ARTICLE 12: MITIGATING CIRCUMSTANCES 1.

Incomplete self-defense, defense of relatives and

Mitigating circumstances: if present in the commission defense of stranger
of the crime, do not entirely free the actor from criminal Unlawful aggression must be present
liability, but serve only to reduce the penalty What is absent is either one or both of the last
Basis: the diminution of either freedom of action, two requirements (reasonable necessity and
intelligence, or intent or on the lesser perversity of the lack of sufficient provocation)
offender If two of the three requisites are present
Classes of mitigating circumstances: (unlawful aggression and another)
1. Ordinary mitigating: enumerated in subsection 1 privileged mitigating rather than just ordinary
to 10 of Article 13 mitigating
2. Privileged mitigating Because majority of the conditions
a. Article 68: Penalty to be imposed upon a required is present
person under 18 years of age 2. Incomplete justifying circumstance of avoidance
b. Article 69: Penalty to be imposed when the of greater evil or injury
crime is committed is not wholly excusable If any of the last 2 requirements in paragraph
c. Article 64: Rules for the application of 4 of Article 11 is absent mitigating
penalties which contain three periods 3. Incomplete justifying circumstance of
performance of duty
Ordinary Mitigating Privileged Mitigating 2 requisites under Article 11 (5)
Susceptible of being Cannot be offset by Accused acted in the performance of a
offset by any aggravating aggravating circumstance duty or in lawful exercise of right or office
circumstance Injury caused or offense committed be
If not offset by Produces the effect of the necessary consequence of the due
aggravating imposing upon the performance of such duty or the lawful
circumstance, produces offender the penalty exercise of such right or office
only the effect of lower by one or two Since the SC considered one of the two
applying the penalty degrees than that requisites as constituting the majority, it
provided by law for the provided by law for the seems that there is no ordinary mitigating
crime in its minimum crime circumstance under Article 13 (1), when
period the justifying or exempting circumstance
*Mitigating circumstances only reduce the penalty, but has 2 requisites only. (Therefore,
do not change the nature of the crime. privileged mitigating)
Paragraph 1: All requisites of justifying and exempting 4. Incomplete justifying circumstance of obedience
circumstances are not attendant to an order
Requisites necessary to justify the act or exempt When all the requisites necessary to exempt from
from criminal liability in the respective cases are criminal liability are not attendant:
attendant: 1. Incomplete exempting circumstance of minority
1. Self-defense over 15 and under 18 years of age
2. Defense of relatives If the minor over 15 and under 18 acted with
3. Defense of stranger discernment mitigating circumstance only
4. State of necessity 2. Incomplete exempting circumstance of accident
5. Performance of duty Requisites:
6. Obedience to order of superior Performing a lawful act
7. Minority above 15 but below 18 With due care
8. Causing injury by mere accident Causes injury to another by mere accident
9. Uncontrollable fear Without fault or intention of causing it
Paragraphs 1 & 2 of Article 12 cannot give place to If second requisite and the 1st part of the
mitigation because the condition of a person is fourth requisite are absent Article 365:
indivisible; that there is no middle ground between punishes a felony by negligence or
sanity and insanity, between presence and absence imprudence but there is a mitigating
of intelligence circumstance because the penalty is lower
When all the requisites necessary to justify the act than that provided for intentional felony
are not attendant:
 If the first requisite and the 2nd part of fourth
requisite are absent, because the person
committed an unlawful act and had the
intention of causing the injury, it will be an
intentional felony. The 2nd and 3rd requisites
will not be present either.
3. Incomplete exempting circumstance of
uncontrollable fear
Requisites:
Threat which caused the fear was of an
evil greater than, or at least equal to, that
which he was required to commit
It promised an evil such gravity and
imminence that an ordinary person would
have succumbed to it (uncontrollable)
If only one of these requisites is present, there
is only a mitigating circumstance
*two or more mitigating circumstances and no
aggravating circumstances: penalty next lower to that
prescribed by law, in the period that the court may
deem applicable according to the number and nature of
such circumstance
Paragraph 2: Offender is under 18 and over 70 years of
age
Repealed by the provision of RA 9344 declaring a
child above 15 years but below 18 years of age shall
be exempt from criminal liability unless he/she has
acted with discernment
If acted with discernment, such child in conflict with
the law shall undergo diversion programs.
