Criminal Law Pre-Week Discussions by Justice Mario V.

Lopez
2

AGGRAVATING CIRCUMSTANCES
Take note that Article 14 is not an exclusive list
RA 9165 has an AC persons under influence of drugs
RA10151 The new firearms law has possession as an AC but
adds penalties also.

ACs must be specifically alleged in the information.

Note the following terms:

Penalty prescribed penalty as provided in the RPC
Penalty imposable the penalty arrived at after the
circumstances are taken into consideration
Penalty imposed the penalty as sentenced by the judge.

Sample problem in AC
The penalty prescribed is RT to RP. If there is no AC nor MC
alleged in the information, can bail be allowed?
Yes. There being no AC, at most, RT shall be imposed on its
medium period, hence bailable.

MULTIPLICITY OF CRIMES
Habituality accused has previously served a sentence for an
offense for which the law attaches an equal or greater
penalty or 2 or more crimes for which a lighter penalty is
attached (Generic AC)

Habitual delinquency there is a previous conviction of crimes

of serious/less serious physical injuries, theft, estafa, robbery
or falsification, and within a period of 10 years from release
or last conviction, he is found guilty of the said crimes a 3rd

time or oftener. (Special AC posting additional penalty)

Recidivism offender has been convicted by final judgment of a
crime and he is currently being tried for a crime embraced in the
same title of the RPC. (Generic AC)

Quasi-recidivism offender shall commit a crime after having

been convicted by final judgment before beginning to serve
or while serving the penalty for the previous crime. (Special
AC, cannot be offset by ordinary MC) Offender can be pardoned
if he reaches the age of 70, unless he does not deserve to be
pardoned.

Relate Article 14 to Article 62 Paragraphs 1 to 4.

Inherent AC, absorbed since it is an element of the crime

Art. 62. Effect of the attendance of mitigating or

aggravating circumstances and of habitual
delinquency. Mitigating or aggravating
circumstances and habitual delinquency shall be taken
into account for the purpose of diminishing or
increasing the penalty in conformity with the
following rules:

1. Aggravating circumstances which in

themselves constitute a crime specially
punishable by law or which are included by the
law in defining a crime and prescribing the
penalty therefor shall not be taken into account
for the purpose of increasing the penalty.

2. The same rule shall apply with respect to any

aggravating circumstance inherent in the crime to
such a degree that it must of necessity accompany
the commission thereof.

3. Aggravating or mitigating circumstances

 which arise from the moral attributes of the
offender, or from his private relations with the
offended party, or from any other personal cause,
shall only serve to aggravate or mitigate the
liability of the principals, accomplices and
accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the
material execution of the act, or in the means
employed to accomplish it, shall serve to
aggravate or mitigate the liability of those
persons only who had knowledge of them at the
time of the execution of the act or their
cooperation therein.

Habitual Delinquency
Article 62(5.) Habitual delinquency shall have the following
effects:

(a) Upon a third conviction the culprit shall be

sentenced to the penalty provided by law for the last
crime of which he be found guilty and to the
additional penalty of prision correccional in its
medium and maximum periods;

(b) Upon a fourth conviction, the culprit shall be

sentenced to the penalty provided for the last crime of
which he be found guilty and to the additional penalty
of prision mayor in its minimum and medium periods;
and

(c) Upon a fifth or additional conviction, the

culprit shall be sentenced to the penalty provided for
the last crime of which he be found guilty and to the
additional penalty of prision mayor in its maximum
period to reclusion temporal in its minimum period.
 Notwithstanding the provisions of this article, the total
of the two penalties to be imposed upon the offender,
in conformity herewith, shall in no case exceed 30
years.

Grave Abuse of Confidence

It is an AC absorbed by the crime of estafa.

Evident Premeditation is absorbed in the crime of theft or

robbery, since there is always intent to take in said crimes.

Dwelling is inherent in robbery with force upon things and is

absorbed. However it is an AC in the crime of robbery with
force and intimidation of persons as this crime does not involve
dwelling as an element.

Treachery must be shown that a mode of attack has been

purposely adopted. It must be proven to exist at the inception of
the crime. If there being a lapse of time, the aggression
continued, it must be appreciated as an AC.

