal
restoration of the right to hold public office, or the right of liability at the rate of one day for each amount
suffrage, unless such rights be expressly restored by the terms of equivalent to the hIghest minimum wage rate
the pardon. prevailing in the Philippines at the time of the
rendition of judgment of conviction by the trial court”
- The accused is exempted from criminal liability
- Does not extinguish civil liability because the same is Art. 39. Subsidiary penalty. — If the convict has no property with
personal to the victim. which to meet the fine mentioned in the paragraph 3 of the nest
preceding article, he shall be subject to a subsidiary personal
Art. 89. How criminal liability is totally extinguished. — Criminal liability at the rate of one day for each eight pesos, subject to the
liability is totally extinguished: following rules:
4.By absolute pardon;

[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman] 46
 CRIMINAL LAW REVIEW 2013
1. If the principal penalty imposed be prision correccional or
arresto and fine, he shall remain under confinement until his fine
referred to in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the term of
the sentence, and in no case shall it continue for more than one
year, and no fraction or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine, the
subsidiary imprisonment shall not exceed six months, if the culprit
shall have been prosecuted for a grave or less grave felony, and
shall not exceed fifteen days, if for a light felony.
3. When the principal imposed is higher than prision correccional,
no subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by
confinement in a penal institution, but such penalty is of fixed
duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivations as
those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have
suffered by reason of his insolvency shall not relieve him, from the
fine in case his financial circumstances should improve. (As
amended by RA 5465, April 21, 1969).
Subsidiary penalty cannot be imposed on the following instances:
1. If the judgment of the court did not impose fine as a
penalty
2. If the judgment of the court did not expressly state that in
case of nonpayment of fine, the convict shall suffer
subsidiary penalty
3. If the principal penalty that goes with fine exceeds prision
correccional or higher than 6 years.
4. if the principal penalty that goes with fine does not have
fixed duration
5. if what the convict thinks to pay is not fine but damages
and cost
*Article 40-45 provide for the accessory penalties
*Art 30 -35 provide for the different accessory penalties that attach
to every principal penalty
Remember, in Art. 45 -
GR: In case of forfeiture and confiscation of the proceeds of the
crime, it is as accessory penalty that always follow all kinds of
principal penalty. For every principal penalty imposed, forfeiture and
confiscation of the proceeds, of the effects, of the tools, the
instrument of the crime shall always follow. It is an accessory that is
common to all principal penalties. It shall be forfeited in favor in the
government.
>Xcp: in possession of a third person not liable of the crime
>Xcp to xcp: when the thing is beyond the commerce of men it has
to be destroyed
Article 48. Penalty for complex crimes. - When a single act
constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty
for the most serious crime shall be imposed, the same to be
applied in its maximum period.
1. Compound crime –
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Elements:
1. Offender performs single act
2. Resulted to two or more less grave felonies
Basis: Singularity of act
Effect: Penalty for the most serious charge in its maximum period.
Example: aberratio ictus
A aimed the gun at B. But because of poor aim, it shot C a pedestrian
walking. Treachery was attended. As to B, crime committed is
attempted murder. As to C, murder. Crime committed is attempted
murder.
A) A political rival placed a bomb on B’s car.
A person died, several persons injured
A single act placing the bomb produces two or more less grave
felonies
Crime is murder with multiple frustrated murder
B) Two persons died
Double murder
C) Many persons died
Multiple murder with multiple frustrated murder
D) Machine gun was used, different bullets come out, 10 people were
killed. Multiple murder or 10 counts of murder?
As many crimes are there are as many persons. Not a compound
crime therefore.
Basis is singularity of acts
2. Complex crime proper – when the offense is a necessary
means commit the other the other
Elements:
1. Two offenses committed
2. Offenses necessary means to commit the other
3. Punished with the same statute
Penalty: like compound crime
Example:
a) Rape with forcible abduction - A was on the ladder of the
house, B a woman abducted her against her will and with
lewd design
b) Estafa thru falsification of public document. Person
falsifies a public document – Falsification used to defraud
another.
>No estafa by falsification of private document. A cash voucher was
falsified. No crime such as estafa with falsification of private
document. When it is falsified, determine what to charge. Only one
charge. damage is essential element of both. There can be no twice
recovery for damages. Damage not an element of falsification of
public document
>If estafa can not be committed without falsification – falsification
is the correct charge, estafa is merely a consequence
>If estafa can be committed without falsifying – estafa. Falsification
is only incidental.
Other kinds of special crime:
4. Special complex crime – in reality two or more crimes
committed but in the eyes of law only one. Law provides
what crimes would be complexed and what crimes go
together.
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a) robbery with homicide – A was robbing the house, in
course of robbery the owner of house was awaken,
he shot the owner, Art. 294 rp to death
b) kidnapping with homicide- A kidnapped B, when b is
trying to escape he shot b. Law provides for specific
penalty which is death
c) rape with homicide – A raped B, after raping he killed
b. Art 266B – rp to death if in occasion of rape,
homicide is committed.
Special complex Compound crime
crime
As to the offenses Law provides the Two or more grave
offense which should or less grave offense
be complexed or offense
necessarily to
commit the other
Penalty Law provides penalty Imposed on the
maximum period
4. Continued crime, continous crime, delicto continuado.
When the offender is impelled by a single criminal impulse
commits a series of overt acts in about the same time and about the
same place violating one and the same provision of law.
Basis is singularity of impulse.
In the book of Reyes, there are many example of this.
Example. A, B, C,D lives in one compound. All engaged in the
business of selling rooster. One night, 11:00 in the evening here
comes X. While they were sleeping, X took the rooster of A, then of
B, then of C, then of D.
How many crimes will you file against X?
Crime committed is one charge of theft. X impelled by a
single impulse committed overt acts leading to theft.
>Continuing crime or transitory offense.
This is more on remedial law not in criminal law. The offender may
be prosecuted in any courts of the place where any of the crime has
been committed.
Example: violation of BP 22. A issued to B a check in
payment of his obligation in Manila. A deposited BDO
check in his depositary BPI. When BPI presented to BDO
Caloocan. In Caloocan the check bounced. Where may it
be prosecuted?
GR. It may be filed in any courts of the place. Manila
element of issuance, Q.C – despositary of the check,
Caloocan where the check bounced.
Exception: that when the case is already filed in court it
cannot be filed elsewhere.
Art. 46. Penalty to be imposed upon principals in general. — The
penalty prescribed by law for the commission of a felony shall be
imposed upon the principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony is general
terms, it shall be understood as applicable to the consummated
felony.rary
>Under Article 46, the penalty prescribed by law for every felony
shall only be applied to principals, accomplice and shall be only
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
imposed to consummated felonies. How about to frustrated
homicide, accessory penalties, article 50 057 provides for the rules.
Accomplice or frustrated – 1 degree lower
Accessory attempted – 2 degree lower
Xcp art. 60. These will not apply if law provides penalty for
mere frustration
Art. 62. Effect of the attendance of mitigating or aggravating
circumstances and of habitual delinquency. — Mitigating or
aggravating circumstances and habitual delinquency shall be taken
into account for the purpose of diminishing or increasing the
penalty in conformity with the following rules:
1. Aggravating circumstances which in themselves
constitute a crime specially punishable by law or which
are included by the law in defining a crime and
prescribing the penalty therefor shall not be taken into
account for the purpose of increasing the penalty.
2. The same rule shall apply with respect to any
aggravating circumstance inherent in the crime to such a
degree that it must of necessity accompany the
commission thereof.
