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CRIMINAL LAW and CRIME DEFINED

Criminal law is that branch or division of law which defines crimes,

treats of their nature, and provides for their punishment.

Crime is an act committed or omitted in violation of a public law

forbidding or commanding it.

NO COMMON LAW IN THE PHILIPPINES

Unless there be a particular provision in the penal code or special

penal law that defines and punishes the act, even if it be socially or
morally wrong, no criminal liability is incurred by its commission. (U.S. VS.
Taylor, 28 Phil. 599, 604)

LIMITATION ON THE POWER OF THE LAWMAKING BODY TO ENACT

PENAL LEGISLATION

1) No ex post facto law or bill of attainder shall be enacted (Art. III,

Sec. 22, 1987 Consti.)

2) No person shall be held to answer for a criminal offense without

due process of law ( Art. III, Sec. 14(1) )

Ex post facto law:

- Makes criminal an act done before the passage of the
law and which was innocent when done, and
punishes such an act;
- Aggravates a crime, or makes it greater that it was,
when committed;
- Changes the punishment and inflicts a greater
punishment than the law annexed to the crime when
committed;
- Alter the legal rules of evidence, and authorities
conviction upon less or different testimony than the
law required at the time of the commission of the
offense;
- Assumes to regulate civil rights and remedies only, in
effect imposes penalty or deprivation of a right for
something which when done was lawful; and
- Deprives a person accused of a crime some lawful
protection to which he has become entitled, such as
the protection of a former conviction or acquittal, or a
proclamation of amnesty.

Bill of Attainder
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- Is a legislative act which inflicts punishment without

trial.

CONSTITUTIONAL RIGHTS OF THE ACCUSED

1) Section 16. All persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative
bodies.

2) Section 14.

(1)No person shall be held to answer for a criminal offense

without due process of law.

(2)In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to
have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused:
Provided, that he has been duly notified and his failure to
appear is unjustifiable.

3)All persons, except those charged with offenses punishable by reclusion

perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may be
provided by law.

The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended.

Excessive bail shall not be required ( Sec. 13 )

4 )Section 17. No person shall be compelled to be a witness against

himself.

5)Section 12.

Any person under investigation for the commission of an offense

shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence
of counsel.
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No torture, force, violence, threat, intimidation, or any other means

which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention are
prohibited.

Any confession or admission obtained in violation of this or Section

17 hereof shall be inadmissible in evidence against him.

6) Section 19.

Excessive fines shall not be imposed, nor cruel, degrading or

inhuman punishment inflicted.

7) Section 21. No person shall be twice put in jeopardy of punishment for

the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.

8) Section 11. Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person by reason of
poverty.

STATUTORY RIGHTS OF AN ACCUSED

Section 1. Rights of accused at the trial. — In all criminal prosecutions,

the accused shall be entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond

reasonable doubt.

(b) To be informed of the nature and cause of the accusation against

him.

(c) To be present and defend in person and by counsel at every stage of

the proceedings, from arraignment to promulgation of the judgment. The
accused may, however, waive his presence at the trial pursuant to the
stipulations set forth in his bail, unless his presence is specifically ordered
by the court for purposes of identification. The absence of the accused
without justifiable cause at the trial of which he had notice shall be
considered a waiver of his right to be present thereat. When an accused
under custody escapes, he shall be deemed to have waived his right to be
present on all subsequent trial dates until custody over him is regained.
Upon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his
right without the assistance of counsel.
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(d) To testify as a witness in his own behalf but subject to cross-

examination on matters covered by direct examination. His silence shall
not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the

trial. Either party may utilize as part of its evidence the testimony of a
witness who is deceased, out of or can not with due diligence be found in
the Philippines, unavailable or otherwise unable to testify, given in
another case or proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having the opportunity to
cross-examine him.

(g) To have compulsory process issued to secure the attendance of

witnesses and production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law.

EXCEPTIONS TO THE GENERAL APPLICATION OF CRIMINAL LAW

a) Treaties and Laws of preferential application

b) Principles of public international law and to treaty stipulation
( Art. 14, of the NCC)

PERSONS EXEMPT FROM THE OPERATION OF OUR CRIMINAL LAWS

BY VIRTUE OF THE PRINCIPLES OF PUBLIC INTERNATIONAL LAW

1) Sovereign and other Chiefs of state

2) Ambassadors, ministers plenipotentiary, ministers resident, and
charges d’ affaires.

It is a well-established principle of international law that diplomatic

representatives, such as ambassadors or public ministers and their official
retinue, posses immunity from the criminal jurisdiction of the country of
their sojourn and cannot be sued, arrested or punished by the law of that
country.

In the absence of a treaty to the contrary, a consul is not exempt from

criminal prosecution for violations of the laws of the country where he
resides.

PRINCIPLE OF TERRITORIALITY
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As a rule, penal laws of the Philippines are enforceable only within

its territory.
Exception: Article 2 of the RPC.

PROSPECTIVE

General Rule: A penal law cannot make an act punishable in a

manner in which it was not punishable when committed.

Art. 366 of the RPC: crimes are punished under the laws in force at
the time of their commission.

Exception: Whenever a new statute dealing with crime establishes

conditions more lenient or favorable to the accused, it can be given a
retroactive effect.

Exception not applicable : 1) Where the new law is expressly made

inapplicable to pending actions or existing causes of action; and 2) Where
the offender is a habitual criminal under Rule 5. Art. 62, RPC.

CONSTRUCTION OF PENAL LAWS

1) Penal laws are strictly construed against the Government and

liberally in favor of the accused.
2) The rule that penal statutes should be strictly construed against the
State may be invoked only where the law is ambiguous and there is
doubt as to its interpretation.
3) Where the law is clear and unambiguous, there is no room for the
application of the rule.

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ARTICLE 1. TIME WHEN ACT TAKES EFFECT. - THIS CODE

SHALL TAKE EFFECT ON THE FIRST DAY OF JANUARY,
NINETEEN HUNDRED AND THIRTY-TWO.

Two important theories in criminal law:

(1) Classical Theory; characteristics

-The basis of criminal liability is human free will and the

purpose of the penalty is retribution.

-That man is essentially a moral creature with an absolutely

free will to choose between good and evil, thereby placing
more stress upon the effect or result of the felonious act than
upon the man, the criminal himself
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-It has endeavored to establish a mechanical and direct

proportion between crime and penalty

-There is a scant regard to the human element

(2) Positivist theory;characteristics

-That a man is subdued occasionally by a strange and morbid

phenomenon which constrain him to do wrong, in spite of or
contrary to his volition

-The crime is essentially a social and natural phenomenon,

and as such, it cannot be treated and checked by the application of
abstract principles of law and jurisprudence nor by the imposition of
a punishment, fixed and determined a priori; but rather through the
enforcement of individual measures in each particular case after a
thorough, personal and individual investigation conducted by a
competent body of psychiatrists and social scientists.

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ARTICLE 2. APPLICATION OF ITS PROVISIONS. - EXCEPT AS

PROVIDED IN THE TREATIES AND LAWS OF PREFERENTIAL
APPLICATION, THE PROVISIONS OF THIS CODE SHALL BE
ENFORCED NOT ONLY WITHIN THE PHILIPPINE ARCHIPELAGO,
INCLUDING ITS ATMOSPHERE, ITS INTERIOR WATERS AND
MARITIME ZONE, BUT ALSO OUTSIDE OF ITS JURISDICTION,
AGAINST THOSE WHO:

1. SHOULD COMMIT AN OFFENSE WHILE ON A PHILIPPINE

SHIP OR AIRSHIP

2. SHOULD FORGE OR COUNTERFEIT ANY COIN OR CURRENCY

NOTE OF THE PHILIPPINE ISLANDS OR OBLIGATIONS AND
SECURITIES ISSUED BY THE GOVERNMENT OF THE
PHILIPPINE ISLANDS;

3. SHOULD BE LIABLE FOR ACTS CONNECTED WITH THE

INTRODUCTION INTO THESE ISLANDS OF THE OBLIGATIONS
AND SECURITIES MENTIONED IN THE PRECEDING NUMBER;
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4. WHILE BEING PUBLIC OFFICERS OR EMPLOYEES, SHOULD

COMMIT AN OFFENSE IN THE EXERCISE OF THEIR
FUNCTIONS; OR

5. SHOULD COMMIT ANY OF THE CRIMES AGAINST NATIONAL

SECURITY AND THE LAW OF NATIONS, DEFINED IN TITLE ONE
OF BOOK TWO OF THIS CODE.

The provisions of the RPC shall be enforced not only within the
Philippine Archipelago, but also outside of its jurisdiction in certain cases.

*It is the registration of the vessel or aircraft in accordance with the

laws of the Philippines, not the citizenship of its owner, which makes it a
Philippine ship or airship.

Crimes that may be committed in the exercise of public functions

are:

1) Direct bribery (Art. 210)

2) Indirect bribery (Art. 211))
3) Fraud against the public treasury (Art. 213)
4) Possession of prohibited interest (Art. 216)
5) Malversation of public funds or property (Art. 217)
6) Failure of accountable officer to render accounts (Art. 218)
7) Illegal use of public funds or property (Art. 220)
8) Failure to make delivery of public funds or property (Art. 221)
9) Falsification by a public officer or employee committed with
abuse of his official strength ( Art. 171)

Crimes against the national security and the law of nations are:

1) Treason (Art.114)
2) Conspiracy and proposal to commit treason (Art. 115)
3) Espionage (Art. 117)
4) Inciting to war and giving motives for reprisals (Art. 118)
5) Violation of Neutrality (Art. 119)
6) Correspondence with hostile country (Art. 120)
7) Flight to enemy’s country (Art. 121)
8) Piracy and mutiny on the high seas (Art. 122)

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ART. 3 DEFINITIONS. – ACTS AND OMISSIONS PUNISHABLE BY

LAW ARE FELONIES (delitos).
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FELONIES ARE COMMITTED NOT ONLY BY MEANS OF

DECEIT (dolo) BUT ALSO BY MEANS OF FAULT (culpa).

THERE IS DECEIT WHEN THE ACT IS PERFORMED WITH

DELIBERATE INTENT; AND THERE IS FAULT WHEN THE
WRONGFUL ACT RESULTS FROM IMPRUDENCE, NEGLIGENCE,
LACK OF FORESIGHT, OR LACK OF SKILL.

Note: Article 3 is the manner of incurring criminal liability.

Felonies, defined.

Acts and omissions punishable by the RPC.

Elements:

1) That there must be an act or omission

2) That the act or omission must be punishable
by the RPC
3) That the act is performed or the omission
incurred by means of dolo or culpa.

Definition of “act” and “omission”.

- Act means any bodily movement tending to produce
some effect in the external world, it being
unnecessary that the same be actually produced, as
the possibility of its production is sufficient.

- Omission is meant inaction, the failure to perform a

positive duty which one is bound to do. There must
be a law requiring the doing or performance of an
act.

Note: The act must be one which is defined by the RPC as

constituting a felony, or at least, an overt act of that felony, that is an
external act which has direct connection with the felony intended to be
committed.

The act must be external, because internal acts are beyond

the sphere of penal law. Hence, a criminal thought or a mere intention, no
matter how immoral or improper it may be, will never constitute a felony.

Note: Mere passive presence at the scene of another’s crime, mere

silence and failure to give alarm , without evidence of agreement or
conspiracy, is not punishable.( People vs. Atienza, 56 Phil. 353)
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Note: Nullum Crimean, nulla poena sine lege “ there is no crime

where there is no law punishing it.”
“Crime” and “offense” which are applied to infractions of the
law punished by special statutes.

Classification of felonies according to the means by which they

are committed:

1) Intentional felonies ( RPC)

2) Culpable felonies ( RPC)
3) Those punished by special laws.

Distinction between IF and CF

In intentional felonies, the act or omission of the offender is

malicious (with deliberate intent). The offender, in performing the act or
in incurring the omission, has the Intention to cause an injury to
another.

In culpable felonies, the act or omission of the offender is not

malicious. The injury caused by the offender to another person is
unintentional, it being the incident of another act performed without
malice (wrongful act results from imprudence, negligence, lack of
foresight or lack of skill).

Crimes which cannot be committed through negligence:

1) Murder
2) Treason
3) Robbery
4) Malicious mischief

Imprudence – indicates a deficiency in action.

If a person fails to take the necessary precaution to avoid
injury to person or damage to property, there is imprudence.

Negligence – indicates a deficiency of perception.

If a person fails to pay proper attention and to use due
diligence in forseeing the injury or damage impending to be caused, there
is negligence.

Note: a criminal act is presumed to be voluntary. Fact prevails over

assumption, and in the absence of indubitable explanation, the act must
be declared voluntary and punishable. (People vs. Macalisang, 22 SCRA
699)

In felonies committed by means of dolo, as well as in those

committed by means of culpa, the act performed or the omission incurred
by the offender is voluntary, but the intent or malice in intentional felonies
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is replaced by imprudence, negligence, lack of foresight or lack of skill in

culpable felonies.

Requisites of dolo or malice:

1) He must have FREEDOM while doing an act or omitting to do an

act;
2) He must have INTELLIGENCE while doing the act or omitting to do
the act;
3) He must have INTENT while doing the act or omitting to do the
act.

All the three requisites of voluntariness in intentional felony must be

present , because a voluntary act is a free, intelligent, and intentional act.
(U.S. vs. Ah Chong, 15 Phil. 488, 495)

Intent is a mental state, the existence of which is shown by the

overt act of a person. (Soriano vs. People, 88 Phil. 368, 374)

From the felonious act (taking another’s property) of the accused,

freely and deliberately executed, the moral and legal presumption of a
criminal and injurious intent arises conclusively and indisputably, in the
absence of evidentiary to the contrary. (People vs. Sia Teb Ban, 54 Phil.
52,53)

Criminal intent and the will to commit a crime are always presumed
to exist on the part of the person who executes an act which the law
punishes, unless the contrary shall appear. (U.S. vs. Apostol, 14 Phil. 92,
93)

The act of a person does not make him a criminal, unless his mind
be criminal. ( U.S. vs. Catolico, 18Phil. 504,508)

Actus non facit reum nisi mens sit rea. – a crime is not committed if
the mind of the person performing to act complained be innocent. It is
true that a presumption of criminal intent may arise from proof of the
commission of a criminal act; and the general rule is that if it is proved
that the accused committed the criminal act charged, it will be presumed
that the act was done with criminal intention and that it is for the accused
to rebut this presumption.But it must be borne in mind that the act from
which such presumption springs must be a criminal act.

The presumption of criminal intent from the commission of an

unlawful act may be rebutted by proof of lack of such intent.

Mistake of fact.
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- While ignorance of the law excuse no one from compliance

therewith ( ignorantia leg is non excusat), ignorance or mistake of fact
relives the accused from criminal liability (ignorantia facti excusat).

- Mistake of fact is a misapprehension of fact on the part of

the person who caused injury to another. He is not, however,criminally
liable, because he did not act with criminal intent.

- Requisites:
1) That the act done would have been lawful had
the fact bees as the accused believed them to
be;
2) That the intention of the accused in performing
the act should be lawful u;
3) That the mistake must be without fault or
carelessness on the part of the accused.

Note: Lack of intent to commit a crime may be inferred from the

facts of the case.

- In mistake of fact, the act done by the accused would have

constituted:

a) A justifying circumstances under Article 11;

b) An absolutory cause, Article 247, par, 2;
c) An involuntary act.

Note: In apprehending even the most notorious criminal, the law

does not permit the captor to kill him. It is only when the fugitive
from justice is determined to fight the officers of the law who are
trying to capture him that killing him would be justified.

That the accused made a mistake in killing one man instead of

another cannot relieve him from criminal responsibility, he having
acted maliciously and wilfully. (People vs. Gona, 54 Phil. 605)

- When not applied: Error in personae or mistake in the

identity of the victim.
: When the accused is charged with a
culpable felony.

Note: In the absence of criminal intent, there is no liability for intentional

felony. All reasonable doubt intended to demonstrate error and not crime
should be indulged in for the benefit of the accused. ( People vs. Pacana,
47 Phil. 48)

Culpable felonies.
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- Criminal intent is replaced by negligence, imprudence, lack of

foresight, or lack of skill.
- Such negligence or indifference to duty or to consequence is, in
law, equivalent to criminal intent. (U.S. vs. Catolico, 18 Phil. 507)

- But in felonies committed by means of culpa, the mind of the

accused is not criminal. However, his act is wrongful, because the injury or
damage caused to the injured party results from the imprudence,
negligence, lack of foresight or lack of skill of the accused.

- Requisites of culpa:

1) He must have FREEDOM while doing an act or omitting to

do an act;
2) He must have INTELLIGENCE while doing the act or
omitting to do the act;
3) He is IMPRUDENT,NEGLIGENT or LACKS FORESIGHT or
SKILL while doing the act or omitting to do the act.
Note:
Deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence. Where such an unlawful
act is willfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence. ( People vs. Nanquil, 43 Phil. 232)

Third class of crimes are those punished by special law.

- It include crimes punished by municipal or city ordinances.

- When the crime is punished by a special law, as a rule, intent to

commit the crime of is not necessary. It is sufficient that the offender
has the intent to perpetrate the act prohibited by the special law.

- Intent to commit the crime and intent to perpetrate the act

distinguished.

In the first, there must be a criminal intent, in the second, it is

enough that the prohibited act is done freely and consciously.

- When the doing of an act is prohibited by a special law, it is

considered that the act is injurious to public welfare and the doing of the
prohibited act is the crime itself.

- Good faith and absence of criminal intent not valid defenses in

crimes punished by special laws.

Mala in se and Mala prohibita, distinguished.

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1) Mala in se, or wrongful from their nature, such as theft, rape,

homicide. Mala prohibita, or wrong merely because prohibited by
statute, such as illegal possession of firearms.
2) Mala in se are those so serious in their effects on society as to
call for almost unanimous condemnation of its members. Mala
prohibita are violations of mere rules of convenience designed to
secure a more orderly regulation of the affairs of society.
3) Mala in se,the intent governs. Mala prohibita, the only inquiry is,
has the law been violated.
4) Mala in se, refers generally to felonies defined and penalized by
the RPC. When the acts are inherently immoral, they are Mala in
se, even if punished by special law. ( See People vs. Sunico, et
al., C.A. 50 O.G.5880) Mala prohibita refers generally to acts
made criminal by special laws. There are crimes in the RPC which
are originally defined and penalized by special laws. Among them
are possession and use of opium, malversation, brigandage, and
libel.

Intent distinguished from motive.

- Motive is not an essential element of a crime, and hence, need not

be proved for purposes of conviction. (People vs. Aposaga, 108 SCRA
574,5&5)

- A good motive does not prevent an act from being a crime. In

mercy killing, the painless killing of a patient who has no chance of
recovery, the motive may be good, but it is nevertheless punished by law.

Motive when relevant.

- When the identity of a person accused of having committed a

crime is in dispute, the motive that may have impelled its commission is
very relevant. ( People vs. Feliciano, 58 SCRA 383,393)

- Motive is essential only when there is doubt as to the identity of

the assailant.

- Motive is important in ascertaining the truth between two

antagonistic theories or versions of killing. (People vs. Boholst- Caballero,
61 SCRA 180, 191)

- Where there are no eyewitnesses to the crime, and where

suspicion is likely to fall upon a number of persons, motive is relevant and
significant. (People vs. Melgar, 157 SCRA 718, 725)

- If the evidence is merely circumstantial, proof of motive is

essential.

Motive when need not be established.

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- Generally, proof of motive is not necessary to pin a crime on the

accused if the commission of the crime has been proven and the evidence
of identification is convincing. (People vs. Alviar, 59 SCRA 136,160)

- It is immaterial when the accused has been positively identified.

( People vs. Gadiana, 195 SCRA 211,214-215)
- Where the defendants admits the killing, it is no longer necessary
to inquire into his motive for doing the act. (People vs. Arcilla, G.R.No. L-
11792, June 30, 1959)

- Proof of motive is indispensable where the guilt is otherwise

established by sufficient evidence. (People vs. Corpuz, 107 Phil. 44,49)

Note:
Mere proof of motive, no matter how strong, is not sufficient
to support a conviction if there is no reliable evidence from which it may
be reasonably deduced that the accused was the malefactor. (People vs.
Macatangay, 107 Phil. 188, 194)

Even a strong motive to commit the crime cannot take the

place of proof beyond reasonable doubt, sufficient to overthrow the
presumption of innocence. Proof beyond reasonable doubt is the
mainstay of our accusatorial system of criminal justice. (People vs.
Pisalvo, 108 SCRA 211, 226)

X----------------------------------------------------X

ART. 4. CRIMINAL LIABILITY. – CRIMINAL LIABILITY SHALL BE

INCURRED:

1. BY ANY PERSON COMMITTING A FELONY (delito)

ALTHOUGH THE WRONGFUL ACT DONE BE DIFFERENT
FROM THAT WHICH HE INTENDED.

2. BY ANY PERSON PERFORMING AN ACT WHICH WOULD

BE AN OFFENSE AGAINST PERSONS OR PROPERTY,
WERE IT NOT FOR THE INHERENT IMPOSSIBILITY OF ITS
ACCOMPLISHMENT OR ON ACCOUNT OF THE
EMPLOYMENT OF INADEQUATE OR INEFFECTUAL
MEANS.

Paragraph 1.

- One who commits an intentional felony is responsible for all the

consequences which may naturally and logically result therefrom, whether
foreseen or intended to.
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Example:
A was raped by B. On account of this, A died by accident when
she hit her head on the pavement while struggling. However, B has no
intention of killing A. Is he liable for the death of A? YES. Having
performed an act constituting a felony, B is responsible for all the
consequences of said act, regardless of his intention.

- In view of paragraph 1, of Article 4, a person committing a felony

is criminally liable although the consequences of his felonious act are not
intended by him.

- One is it relieved from criminal liability for the natural

consequences of one’s illegal acts, merely because one does not intend to
produce such consequences. ( U.S. vs. Brobst, 14 Phil. 310)

- Rationale of rule in paragraph 1, of Article 4:

“ el que es causa de la causa es causa del mal causado” (he

who is the cause of the cause is the cause of the evil caused.) (People vs.
Ural, 56 SCRA 138,144)

- “ committing a felony”

 not merely “performing an act.”

 The felony should be committed by means of dolo (with
malice), because par. 1, of Article 4 speaks of wrongful
act done different from that which he intended.