Treachery absorbs the following AC: With aid of armed men; by

means of a band; use of craft, fraud or disguise; nighttime, abuse
of superior strength, employ means to weaken defense, evident
premeditation

The following requisites must concur for treachery to be present:

a. The culprit employed means, methods or forms of execution
which directly and specially tend to insure the offenders safety
from any retaliatory act on the part of the offended party.
b. That such means, method or manner of execution was
deliberately or consciously shown. (People v. Clemente, 21
SCRA 261) (Q3, 1997 Bar)

Evident premeditation must be shown specifically, that the

accused must have clung to the determination of committing the
crime he intended to do.

Error in personae shows no evident premeditation, but may

show treachery. Evident premeditation must result in the actual
person targeted being killed or injured.

Treachery cannot co-exist with passion or obfuscation.

Treachery involves cool deliberation and planning, while
passion involves a spur of emotion or impulse, no plan being
concocted.

Treachery cannot exist with vindication of a grave offense.

There can be no vindication when such attack is treacherous.

Conspiracy
It is punishable if the crime to commit a conspiracy is made
punishable in the RPC or special law.

It is a mode of commission of a crime, showing unity of design

and resolve, wherein the act of one is the act of all. It need not
be proven by direct evidence, as the acts showing unity of
design points to conspiracy. It is not confined to a particular
purpose or agreement, but includes all collateral acts or
agreements in line with the purpose of the offenders. If such
collateral act is a logically necessary consequence of the
agreement, all shall be liable for the same.

If an act done is not within the agreement, it is a different act, a

different crime, imputable only to the actor thereof. However,
the others must have tried to prevent the commission of the
same.

Robbery by band in relation to conspiracy

All assaults committed by each member of the band shall hold
all of them liable thereto.

If a rape happened within the vicinity of the crime of robbery by

band, all of them shall be liable thereto.

In case there was abberatio ictus or error in personae, conspiracy

can still be appreciated if it is a logical and necessary
consequence of the acts done in furtherance of the crime

Note in Article 62 (3) and (4), the personal attributes of a party

will not be given weight to other conspirators.

3. Aggravating or mitigating circumstances which arise

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

4. The circumstances which consist in the material

execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the
liability of those persons only who had knowledge of them
at the time of the execution of the act or their cooperation
therein.

Minor who is a member of a band shall be acquitted, but the

others shall not, as it is personal privilege due to the minority of
said member.
Exception: If said minor is a principal by direct inducement.

If there is a conspiracy, there is no need to determine the acts of

every co-conspirators since the act of one is the act of all.
However, these acts must be within their contemplation or those
which are necessary and are a logical consequence of the
intended crime.

ACCESSORY in relation to conspiracy

An accessory participates after the fact, not before or during the
commission of the crime.

Note: In relation to fencing, a person who sells or benefits from

a thing that is or should have been known to him as a product
from illegal acts shall be liable for fencing, although it would
seem that he is just an accessory of a crime, say robbery. Such
accessory, by means of the Anti-Fencing Law, becomes a
principal.

Article 29 RPC
Art. 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).

Note: Suspension pendent lite is mandatory but not automatic. It

is not a penalty.

Subsidiary Imprisonment/Penalty
Under Article 39, as amended, it is no longer PhP8.00 per day
but the highest rate of minimum wage in the country. It shall be
limited to one year. Judgment must specifically contain the
subsidiary penalty.

Probation applies only when there is an imprisonment. The

duration of probation should be no less than one year.

Complex Crime
Complex crime exists when two or more crimes are committed
but they constitute only one crime in the eyes of the law. Here,
there is only one criminal intent hence, only one penalty is
imposed

Art. 48 requires the commission of at least 2 crimes. But the two

or more GRAVE or LESS GRAVE felonies must be:
(1) the result of a single act, or
(2) an offense must be a necessary means for committing the
other.

Nature of complex crimes

Although two or more crimes are actually committed, they
constitute only one crime, in the eyes of the law; and in the
conscience of the offender. Even in the case where an offense is
a necessary means for committing the other, the evil intent of the
offender is only one. Hence, there is only one penalty imposed
for the commission of a complex crime.

