Notes by Dean Ortega

Revised Ortega Notes
Page 1
Book I Generality of criminal law means that the

criminal law of the country governs all persons
within the country regardless of their race,
belief, sex or creed. However, it is subject to
General certain exceptions brought about
international agreement. Ambassadors, chiefs
by
provisions of states and other diplomatic officials are

immune from the application of penal laws
when they are in the country where they are
assigned.
Note that consuls are not diplomatic officers.

This includes consul-general, vice-consul or
CRIMINAL LAW and consul in a foreign country, who are
therefore, not immune to the operation or
Criminal law is that branch of municipal law application of the penal law of the country
which defines crimes, treats of their nature and where they are assigned.
provides for their punishment.
It has no reference to territory. Whenever you
It is that branch of public substantive law are asked to explain this, it does not include
which defines offenses and prescribes their territory. It refers to persons that may be
penalties. It is substantive because it defines governed by the penal law.
the state’s right to inflict punishment and the
liability of the offenders. It is public law
because it deals with the relation of the TERRITORIALITY
individual with the state.
Territoriality means that the penal laws of the
country have force and effect only within its
Limitations on the power of Congress to territory. It cannot penalize crimes committed
enact penal laws outside the same. This is subject to certain
1. Must be general in application. exceptions brought about by international
2. Must not partake of the nature of an agreements and practice. The territory of the
ex post facto law. country is not limited to the land where its
3. Must not partake of the nature of a bill sovereignty resides but includes also its
of attainder. maritime and interior waters as well as its
4. Must not impose cruel and unusual atmosphere.
punishment or excessive fines.
Terrestrial jurisdiction is the jurisdiction
exercised over land.
Characteristics of Criminal Law
1. Generality Fluvial jurisdiction is the jurisdiction exercised
2. Territoriality over maritime and interior waters.
3. Prospectivity
Aerial jurisdiction is the jurisdiction exercised
over the atmosphere.
GENERALITY
“Excellence. UP BarOps 2003

Not just a tradition. It’s a commitment.”
Page 2
The Archipelagic Rule 1. The atmosphere over the country is

free and not subject to the jurisdiction of
All bodies of water comprising the maritime the subjacent state, except for the
zone and interior waters abounding different protection of its national security and
islands comprising the Philippine Archipelago public order.
are part of the Philippine territory regardless of Under this theory, if a crime is committed
their breadth, depth, width or dimension. on board a foreign aircraft at the
atmosphere of a country, the law of that
On the fluvial jurisdiction there is presently a country does not govern unless the crime
departure from the accepted International Law affects the national security.
Rule, because the Philippines adopted the
Archipelagic Rule. In the International Law 2. Relative Theory- The subjacent state
Rule, when a strait within a country has a exercises jurisdiction over the atmosphere
width of more than 6 miles, the center lane in only to the extent that it can effectively
excess of the 3 miles on both sides is exercise control thereof. The Relative
considered international waters. Theory.
Under this theory, if a crime was
committed on an aircraft which is already
beyond the control of the subjacent state,
Question and Answer the criminal law of the state will not
govern anymore. But if the crime is
If a foreign merchant vessel is in the center committed in an aircraft within the
lane and a crime was committed there, under atmosphere over a subjacent state which
the International Law Rule, what law will exercises control, then its criminal law will
apply? govern.
The law of the country where that 3. Absolute Theory- The subjacent state
vessel is registered will apply, because the has complete jurisdiction over the
crime is deemed to have been committed in atmosphere above it subject only to the
the high seas. innocent passage by aircraft of a foreign
country. Under this theory, if the crime is
committed in an aircraft, no matter how
Under the Archipelagic Rule as declared in high, as long as it can be established that
Article 1 of the Constitution, all waters in the it is within the Philippine atmosphere,
archipelago regardless of breadth, width or Philippine criminal law will govern. This is
dimension are part of our national territory. the theory adopted by the Philippines.
Under this Rule, there is no more center lane,
all these waters, regardless of their dimension
or width are part of Philippine territory. PROSPECTIVITY
So if a foreign merchant vessel is in the center This is also called irretrospectivity.

lane and a crime was committed, the crime will
be prosecuted before Philippine Courts. Acts or omissions will only be subject to a
Three international law theories on aerial penal law if they are committed after a penal
jurisdiction law had already taken effect. Vice versa, this
act or omission which has been committed

Page 3
before the effectivity of a penal law could not for the prosecution of BP 22. Hence, it was
be penalized by such penal law because penal ruled in Que vs. People that a check issued
laws operate only prospectively. merely to guarantee the performance of an
obligation is, nevertheless, covered by BP 22.
In some textbooks, an exemption is said to But consistent with the principle of
exist when the penal law is favorable to the prospectivity, the new doctrine should not
offender, in which case it would have apply to parties who had relied on the old
retroactive application; provided that the doctrine and acted on the faith thereof. No
offender is not a habitual delinquent and there retrospective effect.
is no provision in the law against its retroactive
application.
Effect of repeal of penal law to liability of
The exception where a penal law may be given offender
retroactive application is true only with a
repealing law. If it is an original penal law, that In some commentaries, there are references as
exception can never operate. What is to whether the repeal is express or implied.
contemplated by the exception is that there is What affects the criminal liability of an offender
an original law and there is a repealing law is not whether a penal law is expressly or
repealing the original law. It is the repealing impliedly repealed; it is whether it is absolutely
law that may be given retroactive application or totally repealed, or relatively or partially
to those who violated the original law, if the repealed, or relatively or partially repealed.
repealing penal law is more favorable to the
offender who violated the original law. If there
is only one penal law, it can never be given Total or absolute, or partial or relative
retroactive effect. repeal.-- As to the effect of repeal of penal
law to the liability of offender, qualify your
answer by saying whether the repeal is
Rule of prospectivity also applies to absolute or total or whether the repeal is
administrative rulings and circulars partial or relative only.
In Co vs. CA, decided on October 28, 1993, A repeal is absolute or total when the crime
it was held that the principle of prospectivity of punished under the repealed law has been
statutes also applies to administrative rulings decriminalized by the repeal. Because of the
and circulars. In this case, Circular No. 4 of the repeal, the act or omission which used to be a
Ministry of Justice, dated December, 15, 1981, crime is no longer a crime. An example is
provides that “where the check is issued as Republic Act No. 7363, which decriminalized
part of an arrangement to guarantee or secure subversion.
the payment of an obligation, whether pre-
existing or not, the drawer is not criminally A repeal is partial or relative when the crime
liable for either estafa or violation of BP 22.” punished under the repealed law continues to
Subsequently, the administrative interpretation be a crime in spite of the repeal. This means
was reversed in Circular No. 12, issued on that the repeal merely modified the conditions
August 8, 1984, such that the claim that the affecting the crime under the repealed law.
check was issued as a guarantee or part of an The modification may be prejudicial or
arrangement to secure an obligation or to beneficial to the offender. Hence, the following
facilitate collection, is no longer a valid defense rule:

Page 4
has already been absolutely repealed. This

Consequences if repeal of penal law is total or is so because penal laws should be given
absolute: retroactive application to favor only those
1. If a case is pending in court involving who are not habitual delinquents.
the violation of the repealed law, the same
shall be dismissed, even though the
accused may be a habitual delinquent. This
Question and Answer
is so because all persons accused of a
crime are presumed innocent until they are
convicted by final judgment. Therefore, the A, a prisoner, learns that he is already
accused shall be acquitted. overstaying in jail because his jail guard, B,
who happens to be a law student advised him
2. If a case is already decided and the that there is no more legal ground for his
accused is already serving sentence by continued imprisonment, and B told him that
final judgment, if the convict is not a he can go. A got out of jail and went home.
habitual delinquent, then he will be entitled Was there any crime committed?
to a release unless there is a reservation
clause in the penal law that it will not apply As far as A, the prisoner who is serving
to those serving sentence at the time of sentence, is concerned, the crime committed is
the repeal. But if there is no reservation, evasion of sentence.
those who are not habitual delinquents
even if they are already serving their As far as B, the jail guard who allowed
sentence will receive the benefit of the A to go, is concerned, the crime committed is
repealing law. They are entitled to release. infidelity in the custody of prisoners.
This does not mean that if they are not

released, they are free to escape. If they Consequences if repeal of penal law is partial
escape, they commit the crime of evasion or relative:
of sentence, even if there is no more legal 1. If a case is pending in court involving
basis to hold them in the penitentiary. This the violation of the repealed law, and the
is so because prisoners are accountabilities repealing law is more favorable to the
of the government; they are not supposed accused, it shall be the one applied to him.
to step out simply because their sentence So whether he is a habitual delinquent or
has already been, or that the law under not, if the case is still pending in court, the
which they are sentenced has been repealing law will be the one to apply
declared null and void. unless there is a saving clause in the
repealing law that it shall not apply to
If they are not discharged from pending causes of action.
confinement, a petition for habeas corpus
should be filed to test the legality of their 2. If a case is already decided an the
continued confinement in jail. accused is already serving sentence by
final judgment, even if the repealing law is
If the convict, on the other hand, is a partial or relative, the crime still remains to
habitual delinquent, he will continue be a crime. Those who are not habitual
serving the sentence in spite of the fact delinquents will benefit on the effect of
that the law under which he was convicted that repeal, so that if the repeal is more

Page 5
lenient to them, it will be the repealing law always try to avoid implied repeals. For
that will henceforth apply to them. example, under Article 9, light felonies are
those infractions of the law for the commission
For example, under the original law, the of which a penalty of arresto mayor or a fine
penalty is six years. Under the repealing not exceeding P200.00 or both is provided. On
law, it is four years. Those convicted under the other hand, under Article 26, a fine
the original law will be subjected to the whether imposed as a single or an alternative
four-year penalty. This retroactive penalty, if it exceeds P6,000.00 but is not less
application will not be possible if there is a than P200.00, is considered a correctional
saving clause that provides that it should penalty. These two articles appear to be
not be given retroactive effect. inconsistent. So to harmonize them, the
Supreme Court ruled that if the issue involves
Under Article 22, even if the offender is the prescription of the crime, the felony will be
already convicted and serving sentence, a considered a light felony and, therefore,
law which is beneficial shall be applied to prescribes within two months. But if the issue
him unless he is a habitual delinquent in involves prescription of the penalty, the fine of
accordance with Rule 5 of Article 62. P200.00 will be considered correctional and it
will prescribe within 10 years. Clearly, the court
avoided the collision between the two articles.
Express or implied repeal.- Express or
implied repeal refers to the manner the repeal Consequences if repeal of penal law is express
is done. or implied:
1. If a penal law is impliedly repealed, the
Express repeal takes place when a subsequent subsequent repeal of the repealing law will
law contains a provision that such law repeals revive the original law. So the act or
an earlier enactment. For example, in Republic omission which was punished as a crime
Act No. 6425 (The Dangerous Drugs Act of under the original law will be revived and
1972), there is an express provision of repeal the same shall again be crimes although
of Title V of the Revised Penal Code. during the implied repeal they may not be
punishable.
Implied repeals are not favored. It requires a
competent court to declare an implied repeal. 2. If the repeal is express, the repeal of
An implied repeal will take place when there is the repealing law will not revive the first
a law on a particular subject matter and a law, so the act or omission will no longer
subsequent law is passed also on the same be penalized.
subject matter but is inconsistent with the first
law, such that the two laws cannot stand These effects of repeal do not apply to self-
together, one of the two laws must give way. repealing laws or those which have automatic
It is the earlier that will give way to the later termination. An example is the Rent Control
law because the later law expresses the recent Law which is revived by Congress every two
legislative sentiment. So you can have an years.
implied repeal when there are two inconsistent
laws. When the earlier law does not expressly When there is a repeal, the repealing law
provide that it is repealing an earlier law, what expresses the legislative intention to do away
has taken place here is implied repeal. If the with such law, and, therefore, implies a
two laws can be reconciled, the court shall condonation of the punishment. Such

Page 6
legislative intention does not exist in a self-

terminating law because there was no repeal
at all. Nullum crimen, nulla poena sine lege
There is no crime when there is no law

BASIC MAXIMS IN CRIMINAL LAW punishing the same. This is true to civil law
countries, but not to common law countries.
Doctrine of Pro Reo
Because of this maxim, there is no common
Whenever a penal law is to be construed or law crime in the Philippines. No matter how
applied and the law admits of two wrongful, evil or bad act is, if there is no law
interpretations- one lenient to the offender and defining the act, the same is not considered a
one strict to the offender- that interpretation crime.
which is lenient or favorable to the offender
will be adopted. Common law crimes are wrongful acts which
the community/ society condemns as
This is in consonance with the fundamental contemptible, even though there is no law
rule that all doubts shall be construed in favor declaring the act criminal.
of the accused and consistent with the
presumption of innocence of the accused. This Not any law punishing an act or omission may
is peculiar only to criminal law. be valid as a criminal law. If the law punishing
an act is ambiguous, it is null and void.
Question and Answer Actus non facit reum, nisi mens set rea
The act cannot be criminal where the mind is

One boy was accused of parricide and was not criminal. This is true to a felony
found guilty. This is punished by reclusion characterized by dolo, but not a felony
perpetua to death. Assuming you were the resulting from culpa. This maxim is not an
judge, would you give the accused the benefit absolute one because it is not applied to
of the Indeterminate Sentence Law (ISLAW)? culpable felonies, or those that result from
The ISLAW does not apply when the penalty negligence.
imposed is life imprisonment or death. Would
you consider the penalty imposable or the
penalty imposed, taking into consideration the Utilitarian Theory or Protective Theory
mitigating circumstance of minority?
The primary purpose of the punishment under
If you will answer “no,” then you go criminal law is the protection of society from
against the doctrine of Pro Reo, because you actual or potential wrongdoers. The courts,
can interpret the ISLAW in a more lenient therefore, in exacting retribution for the
manner. Taking into account the doctrine, we wronged society, should direct the punishment
can interpret the ISLAW to mean that the to potential or actual wrongdoers, since
penalty imposable and not the penalty criminal law is directed against acts and
prescribed by law, since it is more favorable for omissions which the society does not approve
the accused to interpret the law. of. Consistent with this theory, the mala

Page 7
prohibita principle which punishes an offense He drafted a correctional code which was after
regardless of malice or criminal intent, should the Spanish Codigo Penal was extended to the
not be utilized to apply the full harshness of Philippines. But that correctional code was
the special law. never enacted into law. Instead, a committee
was organized headed by then Anacleto Diaz.
In Magno vs. CA, decided on June 26, 1992, This committee was the one which drafted the
the Supreme Court acquitted Magno of present Revised Penal Code.
violation of Batas Pambansa Blg. 22 when he
acted without malice. The wrongdoer is not
Magno by the lessor who deposited the checks. The Present Revised Penal Code
He should have returned the checks to Magno
when he pulled out the equipment. To convict When a committee to draft the Revised Penal
the accused would defeat the noble objective Code was formed, one of the reference that
of the law and the law would be tainted with they took hold of was the correctional code of
materialism and opportunism. Del Pan. In fact, many provisions of the
Revised Penal Code were no longer from the
Spanish Penal Code; they were lifted from the
correctional code of Del Pan. So it was him
DEVELOPMENT OF CRIMINAL LAW IN THE who formulated or paraphrased this provision
PHILIPPINES making it simpler and more understandable to
Filipinos because at that time, there were only
Code of Kalantiao a handful who understood Spanish.
If you will be asked about the development of

criminal law in the Philippines, do not start with Code of Crimes by Guevarra
the Revised Penal Code. Under the Code of
Kalantiao, there were penal provisions. Under During the time of President Manuel Roxas, a
this code, if a man would have a relation with code commission was tasked to draft a penal
a married woman, she is penalized. Even code that will be more in keeping with the
offending religious things, such as gods, are custom, traditions, traits as well as beliefs of
penalized. The Code of Kalantiao has certain the Filipinos. During that time, the code
penal provisions. The Filipinos have their own committee drafted the so-called Code of
set of penology also. Crimes. This too, slept in Congress. It was
never enacted into law. Among those who
participated in drafting the Code of Crimes was
Spanish Codigo Penal Judge Guellermo Guevarra.
When the Spanish Colonizers came, the Since that Code of Crimes was never enacted
Spanish Codigo Penal was made applicable and as law, he enacted his own code of crimes. But
extended to the Philippines by Royal Decree of it was the Code of Crimes that was presented
1870. This was made effective in the in the Batasan as Cabinet Bill No. 2. Because
Philippines on July 14, 1876. the Code of Crimes prepared by Guevarra was
more of a moral code than a penal code, there
were several oppositions against the code.
Who is Rafael Del Pan? Proposed Penal Code of the Philippines

Page 8
Through Assemblyman Estelito Mendoza, the creature who understands right from wrong.
UP Law Center formed a committee which So that when he commits a wrong, he must be
drafted the Penal Code of the Philippines. This prepared to accept the punishment therefore.
Penal Code was substituted as Cabinet Bill No.
2 and this has been discussed in the floor of
the Batasang Pambansa. So the Code of Positivist or Realistic Philosophy
Crimes now in Congress was not the Code of
Crimes during the time of President Roxas. The purpose of penalty is reformation. There is
This is a different one. Cabinet Bill No. 2 is the great respect for the human element because
Penal Code of the Philippines drafted by a code the offender is regarded as socially sick who
committee chosen by the UP Law Center, one needs treatment, not punishment. Cages are
of them was Professor Ortega. There were like asylums, jails like hospitals. They are to
seven members of the code committee. It segregate the offenders from the “good”
would have been enacted into law if not for the members of society.
dissolution of the Batasang Pambansa. The
Congress was planning to revive it so that it From this philosophy came the jury system,
can be enacted into law. where the penalty is imposed on a case to case
basis after examination of the offender by a
panel of social scientists which do not include
Special Laws lawyers as the panel would not want the law to
influence their consideration.
During Martial Law, there are many
Presidential Decrees issued aside from the Crimes are regarded as social phenomena
special laws passed by the Philippine which constrain a person to do wrong although
Legislature Commission. All these special laws not of his own volition. A tendency towards
which are penal in character, are part of our crime is the product of one’s environment.
Penal Code. There is no such thing as a natural born killer.
This philosophy is criticized as being too

DIFFERENT PHILOSOPHIES UNDERLYING lenient.
THE CRIMINAL LAW SYSTEM
Classical or Juristic Philosophy Eclectic or Mixed Philosophy
Best remembered by the maxim “An eye for an This combines both positivist and classical
eye, a tooth for a tooth.” [Note: If you want to thinking. Crimes that are economic and social
impress the examiner, use the latin version- by nature should be dealt with in a positivist
Oculo pro oculo, dente pro dente.] manner; thus, the law is more compassionate.
Heinous crimes should be dealt with in a
The purpose of penalty is retribution. The classical manner; thus, capital punishment.
offender is made to suffer for the wrong he
has done. There is scant regard for the human Since the Revised Penal Code was adopted
element of the crime. The law does not look from the Spanish Codigo Penal, which in turn
into why the offender committed the crime. was copied from the French Code of 1810
Capital punishment is a product of this kind of which is classical in character, it is said that our
school of thought. Man is regarded as a moral Code is also classical. This is no longer true

Page 9
because with the American occupation of the highways. These acts are inherently wrong and
Philippines, many provisions of common law although they are punished under special laws,
have been engrafted into our penal laws. The the act themselves are mala in se; thus good
Revised Penal Code today follows the mixed or faith or lack of criminal intent is a defense.
eclectic philosophy. For example, intoxication
of the offender is considered to mitigate his
criminal liability, unless it is intentional or Distinction between crimes punished under the
habitual; the age of the offender is considered; Revised Penal Code and crimes punished under
and the woman who killed her child to conceal special laws
her dishonor has in her favor a mitigating
circumstance. 1. As to moral trait of the offender
In crimes punished under the Revised

MALA IN SE AND MALA PROHIBITA Penal Code, the moral trait of the offender
is considered. This is why liability would
Violations of the Revised Penal Code are only arise when there is dolo or culpa in
referred to as malum in se, which literally the commission of the punishable act.
means, that the act is inherently evil or bad or
per se wrongful. On the other hand, violations In crimes punished under special laws, the
of special laws are generally referred to as moral trait of the offender is not
malum prohibitum. considered; it is enough that the prohibited
act was voluntarily done.
Note, however, that not all violations of special
laws are mala prohibita. While intentional 2. As to use of good faith as defense
felonies are always mala in se, it does not
follow that prohibited acts done in violation of In crimes punished under the Revised
special laws are always mala prohibita. Even if Penal Code, good faith or lack of criminal
the crime is punished under a special law, if intent is a valid defense; unless the crime
the act punished is one which is inherently is the result of culpa.
wrong, the same is malum in se, and,
therefore, good faith and the lack of criminal In crimes punished under special laws,
intent is a valid defense; unless it is the good faith is not a defense.
product of criminal negligence or culpa.
3. As to degree of accomplishment of the
Likewise when the special laws require that the crime
punished act be committed knowingly and
willfully, criminal intent is required to be In crimes punished under the Revised
proved before criminal liability may arise. Penal Code, the degree of accomplishment
of the crime is taken into account in
When the act penalized is inherently wrong, it punishing the offender; thus, there are
is wrong only because a law punishes the attempted, frustrated and consummated
same. stages in the commission of the crime.
For example, Presidential Decree No. 532 In crimes punished under special laws, the
punishes piracy in Philippine waters and the act gives rise to a crime only when it is
special law punishing brigandage in the consummated; there are no attempted or

Page 10
frustrated stages, unless the special law Grave coercion. There is no such thing
expressly penalizes a mere attempt or as attempted hijacking. Under special laws, the
frustration of the crime. penalty is not imposed unless the act is
consummated. Crimes committed against the
4. As to mitigating and aggravating provisions of a special law are penalized only
circumstances when the pernicious effects, which such law
seeks to prevent, arise.
In crimes punished under the Revised
Penal Code, mitigating and aggravating 2. A mayor awarded a concession to his
circumstances are taken into account since daughter. She was also the highest bidder. The
the moral trait of the offender is award was even endorsed by the municipal
considered. council as the most advantageous to the
municipality. The losing bidder challenged the
In crimes punished under special laws, validity of the contract, but the trial court
mitigating and aggravating circumstances sustained its validity. The case goes to the
are not taken into account in imposing the Sandiganbayan and the mayor gets convicted
penalty. for violation of Republic Act No. 3019 (Anti-
Graft and Corrupt Practices Act). He appeals
5. As to degree of participation alleging his defenses raised in the
Sandiganbayan that he did not profit from the
In crimes punished under the Revised transaction, that the contract was
Penal Code, when there is more than one advantageous to the municipality, and that he
offender, the degree of participation of did not act with intent to gain. Rule.
each in the commission of the crime is
taken into account in imposing the penalty; Judgment Affirmed. The contention of
thus, offenders are classified as principal, the mayor that he did not profit anything from
accomplice and accessory. the transaction, that the contract was
advantageous to the municipality, and that he
In crimes punished under special laws, the did not act with intent to gain, is not a
degree of participation of the offenders is defense. The crime involved is malum
not considered. All who perpetrated the prohibitum.
prohibited act are penalized to the same
extent. There is no principal or accessory
to consider. In the case of People vs. Sunico, an election
registrar was prosecuted for having failed to
include in the voter’s register the name of a
certain voter. There is a provision in the
Question and Answer
election law which proscribes any person from
preventing or disenfranchising a voter from
1. Three hijackers accosted the pilot of an casting his vote. In trial, the election registrar
airplane. They compelled the pilot to change raised as good faith as a defense. The trial
destination, but before the same could be court convicted him saying that good faith is
accomplished, the military was alerted. What not a defense in violation of special laws. On
was the crime committed? appeal, it was held by the Supreme Court that
disenfranchising a voter from casting his vote
is not wrong because there is a provision of

Page 11
law declaring it a crime, but because with or

without a law, that act is wrong. In other Misdemeanor
words, it is malum in se. Consequently, good
faith is a defense. Since the prosecution failed A minor infraction of the law, such as a
to prove that the accused acted with malice, violation of an ordinance, is referred to as a
he was acquitted. misdemeanor.
Test to determine if violation of special law Crime

is malum prohibitum or malum in se
Whether the wrongdoing is punished under the
Analyze the violation: Is it wrong because Revised Penal Code or under a special law, the
there is a law prohibiting it or punishing it as generic word crime can be used.
such? If you remove the law, will the act still
be wrong?
SCOPE OF APPLICATION OF THE
If the working of the law punishing the crime PROVISIONS OF THE REVISED PENAL
uses the word “willfully,” then malice must be CODE
proven. Where malice is a factor, good faith is
a defense. The provisions in Article 2 embraces two
scopes of applications:
In violation of special law, the act constituting
the crime is a prohibited act. Therefore, culpa 1. Intraterritorial- refers to the application
is not a basis of liability, unless the special law of the Revised Penal Code within the
punishes an omission. Philippine territory;
When given a problem, take note if the crime 2. Extraterritorial- refers to the
is a violation of the Revised Penal Code or a application of the Revised Penal Code
special law. outside the Philippines territory.
Intraterritorial application
FELONY, OFFENSE, MISDEMEANOR AND
CRIME In the intraterritorial application of the Revised
Penal Code, Article 2 makes it clear that it does
Felony not refer only to the Philippine archipelago but
it also includes the atmosphere, interior waters
A crime under the Revised Penal Code is and maritime zone. So whenever you use the
referred to as a felony. Do not use this term in word territory, do not limit this to land area
reference to a violation of special law. only.
As far as jurisdiction or application of the

Offense Revised Penal Code over crimes committed on
maritime zones or interior waters, the
A crime punished under a special law is called Archipelagic Rule shall be observed. So the
a statutory offense. three-mile limit on our shoreline has been

Page 12
modified by the rule. Any crime committed in the national security of a foreign country
the interior waters comprising the Philippine where the vessel is within jurisdiction in which
archipelago shall be subject to our laws case such foreign country will never lose
although committed on board a foreign jurisdiction over such vessel.
merchant vessel.
A vessel is considered a Philippine ship only The American or Anglo-Saxon Rule

when it is registered in accordance with
Philippine laws. Under international law, as This rule strictly enforces the territoriality of
long as such vessel is not within the territorial criminal law. The law of the foreign country
waters of a foreign country, Philippine laws where a foreign vessel is within its jurisdiction
shall govern. is strictly applied, except if the crime affects
only the internal management of the vessel in
which case it is subject to the penal law of the
Extraterritorial application country where it is registered.
Extraterritorial application of the Revised Penal Both the rules apply only to a foreign merchant
Code on a crime committed on board a vessel if a crime was committed aboard that
Philippine ship or airship is not within the vessel while it was in the territorial waters of
territorial waters or atmosphere of a foreign another country. If that vessel is in the high
country. Otherwise, it is the foreign country’s seas or open seas, there is no occasion to
criminal law that will apply. apply the two rules. If it is not within the
jurisdiction of any country, these rules will not
However, there are two situations where the apply.
foreign country may not apply its criminal law
even if a crime was committed on board a
vessel within its territorial waters and these
Question and Answer
are:
1. When the crime is committed in a war
vessel of a foreign country, because war A vessel is not registered in the Philippines. A
vessels are part of the sovereignty of the crime is committed outside Philippine Territorial
country to whose navel force they belong; waters. Then the vessel entered our territory.
2. When the foreign country in whose Will the Revised Penal Code apply?
territorial waters the crime was committed
adopts the French Rule, which applies only Yes. Under the old Rules of Criminal
to merchant vessels, except when the Procedure, for our courts to take cognizance of
crime committed affects the national any crime committed on board a vessel must
security or public order of such foreign be registered in the Philippines in accordance
country. with Philippine laws. Under the Revised Rules
of Criminal Procedure, however, the
requirement that the vessel must be licensed
The French Rule and registered in accordance with Philippine
laws has been deleted from Section 25,
The French Rule provides that the nationality paragraph c of Rule 110 of the Rules of Court.
of the vessel follows the flag which the vessel The intention is to do away with the
flies, unless the crime committed endangers requirement so that as long as the vessel is not

Page 13
registered under the laws of any country, our The functions contemplated are those, which
courts can take cognizance of the crime are, under the law, to be performed by the
committed in such vessel. public officer in the Foreign Service of the
Philippine government in a foreign country.
More than this, the revised provision added the
phrase “in accordance with generally accepted Exception: The Revised Penal Code governs if
principles of International Law.” So the the crime was committed within the Philippine
intention is clearly to adopt generally accepted Embassy or within the embassy grounds in a
principles of international law in the matter of foreign country. This is because embassy
exercising jurisdiction over crimes committed in grounds are considered an extension of
a vessel while in the course of its voyage. sovereignty.
Under international law rule, a vessel which is
not registered in accordance with the laws of Illustration:
any country is considered a pirate vessel and
piracy is a crime against humanity in general, A Philippine consulate official who is validly
such that wherever pirates may go, they can married here in the Philippines and who
be prosecuted. marries again in a foreign country cannot be
prosecuted here for bigamy because this is a
Prior to the revision, the crime would not have crime not connected with his official duties.
been prosecutable in our court. With the However, if the second marriage was
revision, registration is not anymore a celebrated within the Philippine embassy, he
requirement and replaced with generally may be prosecuted here, since it is as if he
accepted principles of international law. Piracy contracted the marriage here in the
is considered a crime against the law of Philippines.
nations.
In your answer, reference should be made to Question and Answer

the provision of paragraph c of Section 15 of
the Revised Rules of Criminal Procedure. The
case may be regarded as an act of piracy as A consul was to take a deposition in a hotel in
long as it is done with “intent to gain.” Singapore. After the deposition, the deponent
approached the consul’s daughter and
requested certain parts of the deposition be
When public officers or employees commit changed in consideration of $10,000.00. The
an offense in the exercise of their functions daughter persuaded the consul and the latter
agreed. Will the crime be subject to the
The most common subject of bar problems in Revised Penal Code? If so, what crime or
Article 2 is paragraph 4: “While being public crimes have been committed?
officers or employees, [they] should commit an
offense in the exercise of their functions:” Yes. Falsification.
As a general rule, the Revised Penal Code Normally, the taking of the deposition
governs only when the crime committed is not the function of the consul, his function
pertains to the exercise of the public official’s being the promotion of trade and commerce
functions, those having to do with the with another country. Under the Rules of
discharge of their duties in a foreign country. Court, however, a consul can take depositions

Page 14
or letters rogatory. There is, therefore, a punishable under a special law you do not
definite provision of the law making it the refer to this as a felony, it is to be understood
consul’s function to take depositions. When he as referring to crimes under the Revised Penal
agreed to the falsification of the deposition, he Code.
was doing so as a public officer in the service
of the Philippine government. This is important because there are certain
provisions in the Revised Penal Code where the
Paragraph 5 of Article 2, uses the phrase “as term “felony” is used, which means that the
defined in Title One of Book Two of this Code.” provision is not extended to crimes under
This is a very important part of the exception, special laws. A specific instance is found in
because Title 1 of Book 2 (crimes against Article 160- Quasi-Recidivism, which reads:
national security) does not include rebellion. So A person who shall commit a felony
if acts of rebellion were perpetrated by after having been convicted by final
Filipinos who were in a foreign country, you judgment, before beginning to serve
cannot give territorial application to the sentence or while serving the same,
Revised Penal Code, because Title 1 of Book 2 shall be punished under the maximum
does not include rebellion. period of the penalty.
Illustration: Note that the word “felony” is used.
When a Filipino who is already married in the

Philippines, contracts another marriage abroad,
the crime committed is bigamy. But the Filipino Question and Answer
can not be prosecuted when he comes back to
the Philippines, because the bigamy was 1. If a prisoner who is serving sentence is
committed in a foreign country and the crime found in possession of dangerous drugs, can
is not covered by paragraph 5 of Article 2. he be considered a quasi-recidivist?
However, if the Filipino, after the second
marriage, returns to the Philippines and No. The violation of Presidential
cohabits here with his second wife, he commits Decree No. 6425 (The Dangerous Drugs Act of
the crime of concubinage for which he can be 1972) is not a felony. The provision of Article
prosecuted. 160 specifically refers to a felony and felonies
are those acts and omissions punished under
The Revised Penal Code shall not apply to any the Revised Penal Code.
other crime committed in a foreign country
which does not come under any of the 2. Is illegal possession of a bladed
exceptions and which is not a crime against weapon a felony?
national security.
No. It is not under the RPC.
HOW A FELONY MAY ARISE

An act or omission
Punishable by the Revised Penal Code
To be considered as a felony, there must be an
The term felony is limited only to violations of act or omission; a mere imagination no matter
the Revised Penal Code. When the crime is how wrong does not amount to a felony. An

Page 15
act refers to any kind of body movement that What requisites must concur before a felony
produces change in the outside world. For may be committed?
example, if A, a passenger of a jeepney seated There must be (1) an act or omission;
in front of a lady, started putting out his (2) punishable by the Revised Penal Code; and
tongue suggesting lewdness, that is already an (3) the act is performed or the omission
act in contemplation of criminal law. He cannot incurred by means of dolo or culpa.
claim that there was no crime committed. If A
scratches something, this is already an act But although there is no intentional felony,
which annoys the lady he may be accused of there could be culpable felony. Culpa requires
unjust vexation, not malicious mischief. the concurrence of three requisites:
Dolo or culpa 1. criminal negligence on the part of the

offender, that is, the crime was the result
However, it does not mean that if an act or of negligence, reckless imprudence, lack of
omission is punished under the Revised Penal foresight or lack of skill;
Code, a felony is already committed. To be
considered a felony, it must also be done with 2. freedom of action on the part of the
dolo or culpa. offender, that is, he was not acting under
duress; and
Under Article 3, there is dolo when there is
deceit. This is no longer true. At the time the 3. intelligence on the part of the offender in
Revised Penal Code was codified, the term the performance of the negligent act.
nearest to dolo was deceit. However, deceit
means fraud, and this is not the meaning of Between dolo and culpa, the distinction lies on
dolo. the criminal intent and criminal negligence. If
any of these requisites is absent, there can be
Dolo is deliberate intent otherwise referred to no dolo nor culpa. When there is no dolo or
as criminal intent, and must be coupled with culpa, a felony cannot arise.
freedom of action and intelligence on the part
of the offender as to the act done by him.
The term, therefore, has three requisites on Question and Answer

the part of the offender:
1. Criminal intent; What do you understand by “voluntariness” in
2. Freedom of action; and criminal law?
3. Intelligence
The word voluntariness in criminal law
If any of these is absent, there is no dolo. If does not mean acting in one’s own volition. In
there is no dolo, there could be no intentional criminal law, voluntariness comprehends the
felony. concurrence of freedom of action, intelligence
and the fact that the act was intentional. In
culpable felonies, there is no voluntariness if
Question and Answer either freedom, intelligence or imprudence,
negligence, lack of foresight or lack of skill is
lacking. Without voluntariness, there can be no
dolo or culpa, hence, there is no felony.

Page 16
Criminal Intent
In a case decided by the Supreme Court, two
persons went wild boar hunting. On their way, Criminal Intent is not deceit. Do not use deceit
they met Pedro standing by the door of his in translating dolo, because the nearest
house and they asked him where they could translation is deliberate intent.
find wild boars. Pedro pointed to a place where
wild boars were supposed to be found, and the In criminal law, intent is categorized into two:
two proceeded thereto. Upon getting to the 1. General criminal intent; and
place, they saw something moving, they shot, 2. Specific criminal intent.
unfortunately ricocheted killing Pedro. It was
held that since there was neither dolo nor General criminal intent is presumed from the
culpa, there is no criminal liability. mere doing of a wrong act. This does not
require proof. The burden is upon the wrong
In US vs. Bindoy, accused had an altercation doer to prove that he acted without such
with X. X snatched the bolo from the accused. criminal intent.
To prevent X from using his bolo on him,
accused tried to get it from X. Upon pulling it Specific criminal intent is not presumed
back towards him, he hit someone from because it is an ingredient or element of a
behind, instantly killing the latter. The accused crime, like intent to kill in the crimes attempted
was found to be not liable. In criminal law, or frustrated homicide/ parricide/ murder. The
there is pure accident, and the principle prosecution has the burden of proving the
damnum absque injuria is also honored. same.
Even culpable felonies require voluntariness. It

does not mean that if there is no criminal Distinction between intent and discernment
intent, the offender is absolved of criminal
liability, because there is culpa to consider. Intent is the determination to do a certain
thing, an aim or purpose of the mind. It is the
design to resolve or determination by which a
person acts.
Question and Answer
On the other hand, discernment is the mental
May a crime be committed without criminal capacity to tell right from wrong. It relates to
intent? the moral significance that a person ascribes to
his act and relates to the intelligence as an
Yes. Criminal intent is not necessary in element of dolo, distinct from intent.
these cases:
1. When the crime is the product of Distinction between intent and motive
culpa or negligence, reckless imprudence,
lack of foresight or lack of skill; Intent is demonstrated by the use of a
2. When the crime is a prohibited act particular means to bring about a desired
under a special law or what is called result- it is not a state of mind or a reason for
malum prohibitum. committing a crime.