Note: Violation of a statute is proof of negligence or

imprudence.
The law allows a person to use the necessary force to
retain what belongs to him.

- “Although the wrongful act done be different from that which he

intended.”

Causes:
 Mistake in the identity of the victim (error in
personae). (See People vs. Oanis, 74 Phil. 257)
 Mistake in the blow, that is, when the offender intending
to do an injury to one person actually inflicts it on
another (Abberatio ictus). (See People vs. Mabugat,
51 Phil. 967)
 The injurious result is greater than that intended
(Praeter intentionem). (See People vs. Cagoco, 58
Phil. 525)

- Requisites of paragraph 1, Article 4:

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a. That an intentional felony has been committed;and (See

People vs. Toling, 62 SCRA 17,33)
b. That the wrong done to the aggrieved party be the
direct,natural, and logical consequences of the felony
committed by the offender. (See People vs. Quianson, 62
Phil. 162)

a.

Note: No felony is committed (1) when the act or omission is

not punishable by the RPC, or (2) when the act is covered by
any of the justifying circumstances enumerated in Article 11.

If a man creates in another's mind an immediate sense

of danger, which causes such person to do something, and in
so doing, the latter injures himself, the man who creates such
a state of mind is responsible for the resulting injuries.

b.
Proximate cause
– cause which in natural and continuous
sequence, unbroken by an efficient intervening cause,
produces the injury, and without which the result would
not have occurred.
- The felony committed must be the proximate
cause of the resulting injury.
- When felony is not the proximate cause of the
resulting injury:

a) There is an active force that

intervened between the felony
committed and the resulting injury,and
the active force is a distinct act or fact
absolutely foreign from the felonious
act of the accused; or

b) The resulting injury is due to the

intentional act of the victim.

Natural
- refers to an occurrence in the ordinary course of
human life or event.
Logical
- means that there is a rational connection
between the act of the accused and the resulting injury
or damage.
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- If the consequences produced have resulted from a distinct act or

fact absolutely foreign from the criminal act, the offender is not
responsible for such consequences. (People vs. Rellin, 77 Phil. 1038)

- A person is not liable criminally for all possible consequences

which may immediately follow his felonious act, but only for such as are
proximate.

-There must a relation of cause and effect, the cause being the
felonious act of the offended, the effect being the resultant injuries and/or
death of the victim.

- The gravity of the crime does not depend on the more or less
violent means used, but on the result and consequence of the same.

- Death of the victim is presumed to be the natural consequence of

the physical injuries inflicted, when the following facts are established:

 That the victim at the time the physical injuries were inflicted
was in normal health;
 That death may be expected from the physical injuries
inflicted;
 That death ensued within a reasonable time.

- A supervening event may be the subject of amendment of original

information or of a new charge without double jeopardy. (See People
vs. Petilla, 92 Phil. 395)

Paragraph 2.

Impossible crimes

- The commission of an impossible crime is indicative

of criminal propensity or criminal tendency on the
part of the actor. Such person is a potential criminal.

- The penalty for impossible crime is provided in Article

59 of RPC.

- Requisites:

1) That the act performed would be an

offense against persons or property.
(Here there is an intent to commit
felony)
 18

2) That the act was done with evil intent.

( Must have the intent to do an injury
to another)
3) That its accomplishment is inherently
impossible, (This phrase means that the
act intended by the offender is by its
nature one of impossible
accomplishment) or that the means
employed is either inadequate or
ineffectual.
4) That the act performed should not
constitute a violation of another provision
of the RPC.

- When can there be no IC?

If the act performed would be an offense other than a

felony against persons or against property.

- Purpose of the law in punishing the impossible crime.

To suppress criminal propensity or criminal

tendencies. Objectively, the offender has not
committed a felony, but subjectively, he is a criminal.

X----------------------------------------------------------X

Article 5. Duty of the court in connection with acts which should

be repressed but which are not covered by the law, and in cases
of excessive penalties. - Whenever a court has knowledge of any
act which it may deem proper to repress and which is not
punishable by law, it shall render the proper decision, and shall
report to the Chief Executive, through the Department of Justice,
the reasons which induce the court to believe that said act should
be made the subject of legislation.

In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this
Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury
caused by the offense.

Paragraph 1.
 19

A. Requirements ( trial of a criminal case) :

1) The act committed by the accused appears not punishable by any

law;

2) But the court deems it proper to repress such act;

3) In that case, the court must render the proper decision by

dismissing the case and acquitting the accused;

4) The judge must then make a report to the Chief Executive, through
the Secretary of Justice, stating the reasons which induce him to
believe that the said act should be made the subject of penal
legislation.

B. Basis:

 Nullum crimes,nulla poena sine lege, there is no crime when

there is no law punishing the act.

Paragraph 2. ( For example See People vs. Monleon, 74 SCRA

263,269)

A. Requirements:

1) The court after trial finds the accused guilty;

2) The penalty provided by law and which the court imposes for the
crime committed appears to be clearly excessive, because:

a) The accused acted with lesser degree of malice,and/or

b) There is no injury or the injury caused is of lesser gravity.

3) The court should not suspend the execution of the sentence; and

4) The judge should submit a statement to the Chief Executive,

through the Secretary of Justice, recommending executive clemency.

 The penalties are not excessive when intended to enforce a public

policy.

 The courts should interpret and apply the laws as they find them on
the statute books, regardless of the manner their judgments are
executed and implemented by the executive department. ( People
vs. Olaes, 105 Phil. 502)
 20

 The second paragraph of Article 5 of the RPC has no application to

the offense defined and penalized by a special law. (People vs.
Salazar, 102 Phil. 1184)

 Article 5 of the RPC may not invoked in cases involving acts Mala
prohibita,because said article applies only to acts Mala in se, or
crimes committed with malice or criminal intent. ( People vs.
Quebral, CA, 58 O.G.7399) The ruling is base in the phrase, “ taking
into consideration the degree of malice.”

X-------------------------------------------X

Article 6. Consummated, frustrated, and attempted felonies. -

Consummated felonies as well as those which are frustrated and
attempted, are punishable.

A felony is consummated when all the elements necessary for its

execution and accomplishment are present; and it is frustrated
when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator.

There is an attempt when the offender commences the

commission of a felony directly or over acts, and does not
perform all the acts of execution which should produce the felony
by reason of some cause or accident other than this own
spontaneous desistance.

 From the moment the culprit conceives the idea of

committing a crime up to the realization of the same, his acts
passes through certain stages:

1) Internal acts, such as mere ideas in the mind of a person,

are not punishable even if, had they been carried out, they
would constitute a crime. [Note: Mere intention producing
no effect is no more a crime than a mere effect without the
intention is a crime.]

2) External acts,
3) External acts covers (a) preparatory acts; and (b) acts of
execution.

Stages of Execution:
First stage: Attempted
 21

Second stage: Frustrated

Third stage: Consummated

 First stage, “Attempted felony.”

 Elements:

1) That the offender commences the commission of

the felony directly by overt acts;

o Requisites: a) That there be external acts;

and b) Such external acts have a direct
connection with the crime intended to be
committed.

o Overt acts,defined. Is some physical

activity or deed, indicating the intention to
commit a particular crime,more than a mere
planning or preparation, which if carried to
its complete termination following its natural
course, without being frustrated by external
obstacles nor by the voluntary desistance of
the perpetrator, will logically and
necessarily ripen into concrete offense.

o Overt act may not be by physical activity.

There are felonies where, because of their
nature or the manner of committing them,
the overt acts are not performed with bodily
movement or by physical activity.

o Indeterminate offense. – it is one where the

purpose of the offender in performing an act
is not certain.

o For overt acts to constitute an attempted

offense, it is necessary that their objective
be known and established or such that
acts be of such nature that they
themselves should obviously disclose
the criminal objective necessarily
intended. (People vs. Lizada,G.R.Nos.
143468-71, January 24, 2003)

o Only offenders who personally execute

the commission of a crime can be guilty of
attempted felony.
 22

o “ direct” suggests that the offender must

commence the commission of the felony by
taking direct part in the execution of
the act.

2) He does not perform all the acts of execution which

should produce the felony;

o If anything yet remained for him to do,he

would be guilty of an attempted crime.

3) The offender’s act is not stopped by his own

spontaneous desistance;

4) The non-performance of all acts of execution

was due to cause or accident other than his
spontaneous desistance.

o No attempted felony, if the actor does not

perform all the acts of execution by reason
of his own spontaneous desistance. The
law does not punish him. [ Reason: it is a
sort of reward granted by law to those who,
having one foot on the verge of crime, heed
the call of their conscience and return to the
path of righteousness] The Code requires
only that the discontinuance of the crime
comes from the person who has begun it,
and that he stops of his own free will.

o The desistance should be made before all

the acts of execution are performed.

o It must be borne in mind that the

spontaneous desistance of a malefactor
exempts him from criminal liability for the
intended crime but it does not exempt him
from the crime committed by him before his
desistance. ( People vs. Lizada,
G.R.Nos.143468-72, January 24, 2003)

 Second stage, “ Frustrated felony.”

 Elements:

1) The offender performs all the acts of execution;

 23

o Nothing more is left to be done by the offender,

because he has performed the last act
necessary to produce the crime.

o Distinguished from Attempted felony. In this

kind of felony, the offender does not perform all
the acts of execution. He does not perform the
last act necessary to produce the crime. He
merely commences the commission of a felony
directly by overt acts. However, in both, the
offender has not accomplished his criminal
purpose. Another is, in frustrated felony, the
offender has reached the objective phase; in
attempted felony, the offender has not passed
the subjective phase.

2) All the acts performed would produce the felony

as a consequence;

3) But felony is not produced;

o The act performed by the offender do not

produce the felony, because if the felony is
produced it would be consummated.

4) By reason of causes independent of the will of

the perpetrator.

o Certain cause may prevent the consummation.

These certain causes may be the intervention
of third persons.

o If the crime is not produced because the

offender himself prevented its
consummation, there is no frustrated
felony, the fourth element is not present.

o Essential element which distinguishes

attempted from frustrated felony:

 In frustrated felony, there is no

intervention of a foreign or
extraneous cause or agency
between the beginning of the
consummation of the crime and the
moment when all the acts have
been performed which should result
in the consummated crime; while in
the former there is such
 24

intervention and the offender does

not arrive at the point of
performing all of the acts which
should produce the crime.

 Third element, “Consummated felony.”

 All the elements necessary for its execution and

accomplishment are present. Every crime has its own
elements which must all be present to constitute a
culpable violation of a precept of law.

 When a felony has two or more elements and one of

them is not proved by the prosecution during the trial,
either:

1) The felony is not shown to be

consummated; or

2) The felony is not shown to have been

committed;or

3) Another felony is shown to have been

committed.

 How to determine whether the crime is only attempted, or

frustrated, or it is consummated. The following must be
considered:

(1)The nature of the offense.

(2)The elements constituting the felony.

 There is no crime of frustrated theft.

 Theft can only be attempted or frustrated.

( Valenzuela vs. People, et.al., G.R.No. 160188,
June 21, 2007)

(3)The manner of committing the crime.

X----------------------------------------------X
 25

Article 7. When light felonies are punishable. - Light felonies are

punishable only when they have been consummated, with the
exception of those committed against person or property.

 Light felonies, defined. – are those infractions of law for the

commission of which the penalty of arresto menor or a fine
not exceeding 200 pesos, or both, is provided.

 The light felonies punished by the RPC:

(1)Slight Physical Injuries. (Art. 266)

(2)Theft. (Arts.309, pars. 7 and 8)

(3)Alteration of boundary marks. (Art. 313)

(4)Malicious mischief. (Art. 328, par. 3; Art. 329, par. 3)

(5)Intriguing against honor. (Art. 364)

 General Rule: Light felonies are punishable only when they

have been consummated. [ Reason : Light felonies produce
such light, such insignificant moral and material injuries that
public conscience is satisfied with providing a light penalty for
theirs consummation if they are not consummated, the wrong
done is so slight that there is no need of providing a penalty
at all.]

Exception: Light felonies committed against persons or

property, are punishable even if attempted or frustrated. [
Reason : The commission of felonies against persons or
property presupposes in the offender moral depravity. For
that reason, even attempted or frustrated light felonies
against persons or property are punishable.]

X--------------------------------------------X

Article 8. Conspiracy and proposal to commit felony. - Conspiracy

and proposal to commit felony are punishable only in the cases in
which the law specially provides a penalty therefor.

A conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide to
commit it.
 26

There is proposal when the person who has decided to commit a

felony proposes its execution to some other person or persons.

 Requisites of Conspiracy:

(1) That two or more persons came to an agreement;

 Agreement presupposes meeting of the minds of two

or more persons.

(2) That the agreement concerned the commission of a

felony; and

 The agreement must refer to the commission of a

crime. It must be an agreement to act, to effect,
to bring about what has already been conceived
and determined.

(3) That the execution of the felony be decided upon.

 The conspirators have made up their minds to

commit the crime.

 Requisites of Proposal:

(1) That a person has decided to commit a felony; and

(2) That he proposes its execution to some other person

or persons.

 Conspiracy to commit felony and proposal to commit felony

are two,different acts or felonies.

 Unless there is a specific provision in the RPC providing a

penalty for conspiracy or proposal to commit a felony, mere
conspiracy or proposal is not a felony.

 Reason : Conspiracy and proposal to commit a crime are only

preparatory acts, and the law regards them as innocent or
at least permissible except in rare and exceptional cases.

 Provisions in the RPC that specifically provides a penalty for

mere conspiracy or proposal to commit felony: Arts.
115,136, and 141.

 In conspiracy the act of one is the act of all. All the

conspirators who carried out their plan and personally took
part in its execution are equally liable.
 27

 When conspiracy is only a manner of incurring criminal

liability, it is not punishable as a separate offense.

 Indications of conspiracy:

 With a view to the attainment of the same object

 Though apparently independent, were in fact
concerted and cooperative, indicating closeness of
personal association, concerted action and
concurrence of sentiments.
( People vs. Geronimo, 53 SCRA 246, 254)
 Unity of purpose and unity in the execution of the
unlawful acts. (People vs. Cantuba, 183 SCRA 289,
298)
 Common design (People vs. Hernandez, 182 SCRA
794, 798)
 It is the act of the conspirators that show their
common design.

 The records must show that there was previous conspiracy or

unity of criminal purpose. (People vs. Pugay, 167 SCRA 439)

 Conspiracy arises on the very instant the plotters agree,

expressly or impliedly, to commit the felony and forthwith
decide to pursue it. One this assent is established, each
and everyone of the conspirators is made criminally liable for
the crime, committed by anyone of them. (People vs. Manroy,
et.al., 104 Phil. 759)

 Direct proof is not essential to establish conspiracy. It may

be inferred from the collective acts of the accused before,
during and after the commission of the crime. (People vs.
Buntag, G.R.No. 123070, April 14, 2004)

 It is not necessary to show that all the conspirators actually hit

and killed the victim. Conspiracy renders all the conspirators
as co-principals regardless of the extent and character of
their participation because in contemplation of law, the act
of one is the act of all. (People vs. Buntag, G.R.No. 123070,
April 14, 2004)

 Quantum of proof required to establish conspiracy.

 Proof beyond reasonable doubt.

 Positive and conclusive evidence.

 28

 Settled is the rule that to establish conspiracy,

evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.

 Mere presence of a person at the scene of the crime

does not make hi a conspirator for conspiracy
transcends companionship.
(People vs. Comadre, G.R.No. 153559, June 8, 2004$

 Note: The making of proposal. The law does not require

that the proposal be accepted by the person to whom the
proposal is made.

X----------------------------------------------------X

Article 9. Grave felonies, less grave felonies and light felonies. -

Grave felonies are those to which the law attaches the capital
punishment or penalties which in any of their periods are
afflictive, in accordance with Art. 25 of this Code.

Less grave felonies are those which the law punishes with
penalties which in their maximum period are correctional, in
accordance with the above-mentioned Art..

Light felonies are those infractions of law for the commission of

which a penalty of arrest menor or a fine not exceeding 200
pesos or both; is provided.

 Article 9 classifies felonies according to their gravity. The

gravity of the felonies is determined by the penalties attached
to them by law.

 Afflicting penalties under Article 25 of the RPC:

- Reclusion perpetua
- Reclusion temporal
- Perpetua or temporary absolute disqualification
- Perpetua or temporary special disqualification
- Prision mayor.

 When the Code provides a fine of exactly P200.00 for the

commission of a felony, it is a light felony. If the amount of the
fine provided by the Code is more than P200.00, then it is a
less grave felony, be use according to Article 26, a fine not
exceeding P6,000.00 is a correctional penalty. If the amount
 29

of the fine provided by the Code is more than P6,000.00, it is

a grave felony, because according to Article 26, a fine
exceeding P6,000.00 is an afflictive penalty.

 Although Article 26 provides that a fine not less than P200.00

is a correctional penalty, Article 9 which defines light felonies
should prevail, because the latter classifies felonies according
to their gravity, while the former classifies the fine according
to the amount thereof.

X-------------------------------------------------X

Article 10. Offenses not subject to the provisions of this Code. -

Offenses which are or in the future may be punishable under
special laws are not subject to the provisions of this Code. This
Code shall be supplementary to such laws, unless the latter
should specially provide the contrary.

 Article 10, is composed of two clauses:

(1) Offenses under special laws are not subject to the

provisions of the Code, and

 The special laws are controlling with regard to

offenses therein specially punished.

 This clause only restates the elementary rule of

statutory construction that special legal provisions
prevails over general ones.

 Special laws, defined. – a penal law which acts

not defined and penalized by the Penal Code.

(2) Makes the Code supplementary to such laws.

 The provisions of the RPC on penalties cannot be applied to

offenses punishable under special laws.

 Article 6 of the RPC cannot be applied to offenses punished by

special laws.

 Article 10 is not applicable to punish an accomplice under the

special law.
 30

 The plea of guilty as mitigating circumstance under the RPC is

not available to offenses punishable under special laws.

 The penalty prescribe by special law is usually indeterminate.

 “ supplementary” means supplying what is lacking, additional.

The suppletory application of the RPC to special laws, by
virtue of Article 10 thereof, finds relevance only when the
provisions of the special law are silent on a particular
matter.

 Article 12, paragraph 3, of the Revised Penal Code, applied to

minor over nine but less than fifteen years old who violated a
special law.

 When the penalties under the special law are different from
and are without reference or relation to those under the RPC,
there can be no suppletory effect of the rules, for the
application of penalties under the said Code or by other
relevant statutory provisions are based on or applicable only
to said rules for felonies under the Code.

 Special laws amending the Revised Penal Code are subject to

its provisions.

X-------------------------------------------------X

JUSTIFYING CIRCUMSTANCES AND

CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL
LIABILITY

 The circumstances affecting criminal liability are: (JEMAA)

(1)Justifying circumstances (Art. 11)

(2)Exempting circumstances (Art.12), and other absolutory causes

(Arts.20;124,last par.;332;344 etc.)

(3)Mitigating circumstances (Art.13)

 31

(4)Aggravating circumstances (Art. 14)

(5)Alternative circumstances (Art. 15)

 Guilt. – an element of responsibility, for a man cannot be made to

answer for the consequences of a crime unless he is guilty.

 Justifying circumstances.

definition. – are those where the act of a person is said

to be in accordance with law, so that such person is deemed
not to have transgressed the law and is free from both
criminal and civil liability.

Basis.- The law recognizes the non-existence of a crime

by expressly stating in the opening sentence of Article 11 that
the persons therein mentioned “do not incur any criminal
liability.”

X------------------------------X

Article 11. Justifying circumstances. - The following do not

incur any criminal liability:

1. Anyone who acts in defense of his person or rights,

provided that the following circumstances concur;

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to

prevent or repel it.

Third. Lack of sufficient provocation on the part of the

person defending himself.

2. Any one who acts in defense of the person or rights of his

spouse, ascendants, descendants, or legitimate, natural or
adopted brothers or sisters, or his relatives by affinity in the
same degrees and those consanguinity within the fourth
civil degree, provided that the first and second requisites
prescribed in the next preceding circumstance are present,
and the further requisite, in case the revocation was given
by the person attacked, that the one making defense had no
part therein.
 32

3. Anyone who acts in defense of the person or rights of a

stranger, provided that the first and second requisites
mentioned in the first circumstance of this Article are
present and that the person defending be not induced by
revenge, resentment, or other evil motive.

4. Any person who, in order to avoid an evil or injury, does

not act which causes damage to another, provided that the
following requisites are present;

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to

avoid it;

Third. That there be no other practical and less harmful

means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the

lawful exercise of a right or office.

6. Any person who acts in obedience to an order issued by a

superior for some lawful purpose.

 In stating that the persons mentioned therein do not incur any

criminal liability, Article 11 recognizes the acts of such persons
as justified. Such persons are not criminals,as there is no
crime committed.

 The circumstances mentioned in Article 11 are matters of

defense and it is incumbent upon the accused, in order to
avoid criminal liability, to prove the justifying
circumstances claimed by him to the satisfaction of the court.

 Invocation of self-defense. Well-entrenched is the rule that

where the accused invokes self-defense, it is incumbent upon
him to prove by clear and convincing evidence that he indeed
acted in defense of himself.

 How to prove self-defense. It is proved with certainty by

sufficient, satisfactory and convincing evidence that excludes
any vestige of criminal aggression on the part of the person
invoking it and it cannot be unjustifiably entertained where it
is not only uncorroborated by any separate competent
evidence but, in itself, is extremely doubtful.
 33

 Paragraph 1.

 Self-defense includes not only the defense of the

persons or body of the one assaulted but also that
of his right, that is, those rights the enjoyment of
which is protected by law.

 Reason why penal law makes self-defense lawful.

- Because it would be quite impossible for the

State in all cases to prevent aggression upon its
citizen and offer protection to the person unjustly
attacked. On the other hand, it cannot be
conceived that a person should succumb to an
unlawful aggression without offering any
resistance.

 Requisites of Self-defense.

(1)Unlawful aggression.

- Meaning. Is equivalent to assault or at least

threatened assault of an immediate and imminent
kind.

- When can there be UG? When the peril to one’s life,

limb or right is either actual or imminent.

- Unlawful aggression on the part of the person injured

or killed by the accuse.

- It is a statutory and doctrinal requirement that for the

justifying circumstances of self-defense, the presence
of unlawful aggression is a condition sine qua non.
There can be no self-defense, complete or
incomplete, unless the victim has committed an
unlawful aggression against the person defending
himself.