Special Complex/Composite crimes

The substance is made up of more than one crime but which in
the eyes of the law is only
(1) a single indivisible offense.
(2) all those acts done in pursuance of the crime agreed upon are
acts which constitute a single crime.

Compound Crime (Delito Compuesto)

A single act results in two or more grave or less grave felonies.
Requisites:
(1) That only a single act is performed by the offender
(2) That the single acts produces:
i. 2 or more grave felonies, or
ii. 1 or more grave and 1 or more less grave felonies, or
iii. 2 or more less grave felonies

Note: A light felony may be absorbed in a complex crime.

Light felonies produced by the same act should be treated and
punished as separate offenses or may be absorbed by the grave
felony.

Compound crimes provision under Art. 48 is also applicable to

crimes through negligence. Thus, a municipal mayor who
accidentally discharged his revolver, killing a girl and injuring a
boy was found guilty of complex crime of homicide with less
serious physical injuries through reckless imprudence. (People v.
Castro)

Complex Crime Proper (Delito Complejo)

An offense is a necessary means for committing the other. In
complex crime, when the offender executes various acts, he
must have a single purpose.

But: When there are several acts performed, the assumption is

that each act is impelled by a distinct criminal impulse, hence
each will have a separate penalty.

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.

Note: The phrase necessary means does not mean

indispensable means

In an ambush, several guns were fired, each targeted at different

persons at the same time. Is there a complex crime?
No. If there are several acts, even if done in conspiracy, it is not
a complex crime though there are several acts done but there is a
single impulse. A single impulse is not the same as a single act.
In the given example, there are several acts done in a single
impulse.

This is akin to a man who fired a rifle with 30 rounds of

ammunition. Each round fired is only a single act, but the firing
of the entire magazine came about because of a single impulse.

No complex crime proper:

(a) Subsequent acts of intercourse, after forcible
abduction with rape, are separate acts of rape.
(b) Not complex crime when trespass to dwelling is a
direct means to commit a grave offense.
(c) No complex crime, when one offense is committed to
conceal the other.
(d) When the offender already had in his possession the
funds which he misappropriated, the subsequent
falsification of a public or official document involving
said offense is a separate offense.
(e) No complex crime where one of the offenses is
 penalized by a special law.
(f) There is no complex crime of rebellion with murder,
arson, robbery, or other common crimes (People v.
Hernandez; Enrile v. Salazar).
(g) In case of continuous crimes.
(h) When the other crime is an indispensable element of the
other offense.
General rules in complexing crimes:
(a) 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.
(b) The penalty for complex crime is the penalty for the
most serious crime, the same to be applied in its maximum
period.
(c) When two felonies constituting a complex crime are
punishable by imprisonment and fine, respectively, only the
penalty of imprisonment should be imposed.
(d) Art. 48 applies only to cases where the Code does not
provide a definite specific penalty for a complex crime.
(e) One information should be filed when a complex crime
is committed.
(f) When a complex crime is charged and one offense is not
proven, the accused can be convicted of the other.
(g) Art. 48 also applies in cases when out of a single act of
negligence or imprudence, two or more
grave or less grave felonies resulted, but only the first part
is applicable, i.e. compound crime. The second part of Art.
48 does not apply, referring to the complex crime proper
because this applies or refers only to a deliberate
commission of one offense to commit another offense.

Special Complex Crimes

(1) Robbery with Homicide (Art. 294 (1))
(2) Robbery with Rape (Art. 294 (2))
(3) Robbery with Arson
(4) Kidnapping with serious physical injuries (Art. 267 (3))
(5) Kidnapping with rape
(6) Rape with Homicide (Art. 335)
(7) Arson with homicide

Special complex crimes are those which are defined specifically

under the law

When crimes involved cannot be legally complexed, viz:

(1) Malicious obtention or abusive service of search warrant
(Art. 129) with perjury;
(2) Bribery (Art. 210) with infidelity in the custody of prisoners;
(3) Maltreatment of prisoners (Art. 235) with serious physical
injuries;
(4) Usurpation of real rights (Art. 312) with serious physical
injuries; and
(5) Abandonment of persons in danger (Art. 275) and crimes
against min

There is no such thing as a special complex crime by analogy.

There must be a specific law.