Page 17
On the other hand, motive implies motion. It is must be a law requiring the doing or
the moving power which impels one to do an performing of an act.
act. When there is motive in the commission of
a crime, it always comes before the intent. But
a crime may be committed without motive. Distinction between negligence and
imprudence
If the crime is intentional, it cannot be
committed without intent. Intent is manifested 1. In negligence, there is deficiency of
by the instrument used by the offender. The action;
specific criminal intent becomes material if the 2. In imprudence, there is deficiency of
crime is to be distinguished form the perception.
attempted or frustrated stage. For example, a
husband came home and found his wife in a
pleasant conversation with a former suitor. Mens rea
Thereupon, he got a knife. The moving force is
jealousy. The intent to resort to the knife, so The technical term mens rea is sometimes
that means he desires to kill the former suitor. referred to in common parlance as the
gravamen of the offense. To a layman, that is
Even if the offender states that he had no what you call the “bullseye” of the crime. This
reason to kill the victim, this is not criminal term is used synonymously with criminal or
intent. Criminal intent is the means resorted to deliberate intent, but that is not exactly
by him that brought about the killing. If we correct.
equate intent as a state of mind, many would
escape criminal liability. Mens rea of the crime depends upon the
elements of the crime. You can only detect the
In a case where mother and son were living in mens rea of a crime by knowing the particular
the same house, and the son got angry and crime committed. Without reference to a
strangled his mother, the son, when particular crime, this term is meaningless. For
prosecuted for parricide, raised the defense example, in theft, the mens rea is the taking of
that he had no intent to kill his mother. It was property of another with intent to gain. In
held that criminal intent applies on the falsification, the mens rea is the effecting of
strangulation of the vital part of the body. the forgery with intent to pervert the truth. It
Criminal intent is on the basis of the act, not is not merely writing something that is not
on the basis of what the offender says. true; the intent to pervert the truth must follow
the performance of the act.
Look into motive to determine the proper crime
which can be imputed to the accused. If a In criminal law, we sometimes have to
judge was killed, determine if the killing has consider the crime on the basis of intent. For
any relation to the official functions of the example, attempted or frustrated homicide is
judge in which case the crime would be direct distinguished from physical injuries only by the
assault complexed with murder/ homicide, not intent to kill. Attempted rape is distinguished
the other way around. If it has no relation, the from acts of lasciviousness by the intent to
crime is simply homicide or murder. have sexual intercourse. In robbery, the mens
rea is the taking of the property of another
Omission is the inaction, the failure to perform coupled with the employment of intimidation or
a positive duty which he is bound to do. There violence upon persons or things; remove the

Page 18
employment of force or intimidation and it is In Article 365, you have criminal negligence as
not robbery any longer. an omission which the article definitely or
specifically penalized. The concept of criminal
negligence is the inexcusable lack of
Mistake of fact precaution on the part of the person
performing or failing to perform an act. If the
When an offender acted out of a danger impending from that situation is clearly
misapprehension of fact, it cannot be said that manifest, you have a case of reckless
he acted with criminal intent. Thus, in criminal imprudence. But if the danger that would
law, there is a “mistake of fact.” When the result from such imprudence is not clear, not
offender acted out of a mistake of fact, manifest nor immediate, you have only a case
criminal intent is negated, so do not presume of simple negligence. Because of Article 365,
that the act was done with criminal intent. This one might think that criminal negligence is the
is absolutory if the crime involved dolo. one being punished. That is why a question is
created that criminal negligence is the crime in
Mistake of fact would be relevant only when itself.
the felony would have been intentional or
through dolo, but not when the felony is a In People vs. Faller, it was stated indirectly
result of culpa. When the felony is a product of that criminal negligence or culpa is just a mode
culpa, do not discuss mistake of fact. When the of incurring criminal liability. In this case, the
felonious act is the product of dolo and the accused was charged with malicious mischief.
accused claimed to have acted out of mistake Malicious mischief is an intentional negligence
of fact, there should be no culpa in under Article 327 of the Revised Penal Code.
determining the real facts, otherwise, he is still The provision expressly requires that there be
criminally liable, although he acted out of a a deliberate damaging of property of another,
mistake of fact. Mistake of fact is only a which does not constitute destructive arson.
defense in intentional felony but never in You do not have malicious mischief through
culpable felony. simple negligence or reckless imprudence
because it requires deliberateness. Faller was
Requisites of mistake of fact charged with malicious mischief, but was
convicted of damage to property through
1. That the act done would have been reckless imprudence. The Supreme Court
lawful had the facts been as the accused pointed out that although the allegation in the
believed them to be. information charged the accused with an
2. That the intention of the accused in intentional felony, yet the words feloniously
performing the act should be lawful. and unlawfully, which are standard languages
in an information, covers not only dolo but also
culpa because culpa is just a mode of
Real concept of culpa committing a felony.
Under Article 3, it is clear that culpa is just a In Quezon vs. Justice of the Peace, Justice
modality by which a felony may be committed. J.B.L. Reyes dissented and claimed that
A felony may be committed or incurred criminal negligence is a quasi-offense, and the
through dolo or culpa. Culpa is just a means by correct designation should not be homicide
which a felony may result. through reckless imprudence, but reckless
imprudence resulting in homicide. The view of

Page 19
Justice Reyes is sound, but the problem is jurisdiction of the inferior court. But damage to
Article 3, which states that culpa is just a mode property, if the damage is more than
by which a felony may result. P2,000.00, would be under the jurisdiction of
the Regional Trial Court because the imposable
fine ranges up to three times the value of the
damage.
Question and Answer
In People vs. Angeles, the prosecution filed

Is culpa or criminal negligence a crime? an information against the accused in an
inferior court for slight physical injuries through
First, point out Article 3. Under Article reckless imprudence and filed also damage to
3, it is beyond question that culpa or criminal property in the Regional Trial Court. The
negligence is just a mode by which a felony accused pleaded guilty to the charge of slight
may arise; a felony may be committed through physical injuries. When he was arraigned
dolo or culpa. before the Regional Trial Court, he invoked
double jeopardy. He was claiming that he
However, Justice J.B.L. Reyes pointed could not be prosecuted again for the same
out that criminal negligence is a quasi-offense. criminal negligence. The Supreme Court ruled
His reason is that if criminal negligence is not a that there is no double jeopardy because the
quasi-offense, and only a modality, then it crimes are two different crimes. Slight physical
would have been absorbed in the commission injuries and damage to property are two
of the felony and there would be no need for different crimes.
Article 365 as a separate article for criminal
negligence. Therefore, criminal negligence, In so ruling that there is no double jeopardy,
according to him, is not just a modality; it is a the Supreme Court did not look into the
crime by itself, but only a quasi-offense. criminal negligence. The Supreme Court looked
into the physical injuries and the damage to
property as the felonies and not criminal
However, in Samson vs. CA, where a person negligence.
who has been charged with falsification as an
intentional felony, was found guilty of In several cases that followed, the Supreme
falsification through simple negligence. This Court ruled that where several consequences
means that culpa or criminal negligence is just result from reckless imprudence or criminal
a modality of committing a crime. negligence, the accused should be charged
only in the Regional Trial Court although the
In some decision on a complex crime resulting reckless imprudence may result in slight
from criminal negligence, the Supreme Court physical injuries. The Supreme Court argued
pointed out that when crimes result from that since there was only one criminal
criminal negligence, they should not be made negligence, it would be an error to split the
the subject of a different information. For same by prosecuting the accused in one court
instance, the offender was charged with and prosecuting him again in another for the
simple negligence resulting in slight physical same criminal negligence. This is tantamount
injuries, and another charge for simple splitting a cause of action in a civil case. For
negligence resulting in damage to property. orderly procedure, the information should only
The slight physical injuries which are the result be one. This, however, also creates some
of criminal negligence are under the doubts. As you know, when the information

Page 20
charges the accused for more than the crime, zoomed, running over all pedestrians on the
the information is defective unless the crime street. At the end, the car stopped at the
charged is a complex one or a special complex fence. He was taken to the hospital, and he
crime. survived. Can he be held criminally liable for all
those innocent people that he ran over,
claiming that he was committing suicide?
CRIMINAL LIABILITY
He will be criminally liable, not for an
Since in Article 3, a felony is an act or omission intentional felony, but for culpable felony. This
punishable by law, particularly the Revised is so because, in paragraph 1 of Article 4, the
Penal Code, it follows that whoever commits a term used is “felony,” and that term covers
felony incurs criminal liability. In paragraph 1 both dolo and culpa.
of Article 4, the law uses the word “felony,”
that whoever commits a felony incurs criminal 3. A pregnant woman thought of killing
liability. A felony may arise not only when it is herself by climbing up a tall building and
intended, but also when it is the product of jumped down below. Instead of falling in the
criminal negligence. What makes paragraph 1 pavement, she fell on the owner of the
of Article 4 confusing is the addition of the building. An abortion resulted. Is she liable for
qualifier “although the wrongful act be an unintentional abortion? If not, what possible
different from what he intended.” crime may have been committed?
The relevant matter is whether the

pregnant woman could commit unintentional
Question and Answer
abortion upon herself. The answer is no
because the way the law defines unintentional
1. A man thought of committing suicide abortion, it requires physical violence coming
and went on top of a tall building. He jumped, from a third party. When a pregnant woman
landing on somebody else, who died instantly. does an act that would bring about abortion, it
Is he criminally liable? is always intentional. Unintentional abortion
can only result when a third person employs
Yes. A felony may result not only from physical violence upon a pregnant woman
dolo but also from culpa. If that fellow who resulting to an unintended abortion.
was committing suicide acted negligently, he
will be liable for criminal negligence resulting in
the death of another. In one case, a pregnant woman and man
quarreled. The man could no longer bear the
2. A had been courting X for the last five shouting of the woman, so he got his firearm
years. X told A, “Let us just be friends. I want a and poked it into the mouth of the woman.
lawyer for a husband and I have already found The woman became hysterical, so she ran as
somebody whom I agreed to marry. Anyway, fast as she could, which resulted in an
there are still a lot of ladies around; you will abortion. The man was prosecuted for
still have your chance with another lady.” A, unintentional abortion. It was held that an
trying to show that he is a sport, went down unintentional abortion was not committed.
from the house of X, went inside his car, and However, drawing a weapon in the height of a
stepped on the accelerator to the limit, closed quarrel is a crime under light threats under Art.
his eyes, started the vehicle. The vehicle 285. An unintentional abortion can only be

Page 21
committed out of physical violence, not from In one case, A and B, who are brothers-in-law,
mere threat. had a quarrel. At the height of their quarrel, A
shot B with an airgun. B was hit at the
Proximate cause stomach, which bled profusely. When A saw
this, he put B on the bed and told him not to
Article 4, paragraph 1 presupposes that the act leave because he will call a doctor. While A
done is the proximate cause of the resulting was away, B rose from the bed, went into the
felony. It must be the direct, natural and kitchen and got a kitchen knife and cut his
logical consequence of the felonious act. throat. The doctor arrived and said that the
wound in the stomach is only superficial; only
Proximate cause is that cause which sets into that it is a bleeder, but the doctor could no
motion other causes and which unbroken by longer save him because B’s throat was
any efficient supervening cause produces a already cut. Eventually, B died. A was
felony and without which such felony could not prosecuted for manslaughter. The Supreme
have resulted. He who is the cause of the Court rationalized that what made B cut his
cause is the evil of the cause. As a general throat, in the absence of evidence that he
rule, the offender is criminally liable for all the wanted to commit suicide, is the belief that
consequences of his felonious act, although sooner or later, he would die out of the wound
not intended, if the felonious act is the inflicted by A. Because of that belief, he
proximate cause of the felony or resulting decided to shorten the agony by cutting his
felony. A proximate cause is not necessarily throat. That belief would not be engendered in
the immediate cause. This may be a cause his mind were it not because of the profuse
which is far and remote from the consequence bleeding from his wound. Now, that profusely
which sets into motion other causes which bleeding wound would not have been there,
resulted in the felony. were it not for the wound inflicted by A. As a
result, A was convicted for manslaughter.
Illustrations:
In criminal law, as long as the act of the
A, B, C, D, and E were driving their vehicles accused contributed to the death of the victim,
along Ortigas Ave. A’s car was ahead, followed even if the victim is about to die, he will still be
by those of B, C, D, and E. When A’s car liable for the felonious act of putting to death
reached the intersection of EDSA and Ortigas that victim. In one decision, the Supreme Court
Avenue, the traffic light turned red so A held that the most precious moment in a man’s
immediately stepped on his break, followed by life is that of the losing seconds when he is
B, C, and D. However, E was not aware that about to die. So when you robbed him of that,
the traffic light had turned to red, so he you should be liable for his death. Even if a
bumped the car of D, then D hit the car of C, person is already dying, if one suffocates him
then C hit the car of B, then, finally, B hit the to end up his agony, one will be liable for
car of A. In this case, the immediate cause of murder, when you put him to death, in a
the damage to the car of A is the car of B, but situation where he is utterly defenseless.
that is not the proximate cause. The proximate
cause is the car of E because it was the care of In US vs. Valdez, the deceased is a member
E which sets into motion the cars to bump into of the crew of a vessel. Accused is in charge of
each other. the crewmembers engaged in the loading of
cargo in the vessel. Because the offended
party was slow in his work, the accused

Page 22
shouted at him. The offended party replied negligent, the offended party would have
that they would be better if he would not insult survived—is no defense at all, because without
them. The accused resented this, and rising in the wound inflicted by the offender, there
rage, he moved towards the victim, with a big would have been no occasion for a medical
knife in hand threatening to kill him. The victim treatment.
believing himself to be in immediate peril
threw himself into the water. The victim died Even if the wound was called slight but
of drowning. The accused was prosecuted for because of the careless treatment, it was
homicide. His contention that his liability aggravated, the offender is liable for the death
should be only for grave threats since he did of the victim and not only for the slight
not even stab the victim, that the victim died physical injuries. The reason for this is that
of drowning, and this can be considered as a without the infliction of the injury, there would
supervening cause. It was held that the have been no need for any medical treatment.
deceased, in throwing himself into the river, That the medical treatment proved to be
acted solely in obedience to the instinct of self- careless or negligent, is not enough to relieve
preservation, and was in no sense legally the offender of the liability for the inflicted
responsible for his own death. As to him, it injuries.
was but the exercise of a choice between two
evils, and any reasonable person under the When a person inflicted a wound upon
same circumstance might have done the same. another, and his victim upon coming home got
The accused must, therefore, be considered some leaves, pounded them and put lime
the author of the death of the victim. there, and applying this to the wound,
developed locked jaw and eventually died, it
This case illustrates that proximate cause does was held that the one who inflicted the wound
not require that the offender needs to actually is liable for the death.
touch the body of the offended party. It is
enough that the offender generated in the In another instance, during a quarrel, the
mind of the offended party the belief that victim was wounded. The wound was
made him risk himself. superficial, but just the same the doctor put
inside some packing. When the victim went
If a person shouted fire, and because of that a home, he could not stand the pain, so he
moviegoer jumped into the fire escape and pulled out the packing. That resulted into
died, the person who shouted fire when there profuse bleeding and he died because of loss
is no fire is criminally liable for the death of of blood. The offender who caused the wound,
that person. although the wound caused was only slight,
was held answerable for the death of the
In a case where a wife had to go out to the victim, even if the victim would not have died
cold to escape a brutal husband and because were it not for the fact that he pulled out that
of that she was exposed to the elements and packing. The principle is that without the
caught pneumonia, the husband was made wound, the act of the physician or the act of
criminally liable for the death of the wife. the offended party would not have anything to
do with the wound, and since the wound was
Even though the attending physician may have inflicted by the offender, whatever happens on
been negligent and the negligence brought that wound, he should be made punishable for
about the death of the offended party—in that.
other words, if the treatment was not

Page 23
In Urbano vs. IAC, A and B had a quarrel and was gathered by his working in the farm and
started hacking each other. B was wounded at that is already an efficient intervening cause.
the back. Cooler heads intervened and they
were separated. Somehow, their differences The one who caused the proximate cause is
were patched up. A agreed to shoulder all the the one liable. The one who caused the
expenses for the treatment of the wound of B, immediate cause is also liable, but merely
and to pay him also whatever loss of income B contributory or sometimes totally not liable.
may have suffered. B, on the other hand,
signed a forgiveness in favor of A and on that
condition, he withdrew the complaint that he Wrongful act done be different from what
filed against A. After so many weeks of was intended
treatment in a clinic, the doctor pronounced
that the wound was already healed. What makes the first paragraph of Article 4
Thereafter, B went back to his farm. Two confusing is the qualification “although the
months later, B came home and was chilling. wrongful act done be different from what was
Before midnight, he died out of tetanus intended.” There are three situations
poisoning. The heirs of B filed a case of contemplated under paragraph 1 of Article 4:
homicide against A. The Supreme Court held 1. Aberratio ictus or mistake in blow;
that A is not liable. It took into account the 2. Error in personae or mistake in
incubation period of tetanus toxic. Medical identity;
evidence were presented that tetanus toxic is 3. Praeter intentionem or where the
good only for two weeks. That if, indeed, the consequence exceeded the intention.
victim had incurred tetanus poisoning out of
the wound inflicted by A, he would not have
lasted two months. What brought about the Aberratio ictus
tetanus to infect his body was his work in the
farm using his bare hands. Because of this, the In aberratio ictus, a person directed the blow
Supreme Court said that the act of B working at an intended victim, but because of poor aim,
in his farm where the soil is filthy, using is own that blow landed on someone else. In aberratio
hands, is an efficient supervening cause which ictus, the intended victim as well as the actual
relieves A of any liability for the death of B. A, victim are both at the scene of the crime.
if at all, is only liable for the physical injuries
inflicted upon B. Distinguish this from error in personae, where
the victim actually received the blow, but he
If you are confronted with these facts of the was mistaken for another who was not at the
Urbano case, where the offended party died scene of the crime. The distinction is important
because of tetanus poisoning reason out because the legal effects are not the same.
according to the reasoning laid down by the
Supreme Court, meaning to say, the incubation In aberration ictus, the offender delivers the
period of the tetanus poisoning was blow upon the intended victim, but because of
considered. Since tetanus toxic would affect poor aim the blow landed on somebody else.
the victim for no longer than two weeks, the You have a complex crime, unless the resulting
fact that the victim died two months later consequence is not a grave or less grave
shows that it is no longer tetanus brought felony. You have a single act as against the
about by the act of the accused. The tetanus intended victim and also giving rise to another
felony as against the actual victim. To be more

Page 24
specific, let us take for example A and B. A and

B are enemies. As soon as A saw B at the All three instances under paragraph 1,
distance, A shot at B. However, because of Article 4 are the product of dolo. In aberratio
poor aim, it was not B who was hit but C. You ictus, error in personae and praeter
can readily see that there is only one single act intentionem, never think of these as the
—the act of firing at B. In so far as B is product of culpa. They are always the result of
concerned, the crime at least is attempted an intended felony, and, hence dolo. You
homicide or attempted murder, as the case cannot have these situations out of criminal
may be, if there is any qualifying circumstance. negligence. The crime committed is attempted
As far as the third party C is concerned, if C homicide or attempted murder, not homicide
were killed, the crime is homicide. If C was through reckless imprudence.
only wounded, the crime is only physical
injuries. You cannot have attempted or
frustrated homicide or murder as far as C is Error in personae
concerned, because as far as he is concerned,
there is no intent to kill. As far as that other In error in personae, the intended victim was
victim is concerned, only physical injuries— not at the scene of the crime. It was the actual
serious or less serious or slight. victim upon whom the blow was directed, but
he was not really the intended victim. There
If the resulting physical injuries were only was really a mistake in identity.
slight, then you cannot complex; you will have
one prosecution for the attempted homicide or This is very important because Article 49
murder, and another prosecution for slight applies only in a case of error in personae and
physical injuries for the innocent party. But if not in a case of aberratio ictus.
the innocent party was seriously injured or less
seriously injured, then you have another grave In Article 49, when the crime intended is more
or less grave felony resulting from the same serious than the crime actually committed or
act which gave rise to attempted homicide or vice versa, whichever crime carries the lesser
murder against B; hence, a complex crime. penalty, that penalty will be the one imposed.
But it will be imposed in the maximum period.
In other words, aberratio ictus, generally gives For instance, the offender intended to commit
rise to a complex crime. This being so, the homicide, but what was actually committed
penalty for the more serious crime is imposed was parricide because the person killed by
in the maximum period. This is the legal effect. mistake was somebody related to him within
The only time when a complex crime may not the degree of relationship in parricide. In such
result in aberratio ictus is when one of the a case, the offender will be charged with
resulting felonies is a light felony. parricide, but the penalty that would be
imposed will be that of homicide. This is
because under Article 49, the penalty for the
lesser crime will be the one imposed, whatever
Question and Answer
crime the offender is prosecuted under. In any
event, the offender is prosecuted for the crime
The facts were one of aberratio ictus, but the committed not for the crime intended.
facts stated that the offender aimed carelessly
in firing the shot. Is the felony the result of Illustrations:
dolo or culpa? What crime was committed?

Page 25
A thought of killing B. He positioned himself at Praeter intentionem

one corner where B usually passes. When a
figure resembling B was approaching, A hid In People vs. Gacogo, 53 Phil 524, two
and when that figure was near him, he persons quarreled. They had fist blows. The
suddenly hit him with a piece of wood on the other started to run away and Gacogo went
nape, killing him. But it turned out that it was after him, struck him with a fist blow at the
his own father. The crime committed is back of the head. Because the victim was
parricide, although what was intended was running, he lost balance, fell on the pavement
homicide. Article 49, therefore, will apply and his head struck the cement pavement. He
because out of a mistake in identity, a crime suffered cerebral hemorrhage. Although
was committed different from that which was Gacogo claimed that he had no intention of
intended. killing the victim, his claim is useless. Intent to
kill is only relevant when the victim did not die.
In another instance, A thought of killing B. This is so because the purpose of intent to kill
Instead of B, C passed. A thought that he was is to differentiate the crime of physical injuries
B, so he hit C on the neck, killing the latter. from the crime of attempted homicide or
Just the same the crime intended to be attempted murder or frustrated homicide or
committed is homicide and what was frustrated murder. But once the victim is dead,
committed is actually homicide, Article 49 does you do not have talk of intent to kill anymore.
not apply. Here, error in personae is of no The best evidence of intent to kill is the fact
effect. that the victim was killed. Although Gacogo
was convicted for homicide for the death of the
How does error in personae affect criminal person, he was given the benefit of paragraph
liability of the offender? 3 of Article 13, that is, “that the offender did
not intend to commit so grave a wrong as that
Error in personae is mitigating if the crime committed.”
committed is different from that which was
intended. If the crime committed is the same This is the consequence of praeter
as that which was intended, error in personae intentionem. In short, praeter intentionem is
does not affect the criminal liability of the mitigating, particularly covered by paragraph 3
offender. of Article 13. In order however, that the
situation may qualify as praeter intentionem,
In mistake of identity, if the crime committed there must be a notable disparity between the
was the same as the crime intended, but on a means employed and the resulting felony. If
different victim, error in personae does not there is no disparity between the means
affect the criminal liability of the offender. But employed by the offender and the resulting
if the crime committed was different from the felony, this circumstance cannot be availed of.
crime intended, Article 49 will apply and the It cannot be a case of praeter intentionem
penalty for the lesser crime will be applied. In because the intention of a person is
a way, mistake in identity is a mitigating determined by the means resorted to by him in
circumstance where Article 49 applies. Where committing the crime.
the crime intended is more serious than the
crime committed, the error in personae is not a Illustrations:
mitigating circumstance.
A stabbed his friend when they had a drinking
spree. While they were drinking, they had

Page 26
some argument about a basketball game and intend to commit so grave a wrong as that
they could not agree, so he stabbed him committed.” There was really no intention to
eleven times. His defense is that he had no bring about the killing, because it was the pan
intention of killing his friend. He did not intend de sal that they put into the mouth. Had it
to commit so grave a wrong as that been a piece of rag, it would be different. In
committed. It was held that the fact 11 that case, the Supreme Court gave the
wounds were inflicted on A’s friend is hardly offenders the benefit of praeter intentionem as
compatible with the idea that he did not intend a mitigating circumstance. The means
to commit so grave a wrong as that employed is not capable of producing death if
committed. only the woman chewed the pan de sal.
In another instance, the accused was a A man raped a young girl. The young girl was
homosexual. The victim ridiculed or humiliated shouting so the man placed his hand on the
him while he was going to the restroom. He mouth and nose of the victim. He found out
was so irritated that he just stabbed the victim later that the victim was already dead; she
at the neck with a lady’s comb with a pointed died of suffocation. The offender begged that
handle, killing the victim. His defense was that he had no intention of killing the girl and that
he did not intend to kill him. He did not intend his only intention was to prevent her from
to commit so grave a wrong as that of killing shouting. The Supreme Court rejected the plea
him. The contention was rejected, because of saying that a person who is suffocated may
the instrument used was pointed. The part of eventually die. Do the offender was prosecuted
the body wherein it was directed was the neck for the serious crime of rape with homicide and
which is a vital part of the body. In praeter was not given the benefit of paragraph 3 of
intentionem, it is mitigating only if there is a Article 13.
notable or notorious disparity between the
means employed and the resulting felony. In Differentiating this first case with the case of
criminal law, intent of the offender is the Chinaman and his wife, it would seem that
determined on the basis employed by him and the difference lies in the means employed by
the manner in which he committed the crime. the offender.
Intention of the offender is not what is in his
mind; it is disclosed in the manner in which he In praeter inentionem, it is essential that there
committed the crime. is a notable disparity between the means
employed or the act of the offender and the
In still another case, the accused entered the felony which resulted. This means that the
store of a Chinese couple, to commit robbery. resulting felony cannot be foreseen from the
They hogtied the Chinaman and his wife. act of the offender. If the resulting felony can
Because the wife was so talkative, one of the be foreseen or anticipated from the means
offenders got a pan de sal and placed it in her employed, the circumstance of praeter
mouth. But because the woman was trying to intentionem does not apply.
wiggle from the bondage, the pan de sal
slipped through her throat. She died because For example, if A gave B a karate blow in the
of suffocation. The offenders were convicted throat, there is no praeter intentionem because
for robbery with homicide because there was a the blow to the throat can result in death.
resulting death, although their intention was
only to rob. They were given the benefit of So also, if A tried to intimidate B by poking a
paragraph 3 of Article 13, “that they did not gun at the latter’s back, and B died of cardiac

Page 27
arrest, A will be prosecuted for homicide but might also fall under the Revised
will be given the mitigating circumstance of Administrative Code—desecrating the dead.
praeter intentionem.
Impossible crime 2. A was driving his car around Roxas
Boulevard when a person hitched a ride.
An impossible crime is an act which would be Because this person was exquisitely dressed, A
an offense against person or property were it readily welcomed the fellow inside his car and
not for the inherent impossibility of its he continued driving. When he reached a
accomplishment or on account of the motel, A suddenly swerved his car inside. A
employment of inadequate or ineffectual started kissing his passenger, but he found out
means. that his passenger was not a woman but a
man, and so he pushed him out of the car and
gave him fist blows. Is an impossible crime
committed? If not, is there any crime
Question and Answer
committed at all?
1. Accused was a houseboy in a It cannot be an impossible crime,

house where only a spinster because the act would have been a crime
resides. It is customary for the against chastity. The crime is physical injuries
spinster to sleep in the nude or acts of lasciviousness, if this was done
because her room was warm. It against the will of the passenger. There are
was also the habit of the houseboy two ways of committing acts of lasciviousness.
that whenever she enters her
room, the houseboy would follow Under Article 336, where the acts of
and peek into the keyhole. Finally, lasciviousness were committed under
when the houseboy could no circumstances of rape, meaning to say, there is
longer resist the urge, he climbed employment of violence or intimidation or the
into the ceiling, went inside the victim is deprived of reason. Even if the victim
room of his master, placed himself is a man, the crime of acts of lasciviousness is
on top of her and abused her, not committed. This is a crime that is not limited to
knowing that she was already dead a victim who is a woman. Acts of
five minutes earlier. Was an lasciviousness require a victim to be a woman
impossible crime committed? only when it is committed under the
circumstances of seduction. If it is committed
Yes. Before, the act performed by the under the circumstances of rape, the victim
offender could not have been a crime against may be a man or a woman. The essence of an
person or property. The act performed would impossible crime is the inherent impossibility of
have been constituted a crime against chastity. accomplishing the crime or the inherent
An impossible crime is true only if the act done impossibility of the means employed to bring
by the offender constitutes a crime against about the crime. When we say inherent
person or property. However, with new rape impossibility, this means that under any and all
law amending the Revised Penal Code and circumstances, the crime could not have
classifying rape as a crime against persons, it materialized. If the crime could have
is now possible that an impossible crime was materialized under a different set of facts,
committed. Note, however, that the crime employing the same mean or the same act, it

Page 28
is not an impossible crime; it would be an her breakfast had no effect on her. Is there an
attempted felony. impossible crime?
Under Article 4, paragraph 2, impossible crime No impossible crime is committed

is true only when the crime committed would because the fact itself stated that what
have been against person or against property. prevented the poison from taking effect is the
It is therefore important to know what are the physical condition of the woman. So it implies
crimes against Title VIII, against persons and that if the woman was not of such physical
those against property under Title X. An condition, the poison would have taken effect.
impossible crime is true only to any of those Hence, it is not inherently impossible to realize
crimes. the killing. The crime committed is frustrated
3. A entered a department store at about parricide.
midnight, when it was already closed. He went If it were a case of poisoning, an
directly to the room where the safe or vault impossible crime would be constituted if a
was being kept. He succeeded in opening the person who was thinking that it was a poison
safe, but the safe was empty. Is an impossible that he was putting into the food of the
crime committed? If not, what crime was intended victim but actually it was vetsin or
possibly committed? sugar or soda. Under any and all
circumstances, the crime could not have been
This is not an impossible crime. That is realized. But if due to the quantity of the
only true if there is nothing more to steal. But vetsin, sugar or soda, the intended victim
in a department store, there is plenty to steal, developed LBM and was hospitalized, then it
not only the money inside the vault or safe. would not be a case of impossible crime
The fact that the vault had turned out to be anymore. It would be a case of physical
empty is not really inherently impossible to injuries, if the act done does not amount to
commit the crime of robbery. There are other some other crime under the Revised Penal
things that he could take. The crime committed Code.
therefore is attempted robbery, assuming that
he did not lay his hands on any other article. Do not confuse an impossible crime with the
This could not be trespass to dwelling because attempted or frustrated stage.
there are other things that can be stolen.
5. Scott and Charles are roommates in a
4. A and B were lovers. B was willing to boarding house. Everyday, Scott leaves for
marry A except that A is already married. A work but before leaving he would lock the food
thought of killing his wife. He prepared her cabinet where he kept his food. Charles
breakfast every morning, and every morning, resented this. One day, he got an electric cord,
he placed a little dose of arsenic poison into tied the one end to the door know and plugged
the breakfast of the wife. The wife consumed the other end to an electric outlet. The idea
all the food prepared by her husband including was that, when Scott comes home to open the
the poison but nothing happened to the wife. doorknob, he would be electrocuted. Unknown
Because of the volume of the household chores to Charles, Scott is working in an electric shop
that the wife had to attend to daily, she where he received a daily dosage of electric
developed a physical condition that rendered shock. When Scott opened the doorknob,
her strong and resistant to any kind of nothing happened to him. He was just
poisoning, so the amount of poison applied to surprised to find out that there was an electric
cord plugged to the outlet and the other end to

Page 29
the doorknob. Was an impossible crime Revised Penal Code, he will not be liable for an
committed? impossible crime. He will be prosecuted for the
crime so far by the act done by him. The
It is not an impossible crime. The reason is an offender is punished for an
means employed is not inherently impossible impossible crime just to teach him a lesson
to bring about the consequence of his because of his criminal perversity. Although
felonious act. What prevented the objectively, no crime is committed, but
consummation of the crime was because of subjectively, he is a criminal. That purpose of
some cause independent of the will of the the law will also be served if he is prosecuted
perpetrator. for some other crime constituted by his acts
which are also punishable under the Revised
6. A and B are enemies. A, upon seeing Penal Code.
B, got the revolver of his father, shot B, but the 7. A and B are neighbors. They are
revolver did not discharge because the bullets jealous of each other’s social status. A thought
were old, none of them discharged. Was an of killing B so A climbed the house of B through
impossible crime committed? the window and stabbed B on the heart, not
knowing that B died a few minutes ago of
No. It was purely accidental that the bangungot. Is A liable for an impossible crime?
firearm did not discharge because the bullets
were old. If they were new, it would have No. A shall be liable for qualified
fired. That is a cause other than the trespass to dwelling. Although the act done by
spontaneous desistance of the offender, and A against B constitutes an impossible crime, it
therefore, an attempted homicide. is the principle of criminal law that the offender
shall be punished for an impossible crime only
But if let us say, when he started squeezing when his act cannot be punished under some
the trigger, he did not realize that the firearm other provision of the Revised Penal Code.
was empty. There was not bullet at all. There
is an impossible crime, because under any and In other words, this idea of an impossible
all circumstance, an unloaded firearm will crime is one of last resort, just to teach the
never fire. offender a lesson because of his criminal
perversity. If he could be taught of the same
Whenever you are confronted with a problem lesson by charging him with some other crime
where the facts suggest that an impossible constituted by his act, then that will be the
crime was committed, be careful about the proper way. If you want to play safe, you state
question asked. If the question asked is: “Is an there that although an impossible crime is
impossible crime committed?” Then you judge constituted, yet it is a principle of criminal law
that question on the basis of the facts. If the that he will only be penalized for an impossible
facts really constitute an impossible crime, crime if he cannot be punished under some
then you suggest that an impossible crime is other provision of the Revised Penal Code.
committed, then you state the reason for the
inherent impossibility. If the question is “Is an impossible crime
committed?”, the answer is yes, because on
If the question asked is “Is he liable for an the basis of the facts stated, an impossible
impossible crime?”, this is a catching question. crime is committed. But to play safe, add
Even though the facts constitute an impossible another paragraph: However, the offender will
crime, if the act done by the offender not be prosecuted for an impossible crime but
constitutes some other crimes under the for _____ [state the crime]. Because it is a

Page 30
principle in criminal law that the offender can firearms, the culprits set fire on the intended
only be prosecuted for an impossible crime if victim’s house, believing that she was there
his acts do not constitute some other crimes when in fact she was not, would the criminal
punishable under the Revised Penal Code. An liability be for an impossible crime?
impossible crime is a crime of last resort.
Until the Intod case, the prevailing attitude
was that the provision of the Revised Penal
Modified Concept of impossible crime: Code on impossible crime would only apply
when the wrongful act, which would have
In a way, the concept of impossible crime has constituted a crime against persons or
been modified by the decision of the Supreme property, could not and did not constitute
Court in the case of Intod vs. CA, et. al., 285 another felony. Otherwise, if such act
SCRA 52. In this case, four culprits, all armed constituted any other felony although different
with firearms and with intent to kill, went to from what the offender intended, the criminal
the intended victim’s house and after having liability should be for such other felony and not
pinpointed the latter’s bedroom, all four fired for an impossible crime. The attitude was so
at and riddled the said room with bullets, because Article 4 of the Code provides two
thinking that the intended victim was already situations where criminal liability shall be
there as it was about 10:00 in the evening. It incurred, to wit:
so happened that the intended victim did not
come home on that evening and so was not in Article 4. Criminal liability—
her bedroom at that time. Eventually the Criminal liability shall be incurred:
culprits were prosecuted and convicted by the
trial court for attempted murder. The Court of 1. By any person committing a
Appeals affirmed the judgment but the felony (delito) although the
Supreme Court modified the same and held the wrongful act done be different
petitioner liable only for the so-called from that which he intended.
impossible crime. As a result, petitioner-
accused was sentenced to imprisonment of 2. By any person performing an
only six months of arresto mayor for the act which would be an offense
felonious act he committed with intent to kill: against persons or property, were
this despite the destruction done to the it not for the inherent impossibility
intended victim’s house. Somehow, the of its accomplishment or on
decision depreciated the seriousness of the act account of the employment of
committed, considering the lawlessness by inadequate or ineffectual means.
which the culprits carried out the intended
crime, and so some members of the bench and Paragraph 1 refers to a situation where the
bar spoke out against the soundness of the wrongful act done constituted a felony
ruling. Some asked questions, was it really the although it may be different from what he
impossibility of accomplishing the killing that intended. Paragraph 2 refers to a situation
brought about its non-accomplishment? Was it where the wrongful act done did not constitute
not purely accidental that the intended victim any felony, but because the act would have
did not come home that evening and, thus, given rise to a crime against persons or against
unknown to the culprits, she was not in her property, the same is penalized to repress
bedroom at the time it was shot and riddled criminal tendencies to curtail their frequency.
with bullets? Suppose, instead of using Because criminal liability for impossible crime
presupposes that no felony resulted form the

Page 31
wrongful act done, the penalty is fixed at is recommend to the Chief Executive to
arresto mayor or a fine from P200.00 to grand executive clemency.
P500.00, depending on the “social danger and
degree of criminality shown by the
offender”(Article 59), regardless of whether the STAGES IN THE COMMISSION OF A
wrongful act was an impossible crime against FELONY
persons or against property.
The classification of stages of a felony in Article
There is no logic in applying paragraph 2 of 6 are true only to crimes under the Revised
Article 4 to a situation governed by paragraph Penal Code. This does not apply to crimes
1 of the same Article, that is, where a felony punished under special laws. But even certain
resulted. Otherwise, a redundancy or duplicity crimes which are punished under the Revised
would be perpetrated. Penal Code do not admit of these stages.
In the Intod case, the wrongful acts of the The purpose of classifying penalties is to bring
culprits caused destruction to the house of the about a proportionate penalty and equitable
intended victim; this felonious act negates the punishment. The penalties are graduated
idea of an impossible crime. But whether we according to their degree of severity. The
agree or not, the Supreme Court has spoken, stages may not apply to all kinds of felonies.
we have to respect its ruling. There are felonies which do not admit of
division.
NO CRIME UNLESS THERE IS A LAW

PUNISHING IT Formal Crimes
When a person is charged in court, and the Formal crimes are crimes which are
court finds that there is no law applicable, the consummated in one instance. For example, in
court will acquit the accused and the judge will oral defamation, there is no attempted oral
give his opinion that the said act should be defamation or frustrated oral defamation; it is
punished. always in the consummated stage.
Article 5 covers two situations: So also, in illegal exaction under Article 213 is
a crime committed when a public officer who is
1. The court cannot convict the accused authorized to collect taxes, licenses or impose
because the acts do not constitute a crime. for the government, shall demand an amount
The proper judgment is acquittal, but the bigger than or different from what the law
court is mandated to report to the Chief authorizes him to collect. Under sub-paragraph
Executive that said act be made subject of a of Article 213 on illegal exaction, the law
penal legislation and why. uses the word “demanding.” Mere demanding
of an amount different from what the law
2. Where the court finds the penalty authorizes him to collect will already
prescribed for the crime too harsh consummate a crime, whether the taxpayer
considering the conditions surrounding the pays the amount being demanded or not.
commission of the crime, the judge should Payment of the amount being demanded is not
impose the law. The most that he could do essential to the consummation of the crime.