- If there is no unlawful aggression, there is nothing to

prevent or repel. The second requisite of defense will
have no basis.

- The first requisite of defense says that aggression

must be unlawful.
 34

- What if it is the paramour who raised the plea of

guilty? His or her plea of guilty should be denied. As a
paramour he or she well knew that by maintaining
unlawful relation with the deceased’s wife/husband,
he was performing an unlawful and criminal act and
exposed himself/herself to the vengeance of the
offended husband.

- There must be an actual physical assault upon a

person, or at least a threat to inflict real injury.

- Meaning of peril to one’s limb. There is danger to his

life. It may also be actual or only imminent.

- The person defending himself must have been

attacked with actual physical force or with actual
use of weapon.

- Reason why slapping on the face constitutes unlawful

aggression. Since the face represents a person and
his dignity, slapping it is a serious personal
attack. It is a physical assault coupled with a willful
disregard, nay, a defiance, of an individual’s
personality. It may therefore, be frequently regarded
as placing in real danger a person’s dignity,
rights and safety. (People vs. Sabio, G.R.No. L-
23734, April 27, 1967)

- To constitute unlawful aggression, it is necessary that

an attack or material aggression, an offensive act
positively determining the intent of the aggressor to
cause an injury shall have been made.

- When unlawful aggression ceases, the defender no

longer has the right to kill or even wound the former
aggressor. (People vs. Cajurao, 420 SCRA 207, 214-
215)

- Self-defense does not justify the unnecessary killing

of an aggressor who is retreating from the fray.
(People vs. Cajurao, 420 SCRA 207, 214-215)

- In order to justify homicide on the ground of self-

defense, it is essential that the killing of the
deceased by the defendant be simultaneous with
the attack made by the deceased, or at least both
acts succeeded each other without appreciable
interval of time.
 35

- When aggressor flees, unlawful aggression no longer

exists. (See People vs. Alconga, 78 Phil. 366)

- When can there be no unlawful aggression? When

there is agreement to fight. Reason : Where the fight
is agreed upon, each of the protagonists is at once
assailant and assaulted, and neither can invoke the
right of self-defense, because aggression which is an
incident in the fight is bound to arise from one or the
other of the combatants. (People vs. Quinto, 55 Phil.
116)

- One who voluntarily joined a fight cannot claim self-

defense.

- An attempt to rape a woman constitutes an

aggression sufficient to put her in a state of
legitimate defense inasmuch as a woman’s honor
cannot but be esteemed as a right as precious, if not
more than her very existence.

- Defense of property is not of such importance as

right to life, and defense of property can be invoked
as a justifying circumstance only when it is coupled
with an attack on the person of one entrusted with
said property.

- The word “rights” includes right to property. Hence,

all the three requisites of self-defense, particularly
unlawful aggression, must also concur in defense of
property.

- In order to consider that unlawful aggression was

actually committed, it is necessary that an attack or
material aggression, an offensive act positively
determining the intent of the aggressor to cause an
injury shall have been made.
(2)Reasonable necessity of the means employed to prevent or
repel it.

- The second requisite of defense presupposes the

existence of unlawful aggression, which is either
imminent or actual.

- Reasonable necessity of the means employed in self-

defense does not depend upon the harm done but
rests upon the imminent danger of such injury.
 36

- In making a defense, we prevent the aggression that

places us in imminent danger or repel the aggression
that places us in actual danger.

- It means that:

a) There be a necessity of the course of

action taken by the person making a
defense; and

b) There be a necessity of the means

used. Both must be reasonable.

- The person attacked is not duty-bound to expose

himself to be wounded or killed, and while the danger
to his person or life subsists, he has a perfect and
indisputable right to repel such danger by wounding
his adversary and, if necessary. To disable him
completely so that he may not continue the assault.
(U.S vs. Molina, 19 Phil. 227)

- The necessity of the course of action taken depends

on the existence of unlawful aggression. If there was
no unlawful aggression or, if there was, it has ceased
to exist, there would be no necessity for any course
of action to take as there is nothing to prevent or to
repel.

- The theory of self-defense is based on the necessity

on the part of the person attacked to prevent or repel
the unlawful aggression, and when the danger or risk
on his part has disappeared, his stabbing the
aggressor while defending himself should have
stopped.

- The reasonableness of the resistance is also a

requirement of the justifying circumstance of self-
defense or defense of one’s rights.

- Defense of person or rights does not necessarily

mean the killing of the unlawful aggressor. When
killing is justified? The killing of the unlawful
aggressor may still be justified as long as the mortal
wounds are inflicted at a time when the elements of
complete self-defense are still present.
 37

- The means employed by the person making a

defense must be rationally necessary to prevent or
repel an unlawful aggression.

- Perfect equality between the weapon used by the

one defending himself and that of the aggressor is
not required, because the person assaulted does
not have sufficient tranquility of mind to think,
to calculate and to choose which weapon to
use.

- Since there is no adequate protection for the law-

abiding citizens, the requisites of reasonable
necessity of the means employed to prevent or repel
the unlawful aggression should be liberally construed
in favor of law-abiding citizens.

- While the law on self-defense allows a private

individual to prevent or repel an aggression, the duty
of a peace officer requires him to overcome his
opponent.

(3)Lack of sufficient provocation on the part of the person

defending himself.

- Reason. When the person defending himself from the

attack by another gave sufficient provocation to the
latter, the former is also to be blamed for having
given cause for aggression.

- When considered present:

a) When no provocation at all was given to the

aggressor by the person defending himself; or

b) When, even if a provocation was given, it was not

sufficient; or

c) When, even if the provocation was sufficient, it

was not given by the person defending himself; or

d) When, even if a provocation was given by the

person defending himself, it was not proximate
and immediate to the act of aggression.

- The exercise of a right cannot give rise to sufficient

provocation.
 38

- The provocation must be sufficient, which means that

it should be proportionate to the act of aggression
and adequate to stir the aggressor to its
commission . ( People vs. Alconga)

- Requisite of lack of sufficient provocation refers

exclusively to the person defending himself.

 Paragraph 2 – Defense of relatives

- Relatives that can be defended:

1) Spouse
2) Ascendants
3) Descendants
4) Legitimate natural or adopted brothers and
sisters, or relatives by affinity in the same degrees
5) Relatives by consanguinity within the fourth civil
degrees

- Basis of justification.

 The justification of defense of relatives by

reason of which the defender is not criminally
liable, is founded not only upon a humanitarian
sentiment, but also upon the impulse of blood
which impels men to rush, on the occasion of
great perils, to the rescue of those close to
them by ties of blood.

- Requisites:

1) Unlawful Aggression
2) Reason ale necessity of the means employed to
prevent or repel it
3) In case the provocation was given by the
attacked, the on making a defense had no part
therein.

- Of the three requisites of defense of relatives,

unlawful aggression is the most essential and
primary, without which any defense is not possible or
justified.

- The clause in case the provocation was given by the

person attacked, used in stating the third requisite of
defense of relatives, does not mean that the relative
defended should give provocation to the aggressor.
 39

The clause merely states an event which may or may

not take place.

- The phrase in case means in the event that.

- The fact that the relative defended gave provocation

is immaterial.

 Paragraph 3. – Defense of stranger.

- Requisites:

1) Unlawful aggression
2) Reasonable necessity of the means employed to
prevent or repel it
3) The person defending be not induced by
revenge,resentment, or other evil motive.

- Basis:

What one may do in his defense, another may do for

him. Persons acting in defense of others are in the
same condition and upon the same plane as those
who act in defense of themselves. The ordinary man
would not stand idly by and see his companion killed
without attempting to save his life.

- Who are deemed strangers.

Any person not included in the enumeration of
relatives mentioned in paragraph 2 of this article,is
considered stranger for the purpose of paragraph 3.
Hence, even a close friend or a distant relative is a
stranger within the meaning of paragraph 3.

- The third requisite would be lacking if such was

prompted by his grudge against the assailant,
because the alleged defense of the stranger would be
only a pretext.

 Paragraph 4. –Avoidance of greater evil or injury

- Requisites:

First. That the evil sought to be avoided actually

exists;

 The evil must actually exist. If the evil sought

to be avoided is merely expected or anticipated
 40

or may happen in the future,paragraph 4 of art.

11 is not applicable.

Second. That the injury feared be greater than that

done to avoid it.

 The instinct of self-preservation will always

make one feel that his safety is of greater
importance than that of another.

 The greater evil should not be brought about by

the negligence or imprudence of the actor.

Third. That there be no other practical and less

harmful means of preventing it.

- Although, as a rule there is no civil liability in

justifying circumstances, it is only in paragraph 4 of
Article 11 where there is civil liability, but the civil
liability is borne by the persons benefited.

 Paragraph 5. – Fulfillment of duty or lawful exercise of right or

office.

- Requisites:

1) That the accused acted in the performance of a

duty or in the lawful exercise of a right or office;

2) That the injury caused or the offense committed

be the necessary consequence of the due
performance of duty or the lawful exercise of such
right or office.

 Shooting an offender who refused to

surrender is justified.

 It is the duty of peace officers to arrest

violators of the law not only when they are
provided with the corresponding warrant of
arrest but also when they are not provided
with said warrant if the violation is
committed in their own presence; and this
duty extends even to cases the purpose of
which is merely to prevent a crime about to
consummate. (U.S. vs. Bertucio, 1Phil. 47)
 41

- Under the lawful exercise of a right, it is not

necessary that there be unlawful aggression against
the person charged with the protection of the
property. If there is unlawful aggression against the
person charged with the protection of the property,
then paragraph 1 of Article 11applies, it being a
defense of right to property.

Doctrine of Self-help under Article 429, applied in

criminal law.

If the property is immovable, there should be no

delay in the use of force to recover it; a delay, even if
excusable, such as when due to the to the ignorance
of the dispossession, will bar the right to the use of
force. Once the usurper’s possession must resort to
the competent authority to recover his property.

 Obedience to an order issued for some lawful purpose.

- Requisites:

1) That an order has been issued by a superior.

2) That such order must be for some lawful
purpose
3) That the means used by the subordinate to carry
out said order is lawful.

- Both the person who gives the order and the person
who executes it, must be acting within the limitations
prescribed by law. (People vs. Wilson and Dolores, 52
Phil. 919)

X----------------------------------------X

Article 12. Circumstances which exempt from criminal

liability. - the following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has

acted during a lucid interval.

When the imbecile or an insane person has committed an

act which the law defines as a felony (delito), the court shall
order his confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall not be
 42

permitted to leave without first obtaining the permission of

the same court.

2. A person under nine years of age.

3. A person over nine years of age and under fifteen, unless

he has acted with discernment, in which case, such minor
shall be proceeded against in accordance with the provisions
of Art. 80 of this Code.

When such minor is adjudged to be criminally irresponsible,

the court, in conformably with the provisions of this and the
preceding paragraph, shall commit him to the care and
custody of his family who shall be charged with his
surveillance and education otherwise, he shall be committed
to the care of some institution or person mentioned in said
Art. 80.

4. Any person who, while performing a lawful act with due

care, causes an injury by mere accident without fault or
intention of causing it.

5. Any person who act under the compulsion of irresistible

force.

6. Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.

7. Any person who fails to perform an act required by law,

when prevented by some lawful insuperable cause.

 Technically, one who acts by virtue of any of the exempting

circumstances commits a crime, although by the complete
absence of any of the conditions which constitute free
will or voluntariness of the act,Mao criminal liability arise.

 Paragraph 1.

- Imbecile and insanity distinguished.

1) Imbecile is exempt in all cases from criminal

liability, the insane is not so exempt if it can be
shown that he acted during a lucid interval.

2) An imbecile within the meaning of Article 12 is one

who is deprived completely of reason or
 43

discernment and freedom of the will at the

time of committing the crime.

- Insanity exists when there is a complete

deprivation of intelligence in committing the act,
that is, the accused is deprived of reason, he acts
without the least discernment, because there is a
complete absence of the power to discern or
that there is a total deprivation of freedom of the
will.

- The burden of proof to show insanity rest of the

defense. The defense must prove that the accused
was insane at the time of the commission of the
crime, because the presumption is always in
favor of sanity.

- To prove insanity, therefore, circumstantial evidence,

if clear and convincing, will suffice.

- When a person was insane at the time of the

commission of the felony, he is exempt from criminal
liability. But, when he was sane at the time of t he
commission of the crime, but he becomes insane at
the time of the trial, he is liable criminally. I’m The
trial however, will be suspended until the mental
capacity of the accused be restored to afford him a
fair trial.

 Paragraph 2.

- Republic Act No. 9344, otherwise known as Juvenile

Justice and Welfare Act of 2006, raised the age of
absolute irresponsibility from nine (9) to fifteen (15)
years of age.

 Paragraph 3.

- Paragraph 3, Article 12 of the RPC is deemed

repealed by the provision of R.A.No. 9344 declaring a
child fifteen years of age or under exempt from
criminal liability.

- Period of criminal responsibility:

1) The age of absolute irresponsibility – 15 years and

below (infancy)
 44

2) The age of conditional responsibility – 15 years

and 1 dat to 18 years.
3) The age of full responsibility – 18 years or over
(adolescence) to 70 (maturity)
4) The age of mitigated responsibility – 15 years and
1 day to 18 years, the offender acting with
discernment, over 70 years of age.

- Child in conflict with the law – is a person who at

the time of the commission of the offense is below
eighteen (18) years old but not less than fifteen (15)
years and one (1) day old.

- Discernment meaning. Means the (mental)

capacity of the child at the time of the commission of
the offense to understand the differences between
right and wrong and the consequences of the
wrongful act. (Kahihitnatnan ng making ginawa)

- Discernment and intent distinguished. Intent refers to

the desired act of the person while discernment
relates to the moral significance that a person
ascribes to the said act.

- How discernment may be shown? It may be shown

by:

1) The manner the crime was committed, or

2) The conduct of the offender after its commission.

- The child in conflict with the law shall enjoy the

presumption of minority and shall enjoy all the rights
of a child in conflict with the law until proven to be
eighteen years old or older at the time of the
commission of the offense.

In case of doubt as to the age of the child, it shall be

resolved in his/her favor.

- The allegation of with intent to kill in the information

is sufficient allegation of discernment. The allegation
clearly conveys the idea that she knew what would
be the consequence of her unlawful act.
 Paragraph 4.

- Elements :
1) A person is performing a lawful act;
 45

2) With due care;

3) He causes an injury to another by mere

accident;

4) Without fault or intention of causing

it.

- If life is taken by misfortune or accident while the

actor is in the performance of a lawful act executed
with due care and without intention of doing harm,
there is no criminal liability.

- An accident is something that happens outside the

sway of our will, and although it comes about through
some act of our will, lies beyond the bounds of
humanly foreseeable consequences.

- The exempting circumstances of Article 12 (4) of the

RPC refers to purely accidental cases where there
was absolutely no intention to commit the wrong
done. It contemplates a situation where a person is in
the act of doing something legal, exercising due care,
diligence and prudence but in the process, produces
harm or injury to someone or something not in the
least in the mind of the actor, an accidental result
flowing out of a legal act.

- Difference between accident and negligence.

Accident, is a fortuitive circumstance, event or

happening; an event happening without any human
agency, or if happening wholly or partly through
human agency, an event which under the
circumstances is unusual or unexpected by the
person to whom it happens.

Negligence, is the failure to observe, for the

protection of the interest of another person, that
degree of care, precaution and vigilance which the
circumstances justly demand without which such
other person suffers injury.

- This is base on lack of negligence and intent. Under

this circumstances, a person does not commit either
an intentional felony or a culpable felony.

 Paragraph 5.
 46

- Elements:

1) That the compulsion is by means of physical

force.

2) That the physical force must be irresistible.

3) That the physical force must come from a third

person.

- Before a force can be considered to be an irresistible

one, it must produce such an effect upon the
individual that, in spite of all resistance, it reduces
him to a mere instrument and as such, incapable of
committing a crime.

- The irresistible force must consist of an extraneous

force coming from a third person.

- Basis. The exempting circumstance is based on the

complete absence of freedom, an element of
voluntariness.

- The force must be irresistible to reduce the actor to a

mere instrument who acts not only win tour will but
against his will.

 Paragraph 6.

- Presupposes that a person is compelled to commit a

crime by another, but the compulsion is by means of
intimidation or threat, not force or violence.

- Elements:

1) That the threat which causes the fear is of an evil

greater than or at least equal to, that which he is
required to commit;

2) That it promises an evil of such gravity and

imminence that the ordinary man would have
succumbed.

- The duress as a valid defense should be based on

real, imminent, or reasonable fear for one’s limb and
should not be speculative, fanciful, or remote fear.
 47

- The compulsion must be of such a character as to

leave no opportunity to the accused for escape or
self-defense in equal combat.

- Absence of proof of actual physical or moral

compulsion to act, is not sufficient to exempt the
accused from criminal liability.

- Irresistible force and uncontrollable fear

distinguished.

In irresistible force, the offender uses violence or

physical force to compel another person to commit a
crime; in uncontrollable fear, the offender employs
intimidation or threat in compelling another to
commit a crime.

- Basis. Complete absence of freedom.

 Paragraph 7.

- Elements:

1) That an act is required by law to be done;

2) That a person fails to perform such act;

3) That his failure to perform such act was due to

some lawful or insuperable cause.

- Basis. The accused acts without intent, the third

condition of voluntariness in intentional felony.

- Distinction between justifying and exempting

circumstances.

A person who acts by virtue of a justifying

circumstance does not transgress the law, that is, he
does not commit any crime in the eyes of the law,
because there is nothing unlawful in the act as well
as in the intention of the actor. The act of such
person is in itself both just and lawful.

In justifying circumstances, there is neither a crime

nor a criminal. No civil liability, except in par. 4.

In exempting circumstances, there is a crime but no

criminal liability. The act is not justified, but the
 48

actor is not criminally liable. There is civil liability,

except in pars. 4 and 7.

Absolutory causes, defined.

- Those where the act committed is a crime but for

reasons of public policy and sentiment there is no
penalty imposed.

- Other absolutory causes:

o Article 6

o Article 20

o Article 124, last paragraph

o Article 247, pars. 1 and 2

o Article 280, par. 3

o Article 332

o Article 344, par. 4

- Instigation is an absolutory cause. Basis, a sound

public policy requires that the courts shall condemn
this practice (instigation) by directing the acquittal
of the accused.

- Entrapment is not an absolutory cause.

The fact that an agent of the law acted as a supposed

confederate of a thief is of no defense to the latter,
provided that the original design was formed by
the thief independently of such agent.

- Entrapment and instigation distinguished.

In the case of instigation, the instigator practically

induces the would-be accused into the
commission of the offense and himself becomes a co-
principal, while in entrapment, ways and means
are resorted to for the purpose of trapping and
capturing the lawbreaker in the execution of his
criminal plan. Entrapment is no bar to the
prosecution and conviction of the lawbreaker. But
 49

when there is instigation, the accused must be

acquitted.

Instigation must be made by public officers or private

detectives. If the one who made the instigation is
private individual, not performing public function,
both he and the one induced are criminally liable for
the crime committed, the former, as principal by
induction and the latter, as principal by direct
participation.

Note:

[ Complete defenses in criminal cases:

1) Any of the essential elements of the crime charged is not proved

by the prosecution and the elements proved do not constitute
any crime.

2) The act a of the accused falls under any of the justifying

circumstances (Art. 11)

3) The act a of the accused falls under any of the exempting

circumstances (Art. 12)

4) The case is covered by any of the absolutory causes.

5) Guilt of the accused not established beyond reasonable doubt.

6) Prescription of crimes.

7) Pardon by the offended party before the institution of criminal

action in crime against chastity. (Art. 344)

X-----------------------------------------------X

Mitigating circumstances.

- Definition.

Are those which, if present in the commission of the

crime, do not entirely free the actor from criminal
liability, but serve to reduce the penalty.

- Basis.
 50

Based on the diminution of either freedom of

action, intelligence, or intent, or on the lesser
perversity of the offender.

- Classes.

1) Ordinary mitigating. – those enumerated in

subsections 1 to 10 of Article 13.

2) Privileged (generic) mitigating. – Articles 68, 69,

and 64.

3) Distinction between the two:

a) Ordinary mitigating is susceptible of being

offset by any aggravating circumstances; while
privileged mitigating cannot be offset by
aggravating circumstances.

b) Ordinary mitigating, if not offset by an

aggravating circumstance, produces only the
effect of applying the penalty provided by law
for the crime in its minimum period, in case of
divisible penalty; whereas, privileged mitigating
produces the effect of imposing upon the
offender the penalty lower by one or two
degrees than that provided by law for the
crime.

- Mitigating circumstances only reduce the penalty, but

do not change the nature of the crime.

CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

Article 13. Mitigating circumstances. - The following are

mitigating circumstances;

1. Those mentioned in the preceding chapter, when all the

requisites necessary to justify or to exempt from criminal
liability in the respective cases are not attendant.

2. That the offender is under eighteen year of age or over

seventy years. In the case of the minor, he shall be
proceeded against in accordance with the provisions of Art.
80.
 51

3. That the offender had no intention to commit so grave a

wrong as that committed.

4. That sufficient provocation or threat on the part of the

offended party immediately preceded the act.

5. That the act was committed in the immediate vindication

of a grave offense to the one committing the felony (delito),
his spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relatives by affinity within
the same degrees.

6. That of having acted upon an impulse so powerful as

naturally to have produced passion or obfuscation.

7. That the offender had voluntarily surrendered himself to a

person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation
of the evidence for the prosecution;

8. That the offender is deaf and dumb, blind or otherwise

suffering some physical defect which thus restricts his
means of action, defense, or communications with his fellow
beings.

9. Such illness of the offender as would diminish the

exercise of the will-power of the offender without however
depriving him of the consciousness of his acts.

10. And, finally, any other circumstances of a similar nature

and analogous to those above mentioned.

 Paragraph 1.

- “ Those mentioned in the preceding chapter” this

clause has reference to : (1) justifying circumstances,
and (2) exempting circumstances which are covered
by Chapter Two of Title One.