The intended crime must be attempted or consummated. But

COMPOSITE CRIMES MUST ALWAYS BE
CONSUMMATED.

Is falsification necessary to commit malversation?

Yes. Falsification may be necessary for liquidation to occur.

GR: There need not be liquidation in malversation as what is

malversed is already liquidated. The offender misappropriates
public funds or property for his own personal use, or allows any
other person to take such funds or property for the latters own
personal use.

Illegal exaction may be complexed with malversation if illegal

exaction was committed as a necessary means to commit
malversation.

In order for a complex crime to be present, the elements of each

crime must be present independently of each other. No element
must be the same. This is the reason why there is no estafa
through falsification of a public document.

When falsification of a private document is committed as a

means to commit estafa, the proper charge should be estafa.

If estafa can be committed without the necessity of falsifying a

document, the proper crime is estafa.
Monteverde v. People (2002): Monteverde was purportedly charged with the complex crime of estafa
through falsification of a commercial document for allegedly falsifying the document she had submitted
to show that the money donated by PAGCOR was used and spent for lighting materials for her barangay.

Held: Under Article 48 of the Revised Penal Code, a complex crime refers to:
1) the commission of at least two grave or less grave felonies that must both (or all) be the result of a
single act, or
2) one offense must be a necessary means for committing the other (or others).

Using the above guidelines, the acts cannot constitute a complex crime. Specifically, the alleged actions
showing falsification of a public and/or a commercial document were not necessary to commit estafa.

Neither the two crimes the result of a single act.

Two-Tiered Penalty
A crime has an incremental penalty, there being use of the words
in addition to as to the penalty imposable.

Example:
Art. 312. Occupation of real property or usurpation of real rights
in property. Any person who, by means of violence against or
intimidation of persons, shall take possession of any real
property or shall usurp any real rights in property belonging to
another, in addition to the penalty incurred for the acts of
violence executed by him, shall be punished by a fine from 50 to
100 per centum of the gain which he shall have obtained, but not
less than 75 pesos.

If the value of the gain cannot be ascertained, a fine of from 200

to 500 pesos shall be imposed.

Continuous Crimes (Delito Continuado)

Delito continuado exists when there is a plurality of acts
performed during a period of time; unity of penal provision
violated; and unity of criminal intent or purpose, which means
that two or more violations of the same penal provisions are
united in one and the same instant or resolution leading to the
perpetration of the same criminal purpose or aim. (Santiago vs.
Garchtorena)

When there is delito continuado, the crime cannot be split into

two or more crimes, as double jeopardy will set in.

Note: The concept of delito continuado has been applied to

crimes under special laws since in Art. 10, the RPC shall be
supplementary to special laws, unless the latter provides the
contrary.

Continued crime (continuous or continuing) - A single crime,

consisting of a series of acts but all arising from one criminal
resolution.

Example: One who on several occasions steals wheat deposited

in a granary. Each abstraction constitutes theft, but instead of
imposing on the culprit different penalties for each theft
committed, he is punished for only one hurto continuado for
the total sum or value abstracted.

Continuing offense - A continuous, unlawful act or series of acts

set on foot by a single impulse and operated by a non-
intermittent force, however long a time it may occupy.
Foreknowledge Rule
The accused has a pre-vision that this crime will be committed,
the same criminal design that he had from the beginning.

If there is a delito continuado, and 2 crimes were separately

subjected in an information, what is the proper motion for you to
make?
Motion to dismiss the additional information. (Choose to
dismiss the one with higher penalty and retain!)
Relate this to the Ivler Case. (Reckless imprudence resulting to
homicide, serious physical injuries and damage to property
cannot be split into two cases as double jeopardy will set in.)

PENALTIES
It is the suffering imposed by the law for a violation of a penal
statute, the purpose of which is as an act of self-defense of the
state to deter would-be criminals as well as a means to
rehabilitate the offender.

Subsidiary penalty it is 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 P8, subject to the rules provided for in
Articles 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. (Ramos v. Gonong)
A convict who has property not exempt from execution
sufficient enough to meet the fine cannot choose to serve the
subsidiary penalty.
Subsidiary imprisonment is not an accessory penalty.