Diversion: alternative, child-appropriate process of
determining the responsibility and treatment of a
child in conflict with the law on the basis his/her
social, cultural, economic, psychological, or
educational background without resulting to formal
court proceedings
Diversion Program: program that the child in
conflict with the law is required to undergo after
he/she is found responsible for an offense without
resorting to formal court proceedings
If offender is over 70 years of age is only a generic
mitigating circumstance
o Article 68, providing for privileged mitigating
circumstances, does not include the case of
offenders over 70 years old
Basis: diminution of intelligence, a condition of
voluntariness
Paragraph 3: No intention to commit so grave a wrong
as that committed
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
Intention, being an internal state, must be judged
by external acts.
o Is judged not only by the proportion of the
means employed by him to the evil produced by
his act, but also by the fact that the blow was or
was not aimed at a vital part of the body
o Weapon used
o Part of the body injured
o Injury inflicted
o Manner it is inflicted
Not applicable when the offender employed brute
force
It is the intention of the offender at the moment
when he is committing the crime which is
considered, not to his intention during the planning.
Appreciated in murder qualified by circumstances
based on manner of commission, not on state of
mind of accused.
Lack of intention to commit so grave a wrong is not
appreciated where the offense committed is
characterized by treachery.
Lack of intent to kill, not mitigating in physical
injuries
o In crime against persons who do not dies a
result of the assault, the absences of intent to
kill reduces the felony to mere physical injuries,
but it does not constitute a mitigating
circumstance.
Not applicable to felonies by negligence
o Reason: the offender acts without intent
Applicable only to offenses in physical injuries or
material harm
o Not appreciated in cases of defamation or
slander
Basis: intent, an element of voluntariness in
intentional felony, is diminished
Paragraph 4: Sufficient provocation or threat on the
part of the offended party immediately preceded the
act
Provocation: any unjust or improper conduct or act
of the offended party, capable of exciting, inciting,
or irritating any one
Requisites:
o Provocation must be sufficient
o It must originate from the offended party
o Provocation must be immediate to the act
Sufficient: adequate to excite a person to commit
the wrong and must accordingly be proportionate
to its gravity
o Depends upon:
act constituting the provocation
the social standing of the person provoked
 the place and time when the provocation is
made
o Examples:
When the deceased and ill-treated the
accused by kicking and cursing the latter, the
accused who killed him committed the crime
with this mitigating circumstance
Although there was no unlawful aggression,
because the challenge was accepted by the
accused, and therefore, no self-defense,
there was however the mitigating
circumstance of immediate provocation. In
this case, the deceased insulted the accused
and then challenged the latter.
The performance of a duty is not a source of
provocation.
Provocation must originate from the offended
party.
Provocation in self- Provocation in
defense mitigating circumstance
Must be absent or Present on the part of
insufficient on the part of the offended party
the person defending
himself
The provocation by the deceased in the first stage
of the fight is not a mitigating circumstance when
the accused killed him after he had fled.
o Because the deceased the moment he fled did
not give any provocation for the accused to
pursue and to attack him
Provocation must be immediate to the commission
of the crime. (no interval of time in between)
The threat 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.
Vague threats not sufficient (example: If you do
not agree, beware.)
Basis: diminution of intelligence and intent
Paragraph 5: The act was committed in the immediate
vindication of a grave offense to the one committing
the felony, his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or
relatives by affinity within same degrees
*vindicate: to show something is right
Requisites:
o There be a grave offense done to the one
committing the felony, his spouses, ascendants,
descendants, legitimate, natural or adopted
brothers or sisters, or relatives, by affinity
within the same degree
o 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
Applies to grave offense committed against
surviving spouse of deceased relative
Lapse of time: Although the grave offense was not
so immediate, it was held that the influence thereof
by reason of its gravity and the circumstances under
which it was inflicted, lasted until the moment the
crime was committed.