3. Aggravating or mitigating circumstances which arise
from the moral attributes of the offender, or from his
private relations with the offended party, or from any
other personal cause, shall only serve to aggravate or
mitigate the liability of the principals, accomplices and
accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the material
execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the
liability of those persons only who had knowledge of
them at the time of the execution of the act or their
cooperation therein.
5. Habitual delinquency shall have the following effects:
(a) Upon a third conviction the culprit shall be
sentenced to the penalty provided by law for
the last crime of which he be found guilty and
to the additional penalty of prision correccional
in its medium and maximum periods;
(b) Upon a fourth conviction, the culprit shall be
sentenced to the penalty provided for the last
crime of which he be found guilty and to the
additional penalty of prision mayor in its
minimum and medium periods; and
(c) Upon a fifth or additional conviction, the
culprit shall be sentenced to the penalty
provided for the last crime of which he be
found guilty and to the additional penalty of
prision mayor in its maximum period to
reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two
penalties to be imposed upon the offender, in conformity
herewith, shall in no case exceed 30 years.
For the purpose of this article, a person shall be deemed to be
habitual delinquent, is within a period of ten years from the date
of his release or last conviction of the crimes of serious or less
serious physical injuries, robo, hurto, estafa or falsification, he is
found guilty of any of said crimes a third time or oftener.
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>Public officer taking advantage of his public position is no longer
generic aggravating circumstances that can be offset because by
virtue of RA 7659 it is now a special aggravating circumstance. The
maximum penalty prescribed by law.
Organized or Syndicated crime group.
Group of two or more persons collaborating, confederating and
mutually helping another for purposes of gain in the commission of
the crime. The maximum penalty prescribed by law if offender is
found or the fact that he is a member of this group. It is a special
aggravating circumstance under this article.
>If information charges A, B, C, D as collaborating, confederating and
mutually helping another for purposes of gain in the commission of
the crime. This is what the information alleges. Trial found this so.
The judge considered conspiracy and considered this special
aggravating circumstance. Is the court correct?
Answer: The judge is not correct. Before the special aggravating
circumstance be considered the court, evidence must show was held
to commit crimes involving gain. There must be evidence to show.
Habitual Delinquency – another aggravating circumstance
rd
characterized by habituality (3 kind)
- If within 10 years from date of release or last prior
conviction, he commits the crimes of serious physical
injuries, less serious physical injuries, robbery, theft,
estafa, falsification a third time or oftener.
Elements:
1. The crime is specified should be serious physical injuries,
less serious physical injuries, robbery, theft, estafa
2. There should be at least three convictions
3. Each convictions must come within ten year from date of
release or last conviction of the previous crime
Effect: Additional penalty shall be imposed in the maximum
period being an aggravating circumstance. Limitation: the
penalty committed for the crime plus additional penalty should
not exceed thirty years.
A charged and convicted of robbery he served his sentence. Within
10 years from date of release he committed theft. He served
sentence and again released. Within 10 years he committed another
theft. The judgment become final and executory. He served again
and out of prison. Within 10 years against he committed another
theft. He is now in trial. Can judge impose recidivism and habitual
delinquency both apply?
He is recidivist. At the time he served theft he was
previously convicted of a final judgment of robbery embraced within
the same title of the code. He is also habitual delinquent, because
within the ten years from the date of his last release he committed a
theft the third time. Both may be considered because they have
different effects on criminal liability of the offender. Recidivism
effect is on the theft committed. It may be offset by mitigating
circumstances. Habitual delinquency will give him additional penalty.
Recidivism effect is on the penalty. It can be offset.
Recidivism Habitual delinquency
Two conviction Three conviction
Sam e title of code Serious physical injuries, robbery
theft, less serious physical
injuries
No prescriptive period on the Prescriptive period of 10 years
commission of the offense. It
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
does not prescribe
Generic aggravating Cannot offset by mitigating
circumstance, may be offset. circumstance, provides
additional penalty
Another form of habituality: Quasi recidivism (Book 2) fourth kind.
Art 160. Not a felony, another special aggravating circumstance.
Who is a quasi recidivist?
A person is said to be a quasi recidivist if after having been convicted
by a final judgement he shall commit a felony before serving out his
sentence or while service of sentence. The maximum period shall be
imposed. Again it is a special aggravating circumstance.
>The first crime may be any crime. The second crime must be a
felony.
Example A while serving a final judgment, he was found in
possession of illegal drugs.
>No, not a quasi recidivist. the second crime is not a felony, it is a
special law.
But if reverse, say he was serving sentence for possession of illegal
drugs and then inside a crime he killed a co-inmate.
>This time quasi recidivism is considered. Maximum period
prescribed by law shall be imposed.
Degree of penalty
- Is a penalty prescribed by law for every crime committed
whether divisible or indivisible
Period of penalty
- Refers to the subdivision of every said divisible penalty
into three portion, the first portion is mimimum, second is
medium, third is maximum
Indivisible penalty – penalty without fixed duration, death, reclusion
perpetua, perpetual absolute disqualification, perpetual special
disqualification, public censure, fine.
Divisible penalty – penalty with fixed duration and therefore can be
divided into three period. the first portion is mimimum, second is
medium, third is maximum
Article 27 by RA 7659. Reclusion perpetua has now duration 20 years
and 1 day. But in people v Lucas, Reclusion perpetua despite
amendment, no clear legislative intent to alter and make it from
indivisible to divisible. When reclusion perpetua is imposed as
penalty, there is no need to state duration. Hence remains
indivisible.
Article 63. Rules for the application of indivisible penalties. - In all
cases in which the law prescribes a single indivisible penalty, it
shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission
of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the
application thereof:
1. When in the commission of the deed there is present
only one aggravating circumstance, the greater penalty
shall be applied.
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 CRIMINAL LAW REVIEW 2013
2. When there are neither mitigating nor aggravating
circumstances and there is no aggravating circumstance,
the lesser penalty shall be applied.
3. When the commission of the act is attended by some
mitigating circumstances and there is no aggravating
circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances
attended the commission of the act, the court shall
reasonably allow them to offset one another in
consideration of their number and importance, for the
purpose of applying the penalty in accordance with the
preceding rules, according to the result of such
compensation.
Article 64. Rules for the application of penalties which contain
three periods. - In cases in which the penalties prescribed by law
contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the
court shall observe for the application of the penalty the following
rules, according to whether there are or are not mitigating or
aggravating circumstances:
1. When there are neither aggravating nor mitigating
circumstances, they shall impose the penalty prescribed
by law in its medium period.
2. When only a mitigating circumstances is present in the
commission of the act, they shall impose the penalty in
its minimum period.
3. When an aggravating circumstance is present in the
commission of the act, they shall impose the penalty in
its maximum period.
4. When both mitigating and aggravating circumstances
are present, the court shall reasonably offset those of
one class against the other according to their relative
weight.
5. When there are two or more mitigating circumstances
and no aggravating circumstances are present, the court
shall impose the penalty next lower to that prescribed by
law, in the period that it may deem applicable, according
to the number and nature of such circumstances.
6. Whatever may be the number and nature of the
aggravating circumstances, the courts shall not impose a
greater penalty than that prescribed by law, in its
maximum period.
7. Within the limits of each period, the court shall
determine the extent of the penalty according to the
number and nature of the aggravating and mitigating
circumstances and the greater and lesser extent of the
evil produced by the crime.
*When there is a privileged mitigating circumstance, must
be applied first before computing the penalties
Indeterminate Sentence Law which modifies the imposition of
penalty. Applied both to RPC and special law
>Courts mandated to fix a minimum term of sentence and maximum
term of sentence. When he served minimum, he can be release for
parole under conditions. Under parole he is released but under
supervision of parole officer.