Note:
No subsidiary penalty in the following cases:
(1) When the penalty imposed is higher than prision
correccional.
(2) For failure to pay the reparation of the damage caused,
indemnification of the consequential damages, and the costs of
the proceedings.
(3) When the penalty imposed is fine and a penalty not to be
executed by confinement in a penal institution and which has no
fixed duration.

ISLAW
Formula for ISLAW in simplified manner
If under the RPC
1. Start with the prescribed penalty example: PM
2. Get the minimum and maximum term by taking into
consideration all circumstances attendant to the crime.
Maximum is that penalty governed by the RPC, the
minimum is one degree lower than the prescribed penalty
in any of its periods. Ex. No AC or MC, Max = PM Med,
Min = PC
3. Penalty must be more than 1 year in duration. The
maximum of the penalty must reach the minimum of 1 year
and 1 day duration.
If under Special Laws
The prescribed penalty shall be used directly (Ex. 12 years and 1
day to 20 years).
The Maximum and the Minimum should not exceed the limits
of the prescribed penalty, hence Max = 19 years, Min = 16 years
and 1 day.

Can ISLAW be applied to destierro, which has a duration of 6

months and 1 day to 6 years?
No, this is not covered by ISLAW, as ISLAW covers only those
penalties where the convict shall be put to jail. Destierro does
not involve going to jail.

Take note: Circumstances do not affect INDIVISIBLE

PENALTIES (such as death, RP)
Exception: The MC is privileged in character, the penalty shall
be lowered by one degree.

EXTINCTION OF CRIMINAL LIABILITY

Two kinds of extinguishment of criminal liability:

A. TOTAL EXTINGUISHMENT
1. By prescription of crime
2. By prescription of penalty
3. By the death of the convict
4. By Service of sentence
5. By Amnesty
6. By Absolute Pardon
7. By the marriage of the offended woman and the offender in
the crimes of rape, abduction, seduction and acts of
lasciviousness. (Art. 344)

B. PARTIAL EXTINGUISHMENT
1. By Conditional Pardon
2. By Commutation of sentence
3. For good conduct, allowances which the culprit may earn
while he is serving sentence
4. By Parole
5. By Probation

Important: The Supreme Court ruled that re-election to public

office is not one of the grounds by which criminal liability is
extinguished. This is only true in administrative cases but not in
criminal cases.

Prescription of crimes (Art. 90)

Definition: The forfeiture or loss of the right of the State to
prosecute the offender, after the lapse of a certain period of time.

General Rule: Prescription of the crime begins on the day the

crime was committed.
Exception: The crime was concealed, not public, in which case,
the prescription thereof would only commence from the time the
offended party or the government learns of the commission of
the crime.

Prescription of Crime
Forfeiture of the State to prosecute after a lapse of a certain time

Prescription of Penalty
Forfeiture to execute the final sentence after the lapse of a certain time.

Question: What happens when the last day of the prescriptive

period falls on a Sunday or legal holiday? Answer: The
information can no longer be filed on the next day as the crime
has already prescribed.

Prescription of Felonies/Crimes
a. 20 years crimes punishable by death, RP, RT
b. 15 years crimes punishable by afflictive penalties PM,
RT, RP, Temporary disqualification)
c. 10 years crimes punishable by PC
d. 5 years crimes punishable by AM
e. 1 year crimes of libel and other similar offenses
f. 6 months crimes of oral defamation and slander by deed
g. 2 months light offenses

Prescription of Penalties
Death and reclusion perpetua 20 years
Other afflictive penalties 15 years
Correctional penalties 10 years
Except: Arresto Mayor 5 years
Light penalties 1 year

Period commences to run from the date when he culprit evaded18 the service of sentence When
interrupted:
- Convict gives himself up
- Is captured
- Goes to a foreign country with which we
- Commits any crime before the expiration of the period of prescription

Question: What happens in cases where our government has

extradition treaty with another country but the crime is not
included in the treaty?
Answer: It would interrupt the running of the prescriptive
period.

Question: What is the effect of the acceptance of the convict of a

conditional pardon?
Answer: It would interrupt the acceptance of the prescriptive
period.

Question: What happens if the culprit is captured but he evades

again the service of his sentence? Answer: The period of
prescription that ran during the evasion is not forfeited. The
period of prescription that has run in his favor should be taken
into account.