Page 32
The difference between the attempted stage

and the frustrated stage lies on whether the No. Overt act begins when the
offender has performed all the acts of husband mixed the poison with the food his
execution for the accomplishment of a felony. wife is going to take. Before this, there is no
Literally, under the article, if the offender has attempted stage yet.
performed all the acts of execution which
should produce the felony as a consequence An overt act is that act which if allowed to
but the felony was not realized, then the crime continue its natural course would definitely
is already in the frustrated stage. If the result into a felony.
offender has not yet performed all the acts of
execution—there is something yet to be In the attempted stage, the definition uses the
performed—but he was not able to perform all word “directly.” This is significant. In the
the acts of execution due to some cause or attempted stage, the acts so far performed
accident other than his own spontaneous may already be a crime or it may just be an
desistance, then you have an attempted ingredient of another crime. The word
felony. “directly” emphasizes the requirement that the
attempted felony is that which is directly linked
You will notice that the felony begins when the to the overt act performed by the offender, no
offender performs an overt act. Not any act the felony he has in his mind.
will mark the beginning of a felony, and
therefore, if the act so far being done does not In criminal law, you are not allowed to
begin a felony, criminal liability correspondingly speculate, not to imagine what crime is
does not begin. In criminal law, there is such a intended, but apply the provisions of the law to
thing as preparatory act. These acts do not the facts given.
give rise to criminal liability.
When a person starts entering the dwelling of
another, that act is already trespassing. But
Question and Answer the act of entering is an ingredient of robbery
with force upon things. You could only hold
him liable for attempted robbery when he has
A and B are husband and wife. A met C who already completed all acts performed by him
was willing to marry him, but he is already directly leading to robbery. The act of entering
married. A thought of eliminating B and to alone is not yet indicative of robbery although
poison her. So, he went to the drugstore and that may be what he may have planned to
bought arsenic poison. On the way out, he met commit. In law, the attempted stage is only
D. D asked him who was sick in the family, A that overt act which is directly linked to the
confided to D that he bought the poison to felony intended to be committed.
poison his wife in order to marry C. After that,
they parted ways. D went directly to the police In US vs. Namaja, the accused was arrested
and reported that A is going to kill his wife. So while he was detaching some of the wood
the policemen went to A’s house and found A panels of a store. He was already able to
still unwrapping the arsenic poison. The detach two panels. To a layman, the only
policemen asked A if he was planning to poison conclusion that will come to your mind is that
his wife B and A said yes. The police arrested this fellow started to enter the store to steal
him and charged him with attempted parricide. something. He would not be there just to sleep
Is the charge correct? there. But in criminal law, since the act of

Page 33
removing the panel indicates only at most the of picklocks and similar tools; not complex
intention to enter. He can only be prosecuted because one is not necessary means to commit
for trespass. The removal of the paneling is the other.
just an attempt to trespass, not an attempt to
rob. Although Namaja was prosecuted for
attempted robbery, the Supreme Court held it Desistance
is only attempted trespass because that is the
crime that can be directly linked to his act of Desistance on the part of the offender negates
removing the wood panel. criminal liability in the attempted stage.
Desistance is true only in the attempted stage
There are some acts which are ingredients of a of the felony. If under the definition of the
certain crime, but which are, by themselves, felony, the act done is already in the frustrated
already criminal offenses. stage, no amount of desistance will negate
criminal liability.
In abduction, your desire may lead to acts of
lasciviousness. In so far the woman being The spontaneous desistance of the offender
carried is concerned, she may already be the negates only the attempted stage but not
victim of lascivious acts. The crime is not necessarily all criminal liability. Even though
attempted abduction but acts of lasciviousness. there was desistance on the part of the
You only hold him liable for an attempt, so far offender, if the desistance was made when
as could be reasonably linked to the overt act acts done by him already resulted to a felony,
done by him. Do not go far and imagine what that offender will still be criminally liable for
he should do. the felony brought about his act. What is
negated is only the attempted stage, but there
may be other felonies constituting his act.
Question and Answer Illustrations:
A awakened one morning with a man sleeping A fired at B and B was hit on the shoulder. But
in his sofa. Beside the man was a bag B’s wound was not mortal. What A then did
containing picklocks and similar tools. He found was to approach B, and told B, “Now you are
out that the man entered his sala by cutting dead, I will kill you.” But A took pity and kept
the screen on his window. If you were to the revolver and left. The crime committed is
prosecute this fellow, for what crime are you attempted homicide and not physical injuries,
going to prosecute him? because there was an intention to kill. The
desistance was with the second shot and
The act done by him of entering would not affect the first shot because the first
through an opening not intended for the shot had already hit B. The second attempt has
purpose is only qualified trespass. Qualified nothing to do with the first.
trespass because he did so by cutting through
the screen. There was force applied in order to In another instance, A has a very seductive
enter. Other than that, under Article 304 of the neighbor in the person of B. A had always
Revised Penal Code, illegal possession of been looking at B and had wanted to possess
picklocks and similar tools is a crime. Thus, he her but their status were not the same. One
can be prosecuted for two crimes: 1. qualified evening, after A saw B at her house and
trespass to dwelling, and 2. illegal possession thought that B was already asleep, he entered

Page 34
the house of B through the window to abuse who in consideration of an act having to do
her. He, however, found out that B was nude with his official duties would receive
so he lost interest and left. Can A be accused something, or accept any promise or present in
of attempted rape? No, because there was consideration thereof.)
desistance, which prevented the crime from
being consummated. The attempted stage was The confusion arises from the fact that this
erased because the offender desisted after crime requires two to commit—the giver and
having commenced the commission of the the receiver. The law called the crime of the
felony. giver as corruption of public official and the
receiver as bribery. Giving the idea that these
The attempted felony is erased by desistance are independent crimes, but actually, they
because the offender spontaneously desisted cannot arise without the other. Hence, if only
from pursuing the acts of execution. It does one side of the crime is present, only
not mean, however, that there is no more corruption, you cannot have consummated
felony committed. He may be liable for a corruption without the corresponding
consummated felony constituted by his act of consummated bribery. There cannot be a
trespassing. When A entered the house consummated bribery without the
through the window, which is not intended for corresponding consummated corruption. If you
entrance, it is always presumed to be against have bribery only, it is only possible in the
the will of the owner. If the offender attempted stage. If you have corruption only,
proceeded to abuse the woman, but the latter it is possible only in the attempted stage. A
screamed, and A went out of the window corruptor gives money to a public officer for
again, he could not be prosecuted for qualified the latter not to prosecute him. The public
trespass. Dwelling is taken as an aggravating officer received the money but just the same,
circumstance so he will be prosecuted for arrested him. He received the money to have
attempted rape aggravated by dwelling. evidence of corruption. Do not think that
because the corruptor has already delivered
In deciding whether a felony is attempted or the money, he has already performed all the
frustrated or consummated, there are three acts of execution and, therefore, the corruption
criteria involved: is already beyond the attempted stage. That
thinking does away with the concept of the
1. The manner of committing the crime; crime that it requires two to commit. The
2. The elements of the crime; and manner of committing the crime requires the
3. The nature of the crime itself. meeting of the minds between the giver and
the receiver.
Manner of committing a crime When the giver delivers the money to the
supposed receiver, but there is no meeting of
For example, let us take the crime of bribery. the minds, the only act done by the giver is an
Can the crime of frustrated bribery be attempt. It is not possible for him to perform
committed? No. (Incidentally, the common all the acts of execution because in the first
concept of bribery is that it is the act of one place, the receiver has no intention of being
who corrupts a public officer. Actually, bribery corrupted. Similarly, when a public officer
is the crime of the receiver, not the giver. The demands a consideration by official duty, the
crime of the giver is corruption of public corruptor turns down the demand, there is no
official. Bribery is the crime of the public officer bribery.

Page 35
without the felony being accomplished, there is

If the one to whom the demand was made no way of stating that the offender has already
pretended to give, but he had reported the performed all the acts of execution. An
matter to higher authorities, the money was example of this is the crime of rape. The
marked and this was delivered to the public essence of the crime is carnal knowledge. No
officer. If the public officer was arrested, do matter what the offender may do to
not think that because the public officer accomplish a penetration, if there was no
already had the money in his possession, the penetration yet, it cannot be said that the
crime is already frustrated bribery, it is only offender has performed all the acts of
attempted bribery. This is because the execution. We can only say that the offender in
supposed corruptor has no intention to corrupt. rape has performed all the acts of execution
In short, there is no meeting of the minds. On when he has effected a penetration. Once
the other hand, if there is a meeting of the there is penetration already, no matter how
minds, there is consummated bribery or slight, the offense is consummated. For this
consummated corruption. This leaves out the reason, rape admits only of the attempted and
frustrated stage because of the manner of consummated stages, no frustrated stage. This
committing the crime. was the ruling in the case of People vs. Orita.
But indirect bribery is always consummated. In rape, it requires the connection of the
This is because the manner of consummating offender and the offended party. No
the crime does not admit of attempt or penetration at all, there is only an attempted
frustration. stage. Slightest penetration or slightest
connection, consummated. You will notice this
You will notice that under the Revised Penal from the nature of the crime requiring two
Code, when it takes two to commit the crime, participants.
there could hardly be a frustrated stage. For
instance, the crime of adultery. There is This is also true in the crime of arson. It does
frustrated adultery. Only attempted or not admit of the frustrated stage. In arson, the
consummated. This is because it requires the moment any particle of the premises intended
link of two participants. If that link is there, the to be burned is blackened, that is already an
crime is consummated; if such link is absent, indication that the premises have begun to
there is only an attempted adultery. There is burn. It does not require that the entire
no middle ground when the link is there and premises be burned to consummate arson.
when the link is absent. Because of that, the frustrated stage of arson
has been eased out. The reasoning is that one
There are instances where an intended felony cannot say that the offender, in the crime of
could already result from the acts of execution arson, has already performed all the acts of
already done. Because of this, there are execution which could produce the destruction
felonies where the offender can only be of the premises through the use of fire, unless
determined to have performed all the acts of a part of the premises has begun to burn. If it
execution when the resulting felony is already has not begun to burn, that means that the
accomplished. Without the resulting felony, offender has yet to perform all the acts of
there is no way of determining whether the execution. On the other hand, the moment it
offender has already performed all the acts of begins to burn, the crime is consummated.
execution or not. It is in such felonies that the Actually, the frustrated stage is already
frustrated stage does not exist because standing on the consummated stage except

Page 36
that the outcome did not result. As far as the crime has already passed the subjective phase
stage is concerned, the frustrated stage and, therefore, it is no longer attempted. The
overlaps the consummated stage. moment the execution of the crime has already
gone to that point where the felony should
Because of this reasoning by the Court of follow as a consequence, it is either already
Appeals in People vs. Garcia, the Supreme frustrated or consummated. If the felony does
Court followed the analysis that one cannot say not follow as a consequence, it is already
that the offender in the crime of arson has frustrated. If the felony follows as a
already performed all the acts of execution consequence, it is consummated.
which would produce the arson as a
consequence, unless and until a part of the The trouble is that, in the jurisprudence
premises had begun to burn. recognizing the objective phase and the
subjective phase, the Supreme Court
In US vs. Valdez, the offender had tried to considered not only the acts of the offender,
burn the premises by gathering jute sacks but also his belief. That although the offender
laying these inside the room. He lighted these, may not have done the act to bring about the
and as soon as the jute sacks began to burn, felony as a consequence, if he could have
he ran away. The occupants of the room put continued committing those acts but he himself
out the fire. The court held that what was did not proceed because he believed that he
committed was frustrated arson. had done enough to consummate the crime,
Supreme Court said the subjective phase has
This case was much the way before the passed. This was applied in the case of US vs.
decision in the case of People vs. Garcia was Valdez, where the offender, having already
handed down and the Court of Appeals ruled put kerosene on jute sacks, lighted the same,
that there is no frustrated arson. But even he had no reason not to believe that the fire
then, the analysis in the case of US vs. Valdez would spread, so he ran away. That act
is correct. This is because, in determining demonstrated that in his mind, he believed
whether the felony is attempted, frustrated or that he has performed all the acts of execution
consummated, the court does not only and that it is only a matter of time that the
consider the definition under Article 6 of the premises will burn. The fact that the occupant
Revised Penal Code, or the stages of execution of the other room came out and put out the
of the felony. When the offender has already fire is a cause independent of the will of the
passed the subjective stage of the felony, it is perpetrator.
beyond the attempted stage. It is already on
the consummated or frustrated stage The ruling in the case of US vs. Valdez is still
depending on whether a felony resulted. If the correct. But in the case of People vs. Garcia,
felony did not result, frustrated. the situation is different. Here, the offender
who put the torch over the house of the
The attempted stage is said to be within the offended party, the house being a nipa hut,
subjective phase of execution of a felony. On the torch which was lighted could easily burn
the subjective phase, it is that point in time the roof of the nipa hut. But the torch burned
when the offender begins the commission of out.
an overt act until that point where he loses
control of the commission of the crime already. In that case, you cannot say that the offender
If he has reached that point where he can no believed that he had performed all the acts of
longer control the ensuing consequence, the

Page 37
execution. There was not even a single burn of the blow. He reasoned out that the crime
any instrument or agency of the crime. would be frustrated because the offender was
able to perform all the acts of execution which
The analysis made by the Court of Appeals is would bring about the felony were it not for a
still correct: that they could not demonstrate a cause independent of the will of the
situation where the offender has performed all perpetrator.
the acts of execution to bring about the crime
of arson and the situation where he has not The explanation is academic. You will notice
yet performed all the acts of execution. The that under the Revised Penal Code, the crime
weight of authority is that the crime of arson of physical injuries is penalized on the basis of
cannot be committed in the frustrated stage. the gravity of the injuries. Actually, there is no
The reason is because we can hardly simple crime of physical injuries. You have to
determine whether the offender has performed categorize because there are specific articles
all the acts of execution that would result in that apply whether the physical injuries are
arson, as a consequence, unless a part of the serious, less serious or slight. If you say
premises has started to burn. On the other physical injuries, you do not know which article
hand, the moment a particle or a molecule of to apply. This being so, you could not punish
the premises has blackened, in law, arson is the attempted or frustrated stage because you
consummated. This is because consummated do not know what crime of physical injuries
arson does not require that the whole of the was committed.
premises be burned. It is enough that any part
of the premises, no matter how small, bas
begun to burn.
Question and Answer
There are also certain crimes that do not admit

of the attempted or frustrated stage, like 1. Is there an attempted slight physical
physical injuries. One of the known injuries?
commentators in criminal law has advanced
the view that the crime of physical injuries can If there is no result, you do not know.
be committed in the attempted as well as the Criminal law cannot stand on any speculation
frustrated stage. He explained that by going or ambiguity; otherwise, the presumption of
through the definition of an attempted and a innocence would be sacrificed. Therefore, the
frustrated felony under Article 6, if a person commentator’s opinion cannot stand because
was about to give a fist blow to another raises you cannot tell what particular physical injuries
his arms, but before he could throw a blow, was attempted or frustrated unless the
somebody holds that arm, there would be consequence is there. You cannot classify the
attempted physical injuries. The reason for this physical injuries.
is because the offender was not able to
perform all the acts of execution to bring about 2. A threw muriatic acid on the face of B.
physical injuries. The injuries would have resulted in deformity
were it not for timely plastic surgery. After the
On the other hand, he also stated that the surgery, B became more handsome. What
crime of physical injuries may be committed in crime is committed? Is it attempted, frustrated
the frustrated stage when the offender was or consummated?
able to throw the blow but somehow, the
offended party was able to sidestep away from

Page 38
The crime committed here is serious On the other hand, if it were a crime of theft,
physical injuries because of the deformity. damage or intent to cause damage is not an
When there is deformity, you disregard the element of theft. What is necessary only is
healing duration of the wound or the medical intent to gain, not even gain is important. The
treatment required by the wound. In order that mere intent to derive some profit is enough but
in law, a deformity can be said to exist, three the thinking must be complete before a crime
factors must concur: of theft shall be consummated. That is why we
made that distinction between theft and
1. The injury should bring about the estafa.
ugliness; If the personal property was received by the
2. The ugliness must be visible; offender, this is where you have to decide
3. The ugliness would not disappear whether what was transferred to the offender
through natural healing process. is juridical possession or physical possession
only. If the offender did not receive the
Along this concept of deformity in law, the personal property, but took the same from the
plastic surgery applied to B is beside the point. possession of the owner without the latter’s
In law, what is considered is not the artificial consent, then there is no problem. That cannot
or the scientific treatment but the natural be estafa; this is only theft or none at all.
healing of the injury. So the fact that there was
plastic surgery applied to B does not relieve In estafa, the offender receives the property;
the offender from the liability for the physical he does not take it. But in receiving the
injuries inflicted. The crime committed is property, the recipient may be committing
serious physical injuries. It is consummated. In theft, not estafa, if what was transferred to
determining whether a felony is attempted, him was only the physical or material
frustrated or consummated, you have to possession of the object. It can only be estafa
consider the manner of committing the felony, if what was transferred to him is not only
the element of the felony and the nature of the material or physical possession but juridical
felony itself. There is no real hard and fast possession as well.
rule.
When you are discussing estafa, do not talk
about intent to gain. In the same manner that
Elements of the crime when you are discussing the crime of theft, do
not talk of damage.
In the crime of estafa, the element of damage
is essential before the crime could be The crime of theft is the one commonly given
consummated. If there is no damage, even if under Article 6. This is so because the concept
the offender succeeded in carting away the of theft under the Revised Penal Code differs
personal property involved, estafa cannot be from the concept of larceny under American
considered as consummated. For the crime of common law. Under American common law,
estafa to be consummated, there must be the crime of larceny which is equivalent to out
misappropriation already done, so that there is crime of theft here requires that the offender
damage already suffered by the offended must be able to carry away or transport the
party. If there is no damage yet, the estafa can thing being stolen. Without that carrying away,
only be frustrated or attempted. the larceny cannot be consummated.

Page 39
In our concept of theft, the offender need not A man entered a room and found a chest on
move an inch from where he was. It is not a the table. He opened it and found some
matter of carrying away. It is a matter of valuables inside. He took the valuables, put
whether he has already acquired complete them in his pocket and was arrested. In this
control of the personal property involved. That case, theft is consummated.
complete control simply means that the
offender has already supplanted his will from But if he does not take the valuables but lifts
the will of the possessor or owner of the the entire chest, and before he could leave the
personal property involved, such that he could room, he was apprehended, there is frustrated
exercise his own control over the thing. theft.
Illustration: If the thing is stolen from a compound or from

a room, as long as the object has not been
I placed a wallet on a table inside a room. A brought out of that room, or from the
stranger comes inside the room, gets the perimeter of the compound, the crime is only
wallet and puts it in his pocket. I suddenly frustrated. This is the confusion raised in the
started searching him and I found the wallet case of US vs. Dino compared with People
inside his pocket. The crime of theft is already vs. Espiritu and People vs. Adio.
consummated because he already acquired
complete control of my wallet. This is so true In US vs. Dino, the accused loaded boxes of
when he removed the wallet from the confines rifles on their truck. When they were on their
of the table. He can exercise his will over the way out of the South Harbor, they were
wallet already, he can drop this on the floor, checked at the checkpoint, so they were not
etc. But as long as the wallet remains on the able to leave the compound. It was held that
table, the theft is not yet consummated; there what was committed was frustrated theft.
can only be attempted or frustrated theft. If he
has started lifting the wallet, it is frustrated. If In People vs. Espiritu, the accused were on
he is in the act of trying to take the wallet or their way out of the supply house when they
place it under, attempted. were apprehended by the military police who
found them secreting some hospital linen. It
“Taking” in the concept of theft, simply means was held that what was committed was
exercising control over the thing. consummated theft.
If instead of the wallet, the man who entered The emphasis, which was erroneously laid in
the room pretended to carry the table out of some commentaries, is that, in both cases, the
the room, and the wallet is there. While taking offenders were not liable to pass the
the table out of the room, I apprehended him. checkpoint. But why is it that in one, it is
It turned out that he is not authorized at all frustrated and in the other, it is consummated?
and is interested only in the wallet, not the
table. The crime is not yet consummated. It is In the case of US vs. Dino, the boxes of rifle
only frustrated because as far as the table is were stocked inside the compound of the
concerned, it is the confines of this room that South Harbor. As far as the boxes of rifle are
is the container. As long as he has not taken concerned, it is the perimeter of the compound
this table out of the four walls of this room, the that is the container. As long as they were not
taking is not complete. able to bring these boxes of rifle out of the
compound, the taking is not complete. On the

Page 40
other hand, in the case of People vs. Espiritu, the chicken coop. Hence, the crime was
what were taken were hospital linens. These already consummated, and being
were taken from a warehouse. Hospital linens consummated, the return of the owner’s
were taken from the boxes that were diffused property is not desistance anymore. The
or destroyed and brought out of the hospital. offender is criminally liable but he will not be
From the moment they took it out of the boxes civilly liable but he will not be civilly liable
where the owner or the possessor had placed because the object was returned.
it, the control is complete. You do not have to
go out of the compound to complete the taking When the receptacle is locked or sealed, and
or the control. the offender broke the same, in lieu of theft,
the crime is robbery with force upon things.
This is very decisive in the problem because in However, that the receptacle is locked or
most problems given in the bar, the offender, sealed has nothing to do with the stage of the
after having taken the object out of the commission of the crime. It refers only to
container changed his mind and returned it. Is whether it is theft or robbery with force upon
he criminally liable? Do not make a mistake by things.
saying that there is desistance. If the crime is Nature of the crime itself
one of theft, the moment he brought it out, it
was consummated. The return of the thing In crimes involving the taking of human life—
cannot be desistance because in criminal law, parricide, homicide, and murder—in the
desistance is true only in the attempted stage. definition of the frustrated stage, it is
You cannot talk of desistance anymore when it indispensable that the victim be mortally
is already in the consummated stage. If the wounded. Under the definition of the frustrated
offender has already acquired complete control stage, to consider the offender as having
of what he intended to take, the fact that he performed all the acts of execution, the acts
changed his mind and returned the same will already done by him must produce or be
no longer affect his criminal liability. It will only capable of producing a felony as a
affect the civil liability of the crime because he consequence. The general rule is that there
will no longer be required to pay the object. As must be a fatal injury inflicted, because it is
far as the crime committed is concerned, the only then that death will follow.
offender is criminally liable and the crime is
consummated theft. If the wound is not mortal, the crime is only
attempted. The reason is that the wound
Illustration: inflicted is not capable of bringing about the
desired felony of parricide, murder or homicide
A and B are neighbors. One evening, A entered as a consequence; it cannot be said that the
the yard of B and opened the chicken coop offender has performed all the acts of
where B keeps his fighting cocks. He execution which would produce parricide,
discovered that the fighting cocks were not homicide or murder as a result.
physically fit for cockfighting so he returned it.
The crime is consummated theft. The will of An exception to the general rule is the so-
the owner is to keep the fighting cock inside called subjective phase. The Supreme Court
the chicken coop. When the offender has decided cases which applied the subjective
succeeded in bringing the coop, it is clear that standard that when the offender himself
his will is completely governed or superseded believed that he had performed all the acts of
the will of the owner to keep such cock inside execution, even though no mortal wound was

Page 41
inflicted, the act is already in the frustrated

stage. There is no crime committed. Proposal
to commit sedition is not a crime. But if Union
B accepts the proposal, there will be
CONSPIRACY AND PROPOSAL TO COMMIT conspiracy to commit sedition which is a crime
A FELONY under the Revised Penal Code.
Two ways for conspiracy to exist:

When the conspiracy is only a basis of
1. There is an agreement. incurring criminal liability, there must be an
2. The participants acted in concert or overt act done before the co-conspirators
simultaneously which is indicative of a become criminally liable.
meeting of the minds towards a common
criminal goal or criminal objective. When When the conspiracy itself is a crime, this
several offenders act in a synchronized. cannot be inferred or deduced because there is
Coordinated manner, the fact that their no overt act. All that there is is the agreement.
acts complimented each other is indicative On the other hand, if the co-conspirator or any
of the meeting of the minds. There is an of them would execute an overt act, the crime
implied agreement. would no longer be the conspiracy but the
overt act itself.
Two kinds of conspiracy: Illustration:

1. Conspiracy as a crime; and
2. Conspiracy as a manner of incurring A, B, C and D came to an agreement to
criminal liability. commit rebellion. Their agreement was to
bring about the rebellion on a certain date.
When conspiracy itself as a crime, no overt act Even if none of them has performed the act of
is necessary to bring about the criminal rebellion, there is already criminal liability
liability. The mere conspiracy is the crime arising from the conspiracy to commit the
itself. This is only true when the law expressly rebellion. But if anyone of them has committed
punishes the mere conspiracy; otherwise, the the overt act of rebellion, the crime of all is no
conspiracy does not bring about the longer conspiracy but rebellion itself. This
commission of the crime because conspiracy is subsists even though the other co-conspirator
not an overt act but a mere preparatory act. does not know that one of them had already
Treason, rebellion, sedition and coup d’ etat done the act of rebellion.
are the only crimes where the conspiracy and
proposal to commit them are punishable. This legal consequence is not true if the
conspiracy is not a crime. If the conspiracy is
only a basis of criminal liability, none of the co-
conspirators would be liable, unless there is an
Question and Answer
overt act. So, for long as anyone shall desist
before an overt act in furtherance of the crime
Union A proposed acts of sedition to Union B. was committed, such a desistance would
Is there a crime committed? Assuming Union B negate criminal liability.
accepts the proposal, will your answer be
different? Illustration:

Page 42
Conspiracy is a matter of substance which

Three persons plan to rob a bank. For as long must be alleged in the information, otherwise,
as none of the conspirators has committed an the court will not consider the same.
overt act, there is no crime yet. But when one
of them commits any overt act, all of them In People vs. Laurio, 200 SCRA 489, it was
shall be held liable, unless a co-conspirator held that it must be established by positive and
was absent from the scene of the crime or he conclusive evidence, not by conjectures or
showed up, but he tried to prevent the speculations.
commission of the crime.
In Taer vs. CA, 186 SCRA 5980, it was held
As a general rule, if there has been a that mere knowledge, acquiescence to, or
conspiracy to commit a crime in a particular approval of the act, without cooperation at
place, anyone who did not appear shall be least, agreement to cooperate, is not enough
presumed to have desisted. The exception to to constitute a conspiracy. There must be an
this is if such person who did not appear was intentional participation in the crime with a
the mastermind. view to further the common felonious
We have to observe the distinction between objective.
the two because conspiracy as a crime, must When several persons who do not know each
have a clear and convincing evidence of its other simultaneously attack the victim, the act
existence. Ever crime must be proved beyond of one is the act of all, regardless of the
reasonable doubt. degree of injury inflicted by any one of them.
All will be liable for the consequences. A
When the conspiracy is just a basis of incurring conspiracy is possible even when participants
criminal liability, however, the same may be are not known to each other. Do not think that
deduced or inferred from the acts of several participants are always known to each other.
offenders in carrying out the commission of the
crime. The existence of a conspiracy may be Illustrations:
reasonably inferred from the acts of the
offenders when such acts disclose or show a A thought of having her husband killed
common pursuit of the criminal objective. This because the latter was maltreating her. She
was the ruling in People vs. Pinto, 204 SCRA hired some persons to kill him and pointed at
9. her husband. The goons got hold of her
husband and started mauling him. The wife
Although conspiracy is defined as two or more took pity and shouted for them to stop but the
persons coming to an agreement regarding the goons continued. The wife ran away. The wife
commission of a felony and deciding to commit was prosecuted for parricide. But the Supreme
it, the word “person” here should not be Court said that there was desistance so she is
understood to require a meeting of the co- not criminally liable.
conspirator regarding the commission of the
felony. A conspiracy of the second kind can be A law student resented the fact that his
inferred or deduced even though they have not brother was killed by A. He hired B to kill A and
met as long as they acted in concert or offered him P50,000.00. He disclosed to B that
simultaneously, indicative of a meeting of the A was being arraigned in the City Hall of Manila
minds toward a common goal or objective. and told him to execute the plan on following
day. In the evening of that same day, the law
student changed his mind so he immediately

Page 43
went to the police and told them to dispatch consider the degree of participation of each
police officers to prevent B from committing conspiracy because the act of one is the act of
the crime. Unfortunately, the police were all. As a general rule, they have equal
caught in traffic causing their delay, so that responsibility.
when they reached the place, B had already
killed A. In this case, there was no proposal
but a conspiracy. They have conspired to Question and Answer
execute a crime but the crime involved here is
murder and a conspiracy to commit murder is
not a crime in itself but merely a basis for There are several offenders who acted
incurring criminal liability. This is just a simultaneously. When they fled, a victim was
preparatory act, and his desistance negates found dead. Who should be liable for the killing
criminal liability. if who actually killed the victim is not known?
Proposal is true only up to the point where the There is collective responsibility here.
party to whom the proposal was made has not Without the principle of conspiracy, nobody
yet accepted the proposal. Once the proposal would be prosecuted; hence, there is the rule
was accepted, a conspiracy arises. Proposal is on collective responsibility since it cannot be
unilateral, one party makes a proposition to ascertained who actually killed the victim.
the other; conspiracy is bilateral, it requires
two parties.
There is conspiracy when the offenders acted
As pointed out earlier, desistance is true only simultaneously pursuing a common criminal
in the attempted stage. Before this stage, design; thus, acting out a common criminal
there is only a preparatory stage. Conspiracy is intent.
only in the preparatory stage.
Illustration:
The Supreme Court has ruled that one who
desisted is not criminally liable. “When a A, B and C have been courting the same lady
person has set foot to the path of wickedness for several years. On several occasions, they
and brings back his foot to the path of even visited the lady on intervening hours.
righteousness, the law shall reward him for Because of this, A, B and C became hostile
doing so.” with one another. One day, D invited the
young lady and she accepted the invitation.
Where there are several persons who Eventually, the young lady agreed to marry D.
participated, like in a killing, and they attacked When A, B and C learned about this, they all
the victim simultaneously, so much that it stood up to leave the house of the young lady
cannot be known what participation each one feeling disappointed. When A looked back at
had, all these participants shall be considered the young lady with D, he saw D laughing
as having acted in conspiracy and they will be menacingly. At that instance, A stabbed D. C
held collectively responsible. and B followed. In this case, it was held that
conspiracy was present.
Do not search for an agreement among the
participants. If they acted simultaneously to The common notion is that when there is
bring about their common intention, conspiracy conspiracy involved, the participants are
exists. And when conspiracy exists, do not punished as principals. This notion is no longer

Page 44
absolute. In the case of People vs. Nierra, based on the totality of the value of the
the Supreme Court ruled that even though personal property taken and not on the
there was conspiracy, if a co-conspirator individual property taken by him.
merely cooperated in the commission of the
crime with insignificant or minimal acts, such In Siton vs. CA, it was held that the idea of a
that even without his cooperation, the crime conspiracy is incompatible with the idea of a
could be carried out as well, such co- free for all. There is no definite opponent or
conspirator should be punished as an definite intent as when a basketball crowd
accomplice only. The reason given is that penal beats a referee to death.
laws always favor a milder form of
responsibility upon and offender. So it is no
longer accurate to think that when there is a Composite crimes
conspiracy, all are principals.
Composite crimes are crimes which, in
Notwithstanding that there is conspiracy, a co- substance, consist of more than one crime but
conspirator may be held liable only as an in the eyes of the law, there is only one crime.
accomplice. That means the penalty which For example, the crimes of robbery with
shall be imposed upon him is one degree homicide, robbery with rape, robbery with
lower. For example, there was a planned physical injuries.
robbery, and the taxi driver was present during
the planning. There, the conspirators told the In case the crime committed is a composite
taxi driver that they are going to use his crime, the conspirator will be liable for all the
taxicab in going to the place of robbery. The acts committed during the commission of the
taxi driver agreed but said, “I will bring you crime agreed upon. This is because, in the
there, and after committing the robbery I will eyes of the law, all those acts done in
return later.” The taxi driver brought the pursuance of the crime agreed upon are acts
conspirators where the robbery would be which constitute a single crime.
committed. After the robbery was finished, he
took the conspirators back to his taxi and Illustrations:
brought them away. It was held that the taxi
driver was liable only as an accomplice. His A, B, and C decided to commit robbery in the
cooperation was not really indispensable. The house of D. Pursuant to their agreement, A
robbers could have engaged another taxi. The would ransack the second floor, B was to wait
taxi driver did not really stay during the outside, and C would stay on the first floor.
commission of the robbery. At most, what he Unknown to B and C, A raped a girl upstairs.
only extended was his cooperation. That is why All of them will be liable for robbery with rape.
he was given only that penalty for an The crime committed is robbery with rape,
accomplice. which is not a complex crime, but an indivisible
felony under the Article 294 of the Revised
A, B, and C, under the influence of marijuana, Penal Code. Even if B and C did not know that
broke into a house because they learned that rape was being committed and they agreed
the occupants have gone on an excursion. only and conspired to rob, yet rape was part of
They ransacked the house. A got a colored TV, robbery. Rape can not be separated from
B saw a camera and took that, and C found a robbery.
can of salmon and took that. In the crime of
robbery with force upon things, the penalty is

Page 45
A, B, and C agreed to rob the house of D. It was agreed upon and theft was not an integral
was agreed that A would go to the second part of homicide. This is a distinct crime so the
floor, B would stay in the first floor, and C rule will not apply because it was not the crime
stands guard outside. All went to their agreed upon. Insofar as the crime of theft is
designated areas in pursuit of the plan. While concerned, C will be the only one liable. So C
A was ransacking the second floor, the owner will be liable for homicide and theft.
was awakened. A killed him. A, B, and C will be
liable for robbery with homicide. This is
because, it is well settled that any killing taking CLASSIFICATION OF FELONIES
place while robbery is being committed shall be
treated as a single indivisible offense. This question was asked in the bar
examination: How do you classify felonies and
As a general rule, when there is conspiracy, how are felonies classified?
the rule is that the act of one is the act of all.
This principle applies only to the crime agreed What the examiner had in mind was Articles 3,
upon. 6 and 9. Do not write the classification of
felonies under Book 2 of the Revised Penal
The exception is if any of the co-conspirator Code. That was not what the examiner had in
would commit a crime not agreed upon. This mind because the question does not require
happens when the crime agreed upon and the the candidate to classify but also to define.
crime committed by one of the co-conspirators Therefore, the examiner was after the
are distinct crimes. classifications under Articles 3, 6 and 9.
Exception to the exception: In acts constituting Felonies are classified as follows:

a single indivisible offense, even though the
co-conspirator performed different acts 1. According to the manner of their
bringing about the composite crime, all will be commission
liable for such crime. They can only evade
responsibility for any other crime outside of Under Article 3, they are classified as,
that agreed upon if it is proved that the intentional felonies or those committed
particular conspirator had tried to prevent the with deliberate intent; and culpable
commission of such other act. felonies or those resulting from negligence,
reckless imprudence, lack of foresight or
The rule would be different if the crime lack of skill.
committed was not a composite crime.
2. According to the stages of their
Illustration: execution
A, B, and C agreed to kill D. When they saw Under Article 6, felonies are classified as
the opportunity, A, B, and C killed D and after attempted felony when the offender
that, A and B ran into different directions. C commences the commission of a felony
inspected the pocket of the victim and found directly by overt acts, and does not
that the victim was wearing a ring—a diamond perform all the acts of execution which
ring—and he took it. The crimes committed are should produce the felony by reason of
homicide and theft. As far as the homicide is some cause or accident other than his own
concerned, A, B, and C are liable because that spontaneous desistance; frustrated felony

Page 46
when the offender commences the If the fine is imposed as an alternative penalty
commission of a felony as a consequence or as a single penalty, the fine of P200.00 is
but which would produce the felony as a considered a correctional penalty under Article
consequence but which nevertheless do 26.
not produce the felony by reason of causes
independent of the will of the perpetrator; If the penalty is exactly P200.00, apply Article
and consummated felony when all the 26. It is considered as a correctional penalty
elements necessary for its execution are and it prescribes in 10 years. If the offender is
present. apprehended at any time within ten years, he
can be made to suffer the fine.
3. According to their gravity
This classification of felony according to gravity
Under Article 9, felonies are classified as is important with respect to the question of
grave felonies or those to which attaches prescription of crimes.
the capital punishment of penalties which
in any of their periods are afflictive; less In the case of light felonies, crimes prescribe in
grave felonies or those to which the law two months. After two months, the state loses
punishes with penalties which in their the right to prosecute unless the running
maximum period was correctional; and period is suspended. If the offender escapes
light felonies or those infractions of law for while in detention after he has been loose, if
the commission of which the penalty is there was already judgment that was passed,
arresto menor. it can be promulgated even if absent under the
New Rules on Criminal Procedure. If the crime
is correctional, it prescribes in ten years,
Why is it necessary to determine whether the except arresto mayor, which prescribes in five
crime is grave, less grave or light? years.
To determine whether these felonies can be

complexed or not, and to determine the SUPPLETORY APPLICATION OF THE
prescription of the crime and the prescription REVISED PENAL CODE
of the penalty. In other words, these are
felonies classified according to their gravity, Article 10 is the consequence of the legal
stages and the penalty attached to them. Take requirement that you have to distinguish those
note that when the Revised Penal Code speaks punished under special laws and those under
of grave and less grave felonies, the definition the Revised Penal Code. With regard to Article
makes a reference specifically to Article 25 of 10, observe the distinction.
the Revised Penal Code. Do not omit the
phrase “In accordance with Article 25” because In Article 10, there is a reservation “provision
there is also a classification of penalties under of the Revised Penal Code may be applied
Article 26 that was not applied. suppletorily to special laws.” You will only
apply the provisions of the Revised Penal Code
If the penalty is a fine and exactly P200.00, it as a supplement to the special law, or simply
is only considered a light felony under Article correlate the violated special law, if needed to
9. avoid an injustice. If no justice would result, do
not give suppletory application of the Revised
Penal Code to that of the special law.