Objective:
1. Uplift and redeem valuable human material
2. Avoid unnecessary and excessive deprivation of liberty.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Parole – conditional release of the offender form the correctional
institution after serving minimum sentence after showing that he
has reformed. Note it does not extinguish criminal and civil liability.
Requisites
1. He must be placed in prison jail to serve an indeterminate
sentence penalty which exceeds 1 year
2. Served minimum term of sentence
3. Board of pardons and parole found that his released is for
greater interest of society
ISL applies to all offenders and all felonies.
This act shall not apply to persons:
1. Convicted crime punished by death or life imprisonment.
2. Those convicted of treason, conspiracy or proposal to commit
treason
3. Those convicted misprision of treason, rebellion, sedition or
espionage
4. Those convicted piracy.
5. Those who are habitual delinquents. (recidivist are entitled)
(Recidivists are entitled to an indeterminate sentence. (People v.
Jaranilla, 28547, Feb. 22, 1974))
6. Those who shall have escaped from confinement or evaded
sentence.
(A minor who escaped from confinement in the reformatory is
entitled to the benefits of the law because confinement is not
considered imprisonment. (People v. Perez, 44 OG 3884) (Q6, 1991
Bar))
7. Those who having been granted conditional pardon by the
President shall have violated the terms thereof.
8. Those whose maximum period of imprisonment does not exceed
one year.
Straight penalty, not to be given indeterminate sentence.
Computation.- Consider RPC or special law.
Violation of the RPC – consider attendant mitigating or aggravating
circumstance.
1. Get first the maximum term of sentence with all the
attendant circumstance
2. Lower it the one degree. Do not consider anymore the
attendant circumstance. This applies to sound discretion
of the court. So no attendant circumstance shall be
considered.
Violation of special Law
ISL law - Not be less that the minimum and shall not exceed
maximum sentence prescribed by law.
Ex: Anti- Carnapping law. A person carnapped a vehicle. In
carnapping he used violence. Section 14 of the law, if committed
with violence 17 years and 4 months to 13 years. As is or 18 to 25
years as long as be less that the minimum and shall not exceed
maximum sentence prescribed by law.
Violation of RPC art 64 and act 4103 of ISL are related.
>A abducted B with lewd design. His intention was rape. But before
he raped B he was arrested. Crime is forcible abduction. Penalty is
reclusion temporal. No mitigating and aggravating circumstance.
Maximum term will be reclusion temporal in medium period.
Minimum term – 1 degree lower without attendant circumstance.
Prision mayor. In the range of prision mayor because minimum term
is in the sound discretion of the court.
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What if there is voluntary surrender? This is an ordinary mitigating
circumstance.
>Maximum term will be reclusion temporal in minimum period.
>Minimum term – 1 degree lower without attendant circumstance.
Prision mayor. In the range of prision mayor because minimum term
is in the sound discretion of the court.
What if there is night time?
>Maximum term will be reclusion temporal in maximum period.
>Minimum term – 1 degree lower without attendant circumstance.
Prision mayor. Within the range of. The ISL is temporal in maximum
period and within the range of prision mayor because minimum
term is in the sound discretion of the court.
If voluntary surrender and nighttime maximum term shall be in the
medium period because under article 64 you should offset the
circumstances.
If in addition to this there is abuse of superior circumstance, there is
one aggravating circumstance remaining. Maximum term will be
reclusion temporal in maximum period.
Fifth rule under article 64. Voluntary surrender with passion and
obfuscation. Lower penalty with one degree. It will now be prision
mayor. Medium period because no aggravating circumstance.
>Max term is prision mayor in medium.
>Min. term is prision correccional within the range of.
There is no one degree higher kahit ilan pa aggravating.
Kung mitigating eh di lower ng lower.
A raped B. B voluntarily surrendered and with passion and
obfuscation. Punished with reclusion perpetua. One
degree lower? No. If indivisible penalty apply under Article
63, if penalty prescribe by law is a single invisible penalty
you shall impose it regardless of any aggravating or
mitigating circumstance. As is yan.
A. Let us add facts. If B is a minor. Minority is a privilege
mitigating circumstance. You will apply it, it takes
preference. Talo niya na indivisible penalty un.
>Max term reclusion temporal. Two mitigating therefore lower it by
one degree. So now prision mayor. In medium period.
>Min term. One degree lower. Prision correccional within the range
of.
*Only circumstance that can defeat an indivisible penalty is a
privilege mitigating circumstance.
B. What if crime committed is frustrated homicide. There is
voluntary surrender and immediate vindication.
Reclusion temporal. Frustrated will be one degree lower. Prision
Mayor. Two mitigating. Lower it one degree more.
Max term of sentence. Prision correctional in its medium period.
Mimimum term of sentence.Arresto mayor within the range or.
C. Add facts again. He is minor committing without
discernment.
>Frustrated will be one degree lower. Prision Mayor. One degree
lower because privilege mitigating circumstance. >Prision
correctional. Apply now article 64. You have two mitigating, one
degree lower. Arresto mayor.
>Max term of sentence. Arresto mayor medium period.
>Min term of sentence. You can not go one degree lower because
you can not give him indeterminate sentence. He is disqualified.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Those whose maximum term of sentence does not exceed one year.
Give him a straight penalty. Arresto mayor medium period.
Art. 66. Imposition of fines. — In imposing fines the courts may fix
any amount within the limits established by law; in fixing the
amount in each case attention shall be given, not only to the
mitigating and aggravating circumstances, but more particularly to
the wealth or means of the culprit.
1. Facts such as necessary such as aggravating and
mitigating circumstance.
2. Wealth and means of the offender
What if it is fine. Fine - Pecuniary penalty imposed by court in case
of judgement of conviction.
Article 26. When afflictive, correctional, or light penalty. - A fine,
whether imposed as a single of as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds 6,000 pesos; a
correctional penalty, if it does not exceed 6,000 pesos but is not
less than 200 pesos; and a light penalty if it less than 200 pesos.
>If he is an accomplice, accessory or frustrated? Answer is Art. 75.
Art. 75. Increasing or reducing the penalty of fine by one or more
degrees. — Whenever it may be necessary to increase or reduce
the penalty of fine by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-fourth of the
maximum amount prescribed by law, without however, changing
the minimum.
If A prevented the meetings of congress by means of fraud. 200 –
2000 . If accomplice, One degree lower. ¼ the maximum. 200 –
1500.
>What if a person is given multiple sentence. Person committed 5
counts of rape. Five Reclusuion perpetua.
Art. 70. Successive service of sentence. — When the culprit has to
serve two or more penalties, he shall serve them simultaneously if
the nature of the penalties will so permit otherwise, the following
rules shall be observed:
>If nature of penalty allows simulatenous of service, then allow
simulataneous. If not apply, the penalty should be applied
successively.
>Here hindi nya kaya isabay. Isa lang katawan niya. What is the
limitation of successive
Three fold rule – the limitation for a successive service of sentence
shall not exceed three times the length of the most severe penalty.
but shall not exceed 40 years
Example:
a) 5 counts of rape. Each is 30 years. He can not serve 120
years. The Director of Prisons shall compute, not the
judge. Not to exceed 40 years
b) 20 counts of estafa – 6 months and 200 fine. Without
applying three fold rule, 10 years and 4000 as fine.
Applying it only 18 months. But still has to fine 4,000 as
fine.
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>In answering questions regarding penalties, you need not state the
equivalent duration. It suffices that you state the designation:
prision mayor, prision correcional, etc.
What is the importance of 1 day in the duration of the period? For
instance, in prision mayor (6 yrs and 1 DAY -12 years)?
- The 1 day separates the different degrees of the penalty. It
also separates a divisible penalty from an indivisible
penalty. It also determines whether subsidiary
imprisonment may be imposed on the offender.