- The circumstances of justification or exemption which

may give place to mitigation, because not all the
requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are
attendant, are the following:
 52

1) Self-defense (Art. 11, par. 1)

2) Defense of relatives ( Art. 11, par.2)
3) Defense of stranger (Art. 11, par. 3)
4) State of necessity (Art. 11, par. 4)
5) Performance of duty (Art. 11, par. 5)
6) Obedience to order of superior (( Art. 11, par. 6)
7) Minority above 15 but below 18 years of age
(R.A.No. 9344)
8) Causing injury by mere accident ( Art. 12, par. 4)
9) Uncontrollable fear (Art. 12, par. 6)

- All the requisites of justifying circumstance

are not attendant:

Note: In the three classes of self-defense (self-

defense, defense of relatives, and defense of
stranger), unlawful aggression must be present,
it being an indispensable requisite. What is absent is
either one or both of the last two requisites.

When applicable. Article 13, paragraph 1, applies

only when unlawful aggression is present, but
the other two requisites are not present.

When two of the three requisites mentioned are

present, the case must not be considered as one in
which an ordinary or generic mitigating circumstance
is present. Instead, it should he considered a
privileged mitigating circumstance referred to
in Article 69 of the RPC. Reason: Because the
majority of the conditions required to justify the
act is present.

Note: If there is no unlawful aggression, there could

be no self-defense or defense of a relative,
whether complete or incomplete.

- All the requisites of exempting circumstance

are not attendant:

 Paragraph 2.

- Paragraph 2, Article 13 of the RPC providing that

offender under eighteen years of age is entitled to a
mitigating circumstance of minority is deemed
repealed by the provision of R.A.No. 9344 declaring a
child above fifteen (15) years but below eighteen
years (18) of age shall be exempt from criminal
 53

liability unless he/she has acted with discernment

(Sec. 6, R.A.No. 9344).

- See R.A.No. 9344

- Article 68 of the RPC providing for privileged

mitigating circumstances, does not include the case
of offenders over 70 years old.

- Basis. Based on the diminution of intelligence, a

condition of voluntariness.

 Paragraph 3.

- This circumstance can be taken into account only

when the facts proven show that there is a notable
and evident disproportion between the means
employed to execute the criminal act and its
consequences.

- Example : H who was quarreling with W punched her

in the abdomen, causing the rupture of her
hypertrophied spleen, from which she died. Is H
entitled to mitigating circumstance? Yes, because no
intention to commit so grave a wrong as that
committed.

- The weapon used, the part of the body injured, the

injury inflicted, and the manner it is inflicted may
show that the accused intended the wrong
committed. ( The mitigating circumstance of lack of
intent to commit so grave a wrong as the one
actually committed, cannot favorably be considered.)

- When not applicable? This paragraph is not

applicable when the offender employed brute force.
Because it contradicts the claim that he had no
intention to kill the victim.

- It is the intention of the offender at the moment

when he is committing the crime which is
considered.

- NOTE : Lack of intention to commit so grave a wrong

is not appreciated where the offense committed is
characterized by treachery.
 54

- In crimes against persons who do not die as a result

of the assault, the absence of the intent to kill
reduces the felony to mere physical injuries, but it
does not constitute a mitigating circumstance under
Article 13, par. 3.

- In felonies through negligence , the offender acts

without intent. The intent in intentional felonies is
replaced by negligence, imprudence, lack of
foresight or lack of skill in culpable felonies. Hence, in
felonies through negligence, there is no intent on the
part of the offender which may be considered as
diminished.

- Basis. Intent, an element of voluntariness in

intentional felonies is diminished.

 Paragraph 4.

- What is provocation. Provocation is any unjust or

improper conduct or act of the offended party,
capable of exciting, inciting, or irritating any one.

- Requisites:

1) That the provocation must be sufficient;

o The word sufficient means adequate to excite a

person to commit the wrong and must
accordingly be proportionate to its gravity.

2) That it must originate from the

offended party; and

o Where the alleged provocation did not come from

the deceased, but from another, the same may
not be appreciated in favor of the accused.

o Sufficient provocation as a requisite of incomplete

self-defense is different from sufficient provocation
as a mitigating circumstance. As an element of
self-defense, it pertains to its absence on the part
of the person defending himself, while as a
mitigating circumstance, it pertains to its presence
on the part of the offended party.
 55

3) That the provocation must be

immediate to the act,i.e., to the
commission of the crime by the person
who is provoked. (Mabilis na Sundan)

o Between the provocation by the offended party

and the commission of the crime by the person
provoked, there should not be any interval time.

The reason for this requirement is that the law

states that the provocation immediately preceded
the act. When there is an interval of time between
the provocation and the commission of the crime,
the conduct of the offended party could not have
excited the accused to the commission of the
crime, he having had time to regain his
reason and to exercise self-control.

An interval of time between the grave offense

and the commission of the crime is allowed.

o Threats immediately preceded the act should not

be offensive and positively strong, because, if it is,
the threat to inflict real injury is an unlawful
aggression which may give rise to self-defense.

o Basis. Diminution of intelligence and intent.

 Paragraph 5.

- Requisites:

1) That there be a grave offense (Mabigat na

kasalanan) done to the one committing the
felony, his spouse, ascendants, descendants,
legitimate,natural or adopted brothers or
sisters, or relative by affinity within the same
degrees;

2) That the felony is committed in vindication of

such grave offense. A lapse of time is allowed
between the vindication and the doing of the
grave offense.

- Provocation and vindication distinguished.

First. In the case of provocation, it is made directly

only to the person committing the felony; in
 56

vindication, the grave offense may be committed also

against the offender’s relatives mentioned by the law.

Second. In vindication, the offended party must have

done a grave offense to the offender or his relatives
mentioned by the law; in provocation, the cause that
brought about the provocation need not be grave
offense.

Third. In provocation, it is necessary that the

provocation or threat immediately preceded the act,
i.e., that there be no interval of time between the
provocation and the commission of the crime; while
in vindication, the vindication of the grave offense
may be proximate, which admits of an interval of
time between the grave offense done by the
offended party and the commission of the crime by
the accused.

Reason for the difference. This greater leniency in

the case of vindication is due undoubtedly to the fact
that it concerns the honor of a person, an offense
which is more worthy of consideration than mere
spite against the one giving the provocation or
threat.

- Both mitigating circumstances cannot co-exist.

- The provocation should be proportionate to the

damage caused by the act and adequate to stir one
to its commission.

- Basis. Diminution of the condition of voluntariness.

- Vindication of a grave offense and passion or

obfuscation cannot be counted separately and
independently.

 Paragraph 6.

- Requirements:

1) The accused acted upon an impulse.

2) The impulse must be so powerful that it naturally

produced passion or obfuscation in him.
 57

- Passion or obfuscation may constitute a mitigating

circumstance only when the arose from lawful
sentiments or legitimate feelings.

- Even if there is actually passion or obfuscation on the

part of the offender, there is no mitigating
circumstance, when:

1) The act is committed in a spirit of lawlessness

(example when the accused rape a woman); or

2) The act is committed in a spirit of revenge.

- Requisites:

1) That there be an act, both unlawful and

sufficient to produce such a condition of mind;
and

2) That said act which produced the obfuscation was

not far removed from the commission of the crime
by a considerable length of time, during which the
perpetrator might recover his normal equanimity.

- There could have been no mitigating circumstance of

passion or obfuscation when more than 24 hours
elapsed between the alleged insult and the
commission of the felony, or if several hours passed
between the cause of passion or obfuscation and the
commission of the crime, or where at least half an
hour intervened between the previous fight and
subsequent killing of the deceased by the accused.
Reason. The act producing the obfuscation must not
be far removed from the commission of the crime by
a considerable length of time, during which the
accused might have recovered his normal equanimity
(calmness or cool off)

- Passion or obfuscation must originate from lawful

sentiments.

- The mitigating circumstance of obfuscation arising

from jealousy cannot be invoked in favor of the
accused whose relationship with the woman was
illegitimate.

- The cause producing passion or obfuscation must

come from the offended party.
 58

- Passion or obfuscation may lawfully arise from causes

existing only in the honest belief of the offender.

- Basis. Diminution of his intelligence and intent.

- Provocation and obfuscation arising from one and the

same cause should be treated as only one mitigating
circumstance.

- Passion or obfuscation cannot co-exist with treachery,

for while in the mitigating circumstance of passion or
obfuscating the offender loses his reason and self-
control, in the aggravating circumstance of
treachery , the mode of attack must be consciously
adopted. One who loses his reason and self-control
cannot deliberately employ a particular means,
method or form of attack in the execution of a crime.

 Paragraph 7

- Two mitigating circumstances are provided in this

paragraph:

1) Voluntary surrender to a person in authority or his

agents

2) Voluntary confession of guilt before the court prior

to the presentation of evidence for the
prosecution.

- Requisites of VOLUNTARY SURRENDER: NAV

1) That the offender had not been actually

arrested;

2) That the offender surrendered himself to a

person in authority or to the latter’s agent;
and

3) That the surrender was voluntary.

o For voluntary surrender to

appreciated, the same must be
spontaneous in such a manner that
it shows the interest of the accused
to surrender unconditionally to the
authorities, either because he
 59

acknowledge his guilt or because

he wishes to save them in trouble
and expenses necessarily incurred in
his search and capture.

o The word spontaneous emphasizes the

idea of an inner impulse, acting
external stimulus. The conduct of the
accused, not his intention alone, after
the commission of the offense,
determines the spontaneity of the
surrender.

o The accused must be actually

surrender his own person to the
authorities, admitting complicity in
the crime.

- The fact that the order of arrest had already been

issued is no bar to the consideration of the
circumstance because the law does not require that
the surrender be prior to the order of arrest.

- The mere filing of an information and/or the issuance

of a warrant of arrest will not automatically make the
surrender involuntary.

- The Revised Penal Code does not make any

distinction among the various moments when the
surrender may occur.

- The surrender must be by reason of the commission

of the crime for which defendant is prosecuted.

- A surrender is not voluntary when forced by

circumstances.

- Requisites of PLEA OF GUILTY : SOP

1) That the offender spontaneously confessed his

guilt;

2) That the confession of guilt was made in open

court, that is, before the competent court that
is to try the case;

3) That the confession of guilt was made prior to the

presentation of evidence for the prosecution.
 60

- The plea of guilty must be made at the first

opportunity.
Trial de novo implies the existence of a previous trial
where evidence was presented by the prosecution.

- Plea of not guilty at the preliminary investigation is

no plea at all.

- It is not necessary that all the evidence of the

prosecution have been presented. Even if the first
witness presented by the prosecution had not
finished testifying during the direct examination
when the accused withdrew his former plea of not
guilty and substituted it with the plea of guilty, the
plea of guilty is not mitigating.

- Plea of guilty to a lesser offense is not a mitigating

circumstance, because to be voluntary, the plea of
guilty must be to the offense charged.

- The plea of guilty to the lesser offense charged in the

amended information is mitigating.

- A pea of guilty carries with it not only the admission

of authorship of the crime proper but also of the
aggravating circumstances attending it, that increase
punishment.

- Guidelines in the conduct of a searching inquiry see

People vs. Gumimba, G.R.No. 174056, February 27,
2007)

- Reasons why plea of guilty is mitigating. It is an act

of repentance and respect for the law. It indicates a
moral disposition in the accused, favorable to his
reform.

- Basis. Lesser perversity of the offender.

- Plea of guilty is not mitigating in culpable felonies

and in crimes punished by special laws.

 Paragraph 8

- Physical defect referred to in this paragraph is such

as being armless, cripple, or a stutterer, whereby his
 61

means to act, defend himself or communicate with

his fellow beings are limited.

- Basis. No freedom of action and therefore, there is a

diminution of that element of voluntariness.

 Paragraph 9

- Requisites:

1) That the illness of the offender must diminish the

exercise of his will-power. Ex.: Dementia praecox
or by manic depressive psychosis.

2) That such illness should not deprived the offender

of consciousness of his acts.

- It is said that the legal provision refers only to

diseases of pathological state ( feelings which they
cannot control ) that trouble the conscience or will.
(Albert)

- Schizor-affective disorder or psychosis, illness which

dimishes the exercise of his will-power but without
depriving him of the consciousness of his act.

- Basis. Diminution of intelligence and intent.

 Paragraph 10

- This paragraph authorizes the court to consider in

favor of the accused any other circumstance of a
similar nature and analogous to those mentioned
paragraphs 1 to 9 Article 13.

- It bears stressing that the full restitution of the

amount malversed will not in any way exonerate an
accused, as payment is not one of the elements of
extinction of criminal liability.

- Mitigating circumstances which arise (1) from the

moral attributes of the offender, or (2) from his
private relations with the offended party, or (3) from
any other personal cause, shall only serve to
mitigate the liability of the principals, accomplice,
and accessories as to whom such circumstances are
attendant.
 62

- Circumstances which are neither exempting nor

mitigating:

1) Mistake in the blow or aberratio ictus, for under

Article 48, there is a complex crime committed.
The penalty is even higher.

2) Mistake in the identity of the victim, for under

Article 4, par. 1, the accused is criminally liable
even if the wrong done is different from that which
is intended.

3) Entrapment of the accused.

4) The accused is over 18 years of age. If the

offender is over 18 years old, his age is neither
exempting nor mitigating.

5) Performance of righteous action.

X------------------------------------------------X

CIRCUMSTANCES WHICH AGGRAVATE

CRIMINAL LIABILITY

Aggravating circumstances

- Are those which, if attendant in the commission of

the crime, serve to increase the penalty without,
however, exceeding the maximum of the penalty
provided by law for the offense.

- They are based on the greater perversity of the

offender manifested in the commission of the felony
as shown by (1) the motivating power itself; (2) the
place of commission; (3) the means and ways
employed; (4) the time, or, (5) the personal
circumstances of the offender, or of the offended
party.
 63

- Four kinds of aggravating circumstances:

1. Generic – Those that can generally apply to all

crimes.

Example Article 14, paragraphs nos.

1,2,3,4,5,6,9,10,14,18,19 and 20, except by
means of motor vehicles.

2. Specific – Those that apply only to particular

crimes.

Example Article 14, paragraphs no. 3 (except

dwelling), 15,16,17 and 21.

3. Qualifying – Those that change the nature of the

crime.

Example Article 248 enumerates the qualifying

aggravating circumstances which qualify the
killing of person to murder.

4. Inherent – Those that must of necessity

accompany the commission of the crime.

Example evident premeditation is inherent in

robbery, theft, estafa, adultery and concubinage.

- Qualifying aggravating circumstance distinguished

from generic aggravating circumstance:

1) The effect of a generic aggravating circumstance,

not offset by any mitigating circumstance, is to
increase the penalty which should be imposed
upon the accused to the maximum period, but
without exceeding the limit prescribed by law;
while that of a qualifying circumstance is not only
to give the crime its proper and exclusive name
but also to place the author thereof in such a
situation as to deserve no other penalty than that
specially prescribed by law for the said crime. (
People vs. Bayot, 64 Phil. 269,273)

2) A qualifying aggravating circumstance cannot be

offset by a mitigating circumstance; a generic
aggravating circumstance may be compensated
by a mitigating circumstance.
 64

3) A qualifying aggravating circumstance to be such

must be alleged in the information (because it is
an integral part of the offense) If it's not
alleged, it is a generic aggravating circumstance
only.

- Aggravating circumstance should be proved as duly

as the crime itself in order to increase the penalty.

Article 14. Aggravating circumstances. - The following

are aggravating circumstances:

1. That advantage be taken by the offender of his public

position.

2. That the crime be committed in contempt or with

insult to the public authorities.

3. That the act be committed with insult or in disregard

of the respect due the offended party on account of his
rank, age, or sex, or that is be committed in the
dwelling of the offended party, if the latter has not
given provocation.

4. That the act be committed with abuse of confidence

or obvious ungratefulness.

5. That the crime be committed in the palace of the

Chief Executive or in his presence, or where public
authorities are engaged in the discharge of their duties,
or in a place dedicated to religious worship.

6. That the crime be committed in the night time, or in

an uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the
offense.

Whenever more than three armed malefactors shall

have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.
 65

7. That the crime be committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic or other
calamity or misfortune.

8. That the crime be committed with the aid of armed

men or persons who insure or afford impunity.

9. That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one

crime, shall have been previously convicted by final
judgment of another crime embraced in the same title
of this Code.

10. That the offender has been previously punished by

an offense to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a
lighter penalty.

11. That the crime be committed in consideration of a

price, reward, or promise.

12. That the crime be committed by means of

inundation, fire, poison, explosion, stranding of a vessel
or international damage thereto, derailment of a
locomotive, or by the use of any other artifice involving
great waste and ruin.

13. That the act be committed with evidence

premeditation.

14. That the craft, fraud or disguise be employed.

15. That advantage be taken of superior strength, or

means be employed to weaken the defense.

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of

the crimes against the person, employing means,
methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without
 66

risk to himself arising from the defense which the

offended party might make.

17. That means be employed or circumstances brought

about which add ignominy to the natural effects of the
act.

18. That the crime be committed after an unlawful

entry.

There is an unlawful entry when an entrance of a crime

a wall, roof, floor, door, or window be broken.

20. That the crime be committed with the aid of persons

under fifteen years of age or by means of motor
vehicles, motorized watercraft, airships, or other similar
means. (As amended by RA 5438).

21. That the wrong done in the commission of the crime

be deliberately augmented by causing other wrong not
necessary for its commissions.

 Paragraph 1

- Applies only when the person committing the crime is

a public officer who takes advantage of his public
position.

- Meaning of “ advantage be taken by the offender of

his public position” I.P.A

o The public officer must use the influence,

prestige or ascendancy which his office gives
him as the means by which he realizes his
purpose.

- When not applicable:

o When the public officer did not take advantage

of the influence of his position.

o When a public officer commits a common

crime independent of his official functions and
does acts that are not connected with the
 67

duties of his office, he should be punished as a

private individual without this aggravating
circumstance.

- There must be proof that the accused took

advantage of his public position.
- Failure in official duties is tantamount to abusing of
office.

- This circumstance, taking advantage of public

position, cannot be taken into consideration in
offenses where taking advantage of official-
position is made by law an integral element of the
crime, such as in malversation under Article 217, or
in falsification of document committed by public
officers under Article 171.

- Not aggravating if the accused could have

perpetrated the crime even without occupying his
position.

 Paragraph 2

- This is based on the greater perversity of the

offender, as shown by his lack of respect for the
public position.

- Requisites:

1) That the public authority is engaged in the

exercise of his functions.

2) That he who is thus engaged in the exercise of

said functions is not the person against whom
the crime is committed.

3) The offender knows him to be a public authority.

4) His presence has not prevented the offender

from committing the criminal act.

- Public authority – sometimes called a person in

authority, is a public officer who is directly vested
with jurisdiction, that is, a public officer who has the
power to govern and execute the laws.

- When not applicable:

 68

Not applicable when the crime is committed in the

presence of an agent only.

- If the crime is committed against a public authority

while he is in the performance of his official duty, the
offender commits direct assault without this
aggravating circumstance, because it is not a crime
committed in contempt of or with insult to him,
but a crime directly committed against him.

- Lack of knowledge on the part of the offender that a

public authority is present indicates lack of
intention to insult the public authority.

- An offense may be said to have been committed in

contempt of a public authority when in his presence,
made known to the offender, has not prevented
the latter from committing the criminal act.

 Paragraph 3

- If all the four circumstance are present, they have the

weight of one aggravating circumstances only.

- These circumstances are based on the greater

perversity of the offender, as shown by the personal
circumstances of the offended party and the place
of the commission of the crime

- Where applicable (P.H)

This circumstance (rank, age or sex) may be taken

into account only in crimes against persons or
honor. It is not proper to consider this aggravating
circumstance in crimes against property.

- There must be evidence that in the commission of

the crime, the accused deliberately intended to
offend or insult the sex or age of the offended party.

- Insult or in disregard of the respect due the offended

party on account :

a) of the rank of the offended party.

o Meaning. Rank refers

 69

- to a high social position or standing as a

grade in the armed forces; or

- to a graded official standing or social

position or station; or

- to the order or place in which said officers

are placed in the army and navy in relation
to others; or

- to the designation or title of distinction

conferred upon an officer in order to fix his
relative position in reference to the other
officers in matters of privileges, precedence,
and sometimes of command or by which to
determine his pay and emoluments as in the
case of army staff officers; or

- to a grade or official standing, relative

position in civil or social life, or in any scale
of comparison, status, grade, including its
grade, status or scale of comparison within a
position.

o Proof of fact of disregard and deliberate

intent to insult require.

b) of the age of the offended party.

o The circumstance of lack of respect due to

age applies in cases where the victim is of
tender age as well as old age.

o Deliberate intent to offend or insult required.

c) of the sex of the offended party.

o This refers to the female sex, not to the

male sex.

o Killing a woman is not attended by this

aggravating circumstance if the offender did
not manifest any specific insult or disrespect
towards her sex.

- The aggravating circumstances is not to be

considered in the following cases:
 70

1) When the offender acted with passion or

obfuscation

2) When there exists a relationship between the

offended party and the offender

3) When the condition of being a woman is

indispensable in the commission of the crime.
Parricide, rape, abduction, seduction, sex is not
aggravating.

- That the crime be committed in the dwelling of the

offended party.

o Dwelling must be a building or structure,

exclusively used for rest and comfort.

o This is based on the greater perversity of the

offender, as shown by the place of the
commission of the offense.

o Dwelling is considered an aggravating

circumstance primarily because of the
sanctity of privacy the law accords to human
abode.

o What aggravates the commission of the crime

in one’s dwelling:

1) The abuse of confidence which the offended

party reposed in the offender by opening the
door to him; or
2) The violation of the sanctity of the home by
trespassing therein with violence or against
the will of the owner.

- Offended party must not give provocation.

o When it is the offended party who has provoked

the incident, he loses his right to the
respect and consideration due him in his
own house.

o The provocation must be:

(1)Given by the owner of the dwelling,

(2)Sufficient, and
 71

(3)Immediate to the commission of the crime.

o That the offended party has not given

provocation in his house is a fact that must be
shown by the evidence of the prosecution, as it
cannot be assumed. It is an essential
element of the aggravating circumstance of
dwelling.

o For this circumstance to be considered, it is not

necessary that the accused should have
actually entered the dwelling of the victim to
commit the offense; it is enough that the
victim was attacked inside his own house,
although the assailant may have devised
means to perpetrate the assault from without.

- The Code speaks of dwelling, not domicile.

- The aggravating circumstance of dwelling is present

when the husband killed his estranged wife in the
house occupied by her, other than the conjugal
home.