Page 47
course of cattle rustling, murder was

For example, a special law punishes a certain committed, the offender cannot be prosecuted
act as a crime. The special law is silent as to for murder. Murder would be a qualifying
the civil liability of one who violates the same. circumstance in the crime of qualified cattle
Here is a person who violated the special law rustling. This was the ruling in People vs.
and he was prosecuted. His violation caused Martinada.
damage or injury to a private party. May the
court pronounce that he is civilly liable to the The amendments of Presidential Decree No.
offended party, considering that the special 6425 (The Dangerous Drugs Act of 1972) by
law is silent on this point? Yes, because Article Republic Act NO. 7659, which adopted the
100 of the Revised Penal Code may be given scale of penalties in the Revised Penal Code,
suppletory application to prevent an injustice means that mitigating and aggravating
from being done to the offended party. Article circumstances can now be considered in
100 states that every person criminally liable imposing penalties. Presidential Decree No.
for a felony is also civilly liable. That article 6425 does not expressly prohibit the
shall be applied suppletorily to avoid an suppletory application of the Revised Penal
injustice that would be caused to the private Code. The stages of the commission of felonies
offended party, if he would not be indemnified will also apply since suppletory application is
for the damages or injuries sustained by him. now allowed.
In People vs. Rodriguez, it was held that the

use of arms is an element of rebellion, so a Circumstances affecting criminal liability
rebel cannot be further prosecuted for
possession of firearms. A violation of a special There are five circumstances affecting criminal
law can never absorb a crime punishable under liability:
the Revised Penal Code, because violations of 1. Justifying circumstances; Art. 11 (6)
the Revised Penal Code are more serious than 2. Exempting circumstances; Art. 12 (7)
a violation of a special law. But a crime in the 3. Mitigating circumstances; Art. 13 (10)
Revised Penal Code can absorb a crime 4. Aggravating circumstances; Art. 14
punishable by a special law if it is a necessary (21)
ingredient of the crime in the Revised Penal 5. Alternative circumstances. Art. 15 (3)
Code.
There are others which are found elsewhere in
In the crime of sedition, the use of firearms is the provisions of the Revised Penal Code:
not an ingredient of the crime. Hence, two 1. Absolutory cause; and
prosecutions can be had: 1. sedition; and 2. 2. Extenuating circumstances.
illegal possession of firearms.
In justifying and exempting circumstances,
But do not think that when a crime is punished there is no criminal liability. When an accused
outside of the Revised Penal Code, it is already invokes them, he in effect admits the
a special law. For example, the crime of cattle- commission of a crime but tries to avoid the
rustling is not a mala prohibitum but a liability thereof. The burden is upon him to
modification of the crime of theft of large establish beyond reasonable doubt the
cattle. So Presidential Decree No. 533, required conditions to justify of exempt his acts
punishing cattle-rustling, is not a special law. It from criminal liability. What is shifted is only
can absorb the crime of murder. If in the

Page 48
the burden of evidence, not the burden of intercourse with his or her paramour or
proof. mistress in not criminally liable.
Justifying circumstances contemplate Under Article 219, discovering secrets through

intentional acts and, hence, are incompatible seizure of correspondence of the ward by their
with dolo. Exempting circumstances may be guardian is not penalized.
invoked in culpable felonies.
Under Article 332, in the case of theft,
swindling and malicious mischief, there is no
Absolutory cause criminal liability but only civil liability, when the
offender and the offended party are related as
The effect of this is to absolve the offender spouse, ascendant, descendant, brother and
from criminal liability, although not from civil sister-in-law living together or where in case
liability. It has the same effect as an the widowed spouse and the property involved
exempting circumstance, but do not call it as is that of the deceased spouse, before such
such in order not to confuse it with the property had passed on to the possession of
circumstances under Article 12. third parties.
Article 20 provides that the penalties Under Article 344, in cases of seduction,
prescribed for accessories shall not be imposed abduction, acts of lasciviousness, and rape, the
upon those who are such with respect to their marriage of the offended party shall extinguish
spouses, ascendants, descendants, legitimate, the criminal action.
natural and adopted brothers and sisters, or
relatives by affinity within the same degrees Absolutory cause has the effect of an
with the exception of accessories who profited exempting circumstance and they are
themselves by assisting the offender to profit predicated on lack of voluntariness like
by the effects of the crime. instigation. Instigation is associated with
criminal intent. Do not consider culpa in
Then, Article 89 provides how criminal liability connection with instigation. If the crime is
is extinguished: culpable, do not talk of instigation. In
• Death of the convict as to the personal instigation, the crime is committed with dolo. It
penalties, and as to pecuniary penalties, is confused with entrapment.
liability therefore is extinguished is death
occurs before final judgment; Entrapment is not an absolutory cause.
• Service of the sentence; Entrapment does not exempt the offender or
• Amnesty; mitigate his criminal liability. But instigation
• Absolute pardon; absolves the offender from criminal liability
• Prescription of the crime; because in instigation, the offender simply acts
• Prescription of the penalty; and as a tool of the law enforcers and, therefore,
• Marriage of the offended woman as he is acting without criminal intent because
provided in Article 344. without the instigation, he would not have
done the criminal act which he did upon
Under Article 247, a legally married person instigation of the law enforcers.
who kills or inflicts physical injuries upon his or
her spouse whom he surprised having sexual
Difference between instigation and entrapment

Page 49
pleaded to spare him a cigarette so this fellow

In instigation, the criminal plan or design exists handed him the cigarette he was smoking and
in the mind of the law enforcer with whom the found out that it was loaded with a dangerous
person instigated cooperated so it is said that drug. He arrested the fellow. Defense was that
the person instigated is acting only as a mere he would not give a cigarette if he was not
instrument or tool of the law enforcer in the asked. Is he criminally liable? Yes. This is a
performance of his duties. case of entrapment and not instigation. Even if
the law enforcer did not ask for a cigarette, the
On the other hand, in entrapment, a criminal offender was already committing a crime. The
design is already in the mind of the person law enforcer ascertained if it is a violation of
entrapped. It did not emanate from the mind the Dangerous Drugs Act. The means
of the law enforcer entrapping him. employed by the law enforcer did not make the
Entrapment involves only ways and means accused commit a crime. Entrapment is not an
which are laid down or resorted to facilitate the absolutory cause because in entrapment, the
apprehension of the culprit. offender is already committing a crime.
Illustrations: In another instance, a law enforcer pretended

to be a buyer of marijuana. He approached a
An agent of the narcotics command had been person suspected to be a pusher and prevailed
tipped off that a certain house is being used as upon his person to sell him two kilos of dried
an opium den by prominent members of the marijuana leaves and this fellow gave him and
society. The law enforcers cannot themselves delivered them. He apprehended the fellow.
penetrate the house because they do not Defense is instigation, because he would not
belong to that circle so what they did was to have come out for the marijuana leaves if the
convince a prominent member of society to law enforcer had not instigated him. It is a
visit such house to find out what was really case of entrapment because the fellow is
happening inside and that so many cars were already committing a crime from the mere fact
congregating there. The law enforcers told the that he his possessing marijuana. Even without
undercover man that if he is offered a selling, there is a crime committed by him:
cigarette, then he should try it to find out illegal possession of dangerous drugs. How can
whether it is loaded with dangerous drugs or one sell marijuana if he is not in possession
not. This fellow went to the place and mingled thereof? The law enforcer is only ascertaining
there. The time came when he was offered a if this fellow is selling marijuana leaves, so this
cigarette and he tried it to see if the cigarette is entrapment, not instigation. Selling is not
would affect him. Unfortunately, the raid was necessary to commit the crime, mere
conducted and he was among those possession is already a crime.
prosecuted for violation of the Dangerous
Drugs Act. Is he criminally liable? No. He was A fellow wants to make money. He was
only there upon instigation of the law approached by a law enforcer and was asked if
enforcers. On his own, he would not be there. he wanted to deliver a package to a certain
The reason he is there is because he person. When that fellow was delivering the
cooperated with the law enforcers. There is package, he was apprehended. Is he criminally
absence of criminal intent. If the law enforcers liable? This is a case of instigation; he is not
were able to enter the house and mingle there, committing a crime.
nobody would offer him a cigarette because he
is unknown. When he saw somebody, he

Page 50
A policeman suspected a fellow was selling commission of the crime, but even without
marijuana. The law enforcer asked him, “Are those ways and means, the person entrapped
you selling that? How much? Could you bring is actually engaged in a violation of the law.
that to the other fellow there?” When he
brought it there, the person, who happens to Instigation absolves the person instigated from
be a law enforcer, to whom the package was criminal liability. This is based on the rule that
brought to found it to be marijuana. Even a person cannot be a criminal if his mind is not
without bringing, he is already possessing the criminal. On the other hand, entrapment is not
marijuana. The fact that he was appointed to an absolutory cause. It is not even mitigating.
another person to find out its contents, is to
discover whether the crime is committed. This In case of somnambulism or one who acts
is entrapment. while sleeping, the person involved is definitely
acting without freedom and without sufficient
The element which makes instigation an intelligence, because he is asleep. He is
absolutory cause is the lack of criminal intent moving like a robot, unaware of what he is
as an element of voluntariness. doing. So the element of voluntariness which is
necessary in dolo and culpa is not present.
If the instigator is a law enforcer, the person Somnambulism is an absolutory cause. If the
instigated cannot be criminally liable, because element of voluntariness is absent, there is no
it is the law enforcer who planted that criminal criminal liability, although there is civil liability,
mind in him to commit the crime, without and if the circumstance is not among those
which he would not have been a criminal. If enumerated in Article 12, refer to the
the instigator is not a law enforcer, both will be circumstance as an absolutory cause.
criminally liable, you cannot have a case of Mistake of fact is not an absolutory cause. The
instigation. In instigation, the private citizen offender is acting without criminal intent. So in
upon instigation of the law enforcer mistake of fact, it is necessary that had the
incriminates himself. It would be contrary to facts been true as the accused believed them
public policy to prosecute a citizen who only to be, this act is justified. If not, there is
cooperated with the law enforcer. The private criminal liability, because there is no mistake of
citizen believes that he is a law enforcer and fact anymore. The offender must believe he is
that is why when the law enforcer tells him, he performing a lawful act.
believes that it is a civil duty to cooperate.
If the person instigated does not know that the Extenuating circumstances
person is instigating him is a law enforcer or he
knows him to be not a law enforcer, this is not The effect of this is to mitigate the criminal
a case of instigation. This is a case of liability of the offender. In other words, this
inducement, both will be criminally liable. has the same effect as mitigating
circumstances, only you do not call it
In entrapment, the person entrapped should mitigating because this is not found in Article
not know that the person trying to entrap him 13.
was a law enforcer. The idea is incompatible
with each other because in entrapment, the Illustrations:
person entrapped is actually committing a
crime. The officer who entrapped him only lays An unwed mother killed her child in order to
down ways and means to have evidence of the conceal a dishonor. The concealment of

Page 51
dishonor is an extenuating circumstance 1. The circumstance affects the act, not

insofar as the unwed mother or the maternal he actor;
grandparents are concerned, but not insofar as 2. The act complained of is considered to
the father of the child is concerned. Mother have been done within the bounds of law;
killing her new born child to conceal her hence, it is legitimate and lawful in the
dishonor, penalty is lowered by two degrees. eyes of the law;
Since there is a material lowering of the 3. Since the act is considered lawful,
penalty or mitigating the penalty, this is an there is no crime, and because there is no
extenuating circumstance. crime, there is no criminal;
4. Since there is no crime or criminal,
The concealment of honor by mother in the there is no criminal liability as well as civil
crime of infanticide is an extenuating liability.
circumstance but not in the case of parricide
when the age of the victim is three days old In exempting circumstances—
and above.
1. The circumstances affect the actor, not
In the crime of adultery on the part of a the act;
married woman abandoned by her husband, at 2. The act complained of is actually
the time she was abandoned by her husband, wrongful, but the actor acted without
is it necessary for her to seek the company of voluntariness. He is a mere tool or
another man. Abandonment by the husband instrument of the crime;
does not justify the act of the woman. It only 3. Since the act complained of is actually
extenuates or reduces criminal liability. When wrongful, there is a crime. But because the
the effect of the circumstance is to lower the actor acted without voluntariness, there is
penalty there is an extenuating circumstance. absence of dolo or culpa. There is no
criminal;
A kleptomaniac is one who cannot resist the 4. Since there is a crime committed but
temptation of stealing things which appeal to there is no criminal, there is civil liability
his desire. This is not exempting. One who is a for the wrong done. But there is no
kleptomaniac and who would steal objects of criminal liability. However, in paragraphs 4
his desire is criminally liable. But he would be and 7 of Article 12, there is neither criminal
given the benefit of a mitigating circumstance nor civil liability. (Accident and insuperable
analogous to paragraph 9 of Article 13, that of cause)
suffering from an illness which diminishes the
exercise of his will poser without, however, When you apply for justifying or exempting
depriving him of the consciousness of his act. circumstances, it is confession and avoidance
So this is an extenuating circumstance. The and burden of proof shifts to the accused and
effect is to mitigate the criminal liability. he can no longer rely on the weakness of the
prosecution’s evidence.
Distinctions between justifying circumstances

and exempting circumstances Justifying circumstances
In justifying circumstances— Since the justifying circumstances are in the

nature of defensive acts, there must be always
unlawful aggression. The reasonableness of

Page 52
the means employed depends on the gravity of In US vs. Mateo, while a woman was
the aggression. If the unlawful aggressor was sleeping, her sister and brother-in-law went to
killed, this can only be justified if it was done see a movie and came home late that evening.
to save the life of the person defending or the The accused was already asleep. The brother-
person being defended. The equation is “life in-law came up first while his wife was still in
was taken to save life.” the staircase. He started feeling through the
dark, and in the process, he awakened the
Self Defense accused. Believing that her honor was at stake,
she got a pair of scissors and stabbed the man.
In justifying circumstances, the most important When the lights were turned on, she realized
is self-defense. When this is given in the bar, it that she had stabbed her brother-in-law. The
is the element of unlawful aggression that is in accused claimed as having acted in defense of
issue. Never confuse unlawful aggression with her honor and mistake of fact. She said that
provocation. Mere provocation is not enough. she believed that her own honor was at stake.
It was held that the whole matter is purely her
Illustration: imagination. Touching the arm could not
produce such danger as would really be
A and B are long standing enemies. Because of imminent to the honor of the woman.
their continuous quarrel over the boundaries of
their adjoining properties, when A saw B one Apparently, under the Revised Penal Code, the
afternoon, he approached the latter with a bolo honor of a woman in respect of her defense is
in his hand. When he was about five feet away equated with her virginity.
from B, B pulled out his revolver and shot A on
the chest, killing him. Is B criminally liable? In US vs. Jaurigue, it was held that it was not
What crime was committed, if any? possible to rape the accused because the
whole thing transpired in the church, where
The act of A is nothing but a provocation. It there were so many people. Therefore, her
cannot be characterized as an unlawful availing of defense of honor is not tenable. She
aggression because in criminal law, an could not possibly be raped in that place.
unlawful aggression is an attack or a Defense of honor here is being equated with
threatened attack which produces an imminent one of abuse of chastity of a woman. In this
danger to the life and limb of the one resorting case, the offended party placed his hand on
to self-defense. In the facts of the problem the thigh of the woman who was then praying.
given above, what was said was that A was There was already some sort of aggression but
holding a bolo. That bolo does not produce any it was not enough to warrant the act resorted
real or imminent danger unless A raises his to by the accused in getting a small knife from
arm with the bolo. As long as that arm of A her bag and thrusting it on the chest of the
was down holding the bolo, there is no offended party.
imminent danger to the life or limb of B.
Therefore, the act of B in shooting A is not Do not confuse unlawful aggression with
justified. provocation. What justifies the killing of a
supposed unlawful aggressor is that if the
Defense of rights is included in the offender did not kill the aggressor, it will be his
circumstances of defense and so is defense of own life that will be lost. That will be the
honor. situation. If that is not the situation, even if

Page 53
there was an unlawful aggression that has either privileged or ordinary. If ordinary, it has
already begun, you cannot invoke self-defense. the effect of reducing the imposable penalty to
the minimum period. But if it is privileged, it
Illustration: has the effect of lowering the penalty by one
to two degrees, depending on how the court
Two policemen quarreled inside a police will regard the absence or presence of
precinct. One shot the other. The other was conditions to justify the act.
wounded on his thigh. The policeman who was
wounded on the thigh jumped on the arm of
the fellow who shot him. In the process, they Defense of property rights
wrestled for possession of the gun. The
policeman who shot the other guy fell on the This can only be invoked if the life and limb of
floor. On that point, this policeman who was the person making the defense is also the
shot at the thigh was already able to get hold subject of unlawful aggression. Life cannot be
of the revolver. In that position, he started equal to property.
emptying the revolver of the other policeman
who was lying on the floor. In this case, it was
held that the defense of self-defense is not Defense of stranger
available. The shooting was not justified.
If the person being defended is already a
In People vs. Rodriguez, a woman went into second cousin, you do not invoke defense of a
the house of another woman whom she relative anymore. It will be defense of
suspected of having an affair with her stranger. This is vital because if the person
husband. She started pouring gasoline on the making the defense acted out of revenge,
house of the woman. Since the woman has resentment or some evil motive in killing the
children inside the house, she jumped out to aggressor, he cannot invoke the justifying
prevent this other woman from pouring circumstance if the relative defended is already
gasoline around the house. The woman who a stranger in the eyes of the law. On the other
was pouring gasoline had a bolo, so she hand, if the relative defended is still within the
started hacking the other woman with it. They coverage of defense of relative, even though
grappled with the bolo. At that moment, the he acted out of some evil motive, it would still
one who jumped out of the house was able to apply. It is enough that there was unlawful
wrest the bolo away and started hacking the aggression against the relative defended, and
other woman. It was held that the hacking was that the person defending did not contribute to
not justified. Actually, when she killed the the unlawful aggression.
supposed unlawful aggressor, her life and limb
were no longer in imminent danger. That is the
focal point. Question and Answer
At the time the accused killed the supposed

unlawful aggressor, was her life in danger? If The person being defended was a relative—a
the answer is no, there is no self-defense. But first cousin. But the fellow who killed the
while there may be no justifying circumstance, aggressor had some score to settle with the
do not forget the incomplete self-defense. This aggressor. Is he entitled to a justifying
is a mitigating circumstance under paragraph 1 circumstance?
of Article 13. This mitigating circumstance is

Page 54
Yes. In law, the condition that a If the question refers generally to justifying or
person making the defense did not act out of exempting circumstances, the question should
revenge, resentment or evil motive is not a be, “how many incomplete justifying
requirement in defense of relative. This is only circumstance can affect criminal liability of the
required in defense of strangers. offender, if at all?”
Make a separate answer with respect to self-
defense, defense of relative or defense of
Incomplete self-defense or incomplete stranger because in these cases, you always
justifying circumstance or incomplete shave to specify the element of unlawful
exempting circumstances aggression; otherwise, there would be no
incomplete self-defense, defense of relative or
When you say incomplete justifying defense of stranger. In general, with respect to
circumstance, it means that not all the other circumstances, you need only to say this:
requisites to justify the act are present or not If less than a majority of the requisites
the requisite to exempt from criminal liability necessary to justify the act or exempt from
are present. criminal liability are present, the offender shall
be entitled to an ordinary mitigating
How, if at all, may incomplete self-defense circumstance.
affect the criminal liability of the offender?
If a majority of the requisites needed to justify
If the question specifically refers to incomplete the act or exempt from criminal liability are
self-defense, defense of relative or defense of present, the offender shall be given the benefit
stranger, you have to qualify your answer. of a privileged mitigating circumstance. The
penalty shall be lowered by one or two
First, to have incomplete self-defense, the degrees. When there are only two conditions
offended party must be guilty of unlawful to justify the act or to exempt from criminal
aggression. Without this, there can be no liability, the presence of one shall be regarded
incomplete self-defense, defense of relative, or as the majority.
defense of stranger.
Second, if only the element of unlawful State of necessity

aggression is present, the other requisites
being absent, the offender shall be given only The state of necessity must not have been
the benefit of an ordinary mitigating created by the one invoking the justifying
circumstance. circumstances. For example, A drove his car
beyond the speed limit so much so that when
Third, if aside from the element of unlawful he reached the curve, his vehicle skidded
aggression another requisite, but not all, are towards a ravine. He swerved his car towards
present, the offender shall be given the benefit a house, destroying it and killing the occupant
of a privileged mitigating circumstance. In such therein. A cannot be justified because the state
a case, the imposable penalty shall be reduced of necessity was brought about by his own
by one or two degrees depending upon how felonious act.
the court regards the importance of the
requisites present. Or absent. Civil liability referred to in a state of necessity
is based not on the act committed but on the
benefit derived from the state of necessity. So

Page 55
the accused will not be civilly liable if he did 2. The resulting felony is the unavoidable
not receive any benefit out of the state of consequence of the due fulfillment of the
necessity. On the other hand, persons who did duty or the lawful exercise of the right or
not participate in the damage or injury would office.
be pro tanto civilly liable if they derived benefit
out of the state of necessity. Invariably, when you are given a problem on
this premise, and the first condition is present,
Civil liability is based on the benefit derived but the second is not because the offender
and not on the act, damage or injury caused. acted with culpa, the offender will be entitled
It is wrong to treat this as an exception to the to a privileged mitigating circumstance. This is
rule that in justifying circumstances, there is what you call incomplete justification of
no criminal nor civil liability, on the principle fulfillment of duty or incomplete justification of
that “no one should enrich himself at the exercise of a right. In that case, the penalty
expense of another.” would be reduced by one or two degrees.
Illustration: In People vs. Oanis and Callanta, the

accused Chief of Police and the constabulary
A and B are owners of adjoining lands. A owns soldier were sent out to arrest a certain
the land for planting certain crops. B owns the Balagtas, supposedly a notorious bandit. There
land for raising certain goats. C used another was an order to kill Balagtas if he would resist.
land for a vegetable garden. There was heavy The accused arrived at the house of a dancer
rain and floods. Dam was opened. C drove all who was supposedly the girlfriend of Balagtas.
the goats of B to the land of A. The goads When they were there, they saw a certain
rushed to the land to be saved, but the land of person who resembled Balagtas in all his bodily
A was destroyed. The author of the act is C, appearance sleeping on a bamboo bed but
but C is not civilly liable because he did not facing the other direction. The accused,
receive benefits. It was B who was benefited, without going around the house, started firing
although he was not the actor. He cannot at the man. They found out later that the man
claim that it was a fortuitous event. B will was not really Balagtas. They tried to invoke
answer only to the extent of the benefit the justifying circumstance of having acted in
derived by him. If C who drove all of the goats fulfillment of a duty.
is accused of malicious mischief, his defense
would be that he acted out of a state of The second requisite is absent because they
necessity. He will not be civilly liable. acted with negligence. There was nothing that
prevented them from looking around the house
and looking at the face of the fellow who was
Fulfillment of duty sleeping. There could not be any danger on
their life and limb. Hence, they were held guilty
In the justifying circumstance of a person of the crime of murder because the fellow was
having acted out of fulfillment of a duty and killed when he was sleeping and totally
the lawful exercise of a right or office, there defenseless. However, the Supreme Court
are only two conditions: granted them the benefit of incomplete
justification of fulfillment of duty and the
1. The felony was committed while the penalty was reduced by one or two degrees.
offender was in the fulfillment of a duty or
in the lawful exercise of a right or office;

Page 56
Do not confuse fulfillment of a duty with self- voluntariness such as criminal intent,
defense. intelligence, or freedom of action on the part
of the offender is missing. In case it is a
Illustration: culpable felony, there is absence of freedom of
action or intelligence, or absence of
A, a policeman, while waiting for his wife to go negligence, imprudence, lack of foresight or
home, was suddenly stabbed at the back by B, lack of skill.
a hoodlum, who mistook him for someone else.
When A saw B, he drew his revolver and went Imbecility and Insanity
after B. After firing a shot in the air, B did not
stop so A shot B who was hit at a vital part of There is complete absence of intelligence.
the body. B died. Is the act of A justified? Imbecile has an IQ of 7. The intellectual
deficiency is permanent. There is no lucid
Yes. The justifying circumstance of self- interval unlike in insanity. An imbecile is a
defense cannot be invoked because the person whose mental development is like that
unlawful aggression had already ceased by the of a child between 2 to 7 years of age.
time A shot B. When the unlawful aggressor
started fleeing, the unlawful aggression The insanity that is exempting is limited only to
ceased. If the person attacked runs after him, mental aberration or disease of the mind and
in the eyes of the law, he becomes the must completely impair the intelligence of the
unlawful aggressor. Self-defense cannot be accused. Under common law countries,
invoked. You apply paragraph 5 on fulfillment emotional or spiritual insanity are exempting
of duty. The offender was not only defending circumstances unlike in this jurisdiction
himself but was acting in fulfillment of a duty, because the Revised Administrative Code, as
to bring the criminal to the authorities. As long defined is limited to mental aberration of the
as he was not acting out of malice when he mind. This was the ruling in People vs.
fired at the fleeing criminal, he cannot be Dungo.
made criminally liable. However, this is true
only if it was the person who stabbed was the In People vs. Rafanan, decided on
one killed. But if, let us say, the policeman was November 21, 1991, the following are the
stabbed and despite the fact that the two tests for exemption on the grounds of
aggressor ran into a crowd of people, the insanity:
policeman still fired indiscriminately. The 1. The test of cognition, or whether the
policeman would held criminally liable because accused acted with complete deprivation of
he acted with imprudence in firing toward intelligence in committing the said crime;
several people where the offender had run. But 2. The test of volition, or whether the
although he will be criminally liable, he will be accused acted in total deprivation of
given the benefit of an incomplete fulfillment of freedom of will.
duty.
Schizophrenia (dementia praecox) can only be
considered a mitigating circumstance because
Exempting circumstances it does not completely deprive the offender of
consciousness of his acts.
In exempting circumstances, the reason for the
exemption lies on the involuntariness of the act
—one or some of the ingredients of

Page 57
Minority from criminal liability but not from civil

liability. This type of offenders are
In exempting circumstances, the most absolutely exempt. Even if the offender
important issue is how the minority of the nine years or below acted with
offender affected his criminal liability. It seems discernment, this should not be taken
that the view of many is that when the against him because in his age bracket, the
offender is a youthful offender, he must exemption is absolute.
necessarily be confined in a reformatory. This
is wrong. A youthful offender can only be 2. If over nine but below 15, a distinction
confined in a reformatory upon order of the has to be made whether the offender
court. Under the amendment to Presidential acted with or without discernment. The
Decree No. 1179 requires that before a burden is upon the prosecution to prove
youthful offender may be given the benefit if a that the offender acted with discernment.
suspension of sentence, there must be an It is not for the minor to prove that he
application filed with the court which should acted without discernment. All that the
pronounce sentence. Now, however, the minor has to show is that he is within the
suspension is already automatic. Note that the age bracket. If the prosecution would want
commitment of the offender in a reformatory is to pin criminal liability on him, it has to
just a consequence of the suspension of the prove that the crime was committed with
sentence. If the sentence is not suspended, discernment. Here, if the offender was
there is no commitment in a reformatory. The exempt from criminal liability because the
commitment is in a penitentiary, since prosecution was not able to prove that the
suspension of sentence requires certain offender acted with discernment, he is only
conditions: civilly liable but he will be committed to the
surveillance of his parents who will be
1. The crime committed should not be required to report to the court periodically
punishable by reclusion perpetua or death on the progress or development of the
penalty; offender.
2. The offender should not have been
given the benefit of a suspended sentence If the offender is proven to have acted
before. This means he is a first-timer; with discernment, this is where the court
3. He must be below 18 years old may give him the benefit of a suspended
because a youthful offender is one who is sentence. He may be given the benefit of a
below 18. suspended sentence under the conditions
Note that the age of majority has been mentioned earlier and only if he would file
reduced to 18. There is no more bracket where an application therefore.
the offender is a minor yet no longer entitled
to a mitigating circumstance. An offender Suspension of sentence is now automatic.
below 18 is always entitled to a mitigating or
exempting circumstance. 3. If at the time the judgment is to be
promulgated he is already above 18, he
How does the minority of the offender affect cannot avail of a suspended sentence. The
his criminal liability? reason is because if the sentence were to
be suspended, he would be committed in a
1. If the offender is within the bracket of reformatory. Since he cannot be
nine years old exactly or less, he is exempt committed to a reformatory anymore

Page 58
because he is not less than 18 years old, There is no civil liability under paragraph 4 of
he would have to be committed to a Article 12. Although this is just an exempting
penitentiary. That means promulgation of circumstance, where generally there is civil
the sentence shall not be suspended. If the liability, yet, in paragraph 4 of Article 12, there
sentence should not be suspended, is no civil liability as well as criminal liability.
although the minor may be qualified, the The driver is not under obligation to defray the
court will promulgate the sentence but the medical expenses.
minor shall be entitled to the reduction of
the penalty by at least two degrees. However, correlate paragraph 4 of Article 12
with the second paragraph of Article 275.
When the offender is over nine but below Article 275 gives you the crime of abandoning
15, the penalty to be imposed is the victim of one’s own accident. It is a crime.
discretionary on the court, but lowered by Here, the accident referred to in paragraph 2
at least two degrees. of Article 275 is in the concept of paragraph 4
of Article 12. This means that the offender
4. If the offender is 15 years old and must be performing a lawful act, that he was
above but below 18, there is no exemption doing it with due care but somehow, injury
anymore but he is also given the benefit of resulted by mere accident without fault or
a suspended sentence under the conditions intention of causing it.
stated earlier and if at the time the
sentence is promulgated, he is not yet 18 If at the very beginning, the offender was
years old or over yet. If the sentence is negligent, you do not apply Article 275,
promulgated, the court will impose a paragraph 2. Instead, it will be Article 365 on
penalty one degree lower. This time it is criminal negligence. Notice that in the last
fixed. It is to be imposed one degree lower paragraph of Article 365, in the case of the so-
and in the proper periods subject to the called hit and run drivers who have injured
rules in Article 64. somebody and would abandon the victim of
the accident, the penalty is qualified to a
higher degree. Here, under paragraph 4 of
Damnum absque injuria Article 12, the infliction of the injury by mere
accident does not give rise to a criminal or civil
Under Article 12, paragraph 4, the offender is liability, but the person who caused the injury
exempt not only from criminal but also from is duty bound to attend to the person who was
civil liability. This paragraph embodies the Latin injured. If he would abandon him, it is in that
maxim “damnum absque injuria.” abandonment that the crime arises which is
punished under the second paragraph of
Illustration: Article 275.
A person who is driving his car within the

speed limit, while considering the condition of Compulsion of irresistible force and under
the traffic and the pedestrians at that time, the impulse of an uncontrollable fear
tripped on a stone with one of his car tires.
The stone flew hitting a pedestrian on the The offender must be totally deprived of
head. The pedestrian suffered profuse freedom. If the offender still has freedom of
bleeding. What is the liability of the driver? choice, whether to act or not, even if the force
was employed on him or even if he is suffering

Page 59
from uncontrollable fear, he is not exempt the minimum period, provided the penalty
from criminal liability because he is still is a divisible one.
possessed with voluntariness. In exempting
circumstances, the offender must act without Privileged mitigating circumstances operate
voluntariness. to reduce the penalty by one or two
degrees, depending upon what the law
In a situation where the offender would provides.
otherwise be exempt, but the requisites for
exemption are not all present, the offender is
still entitled to a mitigating circumstance of You can easily detect whether the
incomplete exemption under paragraph 1 of circumstance which mitigates the liability of the
Article 13. Apply the rule if majority of the offender is privileged or not, that is, if the
requisites to exempt from criminal liability are penalty is reduced by one degree. If the
present. The offender shall be given the penalty is lowered by one or two degrees, it is
benefit of privileged mitigating circumstances. privileged; therefore, even if there is an
That means that the penalty prescribed of the aggravating circumstance, do not compensate
crime committed shall be reduced by one or because that would be violating the rules.
two degrees in accordance with Article 69 of
the Revised Penal Code. If less than a majority The circumstances under Article 13 are
of the requisites for exemption are present, the generally ordinary mitigating, except in
offender shall be given only the benefit of paragraph 1, where it is privileged, Article 69
ordinary mitigating circumstances. That means would apply. So also, paragraph 2, in cases
the penalty shall be reduced to the minimum where the offender is below 18 years old, such
period of the prescribed penalty, unless the an offender if criminally liable is entitled to the
mitigating circumstance is offset by an lowering of penalty by one degree. But if over
aggravating circumstance. nine but under 15, he is entitled to a
discretionary penalty of at least two degrees
lower. When there is a lowering of penalties by
Mitigating circumstances degrees, it is a privilege. It cannot be offset by
an aggravating circumstance.
Distinctions between ordinary mitigating
circumstances and privileged mitigating Although the bulk of the circumstances in
circumstances Article 13 are ordinary mitigating
1. As to the nature of the circumstances circumstances, yet, when the crime committed
is punishable by a divisible penalty, two or
Ordinary mitigating circumstances can be more of this ordinary mitigating circumstances
offset by aggravating circumstances. shall have the effect of a privileged mitigating
circumstance if there is no aggravating
Privileged mitigating circumstance can circumstance at all.
never be offset by any aggravating
circumstance. Correlate Article 13 with Articles 63 and 64.
Article 13 is meaningless without knowing the
2. As to effect rules of imposing the penalties under Articles
63 and 64.
Ordinary mitigating circumstances, if not
offset, will operate to reduce the penalty to

Page 60
In bar problems, when you are given Criminal laws are to be construed
indeterminate sentences, these articles are always in a manner liberal or lenient to the
very important. offender. Between giving the offender the
benefit of the Indeterminate Sentence Law and
When the circumstance which mitigates withholding it away from him, there is more
criminal liability is privileged, you give effect to reason to give him its benefit. It is wrong for
it above all considerations. In other words, you to determine whether the Indeterminate
before you go into any circumstance, lower Sentence Law will apply or not on the basis of
first the penalty to the proper degree. That is reclusion perpetua because that is not the
precisely why this circumstance is considered imposable penalty. The moment you do that,
privileged, it takes preference over all other you disregard the privileged character of
circumstances. minority. You are only treating it as an ordinary
mitigating circumstance. Privileged mitigating
circumstances will apply over and above all
other considerations. When you arrive at the
Question and Answer
correct penalty, that is the time when you find
out whether the Indeterminate Sentence Law
A 17-year old boy committed parricide. Will he will apply or not.
be given the benefit of the Indeterminate
Sentence Law? Then, the facts state, penalty For purposes of lowering the penalty by one or
for parricide is reclusion perpetua to death. two degrees, the age of the offender at the
time of the commission of the crime shall be
You have learned that the the basis, not the age of the offender at the
Indeterminate Sentence Law does not apply, time the sentence is to be imposed. But for the
among other situations, when the penalty purposes of suspension of the sentence, the
imposed is death or life imprisonment. But age of the offender at the time the crime was
then in the problem given, the offender is a committed is not considered, it is the age of
17-year old boy, therefore the penalty would the offender at the time the sentence is to be
go one degree lower and the penalty for promulgated.
parricide which now stands at reclusion
perpetua will go down to reclusion temporal. Praeter intentionem
Reclusion temporal is already governed by the
Indeterminate Sentence Law. The common circumstance given in the bar of
praeter intentionem, under paragraph 3,
The answer, therefore, is yes. He shall means that there must be a notable
be given the benefit of the Indeterminate disproportion between the means employed by
Sentence Law. Although the penalty prescribed the offender compared to that of the resulting
for the crime committed is reclusion perpetua, felony. If the resulting felony could be
that is not the imposable penalty, since being expected from the means employed, this
17 years old is a privileged mitigating circumstance does not avail. This circumstance
circumstance. That privilege lowers the penalty does not apply when the crime results from
by one degree. The imposable penalty, criminal negligence or culpa. When the crime is
therefore, is reclusion temporal. The the product of reckless imprudence or simple
Indeterminate Sentence Law applies to this negligence, mitigating circumstances does not
and so the offender will be given its benefit. apply. This is one of the three instances where
the offender has performed a felony different

Page 61
from that which he intended. Therefore, this is that during that interval, whatever anger or
the product of intentional felony, not a diminished self-control may have emerged
culpable one. from the offender had already vanished or
disappeared. In applying this mitigating
circumstance, the courts are generally
Sufficient threat or provocation considering that there must be no break
between the provocation or threat and the
This is mitigating only if the crime was commission of the felony. In other words, the
committed on the very person who made the felony was committed precisely because he
threat or provocation. The common set-up was then and there provoked.
given in a bar problem is that of provocation
was given by somebody. The person provoked However, the recent rulings of the Supreme
cannot retaliate against him; thus the person Court, as well as the Court of Appeals, has
provoked retaliated on a younger brother or on stretched this criterion—it is not only a matter
an elder father. Although in fact, there is of time anymore. Before, there was a ruling
sufficient provocation, it is not mitigating that if a period of one hour had lapsed
because the one who gives the provocation is between the provocation and the commission
not the one against whom the crime was of the felony, this mitigating circumstance is no
committed. longer applicable.
Illustration:
Question and Answer
The accused went to a barrio dance. In that
gathering, there was a bully and he told the
A was walking in front of the house of B. B at accused that he is not allowed to go inside.
that time was with his brother C. C told B that The accused tried to reason out but the bully
sometime in the past, A boxed him, and slapped him several times in front of so many
because he was small, he did not fight back. B people, some of whom were ladies who were
approached A and boxed him, but A cannot hit being courted by the accused, so he was
back at B because B is bigger, so A boxed C. humiliated and embarrassed. However, he
Can A invoke sufficient provocation to mitigate cannot fight the bully at that time because the
criminal liability? latter was much bigger and heavier. Accused
had no choice but to go home. When he saw
No. Sufficient provocation must come the bully again, this time, he was armed with a
from the offended party. There may actually knife and he stabbed the bully to death. The
be sufficient provocation which immediately evidence for the accused showed that when he
preceded the act, but if the provocation did not went home, he was not able to sleep
come from the person offended, paragraph 4 throughout the night, thinking of the
of Article 13 will not apply. humiliation and outrage done to him, despite
the lapse of about 22 hours. The Supreme
The commission of the felony must be Court gave him the benefit of this mitigating
immediate to the threat or provocation in order circumstance. The reason stated by the
that this circumstance be mitigating. If there is Supreme Court for allowing the accused to be
no sufficient break of time before the benefited by this mitigating circumstance is
provocation or threat and the consequent that the effect of the humiliation and outrage
commission of the crime, the law presupposes emitted by the offended party as provocation