Art. 71. Graduated scales. — In the case in which the law
prescribed a penalty lower or higher by one or more degrees than
another given penalty, the rules prescribed in Article 61 shall be
observed in graduating such penalty.
liabilities imposed in the judgment. Subsidiary imprisonment must
be expressly ordered.
Art. 74. Penalty higher than reclusion perpetua in certain cases.
— In cases in which the law prescribes a penalty higher than
another given penalty, without specially designating the name of
the former, if such higher penalty should be that of death, the
same penalty and the accessory penalties of Article 40, shall be
considered as the next higher penalty.
if the decision or law says higher than RP or 2 degrees than RT,
then the penalty imposed is RP or RT as the case may be. Death
must be designated by name. However, for the other penalties,
this does not apply.
Example: the penalty for crime X is 2 degrees lower than RP.
The penalty imposed is prision mayor.

The lower or higher penalty shall be taken from the graduated Art. 75. Increasing or reducing the penalty of fine by one or more
scale in which is comprised the given penalty. degrees. — Whenever it may be necessary to increase or reduce
the penalty of fine by one or more degrees, it shall be increased or
The courts, in applying such lower or higher penalty, shall observe reduced, respectively, for each degree, by one-fourth of the
the following graduated scales: maximum amount prescribed by law, without however, changing
the minimum.
SCALE NO. 1 The same rules shall be observed with regard of fines that do not
1. Death, consist of a fixed amount, but are made proportional.
2. Reclusion perpetua,
3. Reclusion temporal, Art. 76. Legal period of duration of divisible penalties. — The
4. Prision mayor, legal period of duration of divisible penalties shall be considered as
5. Prision correccional, divided into three parts, forming three periods, the minimum, the
6. Arresto mayor, medium, and the maximum in the manner shown in the following
7. Destierro, table:
8. Arresto menor,
9. Public censure, Art. 77. When the penalty is a complex one composed of three
10. Fine. distinct penalties. — In cases in which the law prescribes a penalty
composed of three distinct penalties, each one shall form a period;
SCALE NO. 2 the lightest of them shall be the minimum the next the medium,
1. Perpetual absolute disqualification, and the most severe the maximum period.
2. Temporal absolute disqualification Whenever the penalty prescribed does not have one of the forms
3. Suspension from public office, the right to vote and be specially provided for in this Code, the periods shall be distributed,
voted for, the right to follow a profession or calling, applying by analogy the prescribed rules.
4. Public censure,
5. Fine. EXECUTION AND SERVICE OF PENALTIES

Art. 72. Preference in the payment of the civil liabilities. — The
civil liabilities of a person found guilty of two or more offenses
shall be satisfied by following the chronological order of the dates
of the judgments rendered against him, beginning with the first in
order of time.
• the penalties shall be satisfied according to the scale of Art 70
Art. 73. Presumption in regard to the imposition of accessory
penalties. — Whenever the courts shall impose a penalty which, by
provision of law, carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this Code, it must be
understood that the accessory penalties are also imposed upon the
convict.
• subsidiary penalties are deemed imposed. However, the
subsidiary imprisonment must be expressly stated in the
decision.
>The rule that the principal penalty imposed carries with it
the accessory penalties does not mean that the accused would serve
subsidiary imprisonment in case he is not able to pay the pecuniary
Art. 78. When and how a penalty is to be executed. — No penalty
shall be executed except by virtue of a final judgment.
A penalty shall not be executed in any other form than that
prescribed by law, nor with any other circumstances or incidents
than those expressly authorized thereby.
In addition to the provisions of the law, the special regulations
prescribed for the government of the institutions in which the
penalties are to be suffered shall be observed with regard to the
character of the work to be performed, the time of its
performance, and other incidents connected therewith, the
relations of the convicts among themselves and other persons, the
relief which they may receive, and their diet.
The regulations shall make provision for the separation of the
sexes in different institutions, or at least into different
departments and also for the correction and reform of the
convicts.
Art. 79. Suspension of the execution and service of the penalties
in case of insanity. — When a convict shall become insane or an
imbecile after final sentence has been pronounced, the execution

[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman] 52
 CRIMINAL LAW REVIEW 2013
of said sentence shall be suspended only with regard to the
personal penalty, the provisions of the second paragraph of
circumstance number 1 of article 12 being observed in the
corresponding cases.
If at any time the convict shall recover his reason, his sentence
shall be executed, unless the penalty shall have prescribed in
accordance with the provisions of this Code.
The respective provisions of this section shall also be observed if
the insanity or imbecility occurs while the convict is serving his
sentence
> INSANITY AT THE TIME OF TRIAL OR AFTER THE CONVICTION OF
THE ACCUSED BY FINAL JUDGMENT
- There will be a suspension of sentence. The accused
cannot be made to suffer the sentence. However, the moment he
regains his sanity he is required to serve his sentence. Provided, that
the period of penalty has not yet prescribed.
Art 80 (as amended by PD 603: Child and Youth Welfare Code)
Note: refer to R.A. 9344 (Minority)
Art. 81. When and how the death penalty is to be executed. —
The death sentence shall be executed with preference to any other
and shall consist in putting the person under sentence to death by
lethal injection. The death sentence shall be executed under the
authority of the Director of Prisons, endeavoring so far as possible
to mitigate the sufferings of the person under sentence during the
lethal injection as well as during the proceedings prior to the
execution.
The Director of the Bureau of Corrections shall take steps to insure
that the lethal injection to be administered is sufficient to cause
instantaneous death of the convict.
The death sentence shall be carried out not earlier than one(1)
year but not later than eighteen(18) months after the judgment
has become final and executory without prejudice to the exercise
by the President of his clemency powers at all times . (As amended
by RA# 8177)
Art. 82. Notification and execution of the sentence and assistance
to the culprit. — The court shall designate a working day for the
execution but not the hour thereof; and such designation shall not
be communicated to the offender before sunrise of said day, and
the execution shall not take place until after the expiration of at
least eight hours following the notification, but before sunset.
During the interval between the notification and the execution, the
culprit shall, in so far as possible, be furnished such assistance as
he may request in order to be attended in his last moments by
priests or ministers of the religion he professes and to consult
lawyers, as well as in order to make a will and confer with
members of his family or persons in charge of the management of
his business, of the administration of his property, or of the care of
his descendants.
Art. 83. Suspension of the execution of the death sentence. — The
death sentence shall not be inflicted upon a woman while she is
pregnant or within one(1) year after delivery, nor upon any person
over seventy years of age. In this last case, the death sentence shall
be commuted to the penalty of reclusion perpetua with the
accessory penalties provided in Article 40.
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
In all cases where the death sentence has become final, the
records of the case shall be forwarded immediately by the
Supreme Court to the Office of the President for possible exercise
of the pardoning power. (As amended by Sec. 25, RA# 7659)
Art. 84. Place of execution and persons who may witness the
same. — The execution shall take place in the penitentiary or
Bilibid in a space closed to the public view and shall be witnessed
only by the priests assisting the offender and by his lawyers, and
by his relatives, not exceeding six, if he so request, by the physician
and the necessary personnel of the penal establishment, and by
such persons as the Director of Prisons may authorize.
Art. 85. Provisions relative to the corpse of the person executed
and its burial. — Unless claimed by his family, the corpse of the
culprit shall, upon the completion of the legal proceedings
subsequent to the execution, be turned over to the institute of
learning or scientific research first applying for it, for the purpose
of study and investigation, provided that such institute shall take
charge of the decent burial of the remains. Otherwise, the Director
of Prisons shall order the burial of the body of the culprit at
government expense, granting permission to be present thereat to
the members of the family of the culprit and the friends of the
latter. In no case shall the burial of the body of a person sentenced
to death be held with pomp.