Amnesty versus Pardon

Amnesty - An act of the sovereign power granting oblivion or
general pardon for a past offense.

Rarely exercised in favor of a single individual; usually

extended in behalf of certain classes of persons who are subject
trial but have not yet been convicted. Erases not only the
conviction but the crime itself.

Amnesty Pardon
Blanket pardon to classes of persons, guilty of Includes any crime and is exercised individually
political offenses
May still be exercised before trial or investigation The person is already convicted
Looks backward- it is as if he has committed no Looks forward- he is relieved from the
offense consequences of the offense, but rights not restored
unless explicitly provided by the terms of the
pardon
do not extinguish civil liability do not extinguish civil liability
Public act which the court shall take judicial notice Private act of the President and must be pleaded and
of proved by the person pardoned

Valid only when there is final judgment Valid if given either before or after final judgment

Absolute Pardon - An act of grace, proceeding from the power

entrusted with the execution of the laws. Exempts the individual
from the penalty of the crime he has committed.

Monsanto v Factoran (1989):

1. Absolute pardon does not ipso facto entitle the convict to
reinstatement to the public office forfeited by reason of his
conviction.
2. Although pardon restores his eligibility for appointment to
that office, the pardoned convict must reapply for a new
appointment.

Conditional Pardon - If delivered and accepted, it is a contract

between the executive and the convict tat the former will release
the latter upon compliance with the condition. One usual
condition is not again violate any of the penal laws of the
country.
Effects of Pardon of the President
Art. 36. Pardon; its effects. 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 civil indemnity imposed upon him by the sentence.

Effects:
(1) A pardon shall not restore the right to hold public office or the right of suffrage.
Exception: When any or both such rights is or are expressly restored by the terms of the pardon.

(2) It shall not exempt the culprit from the payment of the civil indemnity. The pardon cannot make an
exception to this rule.

Limitations upon the exercise of pardoning power

(1) That the power can be exercised only after conviction.
Thus in applying for pardon, the convict must not appeal the judgment of conviction or the appeal
must be abandoned.
(2) That such power does not extend to cases of impeachment. (Cristobal v. Labrador).

The effects of amnesty as well as absolute pardon are not the

same. Amnesty erases not only the conviction but also the crime
itself.

If an offender was convicted for rebellion and he qualified for

amnesty, and so he was given an amnesty, then years later he
rebelled again and convicted, is he a recidivist?
No. Because the amnesty granted to him erased not only the
conviction but also the effects of the conviction itself.
Suppose, instead of amnesty, what was given was absolute
pardon, then years later, the offended was again captured and
charged for rebellion, he was convicted, is he a recidivist?
Yes. Pardon, although absolute does not erase the effects of
conviction. Pardon only excuses the convict from serving the
sentence.

There is an exception to this and that is when the pardon was

granted when the convict had already served the sentence such
that there is no more service of sentence to be executed then the
pardon shall be understood as intended to erase the effects of the
conviction.

So if the convict has already served the sentence and in spite of

that he was given a pardon that pardon will cover the effects of
the crime and therefore, if he will be subsequently convicted for
a felony embracing the same title as that crime, he cannot be
considered a recidivist, because the pardon wipes out the effects
of the crime.

But if he was serving sentence when he was pardoned, that

pardon will not wipe out the effects of the crime, unless the
language of the pardon absolutely relieve the offender of all the
effects thereof.

Considering that recidivism does not prescribe, no matter how

long ago was the first conviction, he shall still be a recidivist.
Pardon by the Chief Executive
Extinguishes the criminal liability of the offender.
Cannot include civil liabilities which the offender
must pay.
Conditional or Absolute
Granted only after the conviction.
Pardon by the offended party
Does not extinguish criminal liability. Although it
may constitute a bar to the prosecution of the: (1)
crimes of seduction, abduction and acts of
lasciviousness by the valid marriage of the offended
party and the offender; and (2) in adultery and
concubinage, by the express or implied pardon by
the offended spouse.
The offended party can waive the civil liability
which the offender must pay.
Cannot be conditional
Pardon should be given before the institution of
criminal prosecution. If granted after institution of
 the criminal prosecution, generally, the criminal
case shall proceed.