 Paragraph 4

- They are based on the greater perversity of the

offender, as shown by the means and ways
employed.

- Two aggravating circumstances in this paragraph.

- This circumstance exists only when the offended

party has trusted the offender who later abuses
such trust by committing the crime. The abuse of
confidence must be a means of facilitating the
commission of the crime, the culprit taking
advantage of the offended party’s belief that the
former would not abuse said confidence.

- Requisites:

1) That the offended party had trusted the

offender.

2) That the offender abused such trust by

committing a crime against the offended party.
 72

3) That the abuse of confidence facilitated the

commission of the crime.

- Betrayal of confidence is not aggravating. It must

be an abuse of confidence that facilitated the
commission of the crime which is aggravating.

- The confidence between the offender and the

offended party must be immediate and personal.

- Abuse of confidence is inherent in malversation (Art.

217), qualified theft (Art. 310) , estafa by conversion
or misappropriation (Art. 315), and qualified
seduction (Art,m337)

- Ungratefulness must be obvious, meaning it must

be manifest and clear.

 Paragraph 5

- They are based on the greater perversity of the

offender, shown by the place of the commission of
the crime, which must be respected.

- Place where public authorities are engaged in the

discharge of their duties distinguished from contempt
or insult to public authorities:

1. In both, the public authorities are in the

performance of their duties.

2. Under par. 5, the public authorities who are in the

performance of their duties must be in their
office; while in par. 2, the public authorities are
performing their duties outside of their office.

3. Under par. 2, the public authority should not be

the offended party; while under par. 5, he may be
the offended party. (U.S. vs. Baluyot, 40 Phil.
385,395)

- The Chief executive need not be in Malacanang

palace. His presence alone in any place where the
crime is committed is enough to constitute the
aggravating circumstance. This aggravating
circumstance is present even if he is not engaged in
 73

the discharge of his duties in the place where the

crime is committed.

- But as regards the place where the public authorities

are engaged in the discharge of their duties, there
must be some performance of public functions.

- Offender must have intention to commit a crime

when he entered the place.

 Paragraph 6

- They are based on the time and place of the

commission of the crime and means and ways
employed.

- Circumstances can be considered separately. See

People vs. Cunanan, 110 Phil. 313, 318

- Nighttime, uninhabited place or band (NUB) is

aggravating : (F.ES.TA))
-

1) When it facilitated the commission of the crime;

or

2) When especially sought for by the offender to

insure the commission of the crime or for the
purpose of impunity. Example, where the accused
waited for the night before committing robbery
with homicide,nighttime is especially sought for.

For the purpose of impunity, means to prevent his

(accused’s) being recognized, or to secure himself
against detection and punishment.

3) When the offender took advantage thereof for

the purpose of impunity.

- To take advantage of a fact or circumstance in

committing a crime clearly implies an intention to
do so, and one does not avail oneself of the darkness
unless one intended to do so.

- Nocturnity, even though not specifically sought, if it

facilitated the commission of the crime and the
accused took advantage thereof to commit it, may be
 74

considered as an aggravating circumstance. (People

vs. Lungbos, No. L-57293, June 21, 1988)

- (a) Nighttime.

o That period of darkness beginning at end of

dusk and ending at dawn. Nights are from
sunset to sunrise.

o Nighttime by and of itself is not an aggravating

circumstance. To be aggravating, the
prosecution must show that the accused
purposely sought to commit the crime at
nighttime in order to facilitate the achievement
of his objectives, prevent discovery or evade
capture.

o Not aggravating when crime began at

daytime.

o The offense must be actually committed in the

darkness of the night.

- (b) Uninhabited place.

o Is one where there are no houses at all, a place

at a considerable distance from town, or where
the houses are scattered at a great distance
from each other.

o When cannot be considered? When the place

where the crime was committed could be seen
and the voice of the deceased could be heard
from a nearby house.

o To determine whether the crime is attended by

this aggravating circumstance should be
determined whether or not in the place of the
commission of the offense there was a
reasonable possibility of the victim receiving
some help.

o It is the nature of the place which is decisive.

o Where the victims are the occupants of the

only house in the place, the crime is committed
in an uninhabited place.
 75

o It must appear that the accused sought the

solitude of the place where the crime was
committed, in order to better attain his
purpose.

o The offender must choose the place as an aid

either : (1) to an easy and uninterrupted
accomplishment of their criminal designs, or (2)
to insure concealment of the offense, that he
might thereby be better secured against
detection and punishment.

- ( c ) By a band.

o Meaning. Whenever more than three armed

malefactors shall have acted together in the
commission of an offense, it shall be deemed to
have been committed by a band.

o If one of the four armed persons is a principal

by inducement, they do not form a band.
Because , principal by inducement connotes
that he has no direct participation in the
perpetration thereof.

o By a band is aggravating in crimes against:

a. Persons
b. Property
c. Illegal detention
d. Treason

o In the crime of brigandage, which is committed

by more than three armed persons forming a
band of robbers (Art.306), the circumstance
that the crime was committed by a band should
not be considered as aggravating, because it is
inherent in or is necessarily included in
defining the crime.

 Paragraph 7

- The basis of this aggravating circumstance has

reference to the time of the commission of the crime.

- Reason for the aggravation:

o Is found in the based form of criminality met in

one who, in the midst of a great calamity,
 76

instead of lending aid to the afflicted, adds to

their suffering by taking advantage of their
misfortune to despoil them.

o The offender must take advantage of the

calamity or misfortune.

o “or other calamity or misfortune” refers to

other conditions of distress similar to those
precedingly enumerated.

 Paragraph 8

- It is based on the means and ways of committing the

crime.

- Requisites :

1) That armed men or persons took part in the

commission of the crime, directly or indirectly.

2) That the accused availed himself of their aid or

relied upon them when the crime was committed.

- The casual presence of armed men near the place

where the crime was committed does not
constitute an aggravating circumstance when it
appears that the accused did not avail himself of
their aid or rely upon them to commit the crime.

- Exceptions :

(1)This aggravating circumstance shall not be

considered when both the attacking party and the
party attacked were equally armed.

(2)This aggravating circumstance is not present

when the accused as well as those who
cooperated with him in the commission of the
crime acted under the same plan and for the
same purpose.

- Actual aid is not necessary

- Note: If there are four armed men, aid of armed men

is absorbed in employment of a band. If there are
three armed men or less, aid of armed men may be
the aggravating circumstance.
 77

 Paragraph 9

- This is based on the greater perversity of the

offender, as shown by his inclination to crimes.

- Who is a recidivist?

o A recidivist is one who, at the time of his trial

for one crime, shall have been previously
convicted by final judgment of another
crime embraced in the same title of the RPC.

- Requisites :

1. That the offender is on trial for an offense;

o What is controlling is the time of trial.

o “at the time of his trial for one crime” is meant

to include everything that is done in the course
of the trial, from arraignment until after
sentence is announced by the judge in open
court.

2. That he was previously convicted by final

judgment of another crime;

o Section 7 of Rule 120 of the Revised Rules of

Criminal Procedure provides that except
where the death penalty is imposed, a
judgment in a criminal case becomes final :
(1) after the lapse of the period for
perfecting an appeal, or (2)when the
sentence has been partially or totally
satisfied or served, or (3) the accused has
waived in writing his right to appeal, or (4)
the accused has applied for probation.

3. That both the first and the second offenses are

embraced in the same title of the Code;

o When one offense is punishable by an

ordinance or special law and the other by
the RPC, the two offenses are not embraced
in the same title of the code.
 78

o Example : Robbery and theft are embraced

in Title Ten, referring to crimes against
property.

o Recidivism must be taken into account as an

aggravating circumstance no matter how
many years have intervened between
the first and second felonies.

o Pardon for a preceding offense does not

obliterate the fact that the accused is a
recidivist upon his conviction of a second
offense embraced in the same title of the
RPC. But amnesty extinguishes the penalty
and its effects (Art. 89)

4. That the offender is convicted of the new offense.

 Paragraph10

- The basis is the same as that of recidivism, i.e., the

greater perversity of the offender as shown by his
inclination to crimes.

- Requisites :

1. That the accused is on trial for an offense;

2. That he previously served sentence for another

offense to which the law attaches an equal or
greater penalty, or for two or more crimes to
which it attaches lighter penalty than that for the
new offense; and

3. That the is convicted of the new offense.

- In reiteracion or habituality, it is essential that the

offender be previously punished, that is, he has
served sentence, for an offense in which the law
attaches, or provides for an equal or greater penalty
than that attached by law to the second offense, or
for two or more offenses, in which the law attaches a
lighter penalty.

- “punished for an offense to which the law attaches

an equal penalty” Example : Forcible abduction
punishable by reclusion temporal and Homicide
punishable also by reclusion temporal.
 79

- “ punished for an offense to which the law attaches

greater penalty” Example : The accused once served
sentence for homicide punishable by a penalty
ranging from 12 years and 1 day to 20 years. Now he
is convicted of falsification punishable by a penalty
ranging from 6 years and 1 day to 12 years. In this
case there is reiteracion, because the penalty for
homicide for which he served sentence is greater
than that for the new offense.

- It is the penalty attached to the offense, not the

penalty actually imposed.

- Recidivism and reiteracion, distinguished.

(a) In reiteracion, it is necessary that the offender

shall have served out his sentence for the first
offense; whereas, in recidivism, it is enough that a
final judgment has been rendered in the first
offense.

(b)In reiteracion, the previous and subsequent

offenses must not be embraced in the same title
of the Code; whereas, recidivism, requires that the
offenses be included in the same title of the Code.

(c) Reiteracion, is not always an aggravating

circumstance; whereas, recidivism is always to be
taken into consideration in fixing the penalty to be
imposed upon the accused.

- The four forms of repetition are : RRMQ

1. Recidivism (par. 9, Article 14) generic aggravating

circumstance

2. Reiteracion or habituality (par. 10, Article 14)

generic aggravating circumstance

3. Muti-recidivism or habitual delinquency (Article

62, par. 5) extraordinary aggravating
circumstance

4. Quasi-recidivism (Article 160) special aggravating

- Habitual delinquency definition see Article 62, last

par.
- Quasi-recidivism definition see Article 160.
 80

 Paragraph 11

- This is based on the greater perversity of the

offender, as shown by the motivating power itself.

- When this aggravating circumstance is present, there

must be two or more principals, the one who
gives or offers the price or promise and the one
who accepts it, both of whom are principals – to the
former, because he directly induces the latter to
commit the crime, and the latter because he
commit it.

- It affects equally the offer or and the acceptor.

- If the price, reward or promise is alleged in the

information as a qualifying circumstance, it shall be
considered against all the accused, it being the
element of the crime of murder.

- Price, reward or promise must be for the purpose of

inducing another to perform the deed.

 Paragraph 12

- Unless used by the offender as a means to

accomplish a criminal purpose, any of the
circumstances in par. 12 cannot be considered to
increase the penalty or to change the nature of the
offense.

- When another aggravating circumstance already

qualifies the crime, any of these (meaning those
enumerated under this par.) aggravating
circumstance shall be considered as generic
aggravating circumstance only. When cannot be
considered as generic aggravating circumstance? If
these circumstances were purposely adopted as a
means to commit a crime.

- No intent to kill in burning the house, the crime is

plain Arson, the crime of homicide being absorbed. If
the offender had the intent to kill, the crime is
murder, qualified by the circumstance that the crime
was committed by means of fire, meaning the use of
fire was purposely adopted.
 81

- It will be noted that each of the circumstance of fire,

explosion, and derailment ( nadiskaril ) of a
locomotive may be a part of the definition of
particular crime, such as arson (Art.320), crime
involving destruction (Art. 324), and damages and
obstruction to means of communication (Art. 330). In
these cases, they do not serve to increase the
penalty, because they are already included by the
law in defining the crimes.

 Paragraph 13

- The basis has reference to the ways of committing

the crime, because evident premeditation implies
deliberate planning of the act before executing
it.

- Essence: The essence of premeditation is that the

execution of the criminal act must be preceded by
cool thought and reflection upon the resolution to
carry out the criminal intent during the space of time
sufficient to arrive at a calm judgment.

- Evident premeditation may not be appreciated

absent any proof as to how and when the plan to
kill was hatched or what time elapsed before it was
carried out.

- The premeditation must be evident and not merely

suspected.

- Requisite: T.A.S

1) The time when the offender determined to

commit the crime;

2) An act manifestly indicating that the culprit has

clung to his determination; and

3) A sufficient lapse of time between the

determination and execution, to allow him to
reflect upon the consequences of his act and to
allow his conscience to overcome the resolution of
his will.

- The date and, if possible, the time when the offender

determined to commit the crimes is essential,
 82

because the lapse of time for the purpose of the third

requisite is computed from the date and time.

- The premeditation must be based upon external

acts and not presumed from mere lapse of time.

- Mere threat without the second element does not

show evident premeditation.

- Qualifying circumstance of premeditation is

satisfactorily established only if it is proved that the
defendant had deliberately planned to commit the
crime, and had persistently and continuously
followed it, notwithstanding that he had ample time
to allow his conscience to overcome the
determination of his will, if he had so desired, after
meditation and reflection.

- Existing of ill-feeling or grudge or resentment alone is

not proof of evident premeditation.

- What is sufficient lapse of time? It means that

the accused had time to meditate upon the
crime which he intended to commit, and was
not prompted by the impulse of the moment.

- Sufficient time is required in order for the offender to

have the opportunity to Cooley and serenely think
and deliberate on the meaning and the
consequences of what he planned to do, an interval
long enough for his conscience and better judgment
to overcome his evil desire and scheme.

- Mere determination to commit the crime does not of

itself establish evident premeditation for it must
appear, not only the accused made a decision to
commit the crime prior to the moment of execution,
but also that his decision was the result of
meditation, calculation or reflection or
persistent attempt.

- Premeditation is absorbed by reward or promise.

Applicable only to inductor.

- When evident premeditation is not aggravating

circumstance? When the person whom the defendant
proposed to kill was differs from the one who became
his victim.
 83

 Paragraph 14

- This circumstance is characterized by the

intellectual or mental rather than the physical
means to which the criminal resorts to carry out his
design.

- Craft involves the use of intellectual trickery or

cunning on the part of the accused. Employed as a
scheme in the execution of the crime. If this is
present, it should be taken into account for the
purpose of increasing the penalty. Example is the act
of the accused in pretending to be a bona fide
passenger of a taxicab.

Craft is not attendant where the unlawful scheme

could have been carried out just the same even
without the pretense.

When not aggravating circumstance?

o Where craft partakes of an element of the

offense, the same may not be appreciated
independently for the purpose of aggravation.

- Fraud insidious words or machinations used to

induce the victim to act in a manner which would
enable the offender to carry out his design.

- In this there is a consent of the offended party

which the offender gained through trickery or deceit.

- Craft distinguished from fraud. – when there is a

direct inducement by insidious words or
machinations, fraud is present; otherwise, the act of
the accused done in order to arouse the suspicion of
the victim constitutes craft.

- Disguise resorting to any device to conceal

identity. Example when the defendant covered his
face with handkerchief before committing the crime.
But if in spite of the use of handkerchief to cover
their faces, the culprits were recognized by the victim
disguise was not considered aggravating.

- The purpose of the offender in using any device must

be to conceal his identity.
 84

 Paragraph 15

- Take advantage of superior strength. – means to

use purposely excessive force out of proportion to
the means of defense available to the person
attacked.

There is marked difference of physical strength

between the offended party and the offender.

No advantage of superior strength.

1) One who attacks another with passion and

obfuscation

2) When quarrel arose unexpectedly and the fatal

blow was struck at a time when the aggressor and
his victim were engaged against each other as
man to man.

Example of abuse of superior strength.

1) Strong man has ill-treated a child.

2) Old or decrepit person
3) One weakened by deceased
4) Physical strength was overcome by the use of
drugs or intoxicant.
5) A man attacks a woman with a weapon.
6) When weapon used is out of proportion to the
defense available to the offended party.

No abuse of superior strength.

1) When the attack was made on the victim

alternately.
2) Participle against the wife. Because it is generally
accepted that the husband is physically stronger
than the wife.
3) Numerical superiority does not always mean
abuse of superiority except when armed.

When abuse of superior strength is aggravating. –

The aggravating circumstance of abuse of superior
strength depends on the age, size, and strength of
the parties. It is considered whenever there is a
notorious inequality of forces between the victim
and the aggressor, assessing a superiority of strength
notoriously advantageous for the aggressor which is
 85

selected or taken advantage of by him in the

commissioner of the crime.

When there allegation of treachery, superior strength

is absorbed.

Circumstance of by a band and that of abuse of

superior strength, distinguished:

The element of band is appreciated when the offense

is committed by more than three armed malefactors
regardless of the comparative strength of the victim
or victims. On the other hand, the gravamen of abuse
of superiority is the taking advantage by the culprits
of their collective strength to overpower their
relatively weaker victim or victims.

- Means employed to weaken the defense. – This

circumstance is applicable only to crimes against
persons, and sometimes against person and
property, such as robbery with physical injuries. It is
also absorbed in treachery.

 Paragraph 16

- Meaning of Treachery. The offender commits any of

the crimes against the person, employing
means, methods or forms in the execution It also
mean that the offended party was not given
opportunity to make a defense.

- Rules regarding treachery:

1) Applicable only to crimes against person.

2) Means, methods or forms need not insure

accomplishment

3) The mode of attack must be consciously adopted.

- The treacherous character of the means employed in

the aggression does not depend upon the result
thereof but upon the means itself, in connection with
the aggressor’s purpose in employing it. Otherwise,
there would be no attempted or frustrated murder
qualified by treachery.

- The qualifying circumstance of treachery may not be

simply deduced from presumption as it is necessary
 86

that the existence of this qualifying or aggravating

circumstance should be proven as fully as the
crime itself in order to aggravate the liability or
penalty incurred.

- No treachery attendant where no witness who could

have seen how the deceased was shot was
presented.

Treachery is not present:

1) Frontal encounter
2) Announce their presence at the scene of the
crime.
These mode of attack negated the existence of
treachery since the element of surprise, which
makes the presence of treachery, was absent.
3) When the meeting of the victim and the assailant
was casual or accidental.

- Meaning of the mode of attack must be consciously

adopted. – The accused must make some
preparation to kill the deceased in such a manner
as to insure the execution of the crime or to make it
impossible or hard for the person attacked to defend
himself or retaliate. The mode of attack must be
thought of by the offender.

- There is treachery when the manner of the accused’s

assault insured the killing without any risk to him.

- If the decision to kill was sudden, there is no

treachery, even if the position of the victim was
vulnerable, because it was not deliberately sought
by the accused, but was purely accidental. Why
because there must be evidence showing that the
accused reflected on the means, method and forms
of killing the victim.

- Characteristic and unmistakable manifestation of

treachery: DSU

1) Deliberately; 2) Sudden; 3) Unexpected attack

- In treachery, the offender attacked the victim while

the latter was not in a position or opportunity to
make a defense, or to inflict retaliatory blows on the
offender.
 87

- Requisites:

1) That at the time of the attack, the victim was not

in a position to defend himself; and

2) That the offender consciously adopted the

particular means, method or form of attack
employed by him.

- The qualifying circumstance of treachery exists in the

commission of the crime of murder when an adult
person illegally attacks a child of tender age and
causes his death.

- Intent to kill is not necessary in murder with

treachery.

- Treachery cannot be presumed, it must be proved by

clear and convincing evidence, or as conclusively as
the killing, if such be the crime itself.

- It is an established rule that treachery must be

present from the commencement of the attack.
However, it need not exist in the beginning of the
assault if the victim was first seized and bound and
then killed.

- When the aggression is continuous, treachery must

be present at the beginning of the assault. (People
vs. Canete,44 Phil. 478)

- When the assault was not continuous, in that there

was an interruption, it is sufficient that treachery was
present at the moment the fatal blow was given.
( U.S. vs. Baluyot, 40 Phil. 385)

- As the appellant committed the act with intent to kill

and with treachery, the purely accidental
circumstance that as a result of the shots, a person
other than the one intended was killed, does not
modify the nature of the crime nor lessen his criminal
responsibility,and he is responsible for the
consequences of his acts. (People vs. Gueverra, 23
SCRA 58, 72) Because, treachery may be taken
into account even if the victim of the attack
was not the person who the accused intended
to kill. (People vs. Trinidad, 162 SCRA 714,725)
Reason: where there is treachery, it is
 88

impossible for either the intended victim or the

actual victim to defend against the aggression.

- In treachery, the mean, methods or forms of attack

are employed by the offender to make it impossible
or hard for the offended party to put up any sort of
resistance. In abuse of superior strength, the
offender does not employ means, methods or forms
of attack; he only takes advantage of his superior
strength.

- When there is conspiracy, treachery attends against

all conspirators, although only one did the actual
stabbing of the victim.

- When treachery is taken into account as a qualifying

circumstance in murder,not is improper to consider,
in addition to that circumstance, the generic
aggravating circumstance of abuse of superior
strength, since the latter is necessarily absorbed in
the former.

- Nighttime and abuse of superior strength are

inherent in treachery and cannot be appreciated
separately.

- While there may be instances where any of the other

circumstances may be treated independently of
treachery, it is not so when they form part of the
treacherous mode of attack.

- Aggravating circumstances inherent/absorbed in

treachery: BANCAD

a) By a Band

b) Abuse of superior strength

c) Nighttime

d) Craft

e) Aid of armed men

f) Disregard of age and sex

- Treachery cannot co-exist with passion or

obfuscation, for while in the mitigating circumstance
 89

of passion or obfuscation, the offender loses his

reason and self-control, in the aggravating
circumstance of treachery the mode of attack must
be consciously adopted. One who loses his reason
and self-control could not deliberately employ a
particular means, method or form of attack in the
execution of the crime.

 Paragraph 17

- Ignominy, is a circumstances pertaining to the moral

order, which adds disgrace and obloquy to the
material injury caused by the crime.

- Applicable to crimes against chastity, less serious

physical injuries, light or grave coercion, and murder.

- To put the victim on shame.

- “which add ignominy to the natural effects of the

act” according to this clause, the means employed or
the circumstances brought about must tend to make
the effects of the crime more humiliating or to put
the offended party to shame.

- It is incorrect to appreciate adding ignominy to the

offense where the victim was already dead when his
body was dismembered. It is required that the
offense be committed in a manner that tends to
make its effect more humiliating to the victim,
that is, add to his moral suffering.