Art. 86. Reclusion perpetua, reclusion temporal, prision mayor,
prision correccional and arresto mayor. — The penalties of
reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor, shall be executed and served in
the places and penal establishments provided by the
Administrative Code in force or which may be provided by law in
the future.
Art. 87. Destierro. — Any person sentenced to destierro shall not
be permitted to enter the place or places designated in the
sentence, nor within the radius therein specified, which shall be
not more than 250 and not less than 25 kilometers from the place
designated.
Destierro- is considered as a principal correctional and divisible
penalty. Therefore, jurisdiction over crimes punishable with
destierro lies with the MTC
• Destierro shall be imposed in the ff cases:
1) death or serious physical injuries is caused or are
inflicted under exceptional circumstance
2) person fails to give bond for good behavior in grave
and light threats
3) concubine’s penalty for the crime of concubinage
4) when after reducing the penalty by one or more
degree, destierro is the proper penalty
• Execution of Distierro
α) Convict shall not be permitted to enter the place
designated in the sentence nor within the radius specified,
which shall not be more than 250 and not less than 25 km
from the place designated.
β) If the convict enters the prohibited area, he commits
evasion of sentence
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Art. 88. Arresto menor. — The penalty of arresto menor shall be
served in the municipal jail, or in the house of the defendant
himself under the surveillance of an officer of the law, when the
court so provides in its decision, taking into consideration the
health of the offender and other reasons which may seem
satisfactory to it.
Art. 89. How criminal liability is totally extinguished. — Criminal
liability is totally extinguished:
(1) By the death of the convict, as to the personal penalties and as
to pecuniary penalties, liability therefor is extinguished only when
the death of the offender occurs before final judgment.
(2) By service of the sentence
(3) By amnesty, which completely extinguishes the penalty and all
its effects
(4) By absolute pardon
(5) By prescription of the crime
(6) By prescription of the penalty
(7) By the marriage of the offended woman, as provided in Art 344
of this Code
>MODES FOR EXTINGUISHING CRIMINAL LIABILITY
1. Death
2. Service of Sentence
3. Amnesty
4. Absolute pardon
5. Prescription of crime
6. Prescription of penalty
7. Valid marriage of the offended with the offender.
DEATH
- Extinguishes criminal liability at any stage of the
proceedings, be it before or after conviction. This is
because the moment the offender dies, there is no one to
serve the personal penalty.
- Extinguishes civil liability only when the offender dies
before conviction by final judgment because there is no
final judgment as to render him civilly liable for a crime.
This refers to civil liability arising from the crime itself, ex
delicto.
- However, if the civil liability arises from other sources of
obligations: law, contracts, quasi contracts, quasi delicts,
they survive even if death occurs before conviction by final
judgment. In such cases, the complainant must file a
proceeding before the executor or administrator of the
estate of the accused.
- Provided further, that if the offender died after conviction
by final judgment, civil liability subsists since his criminal
liability is already proven beyond reasonable doubt.
SERVICE OF SENTENCE- satisfaction of the penalty imposed. If it is
imprisonment, it means that he has served his sentence behind bars.
If it is fine, it means that he has paid the amount.
AMNESTY- is an act of grace from the power entrusted with the
execution of the law which does not only exempt the offender from
the service of penalty for the crime committed, but also obliterates
the effects of the crime. It does not only suspend the execution of
the sentence. It also obliterates the effects of the crime.
ABSOLUTE PARDON- act of grace received from the power
entrusted with the execution of the law which exempts the offender
from the penalty prescribed by law for the crime committed.
>Both amnesty and pardon come from the Chief Executive.
Pardon (P) vs Amnesty (A) Distinctions:
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
P- merely suspends the execution of sentence, erases the penalty to
be imposed.
A- obliterates all effects of crime as if no crime was committed.
P- granted after conviction by final judgment
A- granted at any stage of proceedings, before during or after final
judgment
P- private act of President. As such, the person pardoned must plead
and prove it before the courts. No judicial notice of pardon.
A- public act of President. Granted with the concurrence of
Congress. Courts take judicial notice of it.
P- can be granted to any offender for any crime committed
A- generally granted to a class or group of persons- political
offenders
EX: P- Erap; A- Senator Trillanes
Art. 90. Prescription of crime. — Crimes punishable by death,
reclusion perpetua or reclusion temporal shall prescribe in twenty
years.
Crimes punishable by other afflictive penalties shall prescribe in
fifteen years.
Those punishable by a correctional penalty shall prescribe in ten
years; with the exception of those punishable by arresto mayor,
which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one
year.
The crime of oral defamation and slander by deed shall prescribe in
six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest
penalty shall be made the basis of the application of the rules
contained in the first, second and third paragraphs of this article.
(As amended by RA 4661, approved June 19, 1966.)
Art. 91. Computation of prescription of offenses. — The period of
prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or
information, and shall commence to run again when such
proceedings terminate without the accused being convicted or
acquitted, or are unjustifiably stopped for any reason not
imputable to him.
The term of prescription shall not run when the offender is absent
from the Philippine Archipelago.
Art. 92. When and how penalties prescribe. — The penalties
imposed by final sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of
the penalty of arresto mayor, which prescribes in five
years;
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4. Light penalties, in one year.
Art. 93. Computation of the prescription of penalties. — The
period of prescription of penalties shall commence to run from the
date when the culprit should evade the service of his sentence, and
it shall be interrupted if the defendant should give himself up, be
captured, should go to some foreign country with which this
Government has no extradition treaty, or should commit another
crime before the expiration of the period of prescription.
>PRESCRIPTION OF CRIME- loss or forfeiture of the right of State to
prosecute an act prohibited by law. The moment that a crime has
already prescribed, the court has to dismiss the case even if the
accused has not moved for its dismissal. The courts lose their
jurisdiction to try the case.
PERIOD OF PRESCRIPTION OF CRIMES:
1. DEATH, RECLUSION PERPETUA, RECLUSION TEMPORAL- 20
years.
2. PRISION MAYOR- 15 Years
3. CORRECIONAL PENALTIES- 10 years, except ARRESTO
MAYOR- 5 years
4. LIBEL- 1 year
5. ORAL DEFAMATION, SLANDER- 6 months
6. LIGHT OFFENSES- 2 months.
- The running of the prescriptive period shall be from the
time of the commission of the crime, if known. If not known, from
discovery by offended party, authorities and agents.
Ex: Husband and Wife are quarreling. In the course of the quarrel, H
killed W. H buried the wife in the backyard. Unknown to H, neighbor
saw the incidents of killing and burial. This neighbor, because of fear
of H, remained silent. After 25 years from the commission of the
crime, the neighbor became old and sickly. He then told the police
what he witnessed 25 years ago. The police then went to the
backyard, dug the ground and saw the bones of W. Can the State
still prosecute H for parricide?
- Yes, the crime has not yet prescribed. The authorities and
their agents only came to know the crime 25 years from its
commission. This is the only time when the prescriptive period for
the crime shall commence to run. Also, the neighbor who knew the
commission of the crime is not the person required by law to
discover the crime in order to start the running of the prescriptive
period. Therefore, the State can still file the case of parricide.
Ex. Niki and Mariah were friends. Niki, before going to Mindanao,
left the titles of her properties to Mariah for safekeeping. Mariah
became interested in one of the properties. While Niki was in
Mindanao, Mariah falsified a Deed of Absolute Sale forging the
signature of Niki, making it appear that Niki sold the property to her.