Pardon by the offended party

Art. 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.

Under this article, a pardon does not extinguish the criminal

liability of an offender except for cases under Article 344
(Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness). But
the civil liability with regard to the interest of the injured party is
extinguished.

Pardon by the offended party does not extinguish criminal

liability. It only prevents the institution of a criminal offense in
cases of private crimes. If pardon has been given after the case
has been filed, the pardon is ineffective.
Exception: Pardon in case of CASARA (Concubinage, adultery,
seduction, acts of lasciviousness, rape and abduction)

Bigamy shall deemed to be discovered, and hence the period of

prescription starts, upon the registration of the 2 marriagend

contract.

Once the 2 marriage is contracted, even if it is void, bigamy is

nd

committed.

Prisoners who escape in times of calamity but returned within 48

hours after the calamity was declared to be over shall be given a
reduction of 1/5 of their remaining sentence. Those who did not
escape shall be given 2/5 reduction.
Penalty DOES NOT PRESCRIBE if yet unserved. Hence, if the
convict escapes after final judgment, but prior to the start of his
sentence, even after 50 years of hiding when he was rearrested,
he shall still serve his sentence as it has not prescribed.

Absence of accused from the Philippines will suspend the

prescriptive period for felonies in the RPC. If the crime involves
a special law, file the case immediately. The case will just be
archived and never prescribe. Otherwise, the crime under a
special law will prescribe.

Novation does not extinguish criminal liability. Once an

information is filed, novation will not affect the case.

Novation is not one of the means whereby criminal liability can

be extinguished; hence, the role of novation may only be to
either prevent the rise of criminal liability or to cast doubt
on the true nature of the original petition, whether or not it
was such that its breach would not give rise to penal
responsibility, as when money loaned is made to appear as a
deposit, or other similar disguise. (Milla vs. People Jan. 25,
2012)

Novation is not a mode for extinguishing criminal liability for

violation of B.P. 22. The fact that the petitioner had already
made substantial payments to the respondentis immaterial to
the extinguishment of criminal liability. (Medalla vs. Laxa Jan.
18, 2012)

PROBATION (PD 968)

Probation a disposition under which a defendant, after
conviction and sentence, is released subject to conditions
imposed by the court.

It is not a matter of right, merely a privilege. Even if a person is

qualified, the court cannot be compelled to do so if the court
finds the person or convict is not fitting to be subjected to
probation.

If an appeal was filed only to appeal the correctness of the

penalty, and not to insist on his innocence, and the penalty was
reduced to a probationable period, the rules on probation shall
be applicable to him.

Purpose (Sec. 2)
1. Promote the correction and rehabilitation of an offender by
providing him with individualized treatment
2. Provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a
prison sentence
3. Prevent the commission of offenses

Disqualified offenders Probation under PD No. 968, as

amended, is intended for offenders who are 18 years of age and
above, and who are not otherwise disqualified by law. Offenders
who are disqualified are those:
a) Sentenced to serve a maximum term of imprisonment of more
than six years;
b) Convicted of subversion or any offense against the security of
the State, or the Public Order;
c) Who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month
and one day and/or a fine of not more than Two Hundred Pesos;
d) Who have been once on probation under the provisions of this
Decree; and
e) Who are already serving sentence at the time the substantive
provisions of PD 968 became applicable pursuant to Sec. 33
hereof (Effectivity clause: PD 968s substantive provisions took
effect on 3 January 1978)

Effect of Filing a petition for probation:

1. Judgment attains finality, BUT NOT YET EXECUTORY
(VERY IMPORTANT TO NOTE!)
 2. Loss of right to appeal
3. Suspends execution of the judgment
4. Suspension of accessory penalties such as disqualification.

The Probation Law specifically provides that the grant of

probation suspends the execution of the sentence. During the
period of probation, the probationer does not serve the
penalty imposed upon him including the accessory penalties
like disqualification to run for office. (Moreno vs. COMELEC
Aug. 10, 2006)

Conditions of Probation
Any condition can be imposed by the court, so long as the
constitutional rights of the accused is not violated.