o Example: abduction
The offense did not cease while
whereabouts remained unknown no
interruption from the time the offense was
committed to the vindication thereof
Interval of time negating vindication: sufficient time
to recover his serenity
Provocation vs vindication
Provocation Vindication
Made directly only to the May be committed also
person committing the against the offenders
felony relative mentioned by
the law
Cause that brought about Offended party must
the provocation need not have done a grave
be a grave offense offense to the offender
or his relatives
Necessary that the May be proximate, which
provocation of threat is admits of an interval of
immediately preceded time between the grave
the act offense done by the
offended party and the
commission of the crime
by the accused
*Reason for difference: greater leniency in the case of
vindication is due undoubtedly to the fact that it
concerns the honor of a person
Basis to determine the gravity of offense in
vindication:
o Whether a certain personal offense is grave
must be decided by the court in consideration
of:
Social standing of the person
Place and time when the insult was made
Basis: diminution of the conditions of voluntariness
Vindication of a grave offense and passion or
obfuscation cannot be counted separately and
independently
Paragraph 6: Acted upon an impulse so powerful as
naturally to have produced passion or obfuscation
*obfuscation: making something difficult to understand
Requisites:
 o Accused acted upon an impulse Obfuscation arising from jealousy cannot be
o Impulse must be so powerful that it naturally invoked in favor of the accused whose relationship
produced passion or obfuscation in him with the woman was illegitimate.
Reason: When there are causes naturally producing Where the killing of the deceased by the accused
in a person powerful excitement, he loses his arose out of rivalry for the hand of a woman,
reason and self-control, thereby diminishing the passion or obfuscation is mitigating.
exercise of his will power. The cause producing passion or obfuscation must
Rule for the application: come from the offended party.
o Passion or obfuscation should arise from lawful May passion or obfuscation lawfully arise from
sentiments. causes existing only in the honest belief of the
o No mitigating circumstance when the act is offender? YES.
committed in a spirit of: Basis: diminution of intelligence and intent
Lawlessness Provocation and obfuscation arising from one and
Revenge the same cause should be treated as only one
Requisites: mitigating circumstance.
o There be an act, both unlawful and sufficient to Vindication of grave offense cannot exits co-exist
produce such condition of mind with passion and obfuscation. (Exception: When
o Said act which produced the obfuscation was there are other facts, although closely connected)
not far removed from the commission of the Passion or obfuscation compatible with lack of
crime by a considerable length of time, during intention to commit so grave a wrong
which the perpetrator might recover is normal Passion or obfuscation incompatible with treachery
equanimity (calm emotions) (in treachery, means employed are consciously
The act of the offended party must be unlawful or adopted)
unjust. Vindication or obfuscation cannot be considered
o Crime committed by the accused must be when the person attacked is not the one who gave
provoked by prior unjust or improper acts of the cause therefor.
injured party. Passion and obfuscation cannot co-exist with
Exercise of a right or fulfillment of duty is not evident premeditation.
proper source of passion or obfuscation. Passion or obfuscation vs Irresistible force:
The act must be sufficient to produce such a Passion or Obfuscation Irresistible Force
condition of mind. Mitigating circumstance Exempting circumstance
No passion or obfuscation after 24 hours, or several Cannot give rise to an Requires physical force
hours, or half an hour. irresistible force because
The defense must prove that the act which irresistible force requires
produced passion or obfuscation took place at a physical force
time not far removed from the commission of the Is in the offender himself Come from a third
crime. person
The crime committed must be the result of a Must arise from lawful Unlawful
sudden impulse of natural and uncontrollable fury. sentiments
o The circumstance of passion and obfuscation Passion or obfuscation vs provocation
cannot be mitigating in a crime which is planned
Passion or Obfuscation Provocation
and calmly meditated before its execution.
Produced by an impulse Comes from the injured
Vengeance is not a lawful sentiment.
which may be caused by party
Passion and obfuscation may build up and provocation
strengthen over time until it can no longer be
Need not be immediate Must immediately
repressed and will ultimately motivate the
precede the commission
commission of the crime.
of the crime
Passion or obfuscation must arise from lawful
Effect: loss of reason and self-control on the part of
sentiments. the offender
The offender must act under the impulse of special
motives. Paragraph 7: Voluntarily surrendered prior to the
o The person who you asked to deliver a letter, presentation of evidence or voluntarily confessed his
failed to deliver the letter.
guilty before an open court prior to the presentation of
the evidence for prosecution
2 mitigating circumstances:
o Voluntary surrender
o Voluntary confession of guilt
When both are present, they should have an effect
of mitigating as two independent circumstances
o Effect has greater extent
Requisite to voluntary surrender:
o Offender had not been actually arrested
o Offender surrendered himself to a person in
authority or to latters agent
o Surrender was voluntary
Voluntary surrender in such a manner that it shows
the interest of the accused to surrender
unconditionally to the authorities, either because
he acknowledged his guilt or because he wishes to
save them the trouble and expenses necessarily
incurred in his search and capture
No voluntary surrender if the warrant of arrest
showed that the defendant was in fact arrested.