Page 62
upon the accused was still present when he

committed the crime and, therefore, the Vindication of a grave offense
reason for paragraph 4 still applies. The
accused was still acting under a diminished The word “offense” should not be taken as a
self-control because he was thinking of the crime. It is enough if what was imputed or
humiliation he suffered in the hands of the what was done was wrong. In considering
offended party. The outrage was so serious whether the wrong is a grave one upon the
unless vindicated. person who committed the crime, his age,
education and social status will be considered.
This is the correct interpretation of paragraph
4, Article 13. As long as the offender at the Here, in vindication of a grave offense, the
time he committed the felony was still under vindication need not be done by the person
the influence of the outrage caused by the upon whom the grave offense was committed.
provocation or threat, he is acting under a So, unlike in sufficient threat or provocation
diminished self-control. This is the reason why where the crime should be inflicted upon the
it is mitigating. very person who made the threat or
provocation, here, it need not be the same
You have to look at two criteria: person who committed the grave offense or
who was offended by the wrong done by the
1. If from the element of time, there is a offended party.
material laps of time stated in the problem
and there is nothing stated in the problem The word “immediate” here does not carry the
that the effect of the threat of provocation same meaning as that under paragraph 4. The
had prolonged and affected the offender at word “immediate” here is an erroneous
the time he committed the crime, they you Spanish translation because the Spanish word
use the criterion based on the time is “proxima” and not “immediatementa.”
element. Therefore, it is enough that the offender
committed the crime with the grave offense
2. However, if there is that time element done to him, his spouse, his ascendant or
and at the same time, facts are given descendant or to his brother or sister, whether
indicating that at the time the offender natural, adopted or legitimate and that is the
committed the crime, he is still suffering proximate cause of the commission of the
from outrage of the threat or provocation crime.
done to him, then he will still get the
benefit of this mitigating circumstance.
Passion or obfuscation
In People vs. Diokno, a Chinaman eloped
with a woman. Actually, it was almost three This stands on the premise or proposition that
days before the accused was able to locate the the offender is suffering from a diminished self
house where the Chinaman brought the control because of the passion or obfuscation.
woman. Here, sufficient provocation was one The same is true with the circumstances under
of the mitigating circumstances considered by paragraphs 4 and 5. So, there is a ruling to the
the Supreme Court in favor of the accused. effect that if the offender is given the benefit
of paragraph 4, he cannot be given the benefit
of paragraph 5 or 6, or vice-versa. Only one of

Page 63
the three mitigating circumstances should be the woman would naturally be subjected to
given in favor of the offender. obfuscation.
However, in one case, one of the mitigating When a married person surprised his better
circumstances under paragraphs 4, 5 and 6 half in the act of sexual intercourse with
stands or arises from a set of facts, and another, he gets the benefit of Article 247.
another mitigating circumstance arises from However, that requisite which in the first place,
another set of facts. Since they are predicated the offender must have surprised his/ her
on different sets of facts, they may be spouse actually committing sexual intercourse
appreciated together, although they arose from should be present. If the surprising was done
one and the same case. Hence, the prohibition not in the actual act of sexual intercourse but
against considering all these mitigating before or after it, then Article 247 does not
circumstances together and not as one applies apply.
only if they would be taken on the basis of the
same set of facts. Although this is the ruling, still, the accused
will be given the benefit of sufficient
If the case involves a series of facts, then you provocation if the intercourse was done in his
can predicate any one of these circumstances dwelling. If this act was done somewhere else
on one fact and the other on another fact and and the accused kills the paramour or the
so on. spouse, this may be considered as mitigation
of a grave offense to him or otherwise as a
The passion must be legitimate. As a rule, it situation sufficient to create passion or
cannot be based on common law relationship obfuscation. Therefore, when a married man
because common law relationships are illicit. upon coming home, surprises his wife who was
However, consider whether passion or nude, Article 247 does not apply. If he kills
obfuscation is generated by common law them, vindication of a grave offense will be
relationship or some other human mitigating in favor of the offender.
consideration.
Illustrations:
In a case where the relationship between the
accused and the woman he was living with was A is courting B, a receptionist in a beerhouse.
one of common law, he came home and C danced with B. A saw this and stabbed C. It
surprised his common law wife having sexual was held that jealousy is an acknowledged
intercourse with a friend. This infuriated him. basis of passion.
He killed the friend and he claimed passion or
obfuscation. The trial court denied his claim A, a male classmate is escorting B, a female
because the relationship was a common law classmate. On the way out, some men whistled
one. On review, the accused was given the lustfully. The male classmate stabbed said
benefit of the circumstances and the basis of men. This was held to be obfuscation.
considering passion or obfuscation in favor of
the accused was the act of the common law When a man saw a woman bathing, almost
wife in committing adultery right from the naked, almost naked, for which reason he
conjugal bed. Whether or not they are married, raped her, such man cannot claim passion as a
any man who discovers that infidelity was mitigating circumstance.
committed on the very bed provided by him to

Page 64
A man and a woman were living together for indicative of remorse or repentance. The
15 years. The man left the village where they surrender here is only done out of convenience
were living and never returned home. The to save his own self. Hence, it is not
common law wife learned that he was getting mitigating.
married to a classmate. On the scheduled
wedding day, she stabbed the groom in the Even if the offenders may have gone into
chest, instantly killing him. She confessed and hiding, if the law enforcers had already known
explained that any woman cannot tolerate where he is hiding and it is just a matter of
what he did to her. She gave him the best time before he is flushed out of that place,
years of her life. She practically waited for him then even if the law enforcers do not know
day and night. It was held that passion and exactly where he was hiding and he would
obfuscation were considered mitigating. come out, this is not voluntary surrender.
Ingratitude was shown here.
Whether or not a warrant of arrest had been
issued against the offender is immaterial and
Voluntary surrender irrelevant. The criterion is whether or not the
offender had gone into hiding and the law
The essence of voluntary surrender requires enforcers do not know of his whereabouts. If
that the offender, after having committed the he would give up, his act of surrendering under
crime, had evaded the law enforcers and the such circumstances indicates that he is willing
law enforcers do not know of his whereabouts. to accept the consequences of the wrong he
In short, he continues to elude arrest. If, under has done and also thereby saves the
this circumstance, the offender would come government the effort, the time and the
out in the open and he gives himself up, his expenses to be incurred in looking for him.
act of doing so will be indicative of repentance
and he also saves the government the time Where the offender went to the municipal
and the expense of looking for him. building not to own responsibility for the
killing, such fact is not tantamount to voluntary
As a general rule, if after committing the surrender as a mitigating circumstance.
crime, the offender did not flee and he went Although he admitted his participation in the
with the responding law enforcers meekly, killing, he tried to avoid responsibility by
voluntary surrender is not applicable. claiming self-defense which however he was
not able to prove. People vs. Mindac,
However, there is a ruling that if after decided December 14, 1992.
committing the crime, the offender did not flee
and instead waited for the law enforcers to Surrender to be considered voluntary and thus
arrive and he surrendered the weapon he used mitigating, must be spontaneous,
in killing the victim, the ruling was that demonstrating an intent to submit himself
voluntary surrender was mitigating. In this unconditionally to the person in authority or his
case, the offender had the opportunity to go agent in authority, because 1. he
into hiding, the fact that he did not flee is not acknowledges his guilt, 2. he wishes to save
voluntary surrender. the government the trouble and expenses of
searching and capturing him. Where the
However, if he comes out from hiding because reason for the surrender of the accused was to
he is seriously ill and he went to get medical insure his safety, his arrest by policemen
treatment, the surrender is not considered as

Page 65
pursuing him being inevitable, the surrender is

not spontaneous. Stealing by a person who is driven to do so out
of extreme poverty is considered as analogous
to incomplete state of necessity. However, this
Physical defect is not so where the offender became
impoverished because of his own way of living
The physical defect that a person may have his life. If his lifestyle is one of having so many
must have a relation to the commission of the vices, as a result of which he became poor, his
crime. In a case where the offender is deaf subsequent stealing because of his poverty will
and dumb, personal property was entrusted to not be considered mitigating by incomplete
him and he misappropriated the same. The state of necessity.
crime committed was estafa. The fact that he
was deaf and dumb is not mitigating since that
does not bear any relation to the crime Aggravating circumstances
committed.
Kinds of aggravating circumstances:
Not any physical defect will affect the crime. It 1. Generic or those that can generally
will only do so if it has some relation to the apply to all crimes;
crime committed. If a person is deaf and dumb 2. Specific or those that apply only to a
and he has been slandered, he cannot talk so particular crime;
what he did was he got a piece of wood and 3. Qualifying or those that change the
struck the fellow on the head. The crime nature of the crime;
committed was physical injuries. The Supreme 4. Inherent or those that must of
Court held that being a deaf and dumb is necessity accompany the commission of
mitigating because the only way is to use his the crime.
force because he cannot strike back in any
other way. The aggravating circumstances must be
established with moral certainty, with the same
If the offender is blind in one eye, as long as degree of proof required to establish the crime
his means of action, defense or communication itself.
with others are not restricted, such
circumstance is not mitigating. This The most important of the classification of
circumstance must also have a bearing on the aggravating circumstances are the qualifying
crime committed and must depend on how the and the generic aggravating circumstances.
crime was committed.
In practice, the generic aggravating
Analogous cases circumstances are referred to simply as
aggravating circumstances. The so-called
The act of the offender of leading the law qualifying aggravating circumstances are
enforcers to the place where he buried the simply referred to as qualifying circumstances.
instrument of the crime has been considered This is so because there is no qualifying
as equivalent to voluntary surrender. The act circumstance that is not aggravating. To say
of a thief in leading the authorities to the place qualifying aggravating circumstance is
where he disposed of the loot has been redundant. In the examination, if you find
considered as analogous to voluntary qualifying circumstances, you have to think
surrender.

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about these as aggravating circumstances these will qualify a killing from homicide to
which are the ingredients of the crime. murder; however, you understand that only
one is qualifying.
Distinctions between aggravating and If let us say that the accused was charged with
qualifying circumstances: murder. Three of these circumstances:
treachery, evident premeditation and act was
In aggravating circumstances— done in consideration of a price, reward or
promise were alleged as aggravating. Only one
1. The circumstance can be offset by an of these is qualifying. If any one of the three
ordinary mitigating circumstance; circumstances was proven, the crime was
2. This circumstance must be alleged in already murder. If the other two are also
the information. If it is proved during trial, proven, even if they are not alleged in the
the court would consider the same in information or complaint, they are only to be
imposing the penalty. taken as generic. If there is any mitigating
3. It is not an ingredient of the crime. It circumstance in favor of the offender, the two
only affects the penalty to be imposed but other circumstances which are otherwise
the crime remains the same. qualifying could be offset by the mitigating,
provided the mitigating circumstance is not a
In qualifying circumstance— privileged mitigating circumstance. Therefore,
if there are three of the qualifying
1. The circumstance affects the nature of circumstances alleged in the complaint or
the crime itself such that the offender shall information, only one will qualify the crime.
be liable for a more serious crime. The The others will merely be considered as
circumstance is actually an ingredient of generic. Thus, if there is any ordinary
the crime; mitigating circumstance in favor of the
2. Being an ingredient of the crime, it accused, such will be wiped out by these
cannot be offset by any mitigating circumstances, although initially they are
circumstance; considered as qualifying. Do not hesitate to
3. Qualifying circumstances to be offset on the principle that a qualifying
appreciated as such must be specifically circumstance cannot be offset by an ordinary
alleged in the complaint or information. If mitigating circumstance because only one is
not alleged but proven during trial, it will necessary.
be considered only as a generic
aggravating circumstance. If his happens, Even if any of the qualifying circumstances
they are susceptible of being offset by a under Article 248 on murder was proven, if
mitigating circumstance. that is not the circumstance alleged in the
information, it cannot qualify the crime. Let us
An aggravating circumstance is qualifying say, what was alleged in the information was
when it is an ingredient of the crime. Therefore treachery. During the trial, what was proven
it is included in the provision of law defining was the price, reward or promise as a
the crime. If it is not so included, it is not consideration for killing. The treachery was not
qualifying. proved. Just the same, the accused cannot be
In Article 248, in the crime of murder, the law convicted of murder because the circumstance
specifically mentions several circumstances proven is not qualifying but merely generic. It
which are aggravating under Article 14. All of is generic because it is not alleged in the

Page 67
information at all. If any of these qualifying Article 62 was also amended by Republic Act
circumstances is not alleged in the information, No. 7659. The legal import of the amendment
it cannot be considered qualifying because a is that the subject circumstance has been
qualifying circumstance is an ingredient of the made a qualifying or special aggravating that
crime and it cannot be taken as such without shall not be offset or compensated by a
having been alleged in the information because mitigating circumstance. If not alleged in the
it will violate the right of the accused to be information, however, but proven during trial,
informed of the nature of the accusation it is only appreciated as a generic aggravating
against him. circumstance.
Correlate Article 14 with Article 62. Article 62 The mitigating circumstance referred to in the
gives you the different rules regarding amendment as not affecting the imposition of
aggravating circumstances. Aggravating the penalty in the maximum are only ordinary
circumstances will not be considered when it is mitigating circumstances. Privileged mitigating
the crime itself. If the crime charged is circumstances always lower the penalty
qualified trespass to dwelling, dwelling is no accordingly.
longer aggravating. When the aggravating
circumstance refers to the material execution
of the crime, like treachery, it will only Disrespect due to rank, age, sex
aggravate the criminal liability of those who
employed the same. Aggravating only in crimes against persons and
honor, not against property like Robbery with
Illustration: homicide. (People vs. Ga, 156 SCRA 790)
A person induced another to kill somebody. Teachers, professors, supervisors of public and
That fellow killed the other guy and employed duly recognized private schools, colleges and
treachery. As far as the killing is concerned, universities, as well as lawyers are persons in
the treachery will qualify only the criminal authority for purposes of direct assault and
liability of the actual executioner. The fellow simple resistance, but not for purposes of
who induced him becomes a co-principal and aggravating circumstances in paragraph 2,
therefore, he is liable for the same crime Article 14. (People vs. Taoan, 182 SCRA
committed. However, let us say, the fellow was 601)
hired to kill the parent of the one who hired
him. He killed a stranger and not the parent.
What was committed was different from what Abuse of confidence
was agreed upon. The fellow who hired him
will not be liable for the crime he had done Do not confuse this with mere betrayal of
because that was not the crime he was hired trust. This is aggravating only when the very
to commit. offended party is the one who reposed the
confidence. If the confidence is reposed by
another, the offended party is different from
the fellow who reposed the confidence and
abuse of confidence in this case is not
Taking advantage of public position aggravating.
Illustrations:

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A mother left her young daughter with the Husband and wife quarreled. Husband inflicted
accused because she had nobody to leave the physical violence upon a wife. The wife left the
child with while she had to go on an errand. conjugal home and went to the house of her
The accused abused the child. It was held that sister bringing her personal belongings with
the abuse of confidence was not aggravating. her. The sister accommodated the wife in her
What is present is betrayal of trust and that is home. The husband went to the house of the
not aggravating. sister-in-law and tried to persuade the wife to
return to the conjugal home but the wife
In a case where the offender is a servant, the refused since she was more at peace in her
offended party is one of the members of the sister’s home than in their conjugal abode. Due
family. The servant poisoned the child. It was to the wife’s refusal to go back to the conjugal
held that abuse of confidence is aggravating. home and live with her husband, the latter
This is only true, however, if the servant was pulled out a knife and stabbed the wife to
still in the service of the family when he did the death. It was held that dwelling was
killing. If he was driven by the master out of aggravating although it is not owned by the
the house for some time and he came back to victim since she is considered a member of the
poison the child, abuse of confidence will no family who owns the dwelling and that place is
longer be aggravating. The reason is because where she enjoyed privacy, peace of mind and
that confidence has already been terminated comfort.
when the offender was driven out of the
house. Even a room in a hotel if rented as a dwelling,
like what the salesmen do when they are
assigned in the provinces and they rent rooms,
Dwelling is considered a dwelling. A room in a hotel or
motel will be considered dwelling if it is used
Dwelling will only be aggravating if it is the with a certain degree of permanence, where
dwelling of the offended party. It should also the offended party seeks privacy, rest, peace
not be the dwelling of the offender. If the of mind and comfort.
dwelling is both that of the offender and the
offended party, dwelling is not aggravating. If a young man brought a woman in a motel
for a short time and he gets killed there,
Dwelling need not be owned by the offended dwelling is not aggravating.
party. It is enough that he used the place for
his peace of mind, rest, comfort and privacy. A man was killed in the house of his common
The rule that dwelling, in order to be law wife. Dwelling is aggravating in this case
aggravating must be owned by the offended because the house was provided by the man.
party is no longer absolute. Dwelling can be
aggravating even if it is not owned by the Dwelling should not be understood in the
offended party, provided that the offended concept of a domicile. A person has more than
party is considered a member of the family one dwelling. So, if a man has so many wives
who owns the dwelling and equally enjoys and he gave them places of their own, each
peace of mind, privacy and comfort. one is his own dwelling. If he is killed there,
dwelling will be aggravating, provided that he
also stays there once in a while. When he is
Illustration: only a visitor there, dwelling is not
aggravating.

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The crime of adultery was committed. Dwelling A man was fixing something on the roof of his
was considered aggravating on the part of the house when he was shot. It was held that
paramour. The paramour is not a resident of dwelling is aggravating. The roof still forms
the same dwelling. However, if the paramour part of the house.
was also residing in the same dwelling, it will
not be aggravating. In the provinces where the comfort rooms are
usually far from the house proper, if the
The term “dwelling” includes all the offended party while answering the call of
dependencies necessary for a house or for rest nature is killed, then dwelling is aggravating
or for comfort or a place of privacy. If the since the comfort room is a necessary
place used is on the second floor, the stairs dependency of the house proper.
which are used to reach the second floor is
considered a dwelling because the second floor A person while in the room of his house,
cannot be enjoyed without the stairs. If the maintaining the room, was shot. Dwelling is
offended party was assaulted while on the aggravating. If the offender entered the house
stairs, dwelling is already aggravating. For this and the offended party jumped out of the
reason, any dependency necessary for the house, even if the offender caught up with him
enjoyment of a place of abode is considered a as he was already out of the house, dwelling is
dwelling. still aggravating. The reason is because he
could not have left his dwelling were it not for
Illustrations: the fact that the attacker entered his house.
A and B are living in one house. A occupies the If the offended party was inside the house and
ground floor while B the upper floor. The stairs the offender was outside and the latter shot
here would form part of part only of B’s the former inside the house while he was still
dwelling, the same being necessary and an outside. Dwelling is still aggravating even
integral part of his house or dwelling. Hence, though the offender did not enter the house.
when an attack is made while A is on the
stairs, the aggravating circumstance of A garage is part of the dwelling when
dwelling is not present. If the attack is made connected with an interior passage to the
while B was on the stairs, then the aggravating house proper. If not connected, it is not
circumstance of dwelling is present. considered part of the dwelling.
Whenever one is in his dwelling, the law is One-half of a house is used as a store and the
presuming that he is not intending to commit a other half is used for dwelling but there is only
wrong so one who attacks him while in the one entrance. If the dwelling portion is
tranquility of his home shows a degree of attacked, dwelling is not aggravating because
perversity in him. whenever a store is open for business, it is a
public place and as such is not capable of
Dwelling is not limited to the house proper. All being the subject of trespass. If the dwelling
the appurtenances necessary for the peace portion is attacked where even the store is
and comfort, rest and peace of mind in the open, there is another separate entrance to
abode of the offended party are considered the portion used for dwelling, then the
dwellings. circumstance is aggravating. However, in case
Illustrations: the store closed, dwelling is aggravating since

Page 70
here, the store is not a public place as in the of the offense, there was a reasonable
first case. possibility of the victim receiving some help.
A balcony is part of the dwelling because it is Illustration:

appurtenant to the house.
A is on board a banca, not so far away. B and
Dwelling is aggravating in robbery with C also are on board on their respective bancas.
homicide because the crime can be committed Suddenly, D showed up from underwater and
without the necessarily transgressing the stabbed B. Is there an aggravating
sanctity of the home. (People vs. De Los circumstance of uninhabited place here? Yes,
Reyes, decided October 22, 1992) considering the fact that A and C before being
able to give assistance still have to jump into
Dwelling is aggravating where the place is, the water and swim towards B and the time it
even for a brief moment, a “home,” although would take them to do that, the chances of B
he is not the owner thereof as when the victim receiving some help was very little, despite the
gets shot in the house of his own parents. fact that there were other persons not so far
from the scene.
Band Evidence tending to prove that the offender

took advantage of the place and purposely
In band, there should at least be four persons. availed of it is to make it easier to commit the
All of them should be armed. Even if there are crime, shall be necessary.
four, but only three or less are armed, it is not
a band. Whenever you talk of band, always
have in mind four at the very least. Do not say Nighttime
three or more because it is four or more. The
way the law defines a band is somewhat What if the crime started during the daytime
confusing because it refers simply to more and continued all the way to nighttime? This is
than 3, when actually it should be 4 or more. not aggravating.
Correlate this with Article 306—Brigandage. As a rule, the crime must begin and end during
The crime is the band itself. The mere forming the night. Crime began at day and ended at
of a band even without the commission of a night as well as crime began at night and
crime is already a crime so that band is not ended at day is not aggravated by the
aggravating in brigandage because the band circumstance of nighttime.
itself is the way to commit brigandage.
Darkness is what makes this circumstance
However, where brigandage is actually aggravating. The darkness of night must be
committed, band becomes aggravating. purposely sought.
Illustration:
Uninhabited place
One evening, a crime was committed near the
It is determined not by the distance of the lamppost. The Supreme Court held that there
nearest house to the scene of the crime but is no aggravating circumstance of nighttime.
whether or not in the place of the commission Even if the crime was committed at night, but

Page 71
there was light, hence, darkness was not Distinctions between recidivism and habitual
present, no aggravating circumstance just by delinquency
the fact of nighttime alone.
In recidivism—
Even if there was darkness but the nighttime
was only and incident of a chance meeting, 1. Two convictions are enough.
there is no aggravating circumstance. It must 2. The crimes are not specified; it is
be shown that the offender deliberately sought enough that they may be embraced under
the cover of darkness and the offender the same title of the Revised Penal Code.
purposely took advantage of nighttime to 3. There is no time limit between the first
facilitate the commission of the offense. conviction and the subsequent conviction.
Recidivism is imprescriptible.
Nocturnity is the period of time after sunset to 4. It is a generic aggravating
sunrise, from dusk to dawn. circumstance which can be offset by an
ordinary mitigating circumstance. If not
offset, it would only increase the penalty
Different forms of repetition or habituality of prescribed by law for the crime committed
offender to its maximum period.
5. The circumstance need not be alleged
1. Recidivism under Article 14 (9)—The in the information.
offender at the time of his trial for one
crime shall have been previously convicted In habitual delinquency—
by final judgment of another embraced in
the same title of the Revised Penal Code. 1. At least three convictions are required.
2. Repetition or reiteracion under Article 2. The crimes are limited and specified
14 (10)—The offender has been previously to: a. serious physical injuries, b. Less
punished for an offense to which the law serious physical injuries, c. robbery, d.
attaches an equal or even greater penalty theft, e. estafa or swindling and f.
or for two or more crimes to which it falsification.
attaches a lighter penalty. 3. There is a time limit of not more than
3. Habitual delinquency under Article 62 10 years between every conviction
(5)—The offender within a period of 10 computed from the first conviction or
years from the date of his release or last release from punishment thereof to
conviction of the crimes of serious or less conviction computed from the second
serious physical injuries, robo, hurto, conviction or release therefrom to the third
estafa or falsification, is found guilty of any conviction and so on…
of the said crimes a third time or another. 4. Habitual delinquency is a special
4. Quasi-recidivism under Article 160— aggravating circumstance, hence it cannot
Any person who shall commit a felony after be offset by any mitigating circumstance.
having been convicted by final judgment Aside from the penalty prescribed by law
before beginning to serve such sentence or for the crime committed, an additional
while serving such sentence shall be penalty shall be imposed depending upon
punished by the maximum period whether it is already the third conviction,
prescribed by law for the new felony. the fourth, the fifth and so on…
5. The circumstance must be alleged in
the information; otherwise the court

Page 72
cannot acquire jurisdiction to impose the Recidivism does not prescribe. No matter how
additional penalty. long ago the offender was convicted, if he is
subsequently convicted of a crime embraced in
the same title of the Revised Penal Code, it is
Recidivism taken into account as aggravating in imposing
the penalty.
In recidivism, the emphasis is on the fact that
the offender was previously convicted by final Pardon does not erase recidivism, even if it is
judgment of a felony and subsequently found absolute because only it only excuses the
guilty of another felony embraced in the same service of the penalty, not the conviction.
title of the Revised Penal Code. The law
considers this aggravating when a person has If the offender has already served his sentence
been committing felonies embraced in the and he was extended an absolute pardon, the
same title because the implication is that he is pardon shall erase the conviction including
specializing on a king of crime and the law recidivism because there is no more penalty so
wants to prevent any specialization. Hence, it shall be understood as referring to the
ordinarily, when a person commits a crime conviction or the effects of the crime.
under different titles, no aggravating
circumstance is present. It is important that Recidivism may be considered even though not
the conviction which cam earlier must refer to alleged in the information because this is only
the crime committed earlier than the a generic aggravating circumstance.
subsequent conviction.
It is necessary to allege recidivism in the
Illustration: information, but if the defense does not object
to the presentation of evidence during the trial
In 1980, A committed robbery. While the case and the same was proven, the court shall
was being tried, he committed theft in 1983. consider such aggravating circumstance
He was also found guilty and was convicted of because it is only generic.
theft also in 1983. The conviction became final
because he did not appeal anymore and the In recidivism, although the law defines it as a
trial for hi earlier crime which was robbery circumstance where a person having been
ended in 1984 where he was also convicted. convicted by final judgment was previously
He also did not appeal this decision. Is the convicted also by final judgment for a crime
accused a recidivist? The subsequent embraced in the same title of the Revised
conviction must refer to a felony committed Penal Code, it is necessary that the conviction
later in order to constitute recidivism. The must come in the order in which they are
reason for this is as the time the first crime committed.
was committed, there was no other crime of
which he was convicted so he cannot be
regarded as a repeater. Question and Answer
In recidivism, the crimes committed should be

felonies. Recidivism cannot be had if the crime In 1975, the same offender committed
committed is a violation of a special law. robbery. While the same was being tried in
1978, he committed theft. In 1980, he was
convicted of theft and he did not appeal the

Page 73
decision. The trial for robbery ended in 1981. When the offender is a recidivist and a the
May the judge in imposing the penalty for same time a habitual delinquent, the penalty
robbery consider the accused a recidivist for the crime for which he will be convicted will
considering that he was already convicted in be increased to the maximum period unless
1980 for the crime of theft which is under the offset by a mitigating circumstance. After
same title of the Revised Penal Code as that of determining the correct penalty for the last
robbery? crime committed, an added penalty will be
imposed in accordance with Article 62.
No, because the robbery which was
committed earlier would be decided later. It Habitual delinquency, being a special or
must be the other way around. This is because specific aggravating circumstance must be
in 1975 when he committed the robbery, there alleged in the information. If it is not alleged in
was no crime committed yet. Thus, even the information and in the course of the trial,
though in imposing the penalty for robbery, the prosecution tried to prove that the offender
there was already a prior conviction, if that is a habitual delinquent over the objection of
conviction is subsequent to the commission of the accused, the court has no jurisdiction to
robbery, he is not a recidivist. If you will consider the offender a habitual delinquent.
interpret the definition of recidivism, this would Even if the accused is in fact a habitual
seem to be covered but that is not so. delinquent but it is not alleged in the
information, the prosecution when introducing
evidence was objected to, the court cannot
Habitual delinquency admit the evidence presented to prove habitual
delinquency over the objection of the accused.
We have to consider the crimes in it and take
note of the titles of crimes in the Revised Penal On the other hand, recidivism is a generic
Code. aggravating circumstance. It need not be
alleged in the information. Thus, even if
If the offender had committed and was recidivism is not alleged in the information, if
convicted of each of the crimes under each proven during the trial, the court can
category so that no two crimes fall under the appreciate the same. If the prosecution tried to
same title of the Revised Penal Code, you have prove recidivism and the defense objected, the
a situation where the offender is a habitual objection should be overruled. The reason is
delinquent because no two crimes fall under that recidivism is a generic aggravating
the same title of the Code. circumstance only. As such, it does not have to
be alleged in the information because even if
If the first conviction is for serious physical not alleged, if proven during the trial, the trial
injuries and the second conviction is for court can appreciate it.
robbery, teft or estafa and the third is for
falsification, then the moment the habitual Right now, the present rule is that it can be
delinquent is on his fourth conviction already, appreciated even if not alleged in the
you cannot avoid that he is a habitual information. This is the correct view because
delinquent and at the same time a recidivist recidivism is a generic aggravating
because at least, the fourth time will have to circumstance. The reason why habitual
fall under any of the three categories. delinquency cannot be appreciated unless
alleged in the information is because recidivism
has nothing to do with the crime committed.

Page 74
Habitual delinquency refers to prior conviction he will more or less refrain from committing
and therefore this must be brought in the crimes again. That is why if the offender
information before the court can acquire committed a subsequent felony which carries a
jurisdiction over this matter. penalty lighter than what he had served,
reiteracion is not aggravating since the law
Generally, the procedure you know that when considers that somehow, this fellow was
the prosecutor alleges habitual delinquency, it corrected because instead of committing a
must specify the crimes committed, the dates serious crime, he committed a lesser one. If he
when they were committed, the court which committed another lesser one, then he
tried the case, the date when the accused was becomes a repeater.
convicted or discharged. If these are not
alleged, then the information is defective. So, in reiteracion, the penalty attached to the
crime subsequently committed should be
However, in a relatively recent ruling of the higher or at least equal to the penalty that he
Supreme Court, it was held that even though has already served. If that is the situation, that
the details of habitual delinquency was not set means that the offender was never reformed
forth in the information, as long as there is a by the fact that he already served the penalty
habitual delinquent, that is enough to confer imposed on him on the first conviction.
jurisdiction upon a court to consider it. In the However, if he commits a felony carrying a
absence of details set forth in the information, lighter penalty, subsequently, the law
the accused has the right to avail of the so- considers that he has somehow been reformed
called bill of particulars. Even in a criminal but if he, again commits another felony which
case, the accused may file a motion for a bill of carries a lighter penalty, then he becomes a
particulars. If the accused fails to file such, he repeater because that means he has not yet
is deemed to have waived the required reformed.
particulars and so the court can admit evidence
of the habitual delinquency, even though over You will only consider the penalty in reiteracion
and above the objection of the defense. if there is already a second conviction. When
there is a third conviction, you disregard
whatever penalty for the subsequent crimes
Reiteracion committed. Even if the penalty for the
subsequent crimes committed are lighter than
This has nothing to do with the classification of the ones already served, since there are
the felonies. In reiteracion, the offender has already two of them, subsequently the
already tasted the bitterness of punishment. offender is already a repeater.
This is the philosophy on which the
circumstance becomes aggravating. However, if there is only a second conviction,
pay attention to the penalty attached to the
It is necessary in order that there be crime which was committed for the second
reiteracion that the offender has already crime. That is why it is said that reiteracion is
served out the penalty. If the offender had not not always aggravating. This is so because if
yet served out his penalty, forget about the penalty attached to the felony
reiteracion. That means that he has not yet subsequently committed is not equal to or
tasted the bitterness of life but if he had higher than the penalty already served, even if
already served out the penalty, the law expects literally the offender is a repeater, repetition is
that since he has already tasted punishment, not aggravating.

Page 75
lowered by any ordinary mitigating

Quasi-recidivism circumstance. When there is a privileged
mitigating circumstance, the penalty prescribed
This is found in Article 160. The offender must by law for the crime committed shall be
already be convicted by final judgment and lowered by 1 or 2 degrees, as the case may
therefore to have served the penalty already, be, but then it shall be imposed in the
but even at this stage, he committed a felony maximum period if the offender is a quasi-
before beginning to serve sentence or while recidivist.
serving sentence.
Illustration: In consideration of a price, reward or

promise
Offender has already been convicted by final
judgment. Sentence was promulgated and he The Supreme Court rulings before indicate this
was under custody in Muntinlupa. While he circumstance aggravates only the criminal
was in Muntinlupa, he escaped from his guard liability of the person who committed the crime
and in the course of his escape, he killed in consideration of the price, promise or
someone. The killing was committed before reward but not the criminal liability of the
serving sentence but convicted by final person who gave the price, reward or
judgment. He becomes a quasi-recidivist consideration. However, when there is a
because the crime committed was a felony. promise, reward or price offered or given as
consideration for the commission of a crime,
The emphasis here is on the crime committed the person making the offer is an inducer, a
before sentence or while serving sentence principal by inducement while the person on
which should be a felony, a violation of the the receiving end is a principal by direct
Revised Penal Code. In so far as the earlier participation. Hence, their responsibilities are
crime is concerned, it is necessary that it be a the same. They are both principals and that is
felony. why the recent rulings of the Supreme Court
are to the effect that this aggravating
Reverse the situation. Assume that the circumstance affects or aggravates not only
offender was found guilty of illegal use of the criminal liability of the receiver of the price,
prohibited drugs. While he was serving reward or promise but also the criminal liability
sentence, he got involved in a quarrel and of the one giving the offer.
killed a fellow inmate. He is a quasi-recidivist
because while serving sentence, he committed
a felony. By means of inundation or fire
The emphasis is on the nature of the crime Fire is not aggravating in the crime of arson.
committed while serving sentence or before
serving sentence. It should not be a violation Whenever a killing is done with the use of fire,
of a special law. as when you kill someone, you burn down his
house while the latter is inside, this is murder.
Quasi-recidivism is a special aggravating
circumstance. This cannot be offset by any There is no such crime as murder with arson or
mitigating circumstance and the imposition of arson with homicide. The crime is only murder.
the penalty in the maximum period cannot be

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If the victim is already dead and the house is to reflect upon the consequences of his
burned, the crime is arson. It is either arson or act.
murder.
If the intent is to destroy property, the crime is
arson even if someone dies as a consequence. Illustration:
If the intent is to kill, there is murder even if
the house is burned in the process. A, on Monday, thought of killing B on Friday. A
knew that B is coming home only on Friday so
Illustration: A decided to kill B on Friday evening when he
comes home. On Thursday, A met B and killed
A and B were arguing about something. One him. Is there evident premeditation? None. But
argument led to another until A struck B to there is treachery as the attack was sudden.
death with a bolo. A did not know that C, the
son of B was also in their house and who was Can there be evident premeditation when the
peeping through the door and saw what A did. killing is accidental? No. In evident
Afraid that A might kill him too, he hid premeditation, there must be a clear reflection
somewhere in the house. A then dragged B’s on the part of the offender. However, if the
body and poured gasoline on it and burned the killing was accidental, there was no evident
house altogether. As a consequence, C was premeditation. What is necessary to show and
burned and eventually died too. to bring about evident premeditation aside
from showing that at some prior time, the
As far as the killing of B is concerned, it is offender has manifested the intention to kill
homicide since it is noted that they were the victim, and subsequently killed the victim.
arguing. It could not be murder. As far as the
killing of C is concerned, it is arson since he
intended to burn the house only. Illustrations:
No such crime of arson with homicide. Law A and B fought. A told B that someday he will
enforcers only use this to indicate that a killing kill B. On Friday, A killed B. A and B fought on
occurred while arson was being committed. At Monday but since A already suffered so many
most, you could designate is as death as a blows, he told B, “This week shall not pass, I
consequence of arson. will kill you.” On Friday, A killed B. Is there
evident premeditation in both cases? None in
both cases. What condition is missing to bring
Evident premeditation about evident premeditation? Evidence to show
that between Monday and Friday, the offender
For evident premeditation to be aggravating, clung to his determination to kill the victim,
the following conditions must concur: acts indicative of his having clung to his
determination to kill B.
1. The time when the accused
determined to commit the crime. A and B had a quarrel. A boxed B. A told B, “I
2. An act manifestly indicating that the will kill you this week.” A bought firearms. On
accused has clung to his determination. Friday, he waited for B but killed C instead,
3. Sufficient lapse of time between such was there evident premeditation? There is
determination and execution, to allow him aberratio ictus. So, qualify. Insofar as B is
concerned, the crime is attempted murder

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because there is evident premeditation. It must appear that the offender clung to his
However, that murder cannot be considered determination to commit the crime. The fact
for C. Insofar as C is concerned, the crime is that the offender premeditated is not prima
homicide because there was no evident facie indicative of evident premeditation as the
premeditation. meeting or encounter between the offender
Evident premeditation shall not be considered and the offended party was only by chance or
when the crime refers to a different person accident.
other than the person premeditated against.
In order for evident premeditation to exist, the
While it is true that evident premeditation may very person/ offended party premeditated
be absorbed in treachery because the means, against must be the one who is the victim of
method and form of attack may be the crime. It is not necessary that the victim is
premeditated and would be resorted to by the identified. It is enough that the victim is
offender. Do not consider both aggravating determined so he or she belongs to a group or
circumstances of treachery and evident class that may be premeditated against. This is
premeditation against the offender. It is only a circumstance that will qualify a killing from
treachery because the evident premeditation is homicide to murder.
the very conscious act of the offender to
ensure its execution. Illustration:
But there may be evident premeditation and A person who has been courting a lady for
there is treachery also when the attack was so several years now has been jilted. Because of
sudden. this, he thought of killing somebody. He then
bought a knife, sharpened it and stabbed the
first man he met on the street. It was held that
A and B are enemies. They fought on Monday evident premeditation was not present. It is
and parted ways. A decided to seek revenge. essential that the victim be identified from the
He bought a firearm and practiced shooting beginning.
and then sought B. When A saw B in a
restaurant with so many people, A did not dare A premeditated kill of any member of a
fire at B for fear that he might hit a stranger particular fraternity. He then killed one. This is
but instead, A saw a knife and used it to stab B murder—a homicide which has been qualified
with all suddenness. Evident premeditation was into murder by evident premeditation which is
not absorbed in treachery because treachery a qualifying circumstance. The same is true
refers to the manner of committing the crime. where A planned to kill any member of the
Evident premeditation is always absorbed in Iglesia ni Kristo.
treachery.
There are some crimes which cannot be
This is one aggravating circumstance where aggravated by evident premeditation because
the offender who premeditated, the law says they require some planning before they can be
evident. It is not enough that there is some committed. Evident premeditation is part of the
premeditation. Premeditation must be clear. It crime like kidnapping for ransom, robbery with
is required that there be evidence showing force upon things where there is entry into the
meditation between the time when the premises of the offended party, and estafa
offender determined to commit the crime and through false pretenses where the offender
the time when the offender executed the act.