Mariah then registered the Deed before the Registry of Deeds. The
title was thereafter transferred to the name of Mariah. 20 years
thereafter, Niki came back to Manila and acquired the titles she left
to Mariah. Niki noticed that one title was missing. She eventually
discovered that the property covered by such missing title was
already transferred to the name of Mariah. Can Niki file case of
falsification of public doc (punished by Prision Mayor) against
Mariah?
- No, because the crime has already prescribed. If a
document or transaction involves real properties (sale,
lease, attachment), the moment the document is
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
registered before the Registry of Deeds, such registration
constitutes constructive notice. As such, the law presumes
that the whole world, including Niki, knows about the
registration. The period of prescription commences to run
from that time. Since 20 years have already lapsed in this
case, the crime has already prescribed. This concerns only
criminal liability. But Niki can still file a civil case for
damages or any civil action to recover the property.
Ex: Gerald and Kim were spouses. Gerald, as a medical
representative, was assigned in Visayas leaving his wife, Kim, in
Manila. 20 years thereafter, Kim while watching TV saw Gerald
presenting another woman, Maja, as his wife. Furious, Kim went to
Visayas and therein discovered that there was a registered marriage
certificate between Gerald and Maja, the woman she saw on TV.
Can Kim file a case of bigamy?
- Yes, the crime has not yet prescribed. The rule on
constructive notice by registration is applicable only if the
transaction involves real properties. Registration as to
other documents or transactions with the Office of the
Civil Registry does not constitute constructive notice to the
whole world. Since the wife herein discovered the
bigamous marriage only 20 years thereafter, this shall be
the starting point for the running of the prescriptive period
of the crime.
PRESCRIPTIVE PERIOD SUSPENDED:
1. Upon filing of complaint or info before the fiscal’s office or before
the court/public prosec for purposes of preliminary investigation. It
remains suspended until the accused is convicted or acquitted or the
case is terminated without the fault of accused.
PRESCRIPTION OF PENALTY- loss of the right of the State to execute
the sentence.
1. DEATH AND RECLUSION PERPETUA- 20 years
2. OTHER AFFLICTIVE- 15 years
3. CORRECCIONAL- 10 years, except ARRESTO MAYOR- 5
years
4. LIGHT- 1 year
- The running of the period shall commence from the time the
convict evaded the service of his sentence. It is necessary therefore
that the convict is serving his sentence and while serving, he
escaped. It is from the time of escape that the prescriptive period
runs.
EX: Garcia was convicted of homicide. The judgment became final
and executory. He was brought to serve sentence in Muntinlupa.
While serving sentence, he escaped. Police failed to capture and find
him. It was only after 20 years that Garcia was located and brought
behind bars. Garcia’s counsel filed a Petition for Habeas Corpus
contending that the penalty prescribed and therefore, Garcia could
not be imprisoned. Is the counsel correct?
- Yes the penalty has prescribed. Homicide prescribes in 15
years. Here, Garcia was captured 20 years from escape.
EX. Cuenca was charged with homicide. Being a bailable offense,
Cuenca posted bail. During the arraignment and pre trial, Cuenca
appeared before the court. However, during the trial proper, he did
not appear. Trial in absentia ensued. Judgment was for conviction.
Warrant of arrest was issued against Cuenca. It was only 20 years
thereafter that the police were able to arrest Cuenca and bring him
behind bars. Cuenca’s counsel filed a petition for habeas corpus
contending that the penalty has prescribed. Is the counsel correct?
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- No, the penalty has not prescribed. In fact, prescription
has not even commenced to run. For the period to run, it
is necessary that the offender is serving sentence and
while serving sentence, he escaped. The running of
prescriptive period only starts from the escape of
offender. In this case, the offender has not even served his
sentence.
SUSPENSION OF PRESCRIPTIVE PERIOD OF PENALTY:
1. When offender surrenders
2. When offender went to a country which has no extradition
treaty with the Philippines
3. When convict commits a crime before the expiration of
period of prescription
4. When the offender is captured
VALID MARRIAGE- only applies to private crimes- seduction,
abduction, acts of lasciviousness and one public crime which is rape.
- Under Art 266, the valid marriage of the offended with the
offender extinguishes criminal liability as well as the
penalty.
Ex. Jack raped Rose. Rose filed a case of rape against Jack. Trial on
the merits ensued. During trial, Jack and Rose would often see each
other and because of this, they fell in love with each other. Later on,
they got married. This valid marriage will extinguish the criminal
liability of Jack.
- Even if there is already a final and executory judgment,
such as when the offender is already behind bars, a valid
marriage between the offender and the offended will still
extinguish
- criminal liability and the penalty imposed.
Art. 94. Partial Extinction of criminal liability. — Criminal liability
is extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn
while he is serving his sentence.
4. By parole (not in codal)
5. By probation (not codal)
MODES FOR PARTIALLY EXTINGUISHING CRIMINAL LIABILITY
1. Conditional Pardon
2. Commutation of sentence
3. Good conduct of allowance
CONDITIONAL PARDON- act of grace received from a power
entrusted with the authority to execute the law, but the pardon
herein is subject to strict conditions. Because of this strict
conditions, there must be acceptance on the part of the offender.
The moment he accepts, it becomes incumbent upon him to comply
with the strict terms and conditions of the pardon. Failure to comply
with any of the strict conditions, the State can file a criminal case
under Art 159- evasion of service of sentence. In addition, the Chief
Executive can order the immediate incarceration of the offender
under the Administrative Code.
COMMUTATION OF SENTENCE- the new sentence imposed shall be
in lieu of the original sentence. Ex: death penalty commuted to
Reclusion Perpetua.
GOOD CONDUCT ALLOWANCE- if the offender has been behaving
properly in prison, the Director of Prisons shall compute the good
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
conduct allowance in favor of the offender so that he will be
immediately released.
SPECIAL ALLOWANCE FOR LOYALTY (ART 98)- if the offender
escaped and returned to the government, he shall be given a credit
or deduction in his sentence of 1/5 of his term.
EX: During the time Bin Laden was serving his sentence behind bars,
an 8.9 magnitude earthquake suddenly occurred prompting Bin
Laden to escape. He then went to the house of his mother.
While Bin Laden was watching TV in the house of his mother, he saw
the President announcing that the earthquake subsided.
Within 48 hours from announcement, Bin Laden surrendered.
Because of this surrender, Bin Laden is entitled to the special
allowance for loyalty for being so loyal to the government.
However, if Bin Laden did not return, there will be an additional 1/5
to the term of his sentence. If Bin Laden merely remained in prison,
there will be neither deduction nor addition to his sentence.
Art. 100. Civil liability of a person guilty of felony. — Every person
criminally liable for a felony is also civilly liable.
Art. 101. Rules regarding civil liability in certain cases. — The
exemption from criminal liability established in subdivisions 1, 2, 3,
5 and 6 of article 12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability, which shall be
enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil
liability for acts committed by an imbecile or insane person, and
by a person under nine years of age, or by one over nine but
under fifteen years of age, who has acted without discernment,
shall devolve upon those having such person under their legal
authority or control, unless it appears that there was no fault or
negligence on their part.
Should there be no person having such insane, imbecile or minor
under his authority, legal guardianship or control, or if such
person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt
from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the
persons for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have
received.
The courts shall determine, in sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town,
and, in all events, whenever the damages have been caused with
the consent of the authorities or their agents, indemnification
shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12,
the persons using violence or causing the fears shall be primarily
liable and secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the latter that part
of their property exempt from execution.