Period of Probation
Sec. 14.
a. The period of probation of a defendant sentenced to a term of
imprisonment of not more than one year shall not exceed 2
years, and in all other cases, said period shall not exceed 6 years.

b. When the sentence imposes a fine only and the offender is

made to serve subsidiary imprisonment in case of insolvency,
the period of probation shall not be less than nor be more than
twice the total number of days of subsidiary imprisonment as
computed at the rate established in Art. 39 of the RPC, as
amended.

The period is not co-terminous with that period imposed by the

court. It remains in force until such time the court shall have
discharged the accused from probation. It does not end upon
reaching the stated period.
AREAS TO TAKE NOTE OF IN CRIM 2
Justice Edilberto Sandoval

Article 12: Officer in the course of performance of a lawful duty

discharged his firearm by accident, injuring or killing an
innocent bystander.

Death under exceptional circumstances in relation to Reckless

imprudence resulting to homicide
A caught his wife and her paramour in the act of having sex. A
shot at his wife and paramour, but missed, hitting B, a bystander.
What is the crime of A?
A cannot be made liable for a crime against his wife nor her
paramour, as he was merely defending his honor. However, he is
liable for killing the bystander through an act of reckless
negligence. Hence, A should be tried for reckless negligence
resulting to homicide, which is the crime he committed.

Violation of the Human Security Act if it can be complexed with

another crime or if a crime, which is a predicate crime under
HAS, was separately filed.

Plunder
Note: Plunder is just a modified form of bribery.

Bribery is committed by a PUBLIC OFFICER if he accepts the

offered money or benefit.

The private person who makes the offer is not guilty of bribery
but is instead guilty of CORRUPTION OF A PUBLIC
OFFICER.

There is attempted bribery when the public officer tried to

induce a private person to pay him in consideration of doing or
not doing something but the private person did not do so.
Indirect Bribery
A judge was given money by the plaintiff so as to secure a
favorable decision. However, the judge decided in favor of the
defendant. What crime did the judge commit?
The judge is guilty of indirect bribery as he received the cash
which was given in consideration of his office. (Art. 211RPC)

PD 46
Mere offer of any thing or money which a judge ought not to
accept shall hold the judge liable for indirect bribery.

Battered Wife Syndrome

Will BWS lie when the wife induced another person to kill her
husband?
This is an area of contention, no jurisprudence for it being
present as of yet. Justice Sandoval recommends that we say no.
We should reason out that if the wife cannot be held liable for
DIRECTLY AND PERSONALLY killing her husband, she
should also be not held liable when she had another person kill
her husband, as she would be operating in the same state of
mind as when she would have personally killed her husband.

Death under tumultuous affray

What if the father and 5 sons went on a drinking spree. Later on,
a melee ensued. At the time the melee was stopped, the father
was found dead, and nobody was able to determine who killed
him. What is the crime?
Death under tumultuous affray.

Pardon by offended party will not affect the case once it has
been filed. Exception is CASARA (Concubinage, adultery,
seduction, acts of lasciviousness, rape and abduction)

Art. 89 Marriage as a form of extinguishing a crime

Only applies to SARA (seduction, acts of lasciviousness, rape
and abduction)
It applies only to simple rape, not multiple rape or sexual assault
committed by a male.

Pardon versus amnesty

Complex Crimes

Robbery with Homicide

No matter how many were killed, or who were killed or who
killed whom, so long as there was killing committed BEFORE,
DURING or AFTER the robbery IN THE COURSE OF
COMMISSION thereof, the crime is Robbery with Homicide.

Rape done in the course of committing rape with homicide is

absorbed.

Robbery with Rape

Robbery is accompanied by rape. If the rape was done by only
one of them, if nobody tried to stop the one who committed the
rape, then all of them are liable for robbery with rape.

If the rape was separated by distance and time, separate crimes

of rape and robbery may be had.

If there were subsequent rapes after the robbery with rape, they
are separate counts of rape subject to a different case.

Theft vs. Robbery

Theft vs. estafa

Impossible crime of theft

Impossible crime of murder/homicide/parricide

Bigamy under Art. 349 in relation to Art. 315

Direct Assault

Indirect Assault

Crimes against honor (libel, slander, slander by deed)

Cybercrimes Law in relation to Anti-Voyeurism Act and libel

Qualified theft

Carnapping