Page 78
employs insidious means which cannot happen renewed friendship, they were going to drink.
accidentally. B was having too much to drink. A was just
waiting for him to get intoxicated and after
which, he stabbed B.
Craft A pretended to befriend B, just to intoxicate
the latter. Intoxication is the means
Aggravating in a case where the offenders deliberately employed by the offender to
pretended to be bona fide passengers of a weaken the defense of the other party. If this
jeepney in order for them not to arouse was the very means employed, the
suspicion, but once inside the jeep, robbed the circumstance may be treachery and not abuse
passengers and the driver. (People vs. Lee, of superior strength or means to weaken the
decided on December 20, 1991) defense.
What is the essence of treachery?

Abuse of superior strength
The essence of treachery is that by virtue of
There must be evidence of notorious inequality the means, method or form employed by the
of forces between the offender and the offender, the offended party was not able to
offended party in their age, size and strength, put up any defense. If the offended party was
and that the offender took advantage of such able to put up a defense, even only a token
superior strength in the commission of the one, there is no treachery. Instead, some other
crime. The mere fact that there were two aggravating circumstance may be present but
persons who attacked the victim does not per it is no longer treachery.
se constitute abuse of superior strength.
(People vs. Carpio, 191 SCRA 12) Illustration:
A and B quarreled. However, A had no chance

Treachery to fight with B because A is much smaller than
B. A thought of killing B but he cannot just
Treachery refers to the employment of means, attack because of the latter’s size. So A
methods and form in the commission of the thought of committing a crime at nighttime
crime which tend directly and specially to with the cover of darkness. A positioned
ensure its execution without risk to himself himself in the darkest part of the street where
arising form the defense which the offended B passes on his way home. One evening, A
party might make. The means, method or form waited for B and then stabbed the latter.
employed may be an aggravating circumstance However, B pulled a knife as well and also
which like availing of the total darkness in stabbed A. A was wounded but not mortal so
nighttime or of superior strength taken he managed to run away. B was able to walk a
advantage of by the offender, employing few steps before he fell and died. What crime
means to weaken the defense. was committed?
Illustration: The crime is only homicide. The aggravating

circumstance is only nocturnity and nocturnity
A and B have been quarreling for some time. is not a qualifying circumstance. Treachery
One day, A approached B and befriended him. cannot be considered here because the
B accepted. A proposed that to celebrate their offended party was able to put up a defense

Page 79
and that negates treachery. In treachery, the of his head, the SC ruled that this is only
offended party, due to the means, method or homicide since treachery must be proven. It
form employed by the offender, the former must be shown that the victim was totally
was denied the chance to defend himself. If defenseless.
because of the cover of darkness, B was not Suddenness of the attack does not by itself
able to put up a defense and A was able to flee constitute treachery in the absence of evidence
as B died, the crime will be murder due to the that the manner of attack was consciously
presence of treachery. In the first situation, the adopted by the offender to render the victim
crime was only homicide, the nighttime being a defenseless. (People vs. Ilagan, 191 SCRA
generic aggravating circumstance. 643)
In the example where A pretended to befriend But where children of tender years were killed,
B and invited him to celebrate their friendship, being one year old and 12 years old, the killing
if B despite intoxication was able to put up is murder even if the manner of attack was not
some fight against A but B eventually dies, shown. (People vs. Gahon, decided on April
then treachery is no longer present but means 30, 1991)
employed to weaken the defense. The crime
committed is murder but the proper qualifying In People vs. Lapan, decided on July 6,
circumstance is the employment of means to 1992, the accused was prosecuted for robbery
weaken the defense. with homicide. Robbery was not proven
beyond reasonable doubt. The accused was
In the same manner, if the offender avails of held liable only for the killings. Although one of
the services of men and in the commission of the victims was barely six years old, the
the crime, they took advantage of superior accused was convicted only for homicide,
strength but somehow, the offended party aggravated by dwelling and in disregard of
fought back, the crime is still murder if the age.
victim dies. Although the qualifying
circumstance is abuse of superior strength and Treachery is not appreciated where quarrel and
not treachery, the former also makes it murder heated discussion preceded a killing, because
under Article 248. the victim would be put on guard (People vs.
Gupo). But although a quarrel preceded a
Treachery is out when the attack was merely killing where the victim was atop a coconut
incidental or accidental because in the tree, treachery was considered as the victim
definition of treachery, the implication is that was not in a position to defend himself
the offender had consciously and deliberately (People vs. Toribio).
adopted the method, means and form used or
employed by him. So, if A and B casually met
and there and then A stabbed B, although Distinction between ignominy and cruelty
stabbing may be sudden since A was not
shown to have the intention of killing B, Ignominy shocks the moral conscience of man
treachery cannot be considered present. while cruelty is physical. Ignominy refers to the
moral effect of a crime and it pertains to the
There must be evidence on how the crime was moral order, whether or not the victim is dead
committed. It is not enough to show that the or alive. Cruelty refers to the physical suffering
victim sustained a treacherous wound. of the victim so he has to be alive. In plain
Example: A had a gunshot wound at the back language, ignominy is adding insult to injury. A

Page 80
clear example is a married woman being raped means the crime committed was only
before the eyes of her husband. homicide.
In a case where the crime is rape and the Cruelty is aggravating in rape where the
accused abused the victims from behind, the offender tied the victim to a bed and burnt her
Supreme Court held the crime as aggravated face with a lighted cigarette while raping her
by ignominy. Hence, raping a woman from laughing all the way. (People vs. Lucas, 181
behind is ignominous because that is not the SCRA 315)
normal form of intercourse, it is something
which offends the morals of the offended
woman. This is how animals do it. Unlawful entry
In a case of homicide, while the victim after Unlawful entry is inherent in the crime of
having been killed by the offender, the robbery with force upon things but aggravating
offender shoved the body inside a canal, in the crime of robbery with violence against or
ignominy was held aggravating. intimidation of persons.
After having been killed, the body was thrown

into a pile of garbage, ignominy is aggravating. Motor vehicle
The Supreme Court held that it added shame
to the natural effects of the crime. The Supreme Court considers strictly the use
of the word “committed,” that the crime is
Cruelty and ignominy are circumstances committed with the use of a motor vehicle,
brought about which are not necessary in the motorized means of transportation or
commission of the crime. motorized watercraft. There is a decision by
the Court of Appeals that a motorized bicycle is
Illustration: a motor vehicle even if the offender used only
the foot pedal because he does not know how
A and B are enemies. A upon seeing B pulled to operate the motor so if a bicycle is used in
out a knife and stabbed B 60 times. Will the the commission of the crime, motor vehicle
fact be considered as an aggravating becomes aggravating if the bicycle is
circumstance of cruelty? No, there is cruelty motorized.
only when there are evidence that the offender
inflicted the stab wounds while enjoying or This circumstance is aggravating only when
delighting seeing the victim in pain. For cruelty used in the commission of the offense. If
to exist as an aggravating circumstance, there motor vehicles are used only in the escape of
must be evidence showing that the offender the offender, it is not aggravating. It must
inflicted the alleged cruel wounds slowly and have been used to facilitate the commission of
gradually and that he is delighted in seeing the the crime to be aggravating.
victim suffer in pain. In the absence of
evidence to this effect, there is no cruelty. Aggravating when a motorized tricycle was
Sixty stab wounds do not ipso facto make used to commit a crime.
them aggravating circumstances of cruelty.
The crime is murder if 60 wounds were
inflicted gradually; absence of this evidence Organized or syndicated crime group

Page 81
In the same amendment to Article 62 of the

Revised Penal Code, paragraphs were added Use only the term alternative circumstance for
which provide that the maximum penalty shall as long as the particular circumstance is not
be imposed if the offense was committed by involved in any case or problem. The moment
any person who belongs to an organized or it is given in a problem, do not use alternative
syndicated crime group. circumstance, refer to it as aggravating or
An organized or syndicated crime group means mitigating depending on whether the same is
a group of two or more persons collaborating, considered as such or the other. If relationship
confederating or mutually helping one another is aggravating, refer to it as aggravating. If
for the purpose of gain in the commission of a mitigating, then refer to it as such.
crime.
Except for the circumstance of intoxication, the
With this provision, the circumstance of an other circumstances in Article 15 may not be
organized or syndicated crime group having taken into account at all when the
committed the crime has been added in the circumstance has no bearing on the crime
Code as a special aggravating circumstance. committed. So the court will not consider this
The circumstance being special or qualifying, it as aggravating or mitigating simply because
must be alleged in the information and proved the circumstance has no relevance to the crime
during trial. Otherwise, if not alleged in the that was committed.
information, even though proved during trial,
the court cannot validly consider the Do not think that because the article says that
circumstances because it is not among those these circumstances are mitigating or
enumerated under Article 14 of the Code as aggravating, that if the circumstance is
aggravating. It is noteworthy, however, that present, the court will have to take it as
there is an organized or syndicated group even mitigating, if not mitigating, aggravating. That
when only two persons collaborated, is wrong. It is only the circumstance of
confederated or mutually helped one another intoxication which if not mitigating, is
in the commission of a crime, which acts are automatically aggravating. But the other
inherent in a conspiracy. Therefore, where circumstances, even if they are present, but if
conspiracy in the commission of a crime is they do not influence the crime, the court will
alleged in the information, the allegation may not consider it at all. Relationship may not be
be considered as procedurally sufficient to considered at all, especially if it is not inherent
warrant receiving of evidence on the matter in the commission of the crime. Degree of
during trial and consequently, the said special instruction also will not be considered if the
aggravating circumstance may be appreciated crime is something which does not require an
if proven. educated person to understand.
Alternative circumstances Relationship
Four alternative circumstances Relationship is not simply mitigating or

aggravating. There are specific circumstances
1. Relationship; where relationship is exempting. Among such
2. Intoxication; circumstances are:
3. Degree of instruction; and
4. Education

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1. In the case of an accessory who is related Intoxication to be considered mitigating,

to the principal within the relationship requires that the offender has reached that
prescribed in Article 20; degree of intoxication where he has no control
2. Also in Article 247, a spouse does not incur of himself anymore. The idea is the offender,
criminal liability for a crime of less serious because of the intoxication is already acting
physical injuries or serious physical injuries under diminished self-control. This is the
if this was inflicted after having surprised rationale why intoxication is mitigating. So if
the offended spouse or paramour or this reason is not present, intoxication will not
mistress committing actual sexual be considered mitigating. So the mere fact
intercourse. that the offender has taken one or more cases
3. Those commonly given in Article 332 when of beer of itself does not warrant a conclusion
the crime of theft, malicious mischief and that intoxication is mitigating. There must be
swindling or estafa. There is no criminal an indication that because of the alcoholic
liability but only civil liability if the offender intake of the offender, he is suffering from
is related to the offended party as spouse, diminished self-control. There is diminished
ascendant, or descendant or if the offender voluntariness insofar as his intelligence or
is a brother or sister or brother-in-law or freedom of action is concerned. It is not the
sister-in-law of the offended party and quantity of alcoholic drink. Rather it is the
they are living together. Exempting effect of the alcohol upon the offender which
circumstance is the relationship. This is an shall be the basis of the mitigating
absolutory cause. circumstance.
Sometimes, relationship is a qualifying and not Illustration:

only a generic aggravating circumstance. In
the crime of qualified seduction, the offended In a case, there were two laborers who were
woman must be a virgin and less than 18 years the best of friends. Since it was payday, they
old. But if the offender is a brother of the decided to have some good time and ordered
offended woman or an ascendant of the beer. After drinking two cases of beer they
offended woman, regardless of whether the became more talkative until they engaged in
woman is of bad reputation, even if the woman an argument. One pulled out a knife and
is 60 years old or more, crime is qualified stabbed the other. When arraigned, he invoked
seduction. In such a case, relationship is intoxication as a mitigating circumstance.
qualifying.
Intoxication does not simply mean that the
offender has partaken of so much alcoholic
Intoxication beverages. The intoxication in law requires that
because of the quality of the alcoholic drink
This circumstance is ipso facto mitigating, so taken, the offender had practically lost self
that if the prosecution wants to deny the control. So although the offender may have
offender the benefit of this mitigation, they partaken of two cases of beer, but after
should prove that it is habitual and that it is stabbing the victim he hailed a tricycle and
intentional. The moment it is shown to be even instructed the driver to the place where
habitual or intentional to the commission of the he is sleeping and the tricycle could not reach
crime, the same will immediately aggravating, his house and so he has to alight and walk to
regardless of the crime committed. his house, then there is no diminished self
control. The Supreme Court did not

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acknowledge the mitigating circumstance liability if the crime committed is one which he
because of the number of wounds inflicted inherently understands as wrong, such as
upon the victim. There were 11 stab wounds parricide. If a child would kill his or her parent,
and this, the Supreme Court said, is illiteracy will not mitigate because the low
incompatible with the idea that the offender is degree of instruction has no bearing on the
already suffering from diminished self control. crime.
On the contrary, the indication is that the
offender gained strength out of the drinks he In the same manner, the offender may be a
had taken. It is not the quantity of drink that lawyer who committed rape. The fact that he
will determine whether the offender can legally has knowledge of the law will not aggravate
invoke intoxication. The conduct of the his liability, because such knowledge has
offender, the manner of committing the crime, nothing to do with the commission of the
his behavior after committing the crime must crime. But if he committed falsification and he
show the behavior of a man who has already used his special knowledge as a lawyer, then
lost control of himself. Otherwise, intoxication such will serve to aggravate his criminal
cannot legally be considered. liability.
Degree of instruction and education PERSONS WHO ARE CRIMINALLY LIABLE
These are two distinct circumstances. One may Under the Revised Penal Code, when more
not have any degree of instruction but is than one person participated in the commission
nevertheless educated. Example: A has been of the crime, the law looks into their
living with professionals for sometime. She participation because in punishing offenders,
may just be a maid in the house with no the Revised Penal Code classifies them as:
degree of instruction but she may still be
educated. (1) principal;
(2) accomplice; or
It may happen also that the offender grew up (3) accessory.
in a family of professionals, only he is the black
sheep because he did not want to go to school. This classification is true only under the
But it does not follow that he is bereft of Revised Penal Code and is not applied under
education. special laws, because the penalties under the
latter are never graduated. Do not use the
If the offender, who did not go higher than term “principal” when the crime committed is a
Grade 3 was involved in a felony, was invoking violation of special law (use the term
lack of degree of education, would this be “offender”). Also, classify offenders only when
considered as a mitigating circumstance?. The more than one took part in the commission of
Supreme Court held that although he did not the crime to determine the proper penalty to
receive schooling, yet it cannot be said that he be imposed. So, if only one person committed
lacks education because he came from a family a crime, do not say “principal.” Use “the
of professionals. So he understands what is offenders,” “culprits,” or “the accused.”
right or wrong.
When a problem is encountered where there
The fact that the offender did not have are several participants in the crime, the first
schooling and is illiterate does not mitigate his thing to find out is if there is a conspiracy. If

Page 84
there is, as a general rule, the criminal liability It is not just a matter of cooperation, it is more
of all will be the same, because the act of one of whether the crime could have been hardly
is the act of all. committed. It is not that the crime would not
be committed because if that is what you
However, if the participation of one is so would imply, it becomes an ingredient of the
insignificant, such that even without his crime and that is not what the law
cooperation, the crime would be committed contemplates.
just as well, then notwithstanding the
existence of a conspiracy, such offender will be In the case of rape, where three men were
regarded only as an accomplice. The reason accused, one was on top of the woman, one
for this ruling is that the law favors a milder held the hands, and one held the legs, the
form of criminal liability if the act of the Supreme Court held that all participants are
participant does not demonstrate a clear principals. Those who held the legs and arms
criminal perversity. are principals by indispensable cooperation.
As to the liability of the participants in a felony, The accused are father and son. The father
the Code takes into consideration whether the told his son that the only way to convince the
felony committed is grave, less grave, or light. victim to marry him is to resort to rape. So
when the opportunity came, the young man
When the felony is grave, or less grave, all grabbed the woman, threw her on the ground
participants are criminally liable. and placed himself on top of her while the
father held both legs of the woman and spread
But where the felony is only light, only the them. The Supreme Court held that the father
principal and the accomplice are liable. The is liable only as an accomplice.
accessory is not.
The focus is not just on participation but on
But even the principal and accomplice will not the importance of participation in committing
be liable if the felony committed is only light the crime.
and the same is not consummated unless such
felony is against persons or property. If they In the first situation, the facts indicate that if
are not and the same is not consummated, the fellow who held the legs of the victim and
even the principal and the accomplice are not spread them did not do so, the offender on top
liable. could hardly penetrate because the woman
was strong enough to move or resist. In the
Therefore, it is only when the light felony is second situation, the son was much bigger
against persons or property that criminal than the woman, so considering the strength
liability attaches to the principal or accomplice, of the son and the victim, penetration is
even though the felony is only attempted or possible even without the assistance of the
frustrated, but accessories are not liable for father. The son was a robust farmer and the
light felonies. victim was undernourished. The act of the
father in holding the legs merely facilitated the
penetration, but even without it, the son would
Principal by indispensable cooperation have succeeded in what he wanted to do.
distinguished from an accomplice
The basis is the importance of the cooperation
to the consummation of the crime. If the crime

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could hardly be committed without such There was a quarrel between two families. One
cooperation, then such cooperation would of the sons of family A came out with a
bring about a principal. But if the cooperation shotgun. His mother then shouted, “Shoot!” He
merely facilitated or hastened the shot and killed someone. Is the mother liable?
consummation of the crime, this would make No.
the cooperator merely an accomplice.
In a case, the offender was running after the

victim with a knife. Another fellow came and Examples of inducement:
blocked the way of the victim and as a result,
the one chasing caught up with the victim and “I will give you a large amount of money”
stabbed the latter at the back. It was held that
the fellow who blocked the victim’s way is a “I will not marry you if you do not kill B”
principal by indispensable cooperation because
if he did not block the way, the offender could
not have caught up with the latter. In People v. Balderrama, Ernesto shouted to
his younger brother Oscar, “Birahin mo na,
In another case, A was mauling B. C, a friend birahin mo na!” Oscar stabbed the victim. It
of B tried to approach but D stopped C so that was held that there was no conspiracy. Joint or
A was able to continuously maul B. The liability simultaneous action per se is not indicia of
of D is as an accomplice. Obviously, he did not conspiracy without showing of common design.
cooperate in the mauling, he only stopped C Oscar has no rancor with the victim for him to
from rescuing B in the hands of A. kill the latter. Considering that Ernesto had
great moral ascendancy and influence over
In case of doubt, favor the lesser penalty or Oscar, being much older (35 years old), than
liability. Apply the doctrine of pro reo. the latter, who was 18 years old, and it was
Ernesto who provided his allowance, clothing,
as well as food and shelter, Ernesto is principal
Principal by inducement by inducement.
Concept of inducement—one strong enough In People v. Agapinay, 188 SCRA 812, the
that the person induced could not resist. This one who uttered “kill him, we will bury him.”
is tantamount to an irresistible force while the felonious aggression was taking place
compelling the person induced to carry out the cannot be held liable as principal by
crime. Ill-advised language is not enough inducement. Utterance was said in the
unless he who made such remark or advice is a excitement of the hour, not a command to be
co-conspirator in the crime committed. obeyed.
While in the course of a quarrel, a person In People v. Madall, 188 SCRA 69, the son
shouted to A, “Kill him! Kill him!” A killed the was mauled. The family was not in good terms
other person. Is the person who shouted with their neighbors. The father challenged
criminally liable? Is that inducement? No. The everybody and when the neighbors
shouting must be an irresistible force for the approached, he went home to get a rifle. The
one shouting to be liable. shouts of his wife “here comes another, shoot
him” cannot make the wife a principal by
inducement. It is not the determining cause of

Page 86
the crime in the absence of proof that the

words had great influence over the husband. Accessory as a fence
Neither is the wife’s act of beaming the victim
with a flashlight indispensable to the killing. The Revised Penal Code defines what manners
She assisted her husband in taking good aim, of participation shall render an offender liable
but such assistance merely facilitated the as an accessory. Among the enumeration is
felonious act of shooting. Considering that it “by profiting themselves or by assisting the
was not so dark and the husband could have offender to profit by the effects of the crime.”
accomplished the deed without his wife’s help, So the accessory shall be liable for the same
and considering further that doubts must be felony committed by the principal. However,
resolved in favor of the accused, the liability of where the crime committed by the principal
the wife is only that of an accomplice. was robbery or theft, such participation of an
accessory brings about criminal liability under
Presidential Decree No. 1612 (Anti-Fencing
Accessories Law). One who knowingly profits or assists the
principal to profit by the effects of robbery or
Two situations where accessories are not theft is not just an accessory to the crime, but
criminally liable: principally liable for fencing under PD 1612.
1. When the felony committed is a light Any person who, with intent to gain, acquires
felony and/or sell, possesses, keeps, or in any
manner deals with any article of value which
2. When the accessory is related to the he knows or should be known to him to be the
principal as spouse, or as an ascendant, or proceeds of robbery or theft is considered a
descendant, or as brother or sister whether “fence” and incurs criminal liability for
legitimate, natural or adopted or where the “fencing” under said decree. The penalty is
accessory is a relative by affinity within the higher than that of a mere accessory to the
same degree, unless the accessory himself crime of robbery or theft.
profited from the effects or proceeds of the
crime or assisted the offender to profit Likewise, the participation of one who conceals
therefrom. the effects pf robbery or theft gives rise to
criminal liability for “fencing”, not simply of an
One cannot be an accessory unless he knew of accessory under paragraph 2 of Article 19 of
the commission of the crime. One must not the Code. Mere possession of any article of
have participated in the commission of the value which has been the subject of robbery or
crime. The accessory comes into the picture theft brings about the presumption of
when the crime is already consummated. “fencing.”
Anyone who participated before the
consummation of the crime is either a principal Presidential Decree No. 1612 has, therefore,
or an accomplice. He cannot be an accessory. modified Article 19 of the Revised Penal Code.
When an offender has already involved himself

as a principal or accomplice, he cannot be an
Question and Answer
accessory any further even though he performs
acts pertaining to an accessory.

Page 87
1. May one who profited out of the abetting piracy or abetting brigandage as the
proceeds of estafa or malversation be case may be, although the penalty is that for
prosecuted under the Anti-Fencing an accomplice, not just an accessory, to the
Law? piracy or brigandage. To this end, Section 4 of
PD 532 provides that any person who
No. There is only a fence when the knowingly and in any manner… acquires or
crime is theft or robbery. If the crime is receives property taken by such pirates or
embezzlement or estafa, he is still an brigands or in any manner derives benefit
accessory to the crime of estafa, not a fence. therefrom… shall be considered as an
accomplice of the principal offenders in
2. If principal committed robbery by accordance with the Rules prescribed by the
snatching a wristwatch and gave it to Revised Penal Code.
his wife to sell, is the wife criminally
liable? Can she be prosecuted as an It shall be presumed that any person who does
accessory and as a fence? any acts provided in this Section has
performed them knowingly, unless the contrary
The liability of the wife is based on her is proven.
assisting the principal profit and that act is
punishable as fencing. She will no longer be Although Republic Act 7659, in amending
liable as an accessory to the crime of robbery. Article 122 of the Revised Penal Code,
incorporated therein the crime of piracy in
Philippine territorial waters and thus
In both laws, PD 1612 and the Revised Penal correspondingly superseding PD 532, section 4
Code, the same act is the basis of liability and of said Decree, which punishes said acts as a
you cannot punish a person twice for the same crime of abetting piracy or brigandage, still
act as that would go against the double stands as it has not been repealed nor
jeopardy rule. modified, and is not inconsistent with any
provision of RA 7659.
Acquiring the effects of piracy or

brigandage Destroying the corpus delicti
It is relevant to consider in connection with the When the crime is robbery or theft, with
criminal liability of accessories under the respect to the second involvement of an
Revised Penal Code, the liability of persons accessory, do not overlook the purpose which
acquiring property subject of piracy or must be to prevent discovery of the crime.
brigandage.
The corpus delicti is not the body of the person
The act of knowingly acquiring or receiving who is killed. Even if the corpse is not
property which is the effect of the proceeds of recovered, as long as that killing is established
a crime generally brings about criminal liability beyond reasonable doubt, criminal liability will
of an accessory under Article 19, paragraph 1 arise and if there is someone who destroys the
of the Revised Penal Code. But if the crime was corpus delicti to prevent discovery, he
piracy or brigandage under Presidential Decree becomes an accessory.
532 (Anti-piracy and Anti-Highway Robbery
Law of 1974), said act constitutes the crime of

Page 88
Harboring or concealing an offender include an aunt. However, this is not the

reason. The principal must have committed
In the third form or manner of becoming an either treason, parricide, murder, or attempt
accessory, take note that the law distinguishes on the life of the Chief Executive, or that the
between a public officer harboring, concealing, principal is known to be habitually guilty of
or assisting the principal to escape and a some other crime, for a person who is not a
private citizen or civilian harboring, concealing, public officer and who assists an offender to
or assisting the principal to escape. escape or otherwise harbors, or conceals such
offender, to be criminally liable. In this case,
In the case of a public officer, the crime the crime committed was kidnapping.
committed by the principal is immaterial. Such
officer becomes an accessory by the mere fact The crime committed by the principal is
that he helped the principal to escape by determinative of the liability of the accessory
harboring or concealing, making use of his who harbors or conceals, knowing that the
public function and thus abusing the same. crime is committed. If the person is a public
officer, the nature of the crime is immaterial.
On the other hand, in case of a civilian, the What is material is that he used his public
mere fact that he harbored, concealed, or function is assisting the escape.
assisted the principal to escape does not ipso
facto make him an accessory. The law requires Although under paragraph 3 of Article 19, the
that the principal must have committed the law specifies the crimes that should be
crime of treason, parricide, murder or attempt committed in case a civilian aids in the escape,
on the life of the Chief Executive. If this is not there is a special law which punishes the same
the crime, the civilian does not become an act but does not specify a particular crime.
accessory unless the principal is known to be Presidential Decree 1829, which took effect on
habitually guilty of some other crime. Even if January 16, 1981, penalizes acts commonly
the crime committed by the principal is referred to as “obstructions of justice”. This
treason, or murder, or parricide, or attempt on decree penalizes, under Section 1(c), the act,
the life of the Chief Executive, the accessory inter alia, of “harboring or concealing, or
cannot be held criminally liable without the facilitating the escape of any person he knows
principal being found guilty of any such crime. or has reasonable ground to believe or
Otherwise, the effect would be that the suspect, has committed any offense under
accessory merely harbored or assisted in the existing penal laws in order to prevent his
escape of an innocent man, if the principal is arrest, prosecution and conviction.”
acquitted of the charges.
Under this law (PD 1829), there is no
Illustration: specification of the crime to be committed by
the offender in order that criminal liability be
Crime committed is kidnapping for ransom. incurred by private persons for harboring,
Principal was being chased by soldiers. His concealing or facilitating the escape of the
aunt hid him in the ceiling of her house and offender, and the offender need not even be
she told the soldiers that her nephew had the principal. Under PD 1829, a private
never visited her. When the soldiers left, the individual who assists in the escape of an
aunt even gave money to her nephew for the offender of any crime is no longer an
latter to go to the province. Is the aunt accessory. He is simply an offender without
criminally liable? No. Article 20 does not regard to the crime of the person assisted to

Page 89
escape. So in the problem, the aunt is not liability of an accomplice or accessory does not
criminally liable under the Revised Penal Code depend on the criminal liability of the principal
because the crime is kidnapping, but under PD but depends on the quantum of evidence. But
1829. if the evidence shows that the act done does
not constitute a crime and the principal is
Whether the accomplice and the accessory may acquitted, then the supposed accomplice and
be tried and convicted even before the accessory should also be acquitted. If there is
principal is found guilty no crime, then there is no criminal liability,
whether principal, accomplice, or accessory.
There is an earlier Supreme Court ruling that
the accessory and accomplice must be charged Under paragraph 3, Article 19, take note that
together with the principal and that if the latter before the civilian can be held liable as an
is acquitted, the accomplice and accessory accessory in assisting the escape of an
shall also not be criminally liable, unless the offender of the particular crimes specified, the
acquittal is based on a defense which is principal must first be found guilty of the crime
personal only to the principal. charged, either treason, parricide, murder, or
attempt on the life of the Chief Executive. If
Although this ruling may be correct if the facts the principal is acquitted, the civilian who
charged do not make the principal criminally harbored, concealed, or assisted in the escape
liable at all because there is no crime did not violate Article 19. That is as far as the
committed, this is not true in all cases. It is not Revised Penal Code is concerned. But not PD
always true that the accomplice and accessory 1829. This special law does not require that
cannot be criminally liable without the principal there be prior conviction. It is a malum
being first convicted. Under Rule 110 of the prohibitum, no need for guilt, or knowledge of
Revised Rules on Criminal Procedure, it is the crime.
required that all those involved in the
commission of the crime must be included in In Taer v. CA, accused received from his co-
the information that may be filed. And in filing accused two stolen male carabaos. Conspiracy
an information against the person involved in was not proven. Taer was held liable as an
the commission of a crime, the law does not accessory in the crime of cattle-rustling under
distinguish between principal, accomplice, and PD 533. [Taer should have been liable for
accessory. All will be accused and whether a violation of the Anti-Fencing Law since castle-
certain accused will be principal, accomplice, or rustling is a form of theft or robbery of large
accessory will depend on what the evidence cattle, except that he wasn’t charged with
would show. In other words, the liability of the fencing.]
accused will depend on the quantum of
evidence adduced by the prosecution against In Enrile v. Amin, a person charged with
the particular accused. But the prosecution rebellion should not be separately charged
must initiate the proceedings against the under PD 1829. The theory of absorption must
principal. not confine itself to common crimes but also to
offenses punished under special laws which are
Even if the principal is convicted, if the perpetrated in furtherance of the political
evidence presented against a supposed offense.
accomplice or accessory does not meet the
required proof beyond reasonable doubt, then
said accused will be acquitted. So the criminal

Page 90
PENALTIES When may a minor be committed to a

reformatory?
Measures of prevention not considered as
penalty If the minor is between 9-15 years old
and acted with discernment, sentence must
The following are the measures of prevention first be suspended under the following
or safety which are not considered penalties conditions:
under Article 24:
(1) Crime committed is not punishable by
(1) The arrest and temporary detention of death or reclusion perpetua;
accused persons as well as their detention (2) He is availing of the benefit of suspension
by reason of insanity or imbecility or illness for the first time;
requiring their confinement in a hospital.
(3) He must still be a minor at the time of
(2) The commitment of a minor to any of the promulgation of the sentence.
institutions mentioned in Art. 80 for the
purposes specified therein.
Correlating Article 24 with Article 29
(3) Suspension from the employment or public
office during the trial or in order to Although under Article 24, the detention of a
institute proceedings. person accused of a crime while the case
against him is being tried does not amount to a
(4) Fines and other corrective measures which, penalty, yet the law considers this as part of
in the exercise of their administrative imprisonment and generally deductible from
disciplinary powers, superior officials may the sentence.
impose upon their subordinates.
When will this credit apply? If the penalty
(5) Deprivation of rights and reparations which imposed consists of a deprivation of liberty.
the civil laws may establish in penal form. Not all who have undergone preventive
imprisonment shall be given credit.
Why does the Revised Penal Code specify that
such detention shall not be a penalty but Under Article 24, preventive imprisonment of
merely a preventive measure? an accused who is not yet convicted is not a
penalty. Yet Article 29 provides that if the
This article gives justification for detaining the accused is ultimately convicted and the penalty
accused. Otherwise, the detention would imposed involves deprivation of liberty, the
violate the constitutional provision that no period during which he had undergone
person shall be deprived of life, liberty and preventive detention will be deducted from the
property without due process of law and also, sentence, unless he is one of those disqualified
the constitutional right of an accused to be under the law.
presumed innocent until the contrary is proved.
So, if the accused has actually undergone
preventive imprisonment, but if he has been
Repeal of Article 80 convicted of two or more crimes whether or
not he is a recidivist, or when he has been
previously summoned but failed to surrender

Page 91
and so the court has to issue a warrant for his In the amendment, the law does not speak of
arrest, whatever credit he is entitled to shall be credit. Whether the person is entitled to credit
forfeited. is immaterial. The discharge of the offender
from preventive imprisonment or detention is
If the offender is not disqualified from the predicated on the fact that even if he would be
credit or deduction provided for in Article 29 of found guilty of the crime charged, he has
the Revised Penal Code, then the next thing to practically served the sentence already,
determine is whether he signed an undertaking because he has been detained for a period
to abide by the same rules and regulations already equal if not greater than the maximum
governing convicts. If he signed, then it means penalty that would be possibly imposed on him
that while he is suffering from preventive if found guilty.
imprisonment, he is suffering like a convict.
That is why the credit is full. If the crime committed is punishable only by
destierro, the most the offender may be held
But if the offender did not sign an undertaking, under preventive imprisonment is 30 days, and
then he will only be subjected to the rules and whether or not the proceedings are
regulations governing detention prisoners. As terminated, such detention prisoner shall be
such, he will only be given 80% or 4/5 of the discharged.
period of his preventive detention.
Understand the amendment made to Article
From this provision, one can see that the 29. This amendment has been incorporated
detention of the offender may subject him only under Rule 114 precisely to do away with
to the treatment applicable to convicts, but arbitrary detention.
since he is not convicted yet, while he is under
preventive imprisonment, he cannot be Proper petition for habeas corpus must be filed
subjected to the treatment applicable to to challenge the legality of the detention of the
convicts unless he signs and agrees to be prisoner.
subjected to such disciplinary measures
applicable to convicts.
Question and Answer
Detention prisoner has more freedom within
the detention institution rather than those
already convicted. The convicted prisoner If the offender has already been released, what
suffers more restraints and hardship than is the use of continuing the proceedings?
detention prisoners.
The proceedings will determine
Under what circumstances may a detention whether or not the accused is liable. If he is
prisoner be released, even though the criminally liable, it follows that he is also civilly
proceedings against him are not yet liable. The civil liability must be determined.
terminated? That is why the trial must go on.
Article 29 was amended by a Batas Pambansa

that took effect on September 20, 1980. This Duration of penalties
amendment is found in the Rules of Court,
under the rules on bail in Rule 114. Reclusion Perpetua

Page 92
What is the duration of reclusion perpetua? places, he commits the crime of evasion of
service of sentence under Article 157. But if
Do not use Article 27 in answering this the convict himself would go further from
question. The proper answer would be that which he is banished by the court, there is no
reclusion perpetua has no duration because it evasion of service of sentence because the
is an indivisible penalty and indivisible penalties 250km limit is upon the authority of the court
have no duration. in banishing the convict.
Under Article 27, those sentenced to reclusion Under the Revised Penal Code, destierro is the
perpetua shall be pardoned after undergoing penalty imposed in the following situations:
the penalty for 30 years, unless such person,
by reason of his conduct or some other serious (1) When a legally married person who had
cause, shall be considered by the Chief surprised his or her spouse in the act of
Executive as unworthy of pardon. sexual intercourse with another and while
in that act or immediately thereafter
Under Article 70 (the Three-Fold Rule), the should kill or inflict serious physical injuries
maximum period shall in no case exceed 40 upon the other spouse, and/or the
years. If the convict who is to serve several paramour or mistress. This is found in
sentences could only be made to serve 40 Article 247.
years, with more reason that one who is
sentenced to a single penalty of reclusion (2) In the crimes of grave threats and/or light
perpetua should not serve for more than 40 threats, when the offender is required to
years. put up a bond for good behavior but failed
or refused to do so under Article 248, such
The duration of 40 years is not a matter of convict shall be sentenced with destierro
provision of law; this is only by analogy. There so that he would not be able to carry out
is no provision of the Revised Penal Code that his threat.
one sentenced to reclusion perpetua cannot be
held in jail for 40 years and neither is there a (3) In the crime of concubinage, the penalty
decision to this effect. prescribed for the concubine is destierro
under Article 334.
Destierro (4) Where the penalty prescribed by law is

arresto mayor, but the offender is entitled
What is the duration of destierro? to privileged mitigating circumstances and,
lowering the prescribed penalty by one
The duration of destierro is from 6 months and degree, the penalty becomes destierro.
1 year to 6 years, which is the same as that of Thus it shall be the one imposed.
prision correccional and suspension. Destierro
is a principal penalty. It is a punishment
whereby a convict is banished from a certain Civil Interdiction
place and is prohibited from entering or
coming near that place designated in the Civil interdiction is an accessory penalty. Civil
sentence for not less than 25 kilometers. interdiction shall deprive the offender during
However, the court cannot extend beyond 250 the time of his sentence:
kms. If the convict should enter the prohibited