CIVIL LIABILITY
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ART 100: Every person criminally liable is also civilly liable. For every
criminal action filed in court, the civil action for the recovery of civil
liability is deemed impliedly instituted. This is because in the
commission of a crime, 2 injuries are inflicted:
1. Social injury against the State for the disturbance of social order
and
2. Personal Injury against the offended party and his heirs.
- The social injury against the state will be answered by reparation.
The personal injury will be answered by the civil indemnity.
Exceptions to Implied Institution of Civil Action:
1. When offended party WAIVES the civil action
2. When the offended party RESERVES the right to file a
separate civil action, which must be made prior to the
presentation of evidence of the prosecution.
3. When the offended party files the civil action PRIOR
to the criminal action
ACQUITTAL, EFFECT ON CIVIL LIABILITY:
ACQUITTAL IN CRIMINAL ACTION BARS RECOVERY IN CIVIL ACTION
in the ff instances:
1. If the judgment of acquittal states that the alleged criminal
acts of the offender were not committed by him
2. If the judgment of acquittal states that the accused is not
guilty of criminal or civil damages
ACQUITTAL DOES NOT BAR RECOVERY IN CIVIL ACTION:
1. When judgment of acquittal is based on reasonable doubt.
This is because civil actions require mere preponderance
of evidence
2. When judgment of acquittal states that the liability of
accused is not criminal but civil in nature. This usually
happens when the case is estafa and there is a contract
between the accused and complainant, upon which the
accused failed to comply with the terms of the contract.
There is breach of contract
3. When the judgment of acquittal states the the civil liability
does not arise from the crime but from other sources of
obligations
Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and
proprietors of establishments. — In default of the persons
criminally liable, innkeepers, tavernkeepers, and any other persons
or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation shall have
been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses from guests lodging
therein, or for the payment of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself,
or the person representing him, of the deposit of such goods
within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them
with respect to the care and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation
of persons unless committed by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other persons. — The
subsidiary liability established in the next preceding article shall
also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
servants, pupils, workmen, apprentices, or employees in the
discharge of their duties.
> WHO SHALL SHOULDER THE CIVIL LIABILITY
If the offender is insane, imbecile, minor:
It shall be shouldered by the persons who have custody of
the insane, imbecile or minor. Secondary liability falls on the
property of the insane, imbecile or minor, except those properties
which are prohibited from being attached.
In case of state of necessity:
All persons who have been benefitted during the state of
necessity shall bear the civil liability. If there are many persons
benefitted, the liability shall be divided by the court proportionately.
In irresistible force or uncontrollable fear:
Borne by the person who enforced the threats to the
offender. Secondary liability falls upon the principal by direct
participation, who is the one who acted under the compulsion of
irresistible force or uncontrollable fear.
>SUBSIDIARY CIVIL LIABILITY
- Parents, teacher, employers, proprietors shall be
subsidiarily liable for the crimes committed by their
children, students, employees, servants.
EX: Paris Hilton, a guest in a hotel, told the representative of the
hotel that she carries valuables. The representative of the hotel told
Paris about the rules regarding the care and vigilance of the
valuables. However, during nighttime, a robbery occurred inside the
hotel. Among those taken were the valuables of Paris. The offender
was arrested, convicted and civil liability was imposed upon him. In
case of insolvency of the offender, who shall shoulder subsidiary civil
liability?
- The proprietor of the hotel or establishment. It is because
the guest complied with the rules and regulations as to the
care and vigilance of the goods. He also informed the
representative of the hotel of the presence of his
valuables.
EX: Same situation as above. But the guard of the hotel tried to fight
the robbers. One of the robbers shot the guard. Prosecuted for
robbery with homicide and was convicted. In case of insolvency, is
the proprietor of the hotel subsidiarily liable?
- No, because the crime committed is robbery with
homicide, which is a crime under robbery with violence
against or intimidation of persons. If the crime committed
is robbery with violence against or intimidation of persons,
the proprietor is not liable, except if the offender is the
employee of the hotel or establishment.
EX: A municipal ordinance provides that Establishment XYZ should
only be open during weekdays. However, this establishment violated
the ordinance as it opened on a Sunday. A crime was committed
during the Sunday it opened. Is the proprietor of the establishment
liable?
- Yes, because there was a violation of the ordinance. Any
crimes committed in the establishment will make the
proprietor subsidiarily liable for civil liability only, not for
criminal liability.
EX: Vin Diesel was a driver of XYZ Corporation engaged in the
business of distributing goods to supermarkets. Vin Diesel was
driving recklessly as he was headed to one supermarket. In the
course thereof, Vin Diesel hit a car. The car was damaged. Because
of this, a crime for reckless imprudence resulting to damage to
property was filed against Vin Diesel. Court found him guilty. The
penalties imposed were fine and payment of damage caused. When
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the judgment became final and executory, a writ of execution was
issued but was returned unsatisfied due to the insolvency of Vin
Diesel. If you were the complainant, what would you do to recover?
Is there need to file a separate civil action?
- No need to file a separate civil action. In the very same
action for reckless imprudence resulting to damage to
property, the moment the employee is found to be
insolvent, the liability of the employer becomes absolute.
However, even if it is absolute, it is not automatic. The
complainant has to file a Motion for the Issuance of a
Subsidiary Writ of Execution. This is not an ex parte
motion, but a litigated one. Thus, the other party (XYZ
COrpo) must be informed for due process.
Requisites to hold Employers subsidiarily liable for crimes of
employees:
1. Employer must be engaged in some kind of industry
2. Employer and employee relationship
3. Employee committed a crime in the exercise of his duties
as employee
4. There must be conviction of the crime and the employee
was found insolvent to pay civil indemnity. The moment
the employee was found insolvent, the liability of the
employer now becomes absolute. A motion for the
issuance of a subsidiary writ of execution must then be
filed by the complainant.
Art. 104. What is included in civil liability. — The civil liability
established in Articles 100, 101, 102, and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
WHAT DOES CIVIL LIABILITY CONSIST:
1. Restitution
2. Reparation of damages
3. Indemnification of consequential damages
RESTITUTION- return of the very thing taken
REPARATION- if the thing taken can no longer be returned, the court
shall determine the value of the thing taken including its sentimental
value
INDEMNIFICATION- moral damages, civil indemnity, exemplary
damages.
Moral damages in case of rape or murder need not be
proved. It suffices that the crime has been committed. The law
presumes that the victim suffered moral indemnity because of the
crime committed.
Exemplary damages can only be granted if there are
aggravating circumstances in the commission of the crime.
EXTINGUISHMENT OF CIVIL LIABILITY:
- By pardon of the offended party
- Other modes for extinguishing civil liability under Civil
Code (payment, Condonation, etc)
Art. 105. Restitution. — How made. — The restitution of the thing
itself must be made whenever possible, with allowance for any
deterioration, or diminution of value as determined by the court.
The thing itself shall be restored, even though it be found in the
possession of a third person who has acquired it by lawful means,
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
saving to the latter his action against the proper person, who may
be liable to him.
This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the
requirements which, by law, bar an action for its recovery.
Art. 106. Reparation. — How made. — The court shall determine
the amount of damage, taking into consideration the price of the
thing, whenever possible, and its special sentimental value to the
injured party, and reparation shall be made accordingly.
Art. 107. Indemnification — What is included. — Indemnification
for consequential damages shall include not only those caused the
injured party, but also those suffered by his family or by a third
person by reason of the crime.
Art. 108. Obligation to make restoration, reparation for damages,
or indemnification for consequential damages and actions to
demand the same — Upon whom it devolves. — The obligation to
make restoration or reparation for damages and indemnification
for consequential damages devolves upon the heirs of the person
liable.
The action to demand restoration, reparation, and indemnification
likewise descends to the heirs of the person injured.