Where a person, after committing the offense and
having opportunity to escape, voluntarily waited for
the agents of the authorities and voluntarily gave
himself up, he is entitled to the benefit of this
circumstance, even if he was placed under arrest by
a policemen then and there.
When the accused helped in carrying his victim to
the hospital tantamount to voluntary surrender
The accused who run to the municipal building after
the commission of the crime had the intention or
desire to surrender.
The accused who fled and hid himself to avoid
reprisals from the companions of the deceased, but
upon meeting a policeman voluntarily went with
him to the jail, is entitled to the benefit of the
mitigating circumstance of voluntary surrender.
When the warrant has not been served or not
returned unserved because cannot be located, the
surrender is mitigating.
The law does not require that the surrender be
prior to the order of arrest.
o When after the commission of the crime and
the issuance of the warrant of arrest, the
accused presented himself in the municipal
building to post bond for temporary release,
voluntary surrender is mitigating.
o The mere filing of an information and/or the
issuance of a warrant of arrest will not
automatically make the surrender
involuntary.
o Voluntary surrender depends on the actual facts
surrounding the very act of giving himself up
Surrender of weapons cannot be equated with
voluntary surrender.
The surrender must be made to a person in
authority or his agent.
o Person in authority: one directly vested with
jurisdiction that is a public officer who has the
power to govern and execute the laws
o Agent of a person in authority: a person, who,
by direct provision of the law, or by election or
by appointment by competent authority, is
charged with the maintenance of public order
and the protection and security of life and
property and any person who comes to the aid
of persons in authority.
o Voluntary surrender to the chief clerk of a
district engineer is not mitigating.
Voluntary surrender does not simply mean non-
flight.
o It does not matter if the accused never avoided
arrest and never hid or fled.
o What matters voluntary surrender before his
arrest showing:
Acknowledgment of his guilt
Intention to save the authorities from
trouble and expense that his search and
capture would require
*If none of these two reasons impelled the accused
to surrender because his surrender was obviously
by an intention to insure his safety, his arrest being
inevitable, the surrender us not spontaneous not
voluntary
o Accompanying the police to the scene of the
crime without surrendering to him and
admitting complicity in the killing not
voluntary surrender
Time and place of surrender
o RPC 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 defendants is prosecuted.
Surrender through an intermediary: appreciated as
mitigating
Spontaneous: inner impulse acting without external
stimulus
The conduct of the accused after the commission of
the crime, determined the spontaneity of the
surrender.
The circumstance that the accused did not resist
arrest or struggle to free himself after he was taken
to custody by the authorities cannot amount to
voluntary surrender.
 Intention to surrender, without actually
surrendering is not mitigating.
There is spontaneity even if the surrender is
induced by fear of retaliation by the victims
relatives.
When the offender imposed a condition or acted
with external stimulus, his surrender is not
voluntary.
Part 2
Requisites of plea of guilty
o Offender spontaneously confessed his guilt
o Confession of guilt was made in open court and
is before the competent court that is to try the
case
o Confession of guilt was made prior to the
presentation of evidence for the prosecution
The plea must be made before trial begins
Plea of guilty on appeal, not mitigating (lacks the
willingness of the accused to admit the commission
of the offense charged)
Plea of not guilty upon arraignment at the
preliminary investigation in the municipal court is
no plea at all
The confession of guilt must be made in open court
The confession of guilt must be made prior to the
presentation of the evidence for the prosecution.
o It is not necessary that all the evidence of the
prosecution have been presented.