Page 93
(1) The rights of parental authority, or 3. What do we refer to if it is perpetual or

guardianship either as to the person or temporary disqualification?
property of any ward;
We refer to the duration of the
(2) Marital authority; disqualification.
(3) The right to manage his property; and 4. What do we refer to if it is special or
absolute disqualification?
(4) The right to dispose of such property by
any act or any conveyance inter vivos. We refer to the nature of the
disqualification.
Can a convict execute a last will and
testament? YES. The classification of principal and accessory is
found in Article 25.
In classifying the penalties as principal and

PRIMARY CLASSIFICATION OF PENALTIES accessory, what is meant by this is that those
penalties classified as accessory penalties need
Principal penalties and accessory penalties not be stated in the sentence. The accessory
penalties follow the principal penalty imposed
The penalties which are both principal and for the crime as a matter of course. So in the
accessory penalties are the following: imposition of the sentence, the court will
specify only the principal penalty but that is
(1) Perpetual or temporary absolute not the only penalty which the offender will
disqualification; suffer. Penalties which the law considers as
accessory to the prescribed penalty are
(2) Perpetual or temporary special automatically imposed even though they are
disqualification. not stated in the judgment. As to the particular
penalties that follow a particular principal
penalty, Articles 40 to 45 of the Revised Penal
Code shall govern.
Question and Answer
If asked what are the accessory penalties, do

1. If the penalty of suspension is imposed not just state the accessory penalties. State
as an accessory, what is the duration? the principal penalty and the corresponding
accessory penalties.
Its duration shall be that of the
principal penalty. Penalties in which other accessory penalties
are inherent:
2. If the penalty of temporary
disqualification is imposed as a principal (1) Article 40. Death—perpetual absolute
penalty, what is the duration? disqualification, and civil interdiction during
30 years following date of sentence;
The duration is six years and one day
to 12 years. (2) Article 41. Reclusion perpetua and
reclusion temporal—civil interdiction for life

Page 94
or during the period of the sentence, as

the case may be, and perpetual absolute
disqualification; What accessory penalty is common to all
principal penalties?
(3) Art. 42. Prision mayor—temporary absolute
disqualification, perpetual special Confiscation or forfeiture of the
disqualification from the right of suffrage; instrument of the proceeds of the crime.
(4) Art. 43. Prision correccional—suspension Bond to keep the peace

from public office, from the right to follow
a profession or calling, and perpetual One of the principal penalties common to the
special disqualification from the right of others is bond to keep the peace. There is no
suffrage if the duration of the crime under the Revised Penal Code which
imprisonment shall exceed 18 months; carries this penalty.
(5) Art. 44. Arresto—suspension of the right to

hold office and the right of suffrage during Bond for good behavior
the term of the sentence.
Bond for good behavior is prescribed by the
There are accessory penalties which are true to Revised Penal Code for the crimes of grave
other principal penalties. An example is the threats and light threats under Article 234. You
penalty of civil interdiction. This is accessory cannot find this penalty in Article 25 because
penalty, and , as provided in Article 34, a Article 25 provides for bond to keep the peace.
convict sentenced to civil interdiction suffers Remember that no felony shall be punished by
certain disqualification during the term of the any penalty not prescribed by law prior to its
sentence. One of the disqualifications is that of commission pursuant to Article 21.
making conveyance of his property inter vivos.
Illustration:
Question and Answer
A has been convicted and is serving the

penalty of prision mayor. While serving Is the bond to keep the peace the same as
sentence, he executed a deed of sale over his bond for good behavior?
only parcel of land. A creditor moved to annul
the sale on the ground that the convict is not No. The legal effect of each is entirely
qualified to execute a deed of conveyance inter different. The legal effect of a failure to post a
vivos. If you were the judge, how would you bond to keep the peace is imprisonment either
resolve the move of the creditor to annul the for 30 days or 6 months, depending on
sale? whether the felony committed is grave or less
grave on the one hand, or it is light only on the
Civil interdiction is not an accessory penalty in other hand. The legal effect of failure to post a
prision mayor. The convict can convey his bond for good behavior is not imprisonment
property. but destierro under Article 284.
Divisible and Indivisible Penalties

Question and Answer

Page 95
Before the enactment of Republic Act 7659,

When we talk of period, it is implying that the which made amendments to the Revised Penal
penalty is divisible. Code, the penalty of reclusion perpetua had no
fixed duration. The Revised Penal Code
If, after being given a problem, you were provides in Article 27 that the convict shall be
asked to state the period in which the penalty pardoned after undergoing the penalty for 30
of reclusion perpetua is to be imposed, years, unless by reason of his conduct or some
remember that when the penalty is indivisible, other serious cause, he is not deserving of
there is no period. Do not talk of period, pardon. As amended by Section 21 of RA 7659,
because when you talk of period, you are the same article now provides that the penalty
implying that the penalty is divisible since the of reclusion perpetua shall be from 20 to 40
period referred to is the minimum, medium years. Because of this, speculations arose as to
and maximum. If it is indivisible, there is no whether it made reclusion perpetua a divisible
such thing as a minimum, medium, or penalty.
maximum period.
As we know, when a penalty has a fixed
duration, it is said to be divisible and, in
The capital punishment accordance with the provisions of Articles 65
and 76, should be divided into three equal
You were asked to state whether you are in portions to form one period of each of the
favor or against capital punishment. three portions. Otherwise, if the penalty has no
Understand that you are not taking an fixed duration, it is an indivisible penalty. The
examination in Theology. Explain the issue on nature of the penalty as divisible or indivisible
the basis of social utility of the penalty. Is it is decisive of the proper penalty to be imposed
beneficial in deterring crimes or not? This under the Revised Penal Code inasmuch as it
should be the premise of your reasoning. determines whether the rules in Article 63 or
the rules in Article 64 should be observed in
fixing the penalty.
Designation of penalty
Thus, consistent with the rule mentioned, the
Since the principal penalties carry with them Supreme Court, by its First Division, applied
certain accessory penalties, the courts are not Article 65 of the Code in imposing the penalty
at liberty to use any designation of the for rape in People v. Conrado Lucas, GR No.
principal penalty. So it was held that when the 108172-73, May 25, 1994. It divided the
penalty should be reclusion perpetua, it is time included in the penalty of reclusion
erroneous for the court to use “life perpetua into three equal portions composing a
imprisonment”. In other words, the courts are period as follows:
not correct when they deviate from the
technical designation of the principal penalty, Minimum—20 years and one day to 26 years
because the moment they deviate from this and eight months;
designation, there will be no accessory
penalties that will go with them. Medium—26 years, eight months and one day
to 33 years and four months;
Reclusion perpetua as modified Maximum—34 years, four months and one day
to 40 years.

Page 96
whenever the dangerous drugs

Considering the aggravating circumstance of involved are of any of the
relationship, the Court sentenced the accused quantities stated herein. If Article
to imprisonment of 34 years, four months and 63 of the Code were no longer
one day of reclusion perpetua, instead of the applicable because reclusion
straight penalty of reclusion perpetua imposed perpetua is supposed to be a
by the trial court. The appellee seasonably filed divisible penalty, then there would
a motion for clarification to correct the duration be no statutory rules for
of the sentence, because instead of beginning determining when either reclusion
with 33 years, four months and one day, it perpetua or death should be the
began with 34 years, four months and one imposable penalty. In fine, there
day. The issue of whether the amendment of would be no occasion for
Article 27 made reclusion perpetua a divisible imposing reclusion perpetua as
penalty was raised, and because the issue is the penalty in drug cases,
one of first impression and momentous regardless of the attendant
importance, the First Division referred the modifying circumstances.
motion to the Court en banc.
Now then, if Congress had
In a resolution promulgated on January 5, intended to reclassify reclusion
1995, the Supreme Court en banc held that perpetua as divisible penalty, then
reclusion perpetua shall remain as an it should have amended Article 63
indivisible penalty. To this end, the resolution and Article 76 of the Revised
states: Penal Code. The latter is the law
on what are considered divisible
After deliberating on the motion penalties under the Code and
and re-examining the legislation what should be the duration of
history of RA 7659, the Court the periods thereof. There are, as
concludes that although Section well, other provisions of the RPC
17 of RA 7659 has fixed the involving reclusion perpetua, such
duration of Reclusion Perpetua as Art 41 on the accessory
from twenty (20) years and one penalties thereof and paragraphs
(1) day to forty (40) years, there 2 and 3 of Art 61, which has not
was no clear legislative intent to been touched by the
alter its original classification as corresponding amendment.
an indivisible penalty. It shall then
remain as an indivisible penalty. Ultimately, the question arises: “What
then may be the reason for the amendment
Verily, if reclusion perpetua was fixing the duration of reclusion perpetua?” This
classified as a divisible penalty, question was answered in the same case of
then Article 63 of the Revised People v. Lucas by quoting pertinent portion
Penal Code would lose its reason of the decision in People v. Reyes, 212 SCRA
and basis of existence. To 402, thus:
illustrate, the first paragraph of
Section 20 of the amended RA The imputed duration of
No. 6425 provides for the penalty thirty (30) years for reclusion
of reclusion perpetua to death perpetua, thereof, is only to serve

Page 97
as the basis for determining the without this amendment, the death penalty
convict’s eligibility for pardon or may not be meted out on an offender who
the application of the three-fold was below 18 years of age at the time of
rule in the service of penalties. the commission of the crime because
Since, however, in all the Article 68 lowers the imposable penalty
graduated scales of penalties in upon such offenders by at least one
the Code, as set out in Article 25, degree than that prescribed for the crime.
70 and 21, reclusion perpetua is
the penalty immediately next (2) In the matter of executing the
higher to reclusion temporal, it death penalty, Article 81 has been
follows by necessary implication amended and, thus, directs that the
that the minimum of reclusion manner of putting the convict to death by
perpetua is twenty (20) years electrocution shall be changed to gas
and one (1) day with a maximum poisoning as soon as the facilities are
duration thereafter to last for the provided, and the sentence shall be carried
rest of the convict’s natural life, out not later than one year after the
although pursuant to Article 70 , it finality of judgment.
appears that the maximum period
for the service of the penalties (3) The original provision of Article
shall not exceed forty (40) years. 83, anent the suspension of the execution
It would be legally absurd and of the death penalty for three years if the
violative of the scales of penalties convict was a woman, has been deleted
in the Code to reckon the and instead, limits such suspension to last
minimum of Reclusion Perpetua at while the woman was pregnant and within
thirty (30) years since there one year after delivery.
would thereby be a resultant
lacuna whenever the penalty
exceeds the maximum twenty Subsidiary penalty
(20) years of Reclusion Temporal
but is less than thirty (30) years. Is subsidiary penalty an accessory penalty?
No.
Innovations in the imposition of the death If the convict does not want to pay a fine and
penalty has so many friends and wants to prolong his
stay in jail, can he stay there and not pay the
Aside from restoring the death penalty for fine? No.
certain heinous crimes, Republic Act No. 7659
made innovations on the provisions of RPC After undergoing subsidiary penalty and
regarding the imposition of the death penalty: convict is already released from the jail and his
financial circumstances improve, can he made
(1) Article 47 has been reworded to pay? Yes, for the full amount with
to expressly include among the instances deduction.
where the death penalty shall not be
imposed, the case of an offender who is
below 18 years old at the time of the Article 39 deals with subsidiary penalty. There
commission of the offense. But even are two situations there:

Page 98
writ of execution issued against the property of

(1) When there is a penalty of the convict, if any, is returned unsatisfied.
imprisonment or any other principal
penalty and it carries with it a fine; and In People v. Subido, it was held that the
convict cannot choose not to serve, or not to
(2) When penalty is only a fine. pay the fine and instead serve the subsidiary
penalty. A subsidiary penalty will only be
Therefore, there shall be no subsidiary penalty served if the sheriff should return the
for the non-payment of damages to the execution for the fine on the property of the
offended party. convict and does not have the properties to
satisfy the writ.
This subsidiary penalty is one of important
matter under the title of penalty. A subsidiary
penalty in not an accessory penalty. Since it is
Question and Answer
not an accessory penalty, it must be expressly
stated in the sentence, but the sentence does
not specify the period of subsidiary penalty The penalty imposed by the judge is fine only.
because it will only be known if the convict The sheriff then tried to levy the property of
cannot pay the fine. The sentence will merely the defendant after it has become final and
provide that in case of non-payment of fine, executory, but it was returned unsatisfied. The
the convict shall be required to serve court then issued an order for said convict to
subsidiary penalty. It will then be the prison suffer the subsidiary penalty. The convict was
authority who will compute this. detained, for which reason he filed a petition
for habeas corpus contending that his
So even if subsidiary penalty is proper in a detention is illegal. Will the petition prosper?
case, if the judge failed to state in the
sentence that the convict shall be required to Yes. The judgment became final
suffer subsidiary penalty in case of insolvency without statement as to subsidiary penalty, so
to pay the fine, that convict cannot be required that even if the convict has no money or
to suffer the accessory penalty. This particular property to satisfy the fine, he cannot suffer
legal point is a bar problem. Therefore, the subsidiary penalty because the latter is not an
judgment of the court must state this. If the accessory and so it must be expressly stated.
judgment is silent, he cannot suffer any If the court overlooked to provide for
subsidiary penalty. subsidiary penalty in the sentence and its
attention was later called to that effect,
The subsidiary penalty is not an accessory thereafter, it tried to modify the sentence to
penalty that follows the principal penalty as a include subsidiary penalty after period to
matter of course. It is not within the control of appeal had already elapsed, the addition of
the convict to pay the fine or not and once the subsidiary penalty will be null and void. This is
sentence becomes final and executory and a tantamount to double jeopardy.
writ of execution is issued to collect the fine, if
the convict has a property to levy upon, the If the fine is prescribed with the penalty of
same shall answer for the fine, whether he imprisonment or any deprivation of liberty,
likes it or not. It must be that the convict is such imprisonment should not be higher than
insolvent to pay the fine. That means that the six years or prision correccional. Otherwise,
there is no subsidiary penalty.

Page 99
A convict was sentenced to suspension and

fine. This is a penalty where a public officer
When is subsidiary penalty applied anticipates public duties, he entered into the
performance of public office even before he
(1) If the subsidiary penalty prescribed for has complied with the required to undergo
the non-payment of the which goes with subsidiary penalty?
the principal penalty, the maximum
duration of the subsidiary penalty is one Yes, because the penalty of suspension has a
year, so there is no subsidiary that goes fixed duration. Under Article 27, suspension
beyond one year. But this will only be true and destierro have the same duration as
if the one year period is higher than 1/3 of prision correccional. So the duration does not
the principal penalty, the convict cannot be exceed six years. Since it is a penalty with a
made to undergo subsidiary penalty more fixed duration under Article 39, when there is a
than 1/3 of the duration of the principal subsidiary penalty, such shall be 1/3 of the
penalty and in no case will it be more than period of suspension which in no case beyond
1 year – get 1/3 of the principal penalty – one year. But the subsidiary penalty will be
whichever is lower. served not by imprisonment but by continued
suspension.
(2) If the subsidiary penalty is to be
imposed for non payment of fine and the If the penalty is public censure and fine even if
principal penalty imposed be fine only, the public censure is a light penalty, the
which is a single penalty, that means it convict cannot be required to pay the fine for
does not go with another principal penalty, subsidiary penalty for the non-p0ayment of the
the most that the convict will be required fine because public censure is a penalty that
to undergo subsidiary imprisonment is six has no fixed duration.
months, if the felony committed is grave or
less grave, otherwise, if the felony Do not consider the totality of the
committed is slight, the maximum duration imprisonment the convict is sentenced to but
of the subsidiary penalty is only 15 days. consider the totality or the duration of the
imprisonment that the convict will be required
There are some who use the term subsidiary to serve under the Three-Fold Rule. If the
imprisonment. The term is wrong because the totality of the imprisonment under this rule
penalty is not only served by imprisonment. does not exceed six years, then, even if the
The subsidiary penalty follows the nature of totality of all the sentences without applying
the principal penalty. If the principal penalty is the Three-Fold Rule will go beyond six years,
destierro, this being a divisible penalty, and a the convict shall be required to undergo
penalty with a fixed duration, the non-payment subsidiary penalty if he could not pay the fine.
of the fine will bring about subsidiary penalty.
This being a restriction of liberty with a fixed Illustration:
duration under Article 39 for the nonpayment
of fine that goes with the destierro, the convict A collector of NAWASA collected from 50
will be required to undergo subsidiary penalty houses within a certain locality. When he was
and it will also be in the form of destierro. collecting NAWASA bills, the charges of all
these consumers was a minimum of 10. The
Illustration: collector appropriated the amount collected
and so was charged with estafa. He was

Page 100
convicted. Penalty imposed was arresto mayor

and a fine of P200.00 in each count. If you Articles 63 and 64
were the judge, what penalty would you
impose? May the convict be required to If crime committed is parricide, penalty is
undergo subsidiary penalty in case he is reclusion perpetua. The accused, after
insolvent to pay the fine? committing parricide, voluntarily surrendered
and pleaded guilty of the crime charged upon
The Three-Fold Rule should not applied by the arraignment. It was also established that he
court. In this case of 50 counts of estafa, the was intoxicated, and no aggravating
penalty imposed was arresto mayor and a fie circumstances were present. What penalty
of P200.00. Arresto mayor + P200.00 x 50. would you impose?
Arresto Mayor is six months x 50 = 25 years.
P200.00 x 50 = P10,000.00. Thus, I would Reclusion perpetua, because it is an indivisible
impose a penalty of arresto mayor and a fine penalty.
of P200.00 multiplied by 50 counts and state
further that “as a judge, I am not in the When there are two or more mitigating
position to apply the Three-Fold Rule because circumstances and there is no aggravating
the Three-Fold Rule is to be given effect when circumstance, penalty to be imposed shall be
the convict is already serving sentence in the one degree lower to be imposed in the proper
penitentiary. It is the prison authority who will period. Do not apply this when there is one
apply the Three-Fold Rule. As far as the court aggravating circumstance.
is concerned, that will be the penalty to be
imposed.” Illustration:
For the purposes of subsidiary penalty, apply There are about four mitigating circumstances
the Three-Fold Rule if the penalty is arresto and one aggravating circumstance. Court
mayor and a fine of P200.00 multiplied by 3. offsets the aggravating circumstance against
This means one year and six months only. So, the mitigating circumstance and there still
applying the Three-Fold Rule, the penalty does remains three mitigating circumstances.
not go beyond six years. Hence, for the non- Because of that, the judge lowered the penalty
payment of the fine of P10,000.00, the convict by one degree. Is the judge correct?
shall be required to undergo subsidiary
penalty. This is because the imprisonment that No. In such a case when there are
will be served will not go beyond six years. It aggravating circumstances, no matter how
will only be one year and six months, since in many mitigating circumstances there are, after
the service of the sentence, the Three-Fold offsetting, do not go down any degree lower.
Rule will apply. The penalty prescribed by law will be the
penalty to be imposed, but in the minimum
It is clearly provided under Article 39 that if the period. Cannot go below the minimum period
means of the convict should improve, even if when there is an aggravating circumstance.
he has already served subsidiary penalty, he
shall still be required to pay the fine and there Go into the lowering of the penalty by one
is no deduction for that amount which the degree if the penalty is divisible. So do not
convict has already served by way of apply the rule in paragraph 5 of Article 64 to a
subsidiary penalty. case where the penalty is divisible.

Page 101
Penalty is two degrees lower in the case of

Article 66 an accessory.
When there are mitigating circumstance and This is so because the penalty prescribed
aggravating circumstance and the penalty is by law for a given crime refers to the
only fine, when it is only ordinary mitigating consummated stage.
circumstance and aggravating circumstance,
apply Article 66. Because you determine the (3) When there is a privilege mitigating
imposable fine on the basis of the financial circumstance in favor of the offender, it
resources or means of the offender. But if the will lower the penalty by one or two
penalty would be lowered by degree, there is a degrees than that prescribed by law
privileged mitigating circumstance or the felony depending on what the particular provision
committed is attempted or frustrated, provided of the Revised Penal Code states.
it is not a light felony against persons or
property, because if it is a light felony and (4) When the penalty prescribed for the crime
punishable by fine, it is not a crime at all committed is a divisible penalty and there
unless it is consummated. So, if it is are two or more ordinary mitigating
attempted or frustrated, do not go one degree circumstances and no aggravating
lower because it is not punishable unless it is a circumstances whatsoever, the penalty
light felony against person or property where next lower in degree shall be the one
the imposable penalty will be lowered by one imposed.
degree or two degrees.
(5) Whenever the provision of the Revised
Penal Code specifically lowers the penalty
Penalty prescribed to a crime is lowered by by one or two degrees than what is
degrees in the following cases: ordinarily prescribed for the crime
committed.
(1) When the crime is only attempted or
frustrated. Penalty commonly imposed by the Revised
Penal Code may be by way of imprisonment or
If it is frustrated, penalty is one degree by way of fine or, to a limited extent, by way6
lower than that prescribed by law. of destierro or disqualification, whether
absolute or special.
If it is attempted, penalty is two degrees
lower than that prescribed by law. In the matter of lowering the penalty by
degree, the reference is Article 71. It is
His is so because the penalty prescribed by necessary to know the chronology under
law for a crime refers to the consummated Article 71 by simply knowing the scale. Take
stage. note that destierro comes after arresto mayor
so the penalty one degree lower than arresto
(2) When the offender is an accomplice or mayor is not arresto menor, but destierro.
accessory only Memorize the scale in Article 71.
Penalty is one degree lower in the case of In Article 37, with respect to the range of each
an accomplice. penalty, the range of arresto menor follows
arresto mayor, since arresto menor is one to

Page 102
30 days or one month, while arresto mayor is

one month and one day to six months. On the Illustration:
other hand, the duration of destierro is the
same as prision correccional which is six If the penalty prescribed for the crime is
months and one day to six years. But be this prision correccional medium to maximum,
as it is, under Article 71, in the scale of the penalty one degree lower will be
penalties graduated according to degrees, arresto mayor maximum to prision
arresto mayor is higher than diestierro. correccional minimum, and the penalty
another degree lower will be arresto mayor
In homicide under Article 249, the penalty is minimum to medium. Every degree will be
reclusion temporal. One degree lower, if composed of two periods.
homicide is frustrated, or there is an
accomplice participating in homicide, is prision (3) When the penalty prescribed by
mayor, and two degrees lower is prision the Revised Penal Code is made up fo
correccional. three periods of different penalties, every
time you go down one degree lower, you
This is true if the penalty prescribed by the have to go down by three periods.
Revised Penal Code is a whole divisible penalty
– one degree or 2 degrees lower will also be Illustration:
punished as a whole. But generally, the
penalties prescribed by the Revised Penal Code The penalty prescribed by the Revised
are only in periods, like prision correccional Penal Code is prision mayor maximum to
minimum, or prision correccional minimum to reclusion temporal medium, the penalty
medium. one degree lower is prision correccional
maximum to prision mayor medium.
Although the penalty is prescribed by the Another degree lower will be arresto mayor
Revised Penal Code as a period, such penalty maximum to prision correccional medium.
should be understood as a degree in itself and
the following rules shall govern: These rules have nothing to do with mitigating
or aggravating circumstances. These rules
(1) When the penalty prescribed by refer to the lowering of penalty by one or two
the Reised Code is made up of a period, degrees. As to how mitigating or aggravating
like prision correccional medium, the circumstances may affect the penalty, the rules
penalty one degree lower is prision are found in Articles 63 and 64. Article 63
correccional minimum, and the penalty two governs when the penalty prescribed by the
degrees lower is arresto mayor maximum. Revised Penal Code is divisible. When the
In other words, each degree will be made penalty is indivisible, no matter how many
up of only one period because the penalty ordinary mitigating circumstances there are,
prescribed is also made up only of one the prescribed penalty is never lowered by
period. degree. It takes a privileged mitigating
circumstance to lower such penalty by degree.
(2) When the penalty prescribed by On the other hand, when the penalty
the Code is made up of two periods of a prescribed by the Revised Penal Code is
given penalty, every time such penalty is divisible, such penalty shall be lowered by one
lowered by one degree you have to go degree only but imposed in the proper period,
down also by two periods. when there are two or more ordinary

Page 103
mitigating circumstance and there is no consideration, but primarily, the financial

aggravating circumstance whatsoever. capability of the offender to pay the fine. For
the same crime, the penalty upon an accused
who I poor may be less than the penalty upon
Article 75 - Fines an accused committing the same crime but
who is wealthy.
With respect to the penalty of fine, if the fine
has to be lowered by degree either because For instance, when there are two offenders
the felony committed is only attempted or who are co-conspirators to a crime, and their
frustrated or because there is an accomplice or penalty consists of a fine only, and one of
an accessory participation, the fine is lowered them is wealthy while the other is a pauper,
by deducting ¼ of the maximum amount of the court may impose a higher penalty upon
the fine from such maximum without changing the wealthy person and a lower fine for the
the minimum amount prescribed by law. pauper.
Illustration: Penalty for murder under the Revised Penal

Code is reclusion temporal maximum to death.
If the penalty prescribed is a fine ranging from So, the penalty would be reclusion temporal
P200.00 to P500.00, but the felony is maximum – reclusion perpetua – death. This
frustrated so that the penalty should be penalty made up of three periods.
imposed one degree lower, ¼ of P500.00, shall
be deducted therefrom. This is done by
deducting P125.00 from P500.00, leaving a The Three-Fold Rule
difference of P375.00. The penalty one degree
lower is P375.00. To go another degree lower, Under this rule, when a convict is to serve
P125.00 shall again be deducted from P375.00 successive penalties, he will not actually serve
and that would leave a difference of P250.00. the penalties imposed by law. Instead, the
Hence, the penalty another degree lower is a most severe of the penalties imposed on him
fine ranging from P200.00 to P250.00. If at shall be multiplied by three and the period will
all, the fine has to be lowered further, it cannot be the only term of the penalty to be served by
go lower than P200.00. So, the fine will be him. However, in no case should the penalty
imposed at P200.00. This rule applies when exceed 40 years.
the fine has to be lowered by degree.
This rule is intended for the benefit of the
convict and so, you will only apply this
Article 66 provided the sum total of all the penalties
imposed would be greater than the product of
In so far as ordinary mitigating or aggravating the most severe penalty multiplied by three but
circumstance would affect the penalty which is in no case will the penalties to be served by
in the form of a fine, Article 66 of the Revised the convict be more than 40 years.
Penal Code shall govern. Under this article, it
is discretionary upon the court to apply the fine Although this rule is known as the Three-Fold
taking into consideration the financial means of Rule, you cannot actually apply this if the
the offender to pay the same. In other words, convict is to serve only three successive
it is not only the mitigating and/or aggravating penalties. The Three-Fold Rule can only be
circumstances that the court shall take into applied if the convict I to serve four or more

Page 104
sentences successively. If the sentences One prision mayor – 6 years and 1 day to
would be served simultaneously, the Three- 12
Fold Rule does not govern. years
The chronology of the penalties as provided in Do not commit the mistake of applying the
Article 70 of the Revised Penal Code shall be Three-Fold Rule in this case. Never apply the
followed. Three-Fold Rule when there are only three
sentences. Even if you add the penalties, you
It is in the service of the penalty, not in the can never arrive at a sum higher than the
imposition of the penalty, that the Three-Fold product of the most severe multiplied by three.
Rule is to be applied. The Three-Fold Rule will The common mistake is, if given a situation,
apply whether the sentences are the product whether the Three-Fold Rule could be applied.
of one information in one court, whether the If asked, if you were the judge, what penalty
sentences are promulgated in one day or would you impose, for purposes of imposing
whether the sentences are promulgated by the penalty, the court is not at liberty to apply
different courts on different days. What is the Three-Fold Rule, whatever the sum total of
material is that the convict shall serve more penalty for each crime committed, even if it
than three successive sentences. would amount to 1,000 years or more. It is
only when the convict is serving sentence that
For purposes of the Three-fold Rule, even the prison authorities should determine how
perpetual penalties are taken into account. So long he should stay in jail.
not only penalties with fixed duration, even
penalties without any fixed duration or Illustration:
indivisible penalties are taken into account.
For purposes of the Three-Fold Rule, indivisible A distinct engineer was sentenced by the court
penalties are given equivalent of 30 years. If to a term of 914 years in prison.
the penalty is perpetual disqualification, it will
be given and equivalent duration of 30 years, A person was sentenced to three death
so that if he will have to suffer several sentences. Significance: If ever granted
perpetual disqualification, under the Three-Fold pardon for 1 crime, the two remaining
Rule, you take the most severe and multiply it penalties must still be executed.
by three. The Three-Fold Rule does not apply
to the penalty prescribed but to the penalty This rule will apply only if sentences are to be
imposed as determined by the court. served successively.
Illustration:
Act No. 4013 (Indeterminate Sentence
Penalties imposed are – Law), as amended
One prision correccional – minimum – 2 years Three things to know about the Indeterminate
and 4 months Sentence Law:
(1) Its purpose;
One arresto mayor – 1 month and 1 day to 6 (2) Instances when it does not apply; and
months (3) How it operates

Page 105
Indeterminate Sentence Law governs whether been taken in consideration in fixing the
the crime is punishable under the Revised maximum of the indeterminate sentence, the
Penal Code or a special Law. It is not limited minimum shall be based on the penalty as
to violations of the Revised Penal Code. reduced by the privilege mitigating
circumstance within the range of the penalty
It applies only when the penalty served is next lower in degree.
imprisonment. If not by imprisonment, then it
does not apply. If the crime is a violation of a special law, in
fixing the maximum of the indeterminate
sentence, the court will impose the penalty
Purpose within the range of the penalty prescribed by
the special law, as long as it will not exceed
The purpose of the Indeterminate Sentence the limit of the penalty. In fixing the
law is to avoid prolonged imprisonment, minimum, the court can fix a penalty anywhere
because it is proven to be more destructive within the range of penalty prescribed by the
than constructive to the offender. So, the special law, as long as it will not be less than
purpose of the Indeterminate Sentence Law in the minimum limit of the penalty under said
shortening the possible detention of the law. No mitigating and aggravating
convict in jail is to save valuable human circumstances are taken into account.
resources. I other words, if the valuable
human resources were allowed prolonged The minimum and the maximum referred to in
confinement in jail, they would deteriorate. the Indeterminate Sentence Law are not
Purpose is to preserve economic usefulness for periods. So, do not say, maximum or
these people for having committed a crime – to minimum period. For the purposes of the
reform them rather than to deteriorate them indeterminate Sentence Law, use the term
and, at the same time, saving the government minimum to refer to the duration of the
expenses of maintaining the convicts on a sentence which the convict shall serve as a
prolonged confinement in jail. minimum, and when we say maximum, for
purposes of ISLAW, we refer to the maximum
If the crime is a violation of the Revised Penal limit of the duration that the convict may be
Code, the court will impose a sentence that held in jail. We are not referring to any period
has a minimum and maximum. The maximum of the penalty as enumerated in Article 71.
of the indeterminate sentence will be arrived at
by taking into account the attendant mitigating Courts are required to fix a minimum and a
and/or aggravating circumstances according to maximum of the sentence that they are to
Article 64 of the Revised penal Code. In impose upon an offender when found guilty of
arriving at the minimum of the indeterminate the crime charged. So, whenever the
sentence, the court will take into account the Indeterminate Sentence Law is applicable,
penalty prescribed for the crime and go one there is always a minimum and maximum of
degree lower. Within the range of one degree the sentence that the convict shall serve. If
lower, the court will fix the minimum for the the crime is punished by the Revised Penal
indeterminate sentence, and within the range Code, the law provides that the maximum shall
of the penalty arrived at as the maximum in be arrived at by considering the mitigating and
the indeterminate sentence, the court will fix aggravating circumstances in the commission
the maximum of the sentence. If there is a of the crime according to the proper rules of
privilege mitigating circumstance which has the Revised Penal Code. To fix the maximum,

Page 106
consider the mitigating and aggravating only on ordinary mitigating circumstances.

circumstances according to the rules found in This is true only if the mitigating circumstance
Article 64. This means – taken into account is only an ordinary
mitigating circumstance. If the mitigating
(1) Penalties prescribed by the law for the circumstance is privileged, you cannot follow
crime committed shall be imposed in the the law in so far as fixing the minimum of the
medium period if no mitigating or indeterminate sentence is concerned;
aggravating circumstance; otherwise, it may happen that the maximum of
the indeterminate sentence is lower than its
(2) If there is aggravating circumstance, no minimum.
mitigating, penalty shall be imposed in the
maximum; In one Supreme Court ruling, it was held that
for purposes of applying the Indeterminate
(3) If there is mitigating circumstance, no Sentence Law, the penalty prescribed by the
aggravating, penalty shall be in the Revised Penal Code and not that which may be
minimum; imposed by court. This ruling, however, is
obviously erroneous. This is so because such
(4) If there are several mitigating and an interpretation runs contrary to the rule of
aggravating circumstances, they shall pro reo, which provides that the penal laws
offset against each other. Whatever should always be construed an applied in a
remains, apply the rules. manner liberal or lenient to the offender.
Therefore, the rule is, in applying the
(5) If there are two or more mitigating Indeterminate Sentence Law, it is that penalty
circumstance and no aggravating arrived at by the court after applying the
circumstance, penalty next lower in degree mitigating and aggravating circumstances that
shall be the one imposed. should be the basis.
Rule under Art 64 shall apply in determining Crimes punished under special law carry only
the maximum but not in determining the one penalty; there are no degree or periods.
minimum. Moreover, crimes under special law do not
consider mitigating or aggravating
In determining the applicable penalty circumstance present in the commission of the
according to the Indeterminate Sentence Law, crime. So in the case of statutory offense, no
there is no need to mention the number of mitigating and no aggravating circumstances
years, months and days; it is enough that the will be taken into account. Just the same,
name of the penalty is mentioned while the courts are required in imposing the penalty
Indeterminate Sentence Law. The attendant upon the offender to fix a minimum that the
mitigating and/or aggravating circumstances in convict should serve, and to set a maximum as
the commission of the crime are taken into the limit of that sentence. Under the law,
consideration only when the maximum of the when the crime is punished under a special
penalty is to be fixed. But in so far as the law, the court may fix any penalty as the
minimum is concerned, the basis of the penalty maximum without exceeding the penalty
prescribed by the Revised Penal Code, and go prescribed by special law for the crime
one degree lower than that. But penalty one committed. In the same manner, courts are
degree lower shall be applied in the same given discretion to fix a minimum anywhere
manner that the maximum is also fixed based within the range of the penalty prescribed by

Page 107
special law, as long as it will not be lower than

the penalty prescribed.
Presidential Decree No. 968 (Probation
Disqualification may be divided into three, Law)
according to –
Among the different grounds of partial
(1) The time committed; extinction of criminal liability, the most
(2) The penalty imposed; and important is probation. Probation is a manner
(3) The offender involved. of disposing of an accused who have been
convicted by a trial court by placing him under
supervision of a probation officer, under such
The Indeterminate Sentence Law shall not terms and conditions that the court may fix.
apply to: This may be availed of before the convict
begins serving sentence by final judgment and
(1) Persons convicted of offense punishable provided that he did not appeal anymore from
with death penalty or life imprisonment; conviction.
(2) Persons convicted of treason, conspiracy or Without regard to the nature of the crime, only
proposal to commit treason; those whose penalty does not exceed six years
of imprisonment are those qualified for
(3) Persons convicted of misprision of treason, probation. If the penalty is six years plus one
rebellion, sedition, espionage; day, he is no longer qualified for probation.
(4) Persons convicted of piracy; If the offender was convicted of several

offenses which were tried jointly and one
(5) Persons who are habitual delinquents; decision was rendered where multiple
sentences imposed several prison terms as
(6) Persons who shall have escaped from penalty, the basis for determining whether the
confinement or evaded sentence; penalty disqualifies the offender from
probation or not is the term of the individual
(7) Those who have been granted conditional imprisonment and not the totality of all the
pardon by the Chief Executive and shall prison terms imposed in the decision. So even
have violated the term thereto; if the prison term would sum up to more than
six years, if none of the individual penalties
(8) Those whose maximum term of exceeds six years, the offender is not
imprisonment does not exceed one year, disqualified by such penalty from applying for
but not to those already sentenced by final probation.
judgment at the time of the approval of
Indeterminate Sentence Law. On the other hand, without regard to the
penalty, those who are convicted of subversion
Although the penalty prescribed for the felony or any crime against the public order are not
committed is death or reclusion perpetua, if qualified for probation. So know the crimes
after considering the attendant circumstances, under Title III, Book 2 of the Revised Penal
the imposable penalty is reclusion temporal or code. Among these crimes is Alarms and
less, the Indeterminate Sentence Law applies Scandals, the penalty of which is only arresto
(People v. Cempron, 187 SCRA 278). menor or a fine. Under the amendment to the

Page 108
Probation Law, those convicted of a crime

against public order regardless of the penalty Whether a convict who is otherwise qualified
are not qualified for probation. for probation may be give the benefit of
probation or not, the courts are always
May a recidivist be given the benefit of required to conduct a hearing. If the court
Probation Law? denied the application for probation without
the benefit of the hearing, where as the
As a general rule, no. applicant is not disqualified under the provision
Exception: If the earlier conviction refers to a of the Probation Law, but only based on the
crime the penalty of which does not exceed 30 report of the probation officer, the denial is
days imprisonment or a fine of not more than correctible by certiorari, because it is an act of
P200.000, such convict is not disqualified of the court in excess of jurisdiction or without
the benefit of probation. So even if he would jurisdiction, the order denying the application
be convicted subsequently of a crime therefore is null and void.
embraced in the same title of the Revised
Penal Code as that of the earlier conviction, he Probation is intended to promote the correction
is not disqualified from probation provided that and rehabilitation of an offender by providing
the penalty for the current crime committed him with individualized treatment; to provide
does not go beyond six years and the nature of an opportunity for the reformation of a
the crime committed by him is not against penitent offender which might be less probable
public order, national security or subversion. if he were to serve a prison sentence; to
prevent the commission of offenses; to
Although a person may be eligible for decongest our jails; and to save the
probation, the moment he perfects an appeal government much needed finance for
from the judgment of conviction, he cannot maintaining convicts in jail.
avail of probation anymore. So the benefit of
probation must be invoked at the earliest Probation is only a privilege. So even if the
instance after conviction. He should not wait offender may not be disqualified of probation,
up to the time when he interposes an appeal yet the court believes that because of the
or the sentence ha become final and crime committed it was not advisable to give
executory. The idea is that probation has to probation because it would depreciate the
be invoked at the earliest opportunity. effect of the crime, the court may refuse or
deny an application for probation.
An application for probation is exclusively
within the jurisdiction of the trial court that Generally, the courts do not grant an
renders the judgment. For the offender to application for probation for violation of the
apply in such court, he should not appeal such Dangerous Drugs Law, because of the
judgment. prevalence of the crime. So it is not along the
purpose of probation to grant the convict the
If the offender would appeal the conviction of benefit thereof, just the individual
the trial court and the appellate court reduced rehabilitation of the offender but also the best
the penalty to say, less than six years, that interest of the society and the community
convict can still file an application for where the convict would be staying, if he
probation, because the earliest opportunity for would be released on probation. To allow him
him to avail of probation came only after loose may bring about a lack of respect of the
judgment by the appellate court. members of the community to the enforcement

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of penal law. I such a case, the court even if

the crime is probationable may still deny the (2) That there is undue risk that during
benefit of probation. the period of probation the offender will
commit another crime; or
Consider not only the probationable crime, but
also the probationable penalty. If it were the (3) Probation will depreciate the
non-probationable crime, then regardless of seriousness of the crime.
the penalty, the convict cannot avail of
probation. Generally, the penalty which is not
probationable is any penalty exceeding six The probation law imposes two kinds of
years of imprisonment. Offenses which are not conditions:
probationable are those against natural (1) Mandatory conditions; and
security, those against public order and those (2) Discretionary conditions.
with reference to subversion.
Persons who have been granted of the benefit Mandatory conditions:

of probation cannot avail thereof for the
second time. Probation is only available once (1) The convict must report to the
and this may be availed only where the convict Probation Officer (PO) designated in the
starts serving sentence and provided he has court order approving his application for
not perfected an appeal. If the convict Probation within 72 hours from receipt of
perfected an appeal, he forfeits his right to Notice of such order approving his
apply for probation. As far as offenders who application; and
are under preventive imprisonment, that
because a crime committed is not bailable or (2) The convict, as a probationer,
the crime committed, although bailable, they must report to the PO at least once a
cannot afford to put up a bail, upon month during the period of probation
promulgation of the sentence, naturally he unless sooner required by the PO.
goes back to detention, that does not mean
that they already start serving the sentence These conditions being mandatory, the
even after promulgation of the sentence, moment any of these is violate, the probation
sentence will only become final and executory is cancelled.
after the lapse of the 15-day period, unless the
convict has waived expressly his right to
appeal or otherwise, he has partly started Discretionary conditions:
serving sentence and in that case, the penalty
will already be final and executory, no right to The trial court which approved the application
probation can be applied for. for probation may impose any condition which
may be constructive to the correction of the
offender, provided the same would not violate
Probation shall be denied if the court finds: the constitutional rights of the offender and
subject ot this two restrictions: (1) the
(1) That the offender is in need of conditions imposed should not be unduly
correctional treatment that can be restrictive of the probationer, and (2) such
provided most effectively by his condition should not be incompatible with the
commitment to an institution; freedom of conscience of the probationer.