Art. 109. Share of each person civilly liable. — If there are two or
more persons civilly liable for a felony, the courts shall determine
the amount for which each must respond.
Art. 110. Several and subsidiary liability of principals, accomplices
and accessories of a felony — Preference in payment. —
Notwithstanding the provisions of the next preceding article, the
principals, accomplices, and accessories, each within their
respective class, shall be liable severally (in solidum) among
themselves for their quotas, and subsidiaries for those of the other
persons liable.
The subsidiary liability shall be enforced, first against the property
of the principals; next, against that of the accomplices, and, lastly,
against that of the accessories.
Whenever the liability in solidum or the subsidiary liability has
been enforced, the person by whom payment has been made shall
have a right of action against the others for the amount of their
respective shares.
Art. 111. Obligation to make restitution in certain cases. — Any
person who has participated gratuitously in the proceeds of a
felony shall be bound to make restitution in an amount equivalent
to the extent of such participation.
Art. 112. Extinction of civil liability. — Civil liability established in
Articles 100, 101, 102, and 103 of this Code shall be extinguished in
the same manner as obligations, in accordance with the provisions
of the Civil Law.
Art. 113. Obligation to satisfy civil liability. — Except in case of
extinction of his civil liability as provided in the next preceding
article the offender shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by him,
notwithstanding the fact that he has served his sentence consisting
of deprivation of liberty or other rights, or has not been required
to serve the same by reason of amnesty, pardon, commutation of
sentence or any other reason.
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DEATH PENALTY LAW (RA 9346)
- Under RA 9346 (death penalty law)- the prohibition
pertains only to the imposition of death penalty. But for heinous
crimes, the penalty shall still be death. Only that it cannot be
imposed.
PROBATION LAW (PD 968)
PROBATION- disposition by which a convict after conviction and
sentence is released subject to the conditions imposed by the court
under the supervision of a probation officer.
OBJECTIVES:
1. to promote the correction and rehabilitation of the
offender because he is placed under a personalized
treatment
2. to provide an opportunity for the reformation of penitent
offender
3. to prevent further commission of crimes because the
offender is placed under an individualized treatment
4. to decongest cases
5. to save the Government from spending much-needed
funds when the offender will be placed behind bars
IS PROBATION A RIGHT OR A PRIVILEGE?
- Privilege. Thus, even if a convict is not among those disqualified of
probation, the judge can still deny the application. This denial is not
appealable. The grant or denial of application is dependent solely on
the sound discretion of the judge.
DISQUALIFIED TO AVAIL OF PROBATION:
1. those whose maximum term of imprisonment is more
than 6 years
2. those who have been convicted of subversion, crimes
against national security and public order
3. those who have been convicted by final judgment of a
crime to which the law attaches a penalty of imprisonment
of at least one month and/or fine of at least 200php
4. those who have already availed the benefit of probation
5. those who have perfected an appeal from judgment of
conviction
6. those convicted of an election offense under the Omnibus
Election Code
7. those convicted of drug trafficking or drug pushing
8. those who filed a malicious report that a person is
committing a violation of Anti-money laundering law and
was convicted because of such malicious filing
APPLICATION FOR PROBATION:
- Filed before the Trial Court which heard the case within
the period of perfecting an appeal or within 15 days from
promulgation of judgment.
- No application for probation shall be entertained when the
offender has already perfected an appeal. Likewise, the
filing of an application for probation shall be a waiver of
the right to file an appeal.
- Thus, appeal and probation are mutually exclusive
remedies. This is because the reason behind appeal and
the reason behind probation are diametrically opposed. If
a person appeals, it means that he is questioning the
decision of the court. He is insisting on his innocence. On
the other hand, if a person applies for probation, it means
that he is accepting the judgment of the court. He,
however, does not want to serve his sentence behind bars.
EXCEPTIONS TO RULE THAT APPEAL PREVENTS PROBATION:
[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
1. If the appeal is only for the purpose of reducing the
penalty to a probationable penalty. That the only
reason for appealing is to question the high penalty
imposed. However, if in the said appeal, the offender
questions the merits of the case, he can no longer
apply for probation.
Ex: Tarzan was charged with a violation of the Forrest
code. The penalty imposed is 8 years maximum. Because of this,
Tarzan filed an appeal. He questioned the merits of the case and
likewise questioned the penalty imposed. The Appellate Court
affirmed the decision but lowered the penalty to a maximum of 4
years. Tarzan then went back to the trial court to apply for
probation, considering that the penalty imposed by the Appellate
Court is a probationable one. The trial court denied the application.
Tarzan elevated the matter to the Supreme Court via Certiorari
contending that one of the exceptions to the rule that appeal
excludes probation is when the issue raised on appeal is to question
the high penalty imposed. Is Tarzan correct?
SC: No, because the appeal first and foremost questioned
the merits of the case. The accused questioned his culpability. That
being so, he can no longer avail for probation. If the sole question on
appeal pertains to the penalty, the accused can still apply for
probation before the trial court.
2. Under the Juvenile Justice and Welfare Act, if the
offender is a minor he can file an application for probation at any
time even if after appeal. It is only necessary that the penalty
imposed upon him is a probationable penalty.
CONDITIONS IMPOSED UPON OFFENDER UNDER PROBATION:
1. MANDATORY
a. Appear before the probationary officer
within 72 hours from the receipt of the
order.
b. Report once a month
2. DISCRETIONARY/ SPECIAL
- dependent upon the sound discretion of the court.
Usually involves engaging in a vocation, not drinking alcohol, not
going to house of ill-reputes.
- The only limitation on the discretionary conditions is that
they must not be so restrictive to the rights of the accused such that
they will no longer be in consonance with his freedom.
- EX: condition pertained to the prohibition of the offender
to teach during the period of probation. This is a restrictive
condition. It deprives the offender his means of livelihood.
PERIOD OF PROBATION:
- If the penalty is imprisonment for 1 year or less, then the
period for probation is 2 years. In all other cases, it will be
six years.
- If the penalty is fine only with subsidiary imprisonment,
the period should not be less than nor more than twice
the total number of days of subsidiary imprisonment
taking into account the highest minimum wage rate at the
time of the rendition of the judgment.
LEGAL EFFECT OF PROBATION: Its only legal effect is to suspend the
execution of the sentence.
Ex: Lindsay Lohan, after conviction, applied for probation
and was granted the same. Thereafter, she filed an appeal
questioning the civil indemnity imposed upon her. The judge denied
the appeal on the ground that Lindsay already applied for probation.
Therefore, the appeal cannot be granted. Is the judge correct?
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- No, because the only effect of probation is to suspend the

execution of the sentence. It has nothing to do with the
civil aspect of the case. Insofar as the civil aspect is
concerned, the convict can still appeal it.
Ex. D, under the probation for two years, was imposed the
condition that he could not change his residence. For two years, he
complied with this condition. After the lapse of two years, D now
changed his residence. The probation officer learned about this and
filed for a Motion to Revoke the probation. D contended that the
period of probation (2 years) has already been completed, so he is
already allowed to change residence. The trial court granted the
revocation. Is the trial court correct?
- Yes, the expiration of the period of probation does not
ipso facto mean the termination of probation. Probation is
only terminated upon the issuance of the court of a final
discharge of probation. This happens when after the lapse
of the period of probation, the probation officer will file a
Motion before the court with a recommendation stating
that the convict has complied with the conditions imposed
and therefore, he should be discharged. The court will
then issue a final discharge of probation. Only then will
probation be terminated.

EFFECT OF FINAL DISCHARGE OF PROBATION:

- restore the civil rights lost or suspended by reason of
conviction, including the penalty of fine.
- But, the offender should still pay the civil indemnity to the
offended party

[ Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman] 60