Withdrawal of plea of not guilty and pleading guilty
before the presentation of evidence by prosecution
is still mitigating
o Even if pleaded not guilty during arraignment
A conditional plea of guilty is not a mitigating
circumstance
Death penalty changed to life imprisonment
because of plea of guilty even if done during the
presentation of evidence
o Indicates submission to the law and a moral
disposition on his part to reform
Plea of guilty to amended information
o In view of the willingness of the accused to
plead guilty for a lesser offense, the
prosecution, with leave of court, amended said
information to make it one for homicide and
frustrated homicide, and the accused pleased
thereto.
o That was an entirely new information and no
evidence was presented in connection with the
charges made therein before the accused
entered his plea of guilty.
o The accused is entitled to the mitigating
circumstance of plea of guilty.
Plea of guilty to lesser offense than that charged,
not mitigating
o Plea of guilty must be to the offense charged
o If the voluntary confession is conditional or
qualified, it is not mitigating.
Plea of guilty to the offense charged in the
amended information, lesser than that charged in
the original is mitigating.
When the accused is charged with a grave offense,
the court should take his testimony in spite of his
plea of guilty.
Mandatory presentation of evidence in plea of
guilty to capital offense
o Revised Rules of Criminal Procedure: Court shall
conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea and shall require the
prosecution to prove his guilt and the precise
degree of culpability. The accused may present
evidence in his behalf.
Reason why plea of guilty is mitigating: it is an act of
repentance and respect for the law
Basis: lesser perversity of the offender (perversity:
deliberate desire to behave in an unreasonable or
unacceptable way)
Paragraph 8: Deaf and dumb, blind or some physical
defect which restricts his means of action, defense, or
communication with fellow beings
Physical defect: armless, cripple, or a stutterer
This paragraph does not distinguish between
educated and uneducated deaf-mute or blind
persons
Basis: Does not have complete freedom of action
diminution of freedom of voluntariness
Paragraph 9: Illness that diminishes the exercise of
willpower without however depriving him the
consciousness of his acts
Requisites:
o Illness of the offender must diminish the
exercise of his willpower
o Illness should not deprive the offender of
consciousness of his act
When the offender completely lost the exercise of
will-power, it may be an exempting circumstance.
Does this circumstance include illness of the mind?
o Refers only to diseases of pathological state that
trouble the conscience of will
o People vs Francisco: This paragraph applies to
defendant who committed the crime while
suffering from some illness (of the body, the
mind, the nerves, or the moral faculty)
 o It would seem that a diseased mind, not (5) Performance of righteous action: not justifying,
amounting to insanity, may give place to exempting or mitigating in the commission of
mitigation. wrongs, and although the accused had saved
Basis: diminution of intelligence and intent lives of a though and one persons, if he caused
Paragraph 10: Other circumstances of a similar nature the killing of a single human being, he is
and analogous to those above-mentioned nonetheless criminally liable
Over 60 years old with failing sight, similar to over
70 years of age mentioned in paragraph 2.
Outraged feeling of animal taken for ransom
analogous to vindication of a grave offense
Outraged feeling of creditor, similar to passion and
obfuscation mentioned in paragraph.
Impulse of jealous feeling, similar to passion and
obfuscation
Manifestation of Battered Wife Syndrome,
analogous to an illness that diminishes the
existence of will power
Voluntary restitution of stolen property similar to
voluntary surrender mentioned in paragraph 7
Extreme poverty and necessity, similar to
incomplete justification based on state of necessity
o Not mitigating where the accused had
impoverished himself and lost his gainful
occupation by committing crimes and not driven
to crime due to want and poverty
The act of the accused testifying for the
prosecution, without previous discharge, is
mitigating circumstance analogous to a plea of
guilty.
Restitution in malversation case is only mitigating
circumstance akin to voluntary surrender
Killing the wrong man is not mitigating.
Not resisting arrest not analogous to voluntary
surrender
The condition of running amuck is not mitigating.
o Mitigating circumstances must be applied alike
to all criminals be they Christians, Morons, or
Pagans
Mitigating circumstances which:
(1) From the moral attributes of the offender
(2) From his private relations with the offended
party
(3) From any other personal cause
Shall only serve to mitigate the liability of the
principals, accomplices, and accessories as to whom
such circumstances are attendant
Circumstances which are nether exempting nor
mitigating:
(1) Mistake in the blow or aberration ictus
(2) Mistake in the identity of the victim
(3) Entrapment of the accused
(4) The accused is over 18 years of age