- In People vs. Racaza, 82 Phil. 623,638, rapes, wanton

robbery for personal gain, and other forms of
cruelties are condemned and their perpetration will
be regarded as aggravating circumstances of
ignominy and of deliberately augmenting
unnecessary wrongs to the main criminal objective
under,paragraphs 17 and 21 of Article 14 of the RPC.

 Paragraph 18

- Unlawful entry means when an entrance is effected

by a way not intended for the purpose.

- Unlawful entry must be a means to effect and not for

escape.
 90

- Reason: One who acts, not respecting the walls

erected by men to guard their property and provide
for their personal safety, shows a greater
perversity, a greater audacity; hence, the law
punishes him with more severity.

- Unlawful entry is one of the ways of committing

robbery with force upon things under Article 299, par.
(a), and Article 302 of the Code. It is inherent in this
kind of robbery.

- If the crime charged in the information was only

theft, and during the trial, the prosecution proved
unlawful entry, it is a generic aggravating
circumstance which may raise the penalty for theft to
the maximum period.

- Dwelling and unlawful entry taken separately in

murders committed in a dwelling.

 Paragraph 19

- The Supreme Court called it the aggravating

circumstance of forcible entry.

- Note: Because of the phrase as a means to the

commission of a crime, it is not necessary that the
offender should have entered the building. What
aggravates the liability of the offender is the
breaking of a part of the building as a means to the
commission of the crime.

- Breaking a part of the building is one of the means of

entering the building to commit robbery with force
upon things under Article 299, par. (a), and Article
302 of the Code. It is inherent in this kind of robbery.
Breaking a part of the building is not aggravating in
that crime.

- When breaking of door or window is lawful?

1) Rule 113, Section 11. Right of officer to break into

building or enclosure. – An officer, in order to
make an arrest either by virtue of a warrant, or
without a warrant as provided in Section 5, may
break into any building or enclosure where the
person to be arrested is or is reasonably believed
 91

to be, if he is refused admittance thereto, after

announcing his authority.

2) Rule 126,Section 7. Right to break door or window

to effect search. – The officer, if refused
admittance to the place of directed search after
giving notice of his purpose and authority, may
break open any outer or inner door or window of a
house or any part of a house or anything therein
to execute the warrant or liberate himself or any
person lawfully aiding him when unlawfully
detained therein. (Knock or Announce
Principle)

 Paragraph 20

- Two different circumstances are grouped in this

paragraph. The first one tends to repress, so far as
possible, the frequent practice resorted to by the
professional criminals to avail themselves of minor
taking advantage of their irresponsibility; and
the second one is intended to counteract the great
facilities found by modern criminals in said means to
commit the crime and flee and abscond once the
same is committed.

- “By means of motor vehicles.” – Use of motor vehicle

is aggravating where the accused used the motor
vehicle in going to the place of the crime, in carrying
away the effects thereof, and in facilitating their
escape.

Note: If the motor vehicle was used only in

facilitating the escape, it should not be an
aggravating circumstance.

- Where it appears that the use of motor vehicle was

merely incidental and was not purposely sought
to facilitate the commission of the offense or to
render the escape of the offender easier and his
apprehension difficult, the circumstance is not
aggravating.

 Paragraph 21

- What is cruelty?

o There is cruelty when the culprit enjoys and

delights in making his victim suffer slowly
 92

and gradually, causing him unnecessary

physical pain in the commission of the criminal
act. (People vs. Dayug, 49 Phil. 427)

o For cruelty to be aggravating, it is essential

that the wrong done was intended to
prolong the suffering of the victim, causing
him unnecessary moral and physical pain.

- Requisites:

1) That the injury caused be deliberately

increased by causing other wrong;

2) That the other wrong be unnecessary

for the execution of the purpose of the
offender.

- The phrase deliberately augmented by causing other

wrong means that the accused at the time of the
commission of the crime had a deliberate
intention to prolong the suffering of the victim.

- Cases where cruelty is not present:

1) Where the assailant stoned twice the victim, not

for the purpose of increasing ha sufferings, but to
kill him;

2) Where the acts of the assailants showed only a

decided purpose to kill and not to prolong
suffering of the victim;

3) Where the purpose was to ensure the death of the

three victims and to tamper with the bullet
wounds to make them appear as bolo wounds in
order to conceal the fact that a gun was used in
killing them;

4) Where the victim was drowned in the sea after

stabbing him while bound;

5) Where the victim was buried after being stabbed,

not to make him suffer any longer but to conceal
his body and the crime itself;

- Example of Other wrong not necessary for its

commission:
 93

A and B, who had tied C in the latter’s house, struck

him with theirs guns to make him point the place
where he was keeping his money. Striking him with
guns in other wrong, but it is necessary for the
commission of the crime of robbery particular to get
C’s money. Hence, there is no cruelty.

- Cruelty refers to physical suffering of of victim

purposely intended by offender.

- Cruelty cannot be presumed.

- Number of wounds alone does not show cruelty, it

being necessary to show that the accused
deliberately and inhumanly increased the sufferings
of the victims.

- For cruelty to be appreciated as a generic

aggravating circumstance, there must be positive
proof that the wounds found on the body of the
victim were inflicted while he was still alive in order
unnecessarily to prolong physical suffering.

- Ignominy distinguished from cruelty. The former

involves moral suffering while the latter refers to
physical suffering.

- Where rape attends the commission of the crime of

robbery with homicide, the rape should be deemed to
aggravate the robbery with homicide.

- Among the aggravating circumstances peculiar to

certain felonies are the following :

1) That the offense (violation of domicile) be

committed in the nighttime, or of any papers or
effects not constituting evidence of a crime be not
returned immediately. (Art. 128, par. 2)

2) That the crime (interrupt of religious worship) shall

have been committed with violence or threats.
(Art. 132, par. 2)

3) That the assault (direct assault) is committed with

a weapon, or when the offender is a public officer
or employees, or when the offender lays hands
upon a person in authority. ( Art. 148))
 94

4) If the crime (slavery) be committed for the

purpose of assigning the offended party to some
immoral traffic, the penalty shall be imposed in its
maximum period. (Art. 272, par. 2)

5) If the threat (grave threats) be made in writing or

through a middleman, the penalty shall be
imposed I its maximum period. (Art. 282)

6) If the robbery with violence against intimidation of

persons (except robbery with homicide, or robbery
with rape, etc.) is committed in an uninhabited
place or by a band, etc., or on a street, road,
highway, or alley, and the intimidation is made
with the use of a firearm, the offender shall be
punished by the maximum period of the proper
penalties. (Art. 295)

7) If the robbery with the use of force upon things

(Art. 299) is committed in an uninhabited place
and by a band, it shall be punished by the
maximum period of the penalty provided therefor.
(Art. 300)

X----------------------------------------------X

ALTERNATIVE CIRCUMSTANCES

Alternative circumstance

- Definition.

Are those which must be taken into

consideration as aggravating or
mitigating according to the nature and
effects of the crime and other conditions
attending it's commission.

Article 15. Their concept. - Alternative circumstances are

those which must be taken into consideration as
aggravating or mitigating according to the nature and
effects of the crime and the other conditions attending its
 95

commission. They are the relationship, intoxication and the

degree of instruction and education of the offender.

The alternative circumstance of relationship shall be taken

into consideration when the offended party in the spouse,
ascendant, descendant, legitimate, natural, or adopted
brother or sister, or relative by affinity in the same degrees
of the offender.

The intoxication of the offender shall be taken into

consideration as a mitigating circumstances when the
offender has committed a felony in a state of intoxication, if
the same is not habitual or subsequent to the plan to
commit said felony but when the intoxication is habitual or
intentional, it shall be considered as an aggravating
circumstance.

 The alternative circumstances are: RID

1) Relationship;

2) Intoxication;

3) Degree of instruction and education of the offender

 Relationship.

- It shall be taken into consideration when the offended

par is the :

1) Spouse,

2) Ascendant,

3) Descendant,

4) Legitimate, natural, or adopted brother or

sister, or

5) Relative by affinity in the same degree of the

offender.

- Is the relationship of stepfather, stepmother, stepson

and, step daughter included? Yes. Because of the
affection, care and protection.
 96

- Relationship between uncle and niece is not covered

by any of the relationship mentioned.

- Mitigating in the crimes of: RUFA

1) Robbery; 2) Usurpation; 3) Fraudulent insolvency;

and Arson.

- In view of The provision of Article 332, when the

crime committed is theft, swindling or estafa, or
malicious mischief, relationship is exempting. The
accused is not criminally liable and there is no
occasion to consider a mitigating or an aggravating
circumstance.

- It is aggravating when the offended party is a relative

of a higher degree than the offender, when the
offender and the offended party are relatives of the
same level. Ex. Killing a brother.

- If the commission of the crime against person

resulted in the death of the victim who is a relative of
lower degree of the offender, relationship is an
aggravating circumstance. This rule applies to Article
249 and Article 248.

- Relationship is neither mitigating nor aggravating,

when relationship is an element of the offense.
Example: Parricide, adultery and concubinage.

- In crimes against chastity, relationship is always

aggravating. Reason: Because of the nature and
effect of the crime committed, it is considered
aggravating although the offended party is a relative
of lower degree. It is not shocking to our moral sense
when we hear that a father committed, for instance,
the crime of slight physical injury against his
daughter; but certainly is very shocking when we
hear that a father committed acts of lasciviousness
on the person of his own daughter. Or because of the
other condition attending the commission of the
crime.

 Intoxication.

- Mitigating:

1) If intoxication is not habitual, or

 97

2) If intoxication is not subsequent to the

plan to commit a felony.

- Aggravating:

1) If intoxication is habitual; or

2) If it is intentional (subsequent to the plan

to commit a felony).

- The habit should be actual and confirmed. It is

unnecessary that it be a matter of daily occurrence.

- The last paragraph of Article 15 says “when the

offender has committed a felony in a state of
intoxication,” by which clause is meant that the
offender’s mental faculties must be affected by
drunkenness.

- To be mitigating, the accused’s state of intoxication

must be proved. Once intoxication is established by
satisfactory evidence, in the absence of proof to the
contrary, it is presumed to be non-habitual or
unintentional.

- Before drunkenness may be considered as a

mitigating circumstance, it must first be established
that the liquor taken by the accused was of such
quantity as to have blurred his reason and
deprived him of self-control. It should be such an
intoxication that would diminish the agent’s capacity
to know the injustice of his acts, and his will to act
accordingly.

- Intoxication is habitual when it is excessive use of

intoxicating drinks.

- Reason:

As a mitigating circumstance, it finds its

reason in the fact that when a person is
under the influence of liquor, his exercise
of will power is impaired.

As an aggravating circumstance, because it

is intentional, the reason is that the offender
 98

resorted to it in order to bolster his courage

to commit a crime.

- In the absence of proof to the contrary, it will be

presumed that intoxication is not habitual but
accidental, and the fact that the accused was drunk
at the time of the commission of the crime must be
considered as a mitigating circumstance.

- Not illiteracy alone, but also lack of sufficient

intelligence are necessary to invoke the benefit of the
alternative circumstance of lack of instruction, the
determination of which is left to the trial court. Why
the trial court? Because it is in the position to gauge
the level of intelligence from his appearance,
demeanor and manner of answering the questions.

- Lack of education must be proved positively and

cannot be based on mere deduction or inference.

- General rule: Lack of instruction or low degree of it is

appreciated as mitigating circumstance in almost all
crimes.

Exception: Not mitigating in crime against property,

estafa, theft, robbery, arson. No one, however
unschooled he may be, is no ignorant as not to know
that theft or robbery, or assault upon the person of
another is inherently wrong and a violation of the law.

Not mitigating in the crime of chastity.

Not mitigating in murder, because to kill is forbidden

by natural law which every rational being is endowed
to know and feel.

- Degree of instruction is aggravating when the

offender availed himself or took advantage of it in
committing the crime. Example,doctor or lawyer.

X----------------------------------------X

PERSONS CRIMINALLY LIABLE FOR FELONIES

Article 16. Who are criminally liable. - The following are

criminally liable for grave and less grave felonies:
 99

1. Principals.

2. Accomplices.

3. Accessories.

The following are criminally liable for light felonies:

1. Principals

2. Accomplices.

 The treble division of persons criminally responsible for an

offense rests upon the very nature of their participation in
the commission of the crime.

 Rule relative to light felonies:

1) Light felonies are punishable only when they have been

consummated.

2) But when light felonies are committed against persons or

property, they are punishable even if they are only in the
attempted or frustrated stage of execution.

3) Only principals and accomplices are liable for light felonies.

4) Accessories are not liable for light felonies, even if they are
committed against persons or property.

 In all crimes there are always two parties,namely: the active

subject (criminal); the passive subject (the injured party).

 Only natural persons can be the active subject of crime

because :

a) The Revised Penal Code requires that the culprit

should have acted with personal malice or
negligence. An artificial or juridical person cannot act
with malice or negligence.

b) A juridical person, like a corporation, cannot commit

a crime in which a willful purpose or a malicious
intent is required.
 100

c) There is substitution of deprivation of liberty

(subsidiary imprisonment) for pecuniary penalties in
case of insolvency of the accused.

d) Other penalties consisting in imprisonment and other

deprivation of liberty, like destierro, can be executed
only against individuals.

 Criminal actions are restricted or limited to the officials of the

corporation and never directed against the corporation itself.

 While a corporation or partnership cannot be the active

subject, it can be a passive subject of a crime.

X-----------------------------------------X

Article 17. Principals. - The following are considered

principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it;

3. Those who cooperate in the commission of the offense by

another act without which it would not have been
accomplished.

 A single individual committing a crime is always a principal,

and one by direct participation, because he must necessarily
take direct part in the execution of the act.

 When two or more persons are involved in killing another, it is

necessary to determine the participation of each.

 Paragraph 1. (Principal by direct participation)

- The principal by direct participation personally

takes part in the execution of the act (personally
executes the act) constituting the crime.

Example: A, common law wife, induced B to kill C. It

this case A, is a principal by induction, while B, is a
principal by direct participation.
 101

- Two or more persons who took part in the

commission of the crime are principals by direct
participation, when the following requisites are
present :

a) That they participated in the criminal

resolution;

 Conspiracy

 Conspiracy here is not a felony but only a

manner of incurring criminal liability.

 In conspiracy, there must have the intention

to participate

 Conspiracy arises on the very instant the

plotters agree, expressly or impliedly, to
commit the felony and forthwith decide to
pursue it.

 To establish conspiracy, proof ( positive and

conclusive evidence) that the malefactors
shall have acted in concert pursuant to the
same objective.

 The cooperation which the law punishes is

the assistance which is knowingly or
intentionally given and which is not possible
without previous knowledge of the criminal
purpose.

 In the absence of a previous plan or

agreeing to commit a crime the criminal
responsibility arising from different acts
directed against one and the same person is
individual and not collective,mans each of
the participants is liable only for the acts
committed by himself or the consequences
of his own acts.

 Mere passive presence at the scene of the

crime did not make them liable either as a
co-principals or accomplices.

 Where homicide was committed by the act

of one of the two accused in shooting the
deceased with a gun which was supplied by
his co-accused, and where it also appeared
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that the latter contributed to the

commission of the homicide by various
other significant acts, it was held that both
accused were properly convicted as
principals in the crime.

 If a number of persons agree to commit, and

enter upon the commission of a crime which
will probably endanger human life, all of
them are responsible for the death of a
person that ensues as a consequence.

 Where there is conspiracy to commit felony,

all the conspirators are liable for its
consequences.

 A conspirator is not liable for another's

crime which is not an object of the
conspiracy or which is not a necessary and
logical consequence thereof.

 Conspiracy alone, without the execution of

its purpose, is not a crime punishable by
law, except in special instances.

 In is not necessary to ascertain the specific

acts of the aggression committed by each of
the culprits, since, having participated in the
criminal resolution, the act of one is the act
of all.

 It was of no moment that the accused alone

acted with lewd designs, for once conspiracy
is established, the acts of one are
considered the acts of all.

 In cases of criminal negligence or crimes

punishable by special law, allowing or failing
to prevent an act to be performed by
another, makes one a co-principal.

b) That they carried out their plan and personally

took part in its execution by acts which directly
tended to the same end.

 A principal by direct participation must

personally take part in executing the
criminal plan to be carried out. This mean
that he must be at the scene of the
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commission of the crime, personally taking

part in its execution. Exception : Conspiracy

 “ The acts of each offender must directly

tend to the same end” it means that, it is
not necessary that each of them should
perform a positive act directly contributing
to the accomplishment of their common
purpose. Example of directly tend to the
same end, killing of their victim. Criminal
responsibility in such case is collective.

 Paragraph 2 (Principals by induction)

- Meaning of principals by inducement or principals by

induction. – Those who directly induce others to
commit the act. The word inducement comprises the
price, promise of reward, command, and pacto.

- When liability arise? When the principal by direct

participation committed the act induced. Because,
one cannot be guilty of having instigated the
commission of the crime without first being shown
that the crime was actually committed by
another.

- Two ways of becoming principal by induction : F.I.

1) by directly forcing another to commit a crime, and

 By using irresistible force.

 By causing uncontrollable fear

NOTE: In these cases, there is no conspiracy,not even a

unity of criminal purpose and intention. Only the one
using force or causing fear is criminally liable. The
material executor is not criminally liable because of
Article 12, paragraphs 5 and 6.

2) by directly inducing another to commit a crime.

 By giving price, or offering reward or

promise.

 By using words of command.

- Requisites :
 104

1) That the inducement be made directly with the

intention of procuring the commission of the
crime; and

2) That such inducement be the determining cause

of the commission of the crime by the material
executor.

- A thoughtless expression or act,without any

expectation or intention that it would produce the
result, is not an inducement to commit the crime.

- The inducement and the commission of a crime

whereby the inducer becomes a principal, to the
same extent and effect as if he had physically
committed the crime, may exist in acts of
command, advice, or agreement for consideration or
influence so effective that it alone determines the
commission of the crime.

- Meaning of the second requisite. – It is necessary that

the inducement be the determining cause of the
commission of the crime by the principal by direct
participation, without such inducement the crime
would not have been committed.

- The inducement must precede the act induced and

must be so influential in producing the criminal act
that without it, the act would not have been
performed.

- The inciting words must have great dominance and

influence over the person who acts; they ought to be
direct and as efficacious or powerful as physical or
moral coercion or violence itself.

- In order that a person using words of command

may be held liable as principal under paragraph no. 2
of this Article,the following five requisites must all be
present:

1) That the one uttering the words of command must

have the intention of procuring the commission of
the crime.

2) That the one who made the command must have

an ascendancy or influence over the person who
acted.
 105

3) That the words used must be so direct, so

efficacious, so powerful as to amount to physical
or moral coercion.

4) The word of command must be uttered prior to the

commission of the crime.

5) The material executor of the crime has no

personal reason to commit the crime.

- Ascendancy or influence as to amount to moral

coercion is not necessary when there is conspiracy.

- If the crime committed is not contemplated in the

order’s given, the inducement is not material and
not the determining cause thereof.

- Distinguish principal by inducement from the

offender who made proposal to commit a felony:

1) In both, there is an inducement to commit a

crime.

2) In the first, the principal by inducement

becomes liable only when the crime is
committed by the principal by direct
participation; in the second, the mere proposal
to commit felony is punishable in treason or
rebellion. The person to whom the proposal is
made should not commit the crime; otherwise,
the proponent becomes a principal by
inducement.

3) In the first, the inducement involves any

crime; in the second, the proposal to be
punishable must involve only treason or
rebellion.

- If the one charged as principal by direct participation

is acquitted because he acted without criminal intent
or malice, his acquittal is not a ground for the
acquittal of the principal by inducement. Because in
exempting circumstances, such as when the act is
top of voluntary because of lack of intent on the part
of the accused, there is a crime committed, only that
the accused is not a criminal. In intentional felonies,
 106

the act of a person does not make him criminal

unless his mind be criminal.

 Paragraph 3 (Principals by indispensable cooperation)

- To cooperate means to to desire or wish in

common a thing. But that common will or purpose
does not necessarily mean previous understanding,
for it can be explained or inferred from the
circumstances of each case.

- Requisites:

1) Participation in the criminal resolution, that is,

there is either anterior conspiracy or unity of
criminal purpose and intention immediately
before the commission of the crime charged;
and

2) Cooperation in the commission of the offense

by performing another act, without which it
would not have been accomplished.

- The cooperation must be indispensable, that is,

without which the commission of the crime would not
have been accomplished. If the cooperation is is not
indispensable, the offender is only an accomplice.

- Meaning of “by another act”

The act of the principal by indispensable

cooperation should be different from the
act of the principal by direct participation. It
should not be the act of one who could be
classified as principal by direct participation.

- If the cooperation of one of the accused consists in

performing an act necessary in the execution of
the crime committed, he is a principal by direct
participation.

- There is collective criminal responsibility when the

offenders are criminally liable in the same manner
and to the same extent. The penalty to be imposed
must be the same for all.

- Principals by direct participation have collective

criminal responsibility. Principal by induction, except
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that who directly forced another to commit a crime,

and principal by direct participation have collective
responsibility. Principal by indispensable cooperation
has collective criminal responsibility with the
principal by direct participation.

- In the absence of previous conspiracy, unity of

criminal purpose and intention immediately before
the commission of the crime, or community of
criminal design, the criminal responsibility arising
from different acts directed against one and the same
person individual and not collective, and each of the
participants is liable only for the acts committed by
him.

X-------------------------------------------------X

Article 18. Accomplices. - Accomplices are those persons

who, not being included in Article 17, cooperate in the
execution of the offense by previous or simultaneous acts.

- Quasi-collective criminal responsibility. – means that

some of the offenders in the crime are principal and
the others are accomplices.

- The principal element of every punishable complicity

consists in the concurrence of the will of the
accomplice with the will of the author of the crime,
and the accomplice cooperates by previous or
simultaneous acts in the execution of the offense by
the principal.

- An accomplice does not fall under any of the three

concepts defined in Article 17.

- In case of doubt, the participation of the offender will

be considered that of a milder form of criminal
liability, an accomplice rather than of a principal.

- In criminal cases, the participation of the accused

must be established by the prosecution by positive
and competent evidence. It cannot be presumed.

- An accomplice does not enter into a conspiracy with

the principal by direct participation. He does not have
 108

previous agreement or understanding with the

principal to commit a crime. But he participates to a
certain point in the common criminal design.

- Distinction between accomplice and conspirator.