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EXTINCTION OF CRIMINAL LIABILITY Total extinction of criminal liability
Always provide two classifications when Among the grounds for total extinction as well
answering this question. as those for partial extinction, you cannot find
among them the election to public office. In
Criminal liability is totally extinguished as one case, a public official was charged before
follows: the Sandiganbayan for violation of Anti-Graft
and Corrupt Practices Act. During the ensuing
(1) By the death of the convict as to election, he was nevertheless re-elected by the
personal penalties; and as to pecuniary constituents, one of the defenses raised was
penalties, liability therefore is extinguished that of condonation of the crime by his
only when the death of the offender occurs constituents, that his constituents have
before final judgment. pardoned him. The Supreme Court ruled that
the re-election to public office is not one of the
(2) By service of sentence; grounds by which criminal liability is
extinguished. This is only true to
(3) By amnesty which completely administrative cases but not criminal cases.
extinguished the penalty and all its effects;
Death of the offender
(4) By absolute pardon;
Where the offender dies before final judgment,
(5) By prescription of the crime; his death extinguishes both his criminal and
civil liabilities. So while a case is on appeal,
(6) By prescription of the penalty; the offender dies, the case on appeal will be
dismissed. The offended party may file a
(7) By the marriage of the offended separate civil action under the Civil Code if any
women as in the crimes of rape, abduction, other basis for recovery of civil liability exists
seduction and acts of lasciviousness. as provided under Art 1157 Civil Code.
(People v. Bayotas, decided on September 2,
1994)
Criminal liability is partially extinguished as
follows:
Amnesty and pardon
(1) By conditional pardon;
The effects of amnesty as well as absolute
(2) By commutation of sentence; pardon are not the same. Amnesty erases not
only the conviction but also the crime itself. So
(3) Fr good conduct, allowances which that if an offender was convicted for rebellion
the culprit may earn while he is serving and he qualified for amnesty, and so he was
sentence; given an amnesty, then years later he rebelled
again and convicted, is he a recidivist? No.
(4) Parole; and Because the amnesty granted to him erased
not only the conviction but also the effects of
(5) Probation. the conviction itself.

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the crime of theft, a crime embraced in the

Supposed, instead of amnesty, what was given same title, this time he shall be a recidivist.
was absolute pardon, then years later, the On the other hand, if he has served all six
offended was again captured and charged for years of the first sentence, and his name was
rebellion, he was convicted, is he a recidivist? included in the list of all those granted absolute
Yes. Pardon, although absolute does not erase pardon, pardon shall relieve him of the effects
the effects of conviction. Pardon only excuses of the crime, and therefore even if he commits
the convict from serving the sentence. There theft again, he shall not be considered a
is an exception to this and that is when the recidivist.
pardon was granted when the convict had
already served the sentence such that there is In Monsanto V. Factoran, Jr., 170 SCRA
no more service of sentence to be executed 191, it was held that absolute pardon does not
then the pardon shall be understood as ipso facto entitle the convict to reinstatement
intended to erase the effects of the conviction. to the public office forfeited by reason of his
conviction. Although pardon restores his
So if the convict has already served the eligibility for appointment to that office, the
sentence and in spite of that he was given a pardoned convict must reapply for the new
pardon that pardon will cover the effects of the appointment.
crime and therefore, if he will be subsequently
convicted for a felony embracing the same title Pardon becomes valid only when there is a
as that crime, he cannot be considered a final judgment. If given before this, it is
recidivist, because the pardon wipes out the premature and hence void. There is no such
effects of the crime. thing as a premature amnesty, because it does
not require a final judgment; it may be given
But if he was serving sentence when he was before final judgment or after it.
pardoned, that pardon will not wipe out the
effects of the crime, unless the language of the
pardon absolutely relieve the offender of all Prescription of crime and prescription of
the effects thereof. Considering that recidivism the penalty
does not prescribe, no matter how long ago
was the first conviction, he shall still be a Prescription of the crime begins, as a general
recidivist. rule on the day the crime was committed,
unless the crime was concealed, not public, in
Illustration: which case, the prescription thereof would only
commence from the time the offended party or
When the crime carries with it moral turpitude, the government learns of the commission of
the offender even if granted pardon shall still the crime.
remain disqualified from those falling in cases
where moral turpitude is a bar. “Commission of the crime is public” – This does
not mean alone that the crime was within
Pedro was prosecuted and convicted of the public knowledge or committed in public.
crime of robbery and was sentenced to six
years imprisonment or prision correccional. Illustration:
After serving sentence for three years, he was
granted absolute pardon. Ten years later, In the crime of falsification of a document that
Pedro was again prosecuted and convicted of was registered in the proper registry of the
government like the Registry of Property or the

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Registry of Deeds of the Civil registry, the prosecution of the crime because the crime has
falsification is deemed public from the time the already prescribed.
falsified document was registered or recorded
in such public office so even though, the The rules on Criminal Procedure for purposes
offended party may not really know of the of prescription is that the filing of the
falsification, the prescriptive period of the complaint even at the public prosecutor’s office
crime shall already run from the moment the suspends the running of the prescriptive
falsified document was recorded in the public period, but not the filing with the barangays.
registry. So in the case where a deed of sale So the earlier rulings to the contrary are
of a parcel of land which was falsified was already abrogated by express provision of the
recorded in the corresponding Registry of Revised Rules on Criminal Procedure.
Property, the owner of the land came to know
of the falsified transaction only after 10 years, The prescription of the crime is interrupted or
so he brought the criminal action only then. suspended –
The Supreme Court ruled that the crime has
already prescribed. From the moment the (1) When a complaint is filed in a
falsified document is registered in the Registry proper barangay for conciliation or
of Property, the prescriptive period already mediation as required by Chapter 7, Local
commenced to run. government Code, but the suspension of
the prescriptive period is good only for 60
When a crime prescribes, the State loses the days. After which the prescription will
right to prosecute the offender, hence, even resume to run, whether the conciliation or
though the offender may not have filed a mediation is terminated for not;
motion to quash on this ground the trial court,
but after conviction and during the appeal he (2) When criminal case is filed in the
learned that at the time the case was filed, the prosecutor’s office, the prescription of the
crime has already prescribed, such accused crime is suspended until the accused is
can raise the question of prescription even for convicted or the proceeding is terminated
the first time on appeal, and the appellate for a cause not attributable to the accused.
court shall have no jurisdiction to continue, if
legally, the crime has indeed prescribed. But where the crime is subject to Summary
Procedure, the prescription of the crime will be
The prevailing rule now is, prescription of the suspended only when the information is
crime is not waivable, the earlier jurisprudence already filed with the trial court. It is not the
to the contrary had already been abrogated or filing of the complaint, but the filing of the
overruled. Moreover, for purposes of information in the trial which will suspend the
prescription, the period for filing a complaint or prescription of the crime.
information may not be extended at all, even
though the last day such prescriptive period On the prescription of the penalty, the period
falls on a holiday or a Sunday. will only commence to run when the convict
has begun to serve the sentence. Actually, the
For instance, light felony prescribes in 60 days penalty will prescribe from the moment the
or two months. If the 60th day falls on a convict evades the service of the sentence. So
Sunday, the filing of the complaint on the if an accused was convicted in the trial court,
succeeding Monday is already fatal to the and the conviction becomes final and
executory, so this fellow was arrested to serve

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the sentence, on the way to the penitentiary,

the vehicle carrying him collided with another Marriage
vehicle and overturned, thus enabling the
prisoner to escape, no matter how long such In the case of marriage, do not say that it is
convict has been a fugitive from justice, the applicable for the crimes under Article 344. It
penalty imposed by the trial court will never is only true in the crimes of rape, abduction,
prescribe because he has not yet commenced seduction and acts of lasciviousness. Do not
the service of his sentence. For the penalty to say that it is applicable to private crimes
prescribe, he must be brought to Muntinlupa, because the term includes adultery and
booked thee, placed inside the cell and concubinage. Marriages in these cases may
thereafter he escapes. even compound the crime of adultery or
concubinage. It is only in the crimes of rape,
Whether it is prescription of crime or abduction, seduction and acts of lasciviousness
prescription of penalty, if the subject could that the marriage by the offender with the
leave the Philippines and go to a country with offended woman shall extinguish civil liability,
whom the Philippines has no extradition treaty, not only criminal liability of the principal who
the prescriptive period of the crime or penalty marries the offended woman, but also that of
shall remain suspended whenever he is out of the accomplice and accessory, if there are any.
the country.
Co-principals who did not themselves directly
When the offender leaves for a country to participate in the execution of the crime but
which the Philippines has an extradition treaty, who only cooperated, will also benefit from
the running of the prescriptive period will go such marriage, but not when such co-principal
on even if the offender leaves Philippine himself took direct part in the execution of the
territory for that country. Presently the crime.
Philippines has an extradition treaty with
Taiwan, Indonesia, Canada, Australia, USA and Marriage as a ground for extinguishing civil
Switzerland. So if the offender goes to any of liability must have been contracted in good
these countries, the prescriptive period still faith. The offender who marries the offended
continues to run. woman must be sincere in the marriage and
therefore must actually perform the duties of a
In the case of the prescription of the penalty, husband after the marriage, otherwise,
the moment the convict commits another crime notwithstanding such marriage, the offended
while he is fugitive from justice, prescriptive woman, although already his wife can still
period of the penalty shall be suspended and prosecute him again, although the marriage
shall not run in the meantime. The crime remains is avoided or annulled. The marriage
committed does not include the initial evasion still subsists although the offended woman
of service of sentence that the convict must may re-file the complaint. The Supreme Court
perform before the penalty shall begin to ruled that marriage contemplated must be a
prescribe, so that the initial crime of evasion of real marriage and not one entered to and not
service of sentence does not suspend the just to evade punishment for the crime
prescription of penalty, it is the commission of committed because the offender will be
other crime, after the convict has evaded the compounding the wrong he has committed.
service of penalty that will suspend such
period.
Partial extinction of criminal liability

Page 114
the property from a public sale where the law

Good conduct allowance protects the buyer.
This includes the allowance for loyalty under For example, if a third party bought a property
Article 98, in relation to Article 158. A convict in a public auction conducted by the sheriff
who escapes the place of confinement on the levied on the property of a judgment creditor
occasion of disorder resulting from a for an obligation, the buyer of the property at
conflagration, earthquake or similar such execution sale is protected by law. The
catastrophe or during a mutiny in which he has offended party cannot divest him thereof. So
not participated and he returned within 48 the offended party may only resort to
hours after the proclamation that the calamity reparation of the damage done from the
had already passed, such convict shall be given offender.
credit of 1/5 of the original sentence from that
allowance for his loyalty of coming back. Some believed that this civil liability is true only
Those who did not leave the penitentiary under in crimes against property, this is not correct.
such circumstances do not get such allowance Regardless of the crime committed, if the
for loyalty. Article 158 refers only to those property is illegally taken from the offended
who leave and return. party during the commission of the crime, the
court may direct the offender to restore or
restitute such property to the offended party.
Parole It can only be done if the property is brought
within the jurisdiction of that court.
This correspondingly extinguishes service of
sentence up to the maximum of the For example, in a case where the offender
indeterminate sentence. This is the partial committed rape, during the rape, the offender
extinction referred to, so that if the convict was got on of the earnings of the victim. When
never given parole, no partial extinction. apprehended, the offender was prosecuted for
rape and theft. When the offender was asked
why he got on of the earnings of the victim,
the offender disclosed that he took one of the
CIVIL LIABILITY OF THE OFFENDER earnings in order to have a souvenir of the
sexual intercourse. Supreme Court ruled that
Civil liability of the offender falls under three the crime committed is not theft and rape but
categories: rape and unjust vexation for the taking of the
earning. The latter crime is not a crime
Restitution or restoration against property, this is a crime against
personal security and liberty under Title IX of
Restitution or restoration presupposes that the Book II of the RPC. And yet, the offender was
offended party was divested of property, and required to restore or restitute the earning to
such property must be returned. If the the offended woman.
property is in the hands of a third party, the
same shall nevertheless be taken away from Property will have to be restored to the
him and restored to the offended party, even offended party even this would require the
though such third party may be a holder for taking of the property was divested from the
value and a buyer in good faith of the offended party pursuant to the commission of
property, except when such third party buys the crime, the one who took the same or

Page 115
accepted the same would be doing so without

the benefit of the just title. So even if the
property may have been bought by the third Reparation of the damage caused
person, the same may be taken from him and
restored to the offended party without an In case of human life, reparation of the
obligation on the part of the offended party to damage cause is basically P50,000.00 value of
pay him whatever he paid. human life, exclusive of other forms of
damages. This P50,000.00 may also increase
The right to recover what he has paid will be whether such life was lost through intentional
against the offender who sold it ot him. On felony or criminal negligence, whether the
the other hand, if the crime was theft or result of dolo or culpa. Also in the crime of
robbery, the one who received the personal rape, the damages awarded to the offended
property becomes a fence, he is not only woman is generally P30,000.00 for the damage
required to restitute the personal property but to her honor. In earlier rulings, the amount
he incurs criminal liability in violation of the varied, whether the offended woman is
Anti-Fencing Law. younger or a married woman. Supreme Court
ruled that even if the offended woman does
If the property cannot be restituted anymore, not adduce evidence or such damage, court
then the damage must be repaired, requiring can take judicial notice of the fact that if a
the offender to pay the value thereof, as woman was raped, she inevitably suffers
determined by the court. That value includes damages. Under the Revised Rules on Criminal
the sentimental value to the offended party, Procedure, a private prosecutor can recover all
not only the replacement cost. In most cases, kinds of damages including attorney’s fee. The
the sentimental value is higher than the only limitation is that the amount and the
replacement value. But if what would be nature of the damages should be specified.
restored is brand new, then there will be an The present procedural law does not allow a
allowance for depreciation, otherwise, the blanket recovery of damages. Each kind of
offended party is allowed to enrich himself at damages must be specified and the amount
the expense of the offender. So there will be a duly proven.
corresponding depreciation and the offended
party may even be required to pay something
just to cover the difference of the value of Indemnification of consequential damages
what was restored to him.
Indemnification of consequential damages
The obligation of the offender transcends to refers to the loss of earnings, loss of profits.
his heirs, even if the offender dies, provided he This does not refer only to consequential
died after judgment became final, the heirs damages suffered by the offended party, this
shall assume the burden of the civil liability, also includes consequential damages to third
but this is only to the extent that they inherit party who also suffer because of the
property from the deceased, if they do not commission of the crime.
inherit, they cannot inherit the obligations.
The offender carnapped a bridal car while the
The right of the offended party transcends to newly-weds were inside the church. Since the
heirs upon death. The heirs of the offended car was only rented, consequential damage not
party step into the shoes of the latter to only to the newly-weds but also to the entity
demand civil liability from the offender. which rented the car to them.

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Most importantly, refer to the persons who are Under Article 103, the subsidiary liability of an
civilly liable under Articles 102 and 103. This employer or master for the crime committed by
pertains to the owner, proprietor of hotels, his employee or servant may attach only when
inns, taverns and similar establishments, an the following requisites concur.
obligation to answer civilly for the loss or
property of their guests. (1) The employer must be engaged in
business or in trade or industry while the
Under Article 102, two conditions must be accused was his employee
present before liability attaches to the
innkeepers, tavern keepers and proprietors: (2) At the time the crime was
committed, the employee-employer
(1) The guest must have informed the relationship must be existing between the
management in advance of his having two;
brought to the premises certain valuables
aside from the usual personal belongings (3) The employee must have been
of the guest; and found guilty of the crime charged and
accordingly held civilly liable;
(2) The guest must have followed the
rules and regulations prescribed by the (4) The writ of execution for the
management of such inn, tavern, or similar satisfaction of the civil liability was
establishment regarding the safekeeping of returned unsatisfied because the accused-
said valuables. employee does not have enough property
to pay the civil liability.
The Supreme Court ruled that even though the
guest did not obey the rules and regulations When these requisites concur, the employer
prescribed by the management for safekeeping will be subsidiarily, civilly liable for the full
of the valuables, this does not absolve amount that his employee was adjudged civilly
management from the subsidiary civil liability. liable. It is already settled in jurisprudence
Non-compliance with such rules and that there is no need to file a civil action
regulations but the guests will only be against the employer in order to enforce the
regarded as contributory negligence, but it subsidiary civil liability for the crime committed
won’t absolve the management from civil by his employee, it is enough that the writ of
liability. execution is returned unsatisfied. There is no
denial of due process of law because the
Liability specially attaches when the liability of the employer is subsidiary and not
management is found to have violated any law primary. He will only be liable if his employee
or ordinance, rule or regulation governing such does not have the property to pay his civil
establishment. liability, since it is the law itself that, provides
that such subsidiary liability exists and
Even if the crime is robbery with violence ignorance of the law is not an excuse.
against or intimidation of persons or committed
by the innkeeper’s employees, management Civil liability of the offender is extinguished in
will be liable, otherwise, not liable because the same manner as civil obligation is
there is duress from the offender, liable only extinguished but this is not absolutely true.
for theft and force upon things. Under civil law, a civil obligation is extinguished

Page 117
upon loss of the thing due when the things force. The person who employed the
involved is specific. This is not a ground irresistible force is subsidiarily liable;
applicable to extinction of civil liability in
criminal case if the thing due is lost, the (2) In case of a felony committed
offender shall repair the damages caused. under an impulse of an equal or greater
injury.
When there are several offenders, the court in
the exercise of its discretion shall determine The person who generated such an
what shall be the share f each offender impulse is subsidiarily liable.
depending upon the degree of participation –
as principal, accomplice or accessory. If within The owners of taverns, inns, motels, hotels,
each class of offender, there are more of them, where the crime is committed within their
such as more than one principal or more than establishment due to noncompliance with
one accomplice or accessory, the liability in general police regulations, if the offender who
each class of offender shall be subsidiary. is primarily liable cannot pay, the proprietor, or
Anyone of them may be required to pay the owner is subsidiarily liable.
civil liability pertaining to such offender without
prejudice to recovery from those whose share Felonies committed by employees, pupils,
have been paid by another. servants in the course of their employment,
schooling or household chores. The employer,
If all the principals are insolvent, the obligation master, teacher is subsidiarily liable civilly,
shall devolve upon the accomplice(s) or while the offender is primarily liable.
accessory(s). But whoever pays shall have the
right of covering the share of the obligation In case the accomplice and the principal
from those who did not pay but are civilly cannot pay, the liability of those subsidiarily
liable. liable is absolute.
To relate with Article 38, when there is an

order or preference of pecuniary (monetary)
liability, therefore, restitution is not included COMPLEX CRIME
here.
Philosophy behind plural crimes: The
To relate with Article 38, when there is an treatment of plural crimes as one is to be
order or preference of pecuniary (monetary) lenient to the offender, who, instead of being
liability, therefore, restitution is not included made to suffer distinct penalties for every
here. resulting crime is made to suffer one penalty
only, although it is the penalty for the most
There is not subsidiary penalty for non- serious one and is in the maximum period.
payment of civil liability. Purpose is in the pursuance of the rule of pro
reo.
Subsidiary civil liability is imposed in the If be complexing the crime, the penalty would
following: turn out to be higher, do not complex
anymore.
(1) In case of a felony committed
under the compulsion of an irresistible

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Example: Murder and theft (killed with Example are robbery with homicide, robbery
treachery, then stole the right). with rape, and rape with homicide.
Penalty: If complex – Reclusion temporal
maximum to death. The compound crime and the complex crime
If treated individually – Reclusion temporal to are treated in Article 48 of the Revised Penal
Reclusion Perpetua Code. But in such article, a compound crime is
also designated as a complex crime, but
Complex-crime is not just a matter of penalty, “complex crimes” are limited only to a situation
but of substance under the Revised Penal where the resulting felonies are grave and/or
Code. less grave.
Plurality of crimes my be in the form of: Whereas in a compound crime, there is no limit
(1) Compound Crime, as to the gravity of the resulting crimes as long
(2) Complex crime; and as a single act brings about two or more
(3) Composite crime. crimes. Strictly speaking, compound crimes
are not limited to grave less grave felonies but
A compound crime is one where a single act covers all single act that results in two or more
produces two or more crimes. crimes.
A complex crime strictly speaking is one where Illustration:

the offender has to commit an offense as a
means for the commission of another offense. A person threw a hand grenade and the people
It is said that the offense is committed as a started scampering. When the hand grenade
necessary means to commit the other offense. exploded, no on was seriously wounded all
“Necessary’ should not be understood as were mere wounded. It was held that this is a
indispensable, otherwise, it shall be considered compound crime, although the resulting
absorbed and not giving rise to a complex felonies are only slight.
crime.
Illustration of a situation where the term
A composite crime is one in which substance is “necessary” in complex crime should not be
made up of more than one crime, but which in understood as indispensable:
the eyes of the law is only a single indivisible
offense. This is also known as special complex Abetting committed during the encounter
crime. Examples are robbery with homicide, between rebels and government troops such
robbery with rape, rape with homicide. These that the homicide committed cannot be
are crimes which in the eye of the law are complexed with rebellion. This is because they
regarded only as a single indivisible offense. are indispensable part of rebellion. (Caveat:
Ortega says rebellion can be complexed with
common crimes in discussion on Rebellon)
Composite Crime/Special Complex Crime
The complex crime lies actually in the first form
This is one which is substance is made up of under Article 148.
more than one crime but which in the eyes of
the law is only a single indivisible offense. This The first form of the complex crime is actually
is also known as a special complex crime. a compound crime, is one where a single act
constitutes two or more grave and/or less

Page 119
grave felonies. The basis in complexing or

compounding the crime is the act. So that In criminal law, when a series of acts are
when an offender performed more than one perpetrated in pursuance of a single criminal
act, although similar, if they result in separate impulse, there is what is called a continued
crimes, there is no complex crime at all, crime. In criminal procedure for purposes of
instead, the offender shall be prosecuted for as venue, this is referred to as a continuing crime.
many crimes as are committed under separate
information. The term “continuing crimes” as sometimes
When the single act brings about two or more used in lieu of the term “continued crimes”,
crimes, the offender is punished with only one however, although both terms are analogous,
penalty, although in the maximum period, they are not really used with the same import.
because he acted only with single criminal “Continuing crime” is the term used in criminal
impulse. The presumption is that, since there procedure to denote that a certain crime may
is only one criminal impulse and correctly, only be prosecuted and tried not only before the
one penalty should be imposed. court of the place where it was originally
committed or began, but also before the court
Conversely, when there are several acts of the place where the crime was continued.
performed, the assumption is that each act is Hence, the term “continuing crime” is used in
impelled by a distinct criminal impulse, a criminal procedure when any of the material
separate penalty. However, it may happen ingredients of the crime was committed in
that the offender is impelled only by a single different places.
criminal impulse in committing a series of acts
that brought about more than one crime, A “continued crime” is one where the offender
considering that Criminal Law, if there is only performs a series of acts violating one and the
one criminal impulse which brought about the same penal provision committed at the same
commission of the crime, the offender should place and about the same time for the same
be penalized only once. criminal purpose, regardless of a series of acts
done, it is regarded in law as one.
There are in fact cases decided by the
Supreme Court where the offender has In People v. de Leon, where the accused took
performed as series of acts but the acts five roosters from one and the same chicken
appeared to be impelled by one and the same coop, although the roosters were owned by
impulse, the ruling is that a complex crime is different persons, it was held that there is only
committed. In this case it is not the singleness one crime of theft committed because the
of the act but the singlessness of the impulse accused acted out of a single criminal impulse
that has been considered. There are cases only. However performing a series of acts but
where the Supreme Court held that the crime this is one and the same intent Supreme Court
committed is complex even though the ruled that only one crime is committed under
offender performed not a single act but a one information.
series of acts. The only reason is that the
series of acts are impelled by a single criminal In People v. Lawas, the accused constabulary
impulse. soldiers were ordered to march with several
muslims from one barrio to another place.
These soldiers feared that on the way some of
the Muslims may escape. So Lawas ordered
CONTINUED AND CONTINUING CRIMES the men to tie the Muslims by the hand

Page 120
connecting one with the other, so on one If confronted with a problem, use the standard
would run away. When the hands of the or condition that it refers not only to the
Muslims were tied, one of them protested, he singleness of the act which brought two or
did not want to be included among those who more grave and/less grave felonies. The
were tied because he was a Hajjii, so the Hajji Supreme Court has extended this class of
remonstrated and there was commotion. At the complex crime to those cases when the
height of the commotion, Lawas ordered his offender performed not a single act but a
men to fire, and the soldiers mechanically series of acts as long as it is the product of a
fired. Eleven were killed and several others single criminal impulse.
were wounded. The question of whether the
constabulary soldiers should be prosecuted for You cannot find an article in the Revised Penal
the killing of each under a separate information Code with respect to the continued crime or
has reached the Supreme Court. The Supreme continuing crime. The nearest article is Article
Court ruled that the accused should be 48. Such situation is also brought under the
prosecuted only in one information, because a operation of Article 48.
complex crime of multiple homicide was
committed by them. In People v. Garcia, the accused were convicts
who were members of a certain gang and they
In another case, a band of robbers came conspired to kill the other gang. Some of the
across a compound where a sugar mill is accused killed their victims in one place within
located. The workers of said mill have their the same penitentiary, some killed the others
quarters within the compound. The band of in another place within the same penitentiary.
robbers ransacked the different quarters The Supreme Court ruled that all accused
therein. It was held that there is only one should be punished under one information
crime committed – multiple robbery, not because they acted in conspiracy. The act of
because of Article 48 but because this is a one is the act of all. Because there were
continued crime. When the robbers entered several victims killed and some were mortally
the compound, they were moved by a single wounded, the accused should be held for the
criminal intent. Not because there were complex crime of multiple homicide with
several quarter robbed. This becomes a multiple frustrated homicide. There is a
complex crime. complex crime not only when there is a single
act but a series of acts. It is correct that when
The definition in Article 48 is not honored the offender acted in conspiracy, this crime is
because the accused did not perform a single considered as one and prosecuted under one
act. There were a series of acts, but the information. Although in this case, the
decision in the Lawas case is correct. The offenders did not only kills one person but
confusion lies in this. While Article 48 speaks killed different persons, so it is clear that in
of a complex crime where a single act killing of one victim or the killing of another
constitutes two or more grave or less grave victim, another act out of this is done
offenses, event hose cases when the act is not simultaneously. Supreme Court considered this
a single but a series of acts resulting to two or as complex. Although the killings did not result
more grave and less grave felonies, the from one single act.
Supreme Court considered this a complex
crime when the act is the product of one single In criminal procedure, it is prohibited to charge
criminal impulse. more than one offense in an information,
except when the crimes is one information

Page 121
constitute a complex crime or a special number of rapes committed because all the
complex crime. rapes are but committed out of one and the
same lewd design which impelled the offender
So whenever the Supreme Court concludes to abduct the victim.
that the criminal should be punished only once,
because they acted in conspiracy or under the In People v. Bojas, the Supreme Court
same criminal impulse, it is necessary to followed the ruling in People v. Jose that the
embody these crimes under one single four men who abducted and abused the
information. It is necessary to consider them offended women were held liable for one crime
as complex crimes even if the essence of the – one count or forcible abduction with rape
crime does not fit the definition of Art 48, and distinct charges for rape for the other
because there is no other provision in the RPC. rapes committed by them.
Duplicity of offenses, in order not to violate In People v. Bulaong, the Supreme Court
this rule, it must be called a complex crime. adopted the dissenting opinion of Jusitce
Aquino in People v. Pabasa, that when several
In earlier rulings on abduction with rape, if persons abducted a woman and abused her,
several offenders abducted the woman and regardless of the number of rapes committed,
abused her, there is multiple rape. The there should only be one complex crime of
offenders are to be convicted of one count of forcible abduction with rape. The rapes
rape and separately charged of the other committed were in the nature of a continued
rapes. crime characterized by the same lewd design
which is an essential element in the crime of
In People v. Jose, there were four forcible abduction.
participants here. They abducted the woman,
after which, the four took turns in abusing her. The abuse amounting to rape is complexed
It was held that each one of the four became with forcible abduction because the abduction
liable not only for his own rape but also for was already consummated when the victim
those committed by the others. Each of the was raped. The forcible abduction must be
four offenders was convicted of four rapes. In complexed therewith. But the multiple rapes
the eyes of the law, each committed four should be considered only as one because they
crimes of rape. One of the four rapes are in the nature of a continued crime.
committed by one of them was complexed with
the crime of abduction. The other three rapes Note: This is a dangerous view because the
are distinct counts or rape. The three rapes abductors will commit as much rape as they
are not necessary to commit the other rapes. can, after all, only one complex crime of rape
Therefore, separate complaints/information. would arise.
In People v. Pabasa, the Suprme Court In adultery, each intercourse constitutes one
through Jusitce Aquino ruled that there is only crime. Apparently, the singleness of the act is
one count of forcible abduction with rape not considered a single crime. Each
committed by the offenders who abbucted the intercourse bring with it the danger of bringing
two women and abused them several times. one stranger in the family of the husband.
This was only a dissenting opinion of Justice
Aquino, that there could be only one complex Article 48 also applies in cases when out a
crime of abduction with rape, regardless of the single act of negligence or imprudence, two or

Page 122
more grave or less grave felonies resulted, (1) The theft of 13 cows belonging to
although only the first part thereof (compound two different persons committed by the
crime). The second part of Article 48 does not accused at the same place and period of
apply, referring to the complex crime proper time (People v. Tumlos, 67 Phil. 320);
because this applies or refers only to a
deliberate commission of one offense to (2) The theft of six roosters belonging
commit another offense. to two different owners from the same
However, a light felony may result from coop and at the same period of time
criminal negligence or imprudence, together (People v. Jaranilla);
with other grave or less grave felonies (3) The illegal charging of fees for
resulting therefrom and the Supreme Court service rendered by a lawyer every time he
held that all felonies resulting from criminal collected veteran’s benefits on behalf of a
negligence should be made subject of one client who agreed that attorney’s fees shall
information only. The reason being that, there be paid out of such benefits (People v.
is only one information and prosecution only. Sabbun, 10 SCAR 156). The collections of
Otherwise, it would be tantamount to splitting legal fees were impelled by the same
the criminal negligence similar to splitting a motive, that of collecting fees for services
cause of action which is prohibited in civil rendered, and all acts of collection were
cases. made under the same criminal impulse.
Although under Article 48, a light felony should On the other hand, the Supreme Court
not be included in a complex crime, yet by declined to apply the concept in the following
virtue of this ruling of the Supreme Court, the cases:
light felony shall be included in the same
information charging the offender with grave (1) Two Estafa cases, one which was
and/or less grave felonies resulting from the committed during the period from January
negligence of reckless imprudence and this 19 to December, 1955 and the other from
runs counter to the provision of Article 48. So January 1956 to July 1956 (People v.
while the Supreme Court ruled that the light Dichupa, 13 Phil 306). Said acts were
felony resulting from the same criminal committed on two different occasions;
negligence should be complexed with the other
felonies because that would be a blatant (2) Several malversations committed
violation of Article 48, instead the Supreme in May, June and July 1936 and
Court stated that an additional penalty should falsifications to conceal said offenses
be imposed for the light felony. This would committed in August and October, 1936.
mean two penalties to be imposed, one for the The malversations and falsifications were
complex crime and one for the light felony. It not the result of one resolution to
cannot separate the light felony because it embezzle and falsity (People v. CIV, 66
appears that the culpa is crime itself and you Phil. 351);
cannot split the crime.
(3) Seventy-five estafa cases
Applying the concept of the “continued crime”, committed by the conversion by the agents
the following cases have been treated as of collections from the customers of the
constituting one crime only: employers made on different dates.

Page 123
In the theft cases, the trend is to follow the

single larceny doctrine, that is taking of several
things, whether belonging to the same or
different owners, at the same time and place,
constitutes one larceny only. Many courts
have abandoned the separate larceny doctrine,
under which there was distinct larceny as to
the property of each victim:
Also abandoned is the doctrine that the

government has the discretion to prosecute the
accused for one offense or for as many distinct
offenses as there are victims (Santiago v.
Justice Garchitorena, decided on December
2, 1993). Here, the accused was charged with
performing a single act – that of approving the
legalization of aliens not qualified under the
law. The prosecution manifested that they
would only file one information. Subsequently,
32 amended informations were filed. The
Supreme Court directed the prosecution to
consolidate the cases into one offense because
(1) they were in violation of the same law –
Executive Order No. 324; (2) caused injury to
one party only – the government; and (3) they
were done in the same day. The concept of
delito continuado has been applied to crimes
under special laws since in Article 10, the
Revised Penal Code shall be supplementary to
special laws, unless the latter provides the
contrary.


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Book I Generality of criminal law means that the

provisions of states and other diplomatic officials are

Note that consuls are not diplomatic officers.

“Excellence. UP BarOps 2003

The Archipelagic Rule 1. The atmosphere over the country is

So if a foreign merchant vessel is in the center This is also called irretrospectivity.

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

has already been absolutely repealed. This

This does not mean that if they are not

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

legislative intention does not exist in a self-

There is no crime when there is no law

The act cannot be criminal where the mind is

“Excellence. UP BarOps 2003

If you will be asked about the development of

“Excellence. UP BarOps 2003

This philosophy is criticized as being too

Classical or Juristic Philosophy Eclectic or Mixed Philosophy

“Excellence. UP BarOps 2003

In crimes punished under the Revised

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

law declaring it a crime, but because with or

Test to determine if violation of special law Crime

As far as jurisdiction or application of the

“Excellence. UP BarOps 2003

A vessel is considered a Philippine ship only The American or Anglo-Saxon Rule

“Excellence. UP BarOps 2003

In your answer, reference should be made to Question and Answer

“Excellence. UP BarOps 2003

Illustration: Note that the word “felony” is used.

When a Filipino who is already married in the

HOW A FELONY MAY ARISE

“Excellence. UP BarOps 2003

Dolo or culpa 1. criminal negligence on the part of the

The term, therefore, has three requisites on Question and Answer

“Excellence. UP BarOps 2003

Even culpable felonies require voluntariness. It

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

In People vs. Angeles, the prosecution filed

“Excellence. UP BarOps 2003

The relevant matter is whether the

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

specific, let us take for example A and B. A and

“Excellence. UP BarOps 2003

A thought of killing B. He positioned himself at Praeter intentionem

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

1. Accused was a houseboy in a It cannot be an impossible crime,

“Excellence. UP BarOps 2003

Under Article 4, paragraph 2, impossible crime No impossible crime is committed

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

“Excellence. UP BarOps 2003

NO CRIME UNLESS THERE IS A LAW

“Excellence. UP BarOps 2003