1) Conspirator, however, know the criminal intention

because they themselves have decided upon such
course of action. Whereas, Accomplices come to
know about it after the principals have reached
the decision, and only then do they agree to
cooperate in its execution.

2) Conspirators decide that a crime should be

committed; accomplices merely concur in it.

3) Accomplices do not decide whether the crime

should be committed; they merely assent to the
plan and cooperate in its accomplishment.
Conspirators are the authors of a crime;
accomplices are merely instruments who performs
acts not essential to the perpetration of the
offense.

- If the overt acts of the accused, although done with

knowledge of the criminal intent of his co-accused
was not indispensable to the homicidal assault, the
accused should be held liable only as an accomplice
in the killing of the victim.

- Requisites:

1) That there be community of design; that is,

knowing the criminal design of the principal by
direct participation, he concurs with the latter
in his purpose;

2) That he cooperates in the execution of the

offense by previous or simultaneous acts, with
the intention of supplying material or moral aid
in the execution of the crime in an efficacious
way; and

3) That there be a relation between the acts done

by the principal and those attributed to the
person charged as accomplice.

- First requisite:
 109

 Before there could be an accomplice, there

must be a principal by direct participation.
But the principal originate the criminal
design. The accomplice merely concurs with
the principal in his criminal purpose.

 The cooperation which the law punishes is

the assistance which is knowingly or
intentionally given and which is not possible
without previous knowledge of the
criminal purpose.

 A person who assails a victim already fatally

wounded by another is only regarded as
accomplice.

 The criminal design to be considered in case

there is no conspiracy or unity of criminal
purpose and intention between two or
among several accused charged with a
crime against persons, is the criminal intent
entertained by the accused who inflicted the
more or most serious wound on the victim.

 Example of community of design:

A facilitated the commission of the crime by

providing his own house as the venue for
the crime. His presence throughout the
commission of the heinous offense, without
him doing anything to prevent B, the
malefactor or help C, the victim, indubitably
show community of design and cooperation ,
although he had not direct participation in
the execution thereof.

The community of design need not be to

commit the crime actually committed. It is
sufficient if there was a common purpose
to commit a particular crime and that the
crime actually committed was a natural or
probable consequence of the intended
crime.

- Second requisite:

 In this case, the cooperation of the

accomplice is only necessary, not
indispensable. However, if there is
 110

conspiracy between two or among several

persons, even if the cooperation of one
offender is only necessary, the latter is also
a principal by conspiracy. The nature of
the conspiracy becomes immaterial.

 When the acts of the accused are not

indispensable in the killing, they are merely
accomplices.

 The person charged as an accomplice

should not have inflicted a mortal wound.
If he inflicted a mortal wound, he becomes a
principal by direct participation.

 The one who had the original criminal

design is the person who committed the
resulting crime.

The accomplice, after concurring (sumabay)

in the criminal purpose of the principal,
cooperates by previous or simultaneous
acts.

When the cooperation is by simultaneous

act, the accomplice takes part while the
crime is being committed by the principal by
direct participation or immediately
thereafter.

 How to determine the responsibility of the

accomplice?

It is to be determined by acts of aid and

assistance, either prior to or simultaneous
with the commission of the crime, rendered
knowingly for the principal therein, and not
by the mere fact of having been present at
its execution, unless the object of such
presence was to encourage the principal or
to apparently or really increase the odds
against the victim.

- Third requisite:
 It is not enough that a person entertains an
identical criminal design as that of the
principal. There must be a relation between the
criminal act of the principal by direct participation
and that of the person charged as accomplice.
 111

X-------------------------------------------X

Article 19. Accessories. - Accessories are those who, having

knowledge of the commission of the crime, and without
having participated therein, either as principals or
accomplices, take part subsequent to its commission in any
of the following manners:

1. By profiting themselves or assisting the offender to profit

by the effects of the crime.

2. By concealing or destroying the body of the crime, or the

effects or instruments thereof, in order to prevent its
discovery.

3. By harboring, concealing, or assisting in the escape of the

principals of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of the
crime is guilty of treason, parricide, murder, or an attempt
to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.

 “Having knowledge “ – An accessory must have knowledge of

the commission of the crime, and having that knowledge, he
took part subsequent to its commission.

 Entertaining suspicion that a crime has been committed is not

of itself proof of knowledge that a crime has been committed.
Knowledge and suspicion are not synonymous terms. The word
suspicion is the imagination of the existence of something
without proof, or upon very slight evidence, or upon no
evidence at all.

 Knowledge of the commission of crime may be acquired

subsequent to the acquisition of stolen property.

Note: Paragraphs nos. 1,2, and 3 of Article 19, which describe the
different acts of the accessory, refer to those acts performed after
the crime had been committed.

 Paragraph 1.
 112

- The crime committed by the principal under this

paragraph may be any crime, provided it is not
a felony.

- The accessory should not take the property

without the consent of the principal. If without,
he shall be a principal.

- An accessory should not be in conspiracy with

the principal.

 Paragraph 2

- “Body of the crime “ means that a specific

offense was in fact committed by someone.

- There must be an attempt to hide the body of

the crime.

- “To prevent its discovery”, the pronoun “its”

refers to the word crime.

Note: The concealing or destroying of the body of the crime, the

effects or instruments thereof, must be done in order to prevent the
discovery of the crime. That what is concealed is the body of the
crime, the effects or instruments thereof, not the principal who
committed the crime. If the principal is concealed, paragraph 3 of
Article 19 applies.

 Paragraph 3.

- Two classes of accessories under this paragraph:

a) Public officers who harbor, conceal or assist in

the escape of the principal of any crime, not
felony, with abuse of confidence of his public
functions.

Requisites:

1) The accessory is a public officer.

2) He harbors, conceal, or assists in the

escape of the principal.
 113

3) The public officer acts with abuse of his

public functions.

4) The crime committed by the principal is

any crime, provided it is not a light
felony.

b) Private person who harbor, conceal or assist in

the escape of the author of the crime – guilty of
treason, Parricide, murder, or an attempt against
the life of the president, or is known to be
habitually guilty of some other crime.

Requisites :

1) That the accessory is a private person.

2) That he harbors, conceal or assists in the

escape of the author of the crime; and

3) That the crime committed by the

principal is either : (a) treason, (b)
parricide, (c) murder, (d) an attempt
against the life of the President, or (e)
that the principal is known to be
habitually guilty of some other crime.

- The responsibility of the accessory is subordinate to

that of the principal in a crime, because the
accessory’s participation therein is subsequent to its
commission, Andries guilt is directly related to that of
the principal delinquent in the punishable act.

- The corresponding responsibilities of the principal,

accomplice and accessory are distinct from each
other. As long as the commission of the offense
can be duly established in evidence, the
determination of the liability of the accomplice or
accessory can proceed independently of that of the
principal.

- P.D.NO. 1612 or the Anti-Fencing Law of 1979

X-------------------------------------------X
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Article 20. Accessories who are exempt from criminal

liability. - The penalties prescribed for accessories shall not
be imposed upon those who are such with respect to their
spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within
the same degrees, with the single exception of accessories
falling within the provisions of paragraph 1 of the next
preceding article.

 Basis for exemption:

- is based on the ties of blood and the

preservation of the cleanliness of one’s name,
which compels one to conceal crimes committed
by relatives so near as those mentioned in this
articles.

- The relationship by affinity created between the

surviving spouse and the blood relatives of the
deceased spouse survives the death of either
party to the marriage which created the affinity. (
Intestate Estate of Manolita Gonzales Vda. De
Carungcong vs. People, G.R.No. 181409,
February 11, 2010)

- Nephew or niece not included among such

relatives, because it does not come within any of
the degrees of relationship of spouse, or
ascendant, descendant, legitimate, natural, or
adopted brother or sister, or relative by affinity in
the same degree.

- Accessory is not exempt from criminal liability

even if the principal is related to him, if such
accessory :

1) Profited by the effects of the crime.

2) By assisting the offender to profit by

the effects of the crime.

Reason : such acts are prompted not by affection

but by a detestable greed.
 115

X---------------------------------------X

PENALTIES

 Penalty, defined.

- Is the suffering that is inflicted by the State for the

transgression of a law.

 Different juridical conditions of penalty :

1) Must be productive of suffering, without however affecting the

integrity of the human personality.

2) Must be commensurate with the offense – different crimes must

be punished with different penalties.

3) Must be personal – no one should be punished for the crime of

another.

4) Must be legal – it is the consequence of a judgment according to

law.

5) Must be certain – no one may escape its effects.

6) Must be equal for all

7) Must be correctional.

 Purpose in punishing the crimes?

- To secure justice. The State has an existence of its

own to maintain, a conscience of its own to assert,
and moral principles to be vindicated. Penal justice
must therefore be exercised by the State in the
service and satisfaction of a duty, and rests primarily
 116

on the moral rightfulness of the punishment

inflicted.

- Three-fold purpose:

a) Retribution or expiation

b) Correction or reformation

c) Social defense

 Theories justifying penalty:

a) Prevention

b) Self-defense

c) Reformation

d) Exemplarity

e) Justice

 When a person has proved himself to be a dangerous enemy of

society, the latter must protect itself from such enemy by taking his
life in retribution for his offense and as an example and warning to
others.

 Constitutional restriction on penalties : Article III, Section 19 (1).

When punishment is cruel and unusual?

- When it is so disproportionate to the offense

committed as to shock the moral sense of all
reasonable men as to what is right and proper under
the circumstances.

X-------------------------------------X

Article 21. Penalties that may be imposed. - No felony shall

be punishable by any penalty not prescribed by law prior to
its commission.
 117

 This article is general in its provisions and in effect prohibits

the Government from punishing any person for any felony with
any penalty which has not been prescribed by the law.

 It has no application to any of the provisions of the RPC for the

reason that for every felony defined in the Code, a Penalty has
been prescribed.

 When can invoked?

- When a person is being tried for an act or omission

for which no penalty has been prescribed by law.

 Reason for the provision.

- An act or omission cannot be punished by the State if

at the time it was committed there was no law
prohibiting it, because a law cannot be rationally
obeyed unless it is first shown, and a man cannot be
expected to obey an order that has not been given.
X--------------------------------------------X

Article 22. Retroactive effect of penal laws. - Penal Laws

shall have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual criminal, as
this term is defined in Rule 5 of Article 62 of this Code,
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving
the same.

 General Rule : To give criminal law prospective effect.

 Exception : Article 22 of the RPC.

 This provision clearly has no direct application to the provisions

of the RPC. Its application to the RPC can only be invoked
where some former or subsequent law is under consideration.
It must necessarily relate :

1) to penal laws existing prior to the RPC, in which the

penalty was less severe than those of the Code; or

2) to laws enacted subsequent to the RPC, in which the

penalty is more favorable to the accused.
 118

 Article 22 applies to a law dealing with prescription of an offense

which is intimately connected with that of the penalty, for the length
of time for prescription depends upon the gravity of the offense.

 The provision of Article 22 that penal laws shall have a

retroactive effect insofar as they favor the person guilty of a
felony is applicable even if the accused is already serving
sentence.

 The favorable retroactive effect of a new law may find the

defendant in one of these three situations :

1) The crime has been committed and prosecution

begins;

2) Sentence has been passed but service has not begun;

3) The sentence is being carried out,

 But when the culprit is a habitual delinquent, he is not entitled

to the benefit of the provisions of the new favorable statute.

 The principle that criminal statutes are retroactive so far as

they favor the culprit does not apply to the latter’s civil
liability,because the rights of offended persons or innocent
third parties are not within the gift of arbitrary disposal of the
State.

 The provisions of this article are applicable even to special

laws which provides more favorable conditions to the accused.

 Criminal liability under the repealed law subsists : RIS

a) When the provisions of the former law are reenacted;

or

b) When the repeal is by implication; or

c) When there is a saving clause.

 When a penal law, which impliedly repealed an old law, is itself

repealed, the repeal of the repealing law revives the prior penal law,
unless the language of the repealing statute provides otherwise.
 119

X---------------------------------------X

Article 23. Effect of pardon by the offended party. - A pardon

of the offended party does not extinguish criminal action
except as provided in Article 344 of this Code; but civil
liability with regard to the interest of the injured party is
extinguished by his express waiver.

 Even if the injured party already pardoned the offender, the

fiscal can still prosecute the offender. Such pardon by the
offended party is not even a ground for the dismissal of the
complaint or information. Reason : A crime committed is an
offense against the State. In criminal cases, the intervention of
the aggrieved parties is limited to being witnesses for
prosecution. Only the Chief Executive can pardon the
offenders.

 The offended party in the crimes of adultery and concubinage

cannot institute criminal prosecution, if he shall have
consented or pardoned the offenders.(Art.344, par. 2)

 In the crimes of seduction, abduction, rape or acts of

lasciviousness, there shall be no criminal prosecution if the
offender has been expressly pardoned by the offended party
or her parents, grandparents, or guardian, as the case may be.
The pardon here must be express.

 The pardon afforded the offenders must come before the

institution of the criminal prosecution.

 Even under Article 344, the pardon by the offended party does
not extinguish criminal liability; it is only a bar to criminal
prosecution. Article 89, providing for total extinction of criminal
liability, does not mention pardon by the offended party as one
of the causes of totally extinguishing criminal liability.

 As a general rule, an offense causes classes of injuries :

1) Social injury, produced by the disturbance and

alarm which are the outcome of the offense; and
 120

2) Personal injury, caused to the victim of the

crime who suffered damage either to his person,
to his property, to his honor or to her chastity.

X--------------------------------------------X

Article 24. Measures of prevention or safety which are nor

considered penalties. - The following shall not be considered
as penalties:

1. The arrest and temporary detention of accused persons,

as well as their detention by reason of insanity or imbecility,
or illness requiring their confinement in a hospital.

2. The commitment of a minor to any of the institutions

mentioned in Article 80 and for the purposes specified
therein.

3. Suspension from the employment of public office during

the trial or in order to institute proceedings.

4. Fines and other corrective measures which, in the

exercise of their administrative disciplinary powers, superior
officials may impose upon their subordinates.

5. Deprivation of rights and the reparations which the civil

laws may establish in penal form.

 They are not penalties, because they are not imposed as a result of
judicial proceedings.

 Paragraphs 1,3, and 4 are merely preventive measures before

conviction of offenders.

 The commitment of a minor mentioned in paragraph 2 is not a

penalty,, because it is not imposed by the court in a judgment
of conviction.
 121

 The “ fines” mentioned in paragraph 4 are not imposed by the

court, because when imposed by the court, they constitute a
penalty.

X-----------------------------------------X

CLASSIFICATION OF PENALTIES

Article 25. Penalties which may be imposed. - The penalties

which may be imposed according to this Code, and their
different classes, are those included in the following:

Scale

Principal Penalties

Capital punishment:

Death.

Afflictive penalties:
 122

Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.

Correctional penalties:

Prision correccional,
Arresto mayor,
Suspension,
Destierro.

Light penalties:

Arresto menor,
Public censure.

Penalties common to the three preceding classes:

Fine, and
Bond to keep the peace.

Accessory Penalties

Perpetual or temporary absolute disqualification,

Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be voted
for, the profession or calling.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and proceeds of
the offense,
Payment of costs.

 The penalties which may be imposed, according to this Code, are

those included in Article 25 only.

 1) Principal penalties – those expressly imposed by the court in the

judgment of conviction.

2) Accessory penalties – those that are deemed included in the

imposition of the principal penalties.
 123

 The principal penalties may be classified :

According to their divisibility.

1) Divisible – are those that have fixed duration and are

divisible into three periods.

2) Indivisible – are those which have no fixed duration. These

are :

a) Death

b) Reclusion perpetua

c) Perpetual absolute or special disqualification

d) Public censure

 Classification of penalties according to subject-matter :

1) Corporal (death)

2) Deprivation of freedom ( reclusion, prision, arresto)

3) Restriction of freedom ( destierro )

4) Deprivation of rights (disqualification and suspension)

5) Pecuniary (fine)

 Classification of penalties according to their gravity:

1) Capital

2) Afflictive

3) Correctional

4) Light

 In a criminal case, there is only one issue: whether the accused is

guilty or not guilty. If he is found guilty, the court acquires
jurisdiction to impose penalty; if he found not guilty, no court has
the power to mete out punishment; a finding of guilt must precede
the punishment.

X-------------------------------------------X
 124

Article 26. Fine. - When afflictive, correctional, or light

penalty. - A fine, whether imposed as a single of as an
alternative penalty, shall be considered an afflictive penalty,
if it exceeds 6,000 pesos; a correctional penalty, if it does
not exceed 6,000 pesos but is not less than 200 pesos; and a
light penalty if it less than 200 pesos.

 The law does not permit any court to impose a sentence in the
alternative, it's duty being to indicate the penalty imposed definitely
and positively.

X------------------------------------------X

DURATION AND EFFECT OF PENALTIES

Section One. - Duration of Penalties

Article 27. Reclusion perpetua. - Any person sentenced to

any of the perpetual penalties shall be pardoned after
undergoing the penalty for thirty years, unless such person
by reason of his conduct or some other serious cause shall
be considered by the Chief Executive as unworthy of pardon.

Reclusion temporal. - The penalty of reclusion temporal shall

be from twelve years and one day to twenty years.

Prision mayor and temporary disqualification. - The duration

of the penalties of prision mayor and temporary
disqualification shall be from six years and one day to
twelve years, except when the penalty of disqualification is
 125

imposed as an accessory penalty, in which case its duration

shall be that of the principal penalty.

Prision correccional, suspension, and destierro. - The

duration of the penalties of prision correccional, suspension
and destierro shall be from six months and one day to six
years, except when suspension is imposed as an accessory
penalty, in which case, its duration shall be that of the
principal penalty.

Arresto mayor. - The duration of the penalty of arresto

mayor shall be from one month and one day to six months.

Arresto menor. - The duration of the penalty of arresto

menor shall be from one day to thirty days.

Bond to keep the peace. - The bond to keep the peace shall
be required to cover such period of time as the court may
determine.

 Note: The clauses in paragraphs 3 and 4 which say “except

when the penalty (of disqualification or suspension) is imposed
as an accessory penalty, in which case its duration shall be
that of the principal penalty.”

 Cases where destierro imposed :

1. Serious physical injuries or death under exceptional

circumstances. (Art.247)

2. In case of failure to,give bond for good behavior. (Art.

284)

3. As a penalty for the concubinage. (Art. 334)

4. In cases where after reducing the penalty by one or

more degrees destierro is the proper penalty.

 May a court imposed a bond as a penalty?

- No. Since according to Article 21 no felony shall be

punishable by any penalty not prescribed by law prior
to its commission, and bond to keep the peace is not
 126

specifically provided for by the Code for any felony,

that penalty cannot be imposed by the court.

X--------------------------------------X

Article 28. Computation of penalties. - If the offender shall

be in prison, the term of the duration of the temporary
penalties shall be computed from the day on which the
judgment of conviction shall have become final.

If the offender be not in prison, the term of the duration of

the penalty consisting of deprivation of liberty shall be
computed from the day that the offender is placed at the
disposal of the judicial authorities for the enforcement of
the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant
commences to serve his sentence.

 Rules for the computation of penalties:

1. When the offender is in prison. – the duration of

temporary penalties (Ex : Temporary Absolute
Disqualification, Temporary Special Disqualification and
Suspension) is from the day on which the judgment of
conviction becomes final.

2. When the offender is not in prison. – the duration of

penalty consisting in deprivation of liberty (Ex: Destierro ,
imprisonment), is from the day that the offender is placed
at the disposal of judicial authorities for the enforcement of
the penalty.

3. The duration of other penalties. – the duration is from

the day on which the offender commences to serve his
sentence.

 Reason for Rule No. 1 :

- The duration of temporary penalties shall be
computed only from the day the judgment of
conviction becomes final, and not from the day of his
detention, because under Article 24 the arrest
and temporary detention of the accused is not
considered a penalty.
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X-------------------------------------------X

Article 29. Period of preventive imprisonment deducted from

term of imprisonment. - Offenders who have undergone
preventive imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty, with the
full time during which they have undergone preventive
imprisonment, if the detention prisoner agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon
convicted prisoners, except in the following cases:

1. When they are recidivists or have been convicted

previously twice or more times of any crime; and

2. When upon being summoned for the execution of their

sentence they have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the

same disciplinary rules imposed upon convicted prisoners,
he shall be credited in the service of his sentence with four-
fifths of the time during which he has undergone preventive
imprisonment. (As amended by Republic Act 6127, June 17,
1970).

Whenever an accused has undergone preventive

imprisonment for a period equal to or more than the
possible maximum imprisonment of the offense charged to
which he may be sentenced and his case is not yet
terminated, he shall be released immediately without
prejudice to the continuation of the trial thereof or the
proceeding on appeal, if the same is under review. In case
the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30)
days of preventive imprisonment. (As amended by E.O. No.
214, July 10, 1988).

 When is there preventive imprisonment?

- When the offense charged is non-bailable, or even if

bailable, he cannot furnish the required bail.
 128

 Under Article 197 of the Child and Youth Welfare Code (P.D. No. 603),
the youthful offender shall be credited in the service of his sentence
with the full time he spent in actual confinement and detention. It is
not necessary that he agreed to abide by the disciplinary rules
imposed upon convicted prisoners.

 The allowance of (preventive imprisonment) should be made even in

the case of perpetual punishment. This Article does not make
any distinction between temporal and perpetual penalties.

 The credit is given in the service of sentences “consisting of

deprivation of liberty.”

 Convict to be released immediately if the penalty imposed after trial

is less than the full time or four-fifths of the time of the preventive
imprisonment.

 In destierro, the accused is free, only that he cannot enter the

prohibited area specified in the sentence.

X-----------------------------------X

Section Two. - Effects of the penalties according to their respective

nature

Article 30. Effects of the penalties of perpetual or temporary

absolute disqualification. - The penalties of perpetual or
temporary absolute disqualification for public office shall
produce the following effects:

1. The deprivation of the public offices and employments

which the offender may have held even if conferred by
popular election.

2. The deprivation of the right to vote in any election for any

popular office or to be elected to such office.

3. The disqualification for the offices or public employments

and for the exercise of any of the rights mentioned.
 129

In case of temporary disqualification, such disqualification

as is comprised in paragraphs 2 and 3 of this article shall
last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension

for any office formerly held.

X----------------------------------X

Article 31. Effect of the penalties of perpetual or temporary

special disqualification. - The penalties of perpetual or
temporary special disqualification for public office,
profession or calling shall produce the following effects:

1. The deprivation of the office, employment, profession or

calling affected;

2. The disqualification for holding similar offices or

employments either perpetually or during the term of the
sentence according to the extent of such disqualification.

X----------------------------------X

Article 32. Effect of the penalties of perpetual or temporary

special disqualification for the exercise of the right of
suffrage. - The perpetual or temporary special
disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the
sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or
to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of
his disqualification.

X-------------------------------X

Article 33. Effects of the penalties of suspension from any

public office, profession or calling, or the right of suffrage. -
The suspension from public office, profession or calling, and
the exercise of the right of suffrage shall disqualify the
offender from holding such office or exercising such
profession or calling or right of suffrage during the term of
the sentence.
 130

The person suspended from holding public office shall not

hold another having similar functions during the period of
his suspension.

X--------------------------------X

Article 34. Civil interdiction. - Civil interdiction shall deprive

the offender during the time of his sentence of the rights of
parental authority, or guardianship, either as to the person
or property of any ward, of marital authority, of the right to
manage his property and of the right to dispose of such
property by any act or any conveyance inter vivos.

X-----------------------------X

Article 35. Effects of bond to keep the peace. - It shall be the

duty of any person sentenced to give bond to keep the
peace, to present two sufficient sureties who shall
undertake that such person will not commit the offense
sought to be prevented, and that in case such offense be
committed they will pay the amount determined by the court
in the judgment, or otherwise to deposit such amount in the
office of the clerk of the court to guarantee said
undertaking.

The court shall determine, according to its discretion, the

period of duration of the bond.

Should the person sentenced fail to give the bond as

required he shall be detained for a period which shall in no
case exceed six months, is he shall have been prosecuted
for a grave or less grave felony, and shall not exceed thirty
days, if for a light felony.

 The manifest purpose of the restrictions upon the right of suffrage

or to hold office is to preserve the purity of elections. The
presumption is that one rendered infamous by conviction of felony,
or other base offense indicative of moral turpitude, is unfit to
exercise the privilege of suffrage or to hold office. The
exclusion must for this reason be adjudged a mere disqualification,
imposed for protection and not for punishment, the withholding of a
privilege and not the denial of a personal right.

 “Perpetually or during the term of the sentence” this phrase shall be

applied distributively to their respective antecedents :
 131

- Perpetually – refers to the perpetual kind of special

disqualification.

- During the term of the sentence – refers to the

temporary special disqualification.

- Reason why the word perpetually or the phrase

during the term of the sentence is different :

o Because the provision, instead of

merging their duration into one period,
states that such duration is
according to the nature of said
penalty, which means according to
whether the penalty is the perpetual
or the temporary special
disqualification.

X------------------------------------X

Article 36. Pardon; its effect. - A pardon shall not work the
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.

A pardon shall in no case exempt the culprit from the

payment of the civil indemnity imposed upon him by the
sentence.

 Limitations upon the exercise of the pardoning power :

1. That the power can be exercised only after conviction;

2. That such power does not extend to cases of

impeachment.

 When the principal penalty is remitted by pardon, only the effect of

that principal is extinguished, but not the accessory penalties
attached to it. Exception: When an absolute pardon is granted after
the term of imprisonment has expired, it removes all that is left of
the consequences of conviction.

 Pardon by the Chief Executive distinguished from pardon by the

offended party :
 132

1. Pardon by the Chief Executive extinguishes the criminal

liability of the offender, such is not the case when the
pardon is given by the offended party.

2. Pardon by the Chief Executive cannot include civil liability

which the offender must pa; but the offended party can
waive the civil liability which the offender must pay.

3. In cases where the law allows pardon by the offended party

(Art.344), the pardon should be given before the institution
of criminal prosecution and must be extended to both
offenders; whereas, pardon by the Chief Executive is
granted only after conviction and may be extended to any
of the offenders.

X----------------------------------------X

Article 37. Cost; What are included. - Costs shall include fees
and indemnities in the course of the judicial proceedings,
whether they be fixed or unalterable amounts previously
determined by law or regulations in force, or amounts not
subject to schedule.

 Costs which are expenses of litigation are chargeable to the accused

only in cases of conviction. In case of acquittal, the costs are de
oficio, each party bearing his own expenses.

 Payment of costs is discretionary.

X---------------------------------------X

Article 38. Pecuniary liabilities; Order of payment. - In case

the property of the offender should not be sufficient for the
payment of all his pecuniary liabilities, the same shall be
met in the following order:

1. The reparation of the damage caused.

2. Indemnification of consequential damages.

3. The fine.
 133

4. The cost of the proceedings.

 Article 38 is applicable in case the property of the offender should

not be sufficient for the payment of all his pecuniary liability.
Hence, if the offender has sufficient or no property, there is no use
for Article 38.

 Courts cannot disregard the order of payment.

X-----------------------------------X

Article 39. Subsidiary penalty. - If the convict has no

property with which to meet the fine mentioned in the
paragraph 3 of the nest preceding article, he shall be
subject to a subsidiary personal liability at the rate of one
day for each eight pesos, subject to the following rules:

1. If the principal penalty imposed be prision correccional or

arresto and fine, he shall remain under confinement until his
fine referred to in the preceding paragraph is satisfied, but
his subsidiary imprisonment shall not exceed one-third of
the term of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day shall be
counted against the prisoner.

2. When the principal penalty imposed be only a fine, the

subsidiary imprisonment shall not exceed six months, if the
culprit shall have been prosecuted for a grave or less grave
felony, and shall not exceed fifteen days, if for a light felony.

3. When the principal imposed is higher than prision

correccional, no subsidiary imprisonment shall be imposed
upon the culprit.

4. If the principal penalty imposed is not to be executed by

confinement in a penal institution, but such penalty is of
fixed duration, the convict, during the period of time
established in the preceding rules, shall continue to suffer
the same deprivations as those of which the principal
penalty consists.
 134

5. The subsidiary personal liability which the convict may

have suffered by reason of his insolvency shall not relieve
him, from the fine in case his financial circumstances should
improve. (As amended by RA 5465, April 21, 1969).

 It is a subsidiary personal liability to be suffered by

the convict who has no property with which to meet
the fine, at the rate of one day for each eight pesos,
subject to the rules provided for in Article 39.

 An accused cannot be made to undergo subsidiary

imprisonment in case of insolvency to pay the fine
imposed upon him when the subsidiary
imprisonment is not imposed in the judgment of
conviction.

 As Article 39 is now worded, there is no subsidiary

penalty for nonpayment of :

1) The reparation of the damage caused;

2) Indemnification of the consequential

damages;

3) The costs of the proceedings.

 Article 39; when applicable:

- Applies only when the convict has no property
with which to meet the fine mentioned in
paragraph 3 Article 38.

 Can a fine be reduced or converted into a prison term?

- No. A fine, whether imposed as a single or as an

alternative penalty, should not and cannot be
reduced or converted into a prison term. There is no
rule for transmutation of the amount of a fine into a
term of imprisonment. (People vs. Dacuycuy, 173
SCRA 90, 101)

 Subsidiary imprisonment is not an accessory penalty.

That subsidiary imprisonment is a penalty, there can be
no doubt, for according to Article 39, it is imposed upon
the accused and served by him in lieu of the fine which
he fails to pay on account of insolvency.
 135

 Rule 1 :

- If the indemnity which the accused should pay is less

than P8.00, no subsidiary imprisonment should be
imposed for its non-payment.

 Rule 2 :

- When the fine provided by the Code, as the penalty

for the offense, is exactly P200.00, apply Art. 9 in
determining the classification of the felony,
because that article, in defining light felony, states
that the fine is “not exceeding P200.” When the
amount of the fine fixed by the Code as the penalty
for the offense is more than P200.00, apply Art. 26
to determine the classification of the felony.

 The penalty imposed must be (1) prision correctional,

(2) arresto mayor, (3) arresto menor, (4)
suspension, (5) destierro, or (6) fine only.
Hence,mid the penalty imposed by the court is not one
of them, subsidiary penalty cannot be imposed. There is
no subsidiary penalty, if the penalty imposed by the
court is :

1) Prision mayor
2) Reclusion temporal
3) Reclusion perpetua

 When the penalty prescribed for the offense is

imprisonment, it is the penalty actually imposed by the
Court, not the penalty provided for by the Code, which
should be considered in determining whether or not
subsidiary penalty should be imposed.
 “ the same deprivations as those of which the principal
penalty consists” example, if the penalty imposed is
imprisonment, the subsidiary penalty must be
imprisonment also.

 The laws which prohibit imprisonment for debt relate to

the imprisonment of debtors for liability incurred in the
fulfillment of contracts, but not to the cases seeking the
enforcement of penal statutes that provide for the
payment of money as a penalty for the commission of
crime.

 Persons convicted of violation of special laws are liable

to subsidiary imprisonment in case on insolvency in the
 136

payment of indemnity, except where the indemnity

consists in unpaid internal revenue tax.

 Subsidiary imprisonment, like accessory penalties, not

essential in determining jurisdiction.

What determines the jurisdiction of the Court in criminal

cases is the extent of the penalty which the law imposes
for the crime charged in the information or complaint.

X--------------------------------------X

Section Three. - Penalties in which other accessory penalties

are inherent

Article 40. Death; Its accessory penalties. - The death

penalty, when it is not executed by reason of commutation
or pardon shall carry with it that of perpetual absolute
disqualification and that of civil interdiction during thirty
years following the date sentence, unless such accessory
penalties have been expressly remitted in the pardon.

X--------------------------------------X

Article 41. Reclusion perpetua and reclusion temporal; Their

accessory penalties. - The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.

X--------------------------------------X

Article 42. Prision mayor; Its accessory penalties. - The

penalty of prision mayor, shall carry with it that of
temporary absolute disqualification and that of perpetual
special disqualification from the right of suffrage which the
offender shall suffer although pardoned as to the principal
penalty, unless the same shall have been expressly remitted
in the pardon.

X--------------------------------------X
 137

Article 43. Prision correccional; Its accessory penalties. - The

penalty of prision correccional shall carry with it that of
suspension from public office, from the right to follow a
profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of
said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in the
article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.

X--------------------------------------X

Article 44. Arresto; Its accessory penalties. - The penalty of

arresto shall carry with it that of suspension of the right too
hold office and the right of suffrage during the term of the
sentence.

 The Code does not provide for any accessory penalty for
destierro.

 The accessory penalties mentioned in Articles 40-43

must be suffered by the offender, although pardoned as
to the principal penalties. To be relieved of the
accessory penalties, the same must be expressly
remitted in the pardon.

 Absolute pardon for any crime for which one year

imprisonment or more was meted out restores the
prisoner to his political rights. Where the penalty is less
than one year, disqualification does not attach, except
when the crime committed is one against property.

The nature of the crime is immaterial when the penalty

imposed is one year imprisonment or more.

 The accessory penalties are understood to be always

imposed upon the offender by the mere fact that the law
fixes a certain penalty for a given crime.

X--------------------------------------X

Article 45. Confiscation and forfeiture of the proceeds or

instruments of the crime. - Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of
 138

the proceeds of the crime and the instruments or tools with

which it was committed.

Such proceeds and instruments or tools shall be confiscated

and forfeited in favor of the Government, unless they be
property of a third person not liable for the offense, but
those articles which are not subject of lawful commerce
shall be destroyed.

 A penalty cannot be imposed unless there is a

criminal case filed, the case is tried, and the
accused is convicted.

 Confiscation can be ordered only if the property is

submitted in evidence or placed at the disposal of the
court.

 Confiscation and forfeiture are additional penalty.

Being an additional penalty, the accused would
placed twice in jeopardy of punishment of the same
offense.

X------------------------------------X

APPLICATION OF PENALTIES

Section One. – Rules for the application of penalties to the

persons criminally liable and for the graduation of the same.

Article 46. Penalty to be imposed upon principals in general.

- The penalty prescribed by law for the commission of a
felony shall be imposed upon the principals in the
commission of such felony.

Whenever the law prescribes a penalty for a felony is

general terms, it shall be understood as applicable to the
consummated felony.
 139

 The penalty prescribed by law in general terms shall be

imposed:

1) Upon the principals

2) For consummated felony.

Example : Article 249, the penalty of reclusion temporal is

provided for the crime of homicide. That penalty is
intended for the principal in a consummated homicide.

 Exception: When the penalty to be imposed upon the principal

in frustrated or attempted felony is fixed by law.

 Graduation of penalties by degrees. – refers to

stages of execution ( consummated, frustrated or
attempted ) and to the degree of the criminal
participation of the offender ( whether as principal,
accomplice, or accessory).

 Division of a divisible penalty into three periods,

as maximum, medium and minimum. – refers to the
proper period of the penalty which should be imposed
when aggravating or mitigating circumstances attend the
commission of the crime.

X-----------------------------------X

Article 47. In what cases the death penalty shall not be

imposed. - The death penalty shall be imposed in all cases in
which it must be imposed under existing laws, except in the
following cases:

1. When the guilty person be more than seventy years of

age.

2. When upon appeal or revision of the case by the Supreme

court, all the members thereof are not unanimous in their
voting as to the propriety of the imposition of the death
penalty. For the imposition of said penalty or for the
confirmation of a judgment of the inferior court imposing
the death sentence, the Supreme Court shall render its
decision per curiam, which shall be signed by all justices of
said court, unless some member or members thereof shall
 140

have been disqualified from taking part in the consideration

of the case, in which even the unanimous vote and signature
of only the remaining justices shall be required.

 Since the Supreme Court is composed of 15 members

(Sec.4[1], Art. VIII, 1987 Constitution), the vote of eight (8)
members is required to impose the death penalty.

 While the fundamental law requires a mandatory review by

the Supreme Court of cases where the penalty imposed is
reclusion perpetua, life imprisonment, or death, nowhere,
however, has it proscribed an intermediate review. If only to
ensure utmost circumspection before the penalty of death,
reclusion perpetua or life imprisonment is imposed, the Court
now deem it wise and compelling to provide in these cases a
review by the Court of Appeals before the case is elevated to
the Supreme Court. (People vs. Mateo, G.R.Nos. 147678-87,
July 7, 2004)

 Republic Act No. 7659 which took effect on December 31,

1993, restored the death penalty for certain heinous crimes.
Republic Act No. 9346 which was enacted on June 24, 2006
prohibited the imposition of the death penalty, and provided
for the imposition of the penalty of reclusion perpetua in lieu
of death.

 Death penalty is not imposed in the following cases:

1) When the guilty person is below 18 years of age at

the time of the commission of the crime.

2) When the guilty person is more than 70 years of

age.

3) When upon appeal or automatic review of the case

by the Supreme Court , the vote of eight
members is not obtained for the imposition of the
death penalty.

 Justification for death penalty :

- Social defense and exemplarity justify the penalty of

death.

 Crimes where death penalty is imposed :

 141

1) Treason
2) Piracy
3) Qualified piracy
4) Qualified bribery
5) Parricide
6) Murder
7) Infanticide
8) Kidnapping and serious illegal detention
9) Robbery with homicide
10) Destructive arson
11) Rape with homicide
12) Plunder
13) Certain violations of the Dangerous Drugs Act
14) Carnapping

 Essence of judicial review :

- The essence of judicial review in capital offenses is

that while society allows violent retribution for
heinous crimes committed against it, it always must
make certain that the blood of the innocent is not
spilled, or that the guilty are not made to suffer more
than their just measure of the punishment and
retribution. Thus, a sentence of death is valid only if
it is susceptible of a fair and reasonable examination
by this court.

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Article 48. Penalty for complex crimes. - When a single act

constitutes two or more grave or less grave felonies, or
when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.

 Article 48 requires the commission of at least two crimes.

But the two or more grave or less grave felonies must be
the result of a single act, or an offense must be necessary
means for committing the other.

 In complex crime, although two or more crimes are actually

committed, they constitute only one crime in the eyes of the
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law as well as in the conscience of the offender. The offender

has only one criminal intent. Even in the case where an
offense is a necessary means for committing the other, the
evil intent of the offender is only one.

 Two kinds of complex crimes :

1) Compound crime – When a single act constitutes two

or more grave or less grave felonies.

Example : A fires a shot, the same bullet

causing the death of B and C who were
standing on the same line of the direction of
the bullet. Homicide, which is the unlawful
killing of a person, is punishable by
reclusion temporal, an afflictive penalty.
Hence, in killing B and C, A committed two
homicides, which are two grave felonies.
Since they were the result of one single act
of firing a shot, a complex crime was
committed.

2) Compound crime proper – When an offense is a

necessary means for committing the other.

 “ When a single act constitutes two or more grave or less

grave felonies.” ; Requisites :

1) That only single act is performed by the

offender.

2) That the single act produces (1) two or more

grave felonies, or (2) one or more grave and
one or more less grave felonies, or two or
more less grave felonies.

 No single act :

- when the acts are wholly different, not only in

themselves, but also because they are directed
against two different persons, as when one fires
his revolver twice in succession, killing one person
and wounding another (U.S. vs. Ferrer, 1Phil. 56).

- when two persons are killed one after the other,

by different acts, although these two killings were
the result of a single criminal impulse ( People vs.
Alfindo, 47 Phil. 1).
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 Where a conspiracy animates several persons with a single

purpose, their individual acts done in pursuance of that
purpose are looked upon as a single act, the act of
execution, giving rise to a single complex offense.
(People vs. Sanidad, G.R.No. 146099, April 30, 2003)

 “ two or more grave or less grave felonies” – In the case of a

compound crime, the offenses involved should be either
both grave or both less grave or one of them a grave
felony and the other less grave.

 Rape with homicide is a special complex crime not covered

by Article 48.

 If the act or acts complained of resulted from a single

criminal impulse, it constitutes a single offense.

 When, for the attainment of a single purpose, which

constitute an offense, various acts are executed, such acts
must be considered only as one offense, a complex crime.

 The same motive rule is acceptable when it is not certain who

among the accused killed or injured each of the several
victims.

 Doctrine : When various victims expire from separate acts,

such acts constitute separate and distinct crimes. ( People vs.
Gaffud, Jr., G.R. No. 168050, September 19, 2008, 566 SCRA
76, 88)

 Article 48 speaks of tow or more grave felonies or less grave

felonies resulting from a single act, which excludes crimes
punishable by special laws.

 “When an offense is a necessary means for committing the

other.”; Requisites :

1) That at least two offenses are committed.

2) That one or some of the offenses must be necessary

to commit the other.

3) That both or all the offenses must be punished under

the same statute.
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 The phrase necessary means used in Article 48 has been

interpreted not to mean indispensable means, because if it
did, then the offense as a necessary means to commit another
would be an indispensable element of the latter and would be
an ingredient thereof.

 When in the definition of a felony one offense is a means to

commit the other, there is not complex crime.

 When one of the offense was committed for the purpose of

concealing the commission of the other, there is no complex
crime.

 When two or more crimes are committed, but not by single

act, or one is not necessary means for committing the other,
there is no complex crime.

 Murder, arson and robbery are mere ingredients of the crime

of rebellion, as means necessary for the perpetration of the
offense. (Enrile vs. Salazar, 186 SCRA 217, 1990) Such
common offenses are absorbed or inherent in the crime of
rebellion. (People vs. Hernandez, 99 Phil. 515)

 When two crimes produced by a single act are respectively

within the exclusive jurisdiction of two courts of different
jurisdiction, the court of higher jurisdiction shall try the
complex crime.

 In directing that the penalty for the graver offense shall be

imposed in its maximum period, Article 48 could have had no
other purpose than to prescribe a penalty lower than the
aggregate of the penalties for each offense, if imposed
separately.

 Complex crime exists only in cases where the Code has no

specific provision penalizing the same with defined specific
penalty. ( People vs. Lasala, 4 SCRA 61, 62, 64-64 )

 When a complex crime is charged and the evidence fails to

support the charge as to one of the component offenses, the
defendant can be convicted of the other.

 Article 48 does not apply when the law provides one single
penalty for special complex crimes :

1) Robbery with homicide (Art, 294, par. 1)

2) Robbery with rape (Art. 294, par. 2)
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3) Kidnapping with serious physical injuries (Art.

267, par. 3)
4) Kidnapping with murder or homicide (Art. 267,
last par.) See People vs. Ramos, 297 SCRA 618)
5) Rape with homicide ( Art. 335)

 Plurality of crimes.

- Consists in the successive execution by the same

individual of different criminal acts upon any of which
no conviction has yet been declared.

- Two kinds :

1) Formal or ideal plurality. -

 there is but one criminal liability in

this kind of plurality.

 Three groups :

1) When the offender commits any

of the complex crimes defined in
Article 48 of the Code.

2) When the law specifically fixes a

single penalty for two or more
offenses committed.

3) When the offender commits

continued crime.

2) Real or material plurality. – there are

different crimes in law as well as in
the conscience of the offender. In such
cases, the offender shall be punished
for each and every offense that he
committed.

 Continued crime.

- Is a single crime, consisting of a series of acts but all

arising from one criminal resolution. Hence, only one
penalty shall be imposed.

- Not a complex crime, because the offender in

continued or continuous crime does not perform a
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single act, but a series of acts, and one offense is not

a necessary means for committing the other.

- There is no provision in the RPC or any other penal

law defining and specifically penalizing a continuing
crime. The principle is applied in connection with two
or more crimes committed with a single intention.

 Transitory crime, also called moving crime.

- When it is committed, the criminal action may be

instituted and tried in the court of the municipality,
city or province wherein any of the essential
ingredients Terence took place. The singleness of the
crime, committed by executing two or more acts, is
not considered.

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Article 49. Penalty to be imposed upon the principals when

the crime committed is different from that intended. - In
cases in which the felony committed is different from that
which the offender intended to commit, the following rules
shall be observed:

1. If the penalty prescribed for the felony committed be

higher than that corresponding to the offense which the
accused intended to commit, the penalty corresponding to
the latter shall be imposed in its maximum period.

2. If the penalty prescribed for the felony committed be

lower than that corresponding to the one which the accused
intended to commit, the penalty for the former shall be
imposed in its maximum period.

3. The rule established by the next preceding paragraph

shall not be applicable if the acts committed by the guilty
person shall also constitute an attempt or frustration of
another crime, if the law prescribes a higher penalty for
either of the latter offenses, in which case the penalty
provided for the attempted or the frustrated crime shall be
imposed in its maximum period.
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