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FUNDAMENTAL PRINCIPLES

What is criminal law?

It is that branch of public law which defines criminal


offenses and prescribes specific punishment for them. It is a
branch of public l a w because it treats of acts or omissions of
the citizens which are deemed primarily as wrongs against the
State more than against the offended party.

Penal laws are those acts of the legislature which prohibit


certain acts and establish penalties for their violations; or
those that define crimes, treat of their nature and provide for
their punishment. (Lacson v. Exec. Secretary, G.R. No. 128096,
January 1999)

What are the constitutional limitations on penal laws?

Article I I I (Bill of Rights) of the 1987 Constitution


provides the following limitations on the inherent right of the
State through the Legislature to enact penal laws:

a. " N o person shall be deprived of life, liberty, or property


without due process of law, nor shall any person be denied
the equal protection of the laws." (Section 1) Thus, the
law must be general in application so as not to violate the
equal protection clause.

b. " N o 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." (Section
12[2]) No law, therefore, must be passed imposing cruel
and unusual punishment or excessive fines.

c. " N o ex post facto law or bill of attainder shall be enacted."


(Section 22)
NOTES A N D CASES ON THE REVISED PENAL CODE

3. Describe due process as applied to penal laws.


Due process, whether substantive or procedural, can be
described as nothing more and nothing less than compliance
with the requirements of fair play, or the right of any person
to be given notice and be heard before he is condemned
for an act or omission defined and punished by law (twin
requirements of notice and hearing). Ynot, 148 SCRA 659,
struck down the executive order ( E O ) which prohibited
the transport of carabao or carabao meat across provincial
boundaries without government clearance for the purpose of
preventing indiscriminate slaughter of carabaos. T h e rationale
was that the EO defined the prohibition, convicted petitioner
and immediately imposed punishment, which was carried
out forthright. T h e measure struck at once and pounced upon
the petitioner without giving him a chance to be heard, thus
denying him "the centuries-old guaranty of elementary fair
play."

4. Who are entitled to the mantle of due process of law?

T h e State, as well as the accused, is entitled to due process


of law. For justice to prevail the scales must be balanced; justice
is not to be dispensed for the accused alone. T h e interests of
society and the offended parties which have been wronged must
be equally considered. A verdict of conviction is not necessarily
a denial of justice; and an acquittal is not necessarily a triumph
of justice, for, to the society offended and the party wronged,
it could also mean injustice. Justice then must be rendered
even-handedly to both the accused, on one hand, and the State
and offended party, on the other. (Dimatulac v. Vilon, G.R. No.
127107, October 12, 1998)

In receiving ex-parte the Department of Foreign Affairs


advice and in motu proprio dismissing the cases without notice
to the prosecution, the latter's right to due process was violated.
Due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner
was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the
proper time. (Liang v. People, G.R. No. 125865, January 28,
2000)

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F U N D A M E N T A L PRINCIPLES

5. What is the effect of violation of the due process clause?

In Guevarra u. Sandiganbayan, G.R. No. 138792-804,


March 31, 2005, the Sandiganbayan ordered the dismissal of
13 cases against petitioners over the objection of the Special
Prosecutor. By such order, the court deprived the People of
its right to due process. It acted in excess of its jurisdiction
and committed grave abuse of its discretion in dismissing the
criminal cases. Hence, the order was null and void; it may
thus be rectified despite the lapse of 15 days from notice to the
Special Prosecutor.
A void order or judgment has no legal and binding effect,
force or efficacy for any purpose. In contemplation of law, it is
non-existent. Such judgment or order may be resisted in any
action or proceeding whenever it is involved. It is not even
necessary to take any steps to vacate or avoid a void judgment
or final order; it may simply be ignored.

6. What makes a penalty cruel and unusual?


Punishments are cruel when they involve torture or a
lingering death. It implies something inhuman and barbarous
5(r*^Ml (Harden v. Dir. of Prisons, 81 Phil. 741), or shocking to the
conscience (People v. Dionisio, 22 SCRA 1299) such as cutting
the fingers of thieves, burning at the stake incestuous rapists, or
putting onto the stock and barrel illegal possessors of firearms.
But mere severity of the penalty does not make the same cruel Y'<" '
and unusual punishment. "It takes more than merely being
harsh, excessive, out of proportion, or severe for a penalty to
be obnoxious to the Constitution." To come under the ban, the
punishment must be 'flagrantly and plainly oppressive,' 'wholly
disproportionate to the nature of the offense as to shock the
moral sense of the community.'
When the penalty is wholly disproportionate to the offense
committed, e.g., life imprisonment for jaywalking, it not only is
cruel and unusual but is likewise violative of the due process
clause as that would amount to deprivation of liberty for an
unreasonable length of time.

/ 7. What is an ex post facto law?


An ex post facto law is a penal law which is given
retroactive application to the prejudice of the accused. Hence,

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NOTES A N D CASES ON THE REVISED PENAL CODE

even if the penal law is made to apply retroactively, if it is


favorable to the accused the same is not ex post facto, and, thus,
allowed under Article 22.
A law is ex post facto when it makes an act or omission
criminal which when committed was not yet so. In the Revised
Penal Code ( R P C ) , there are provisions which complement the
prohibition against ex post facto law. Article 21 states that "no
felony shall be punishable by any penalty not prescribed by law
prior to its commission." Thus, reclusion perpetua cannot be
imposed for homicide instead of reclusion temporal no matter
how many generic aggravating circumstances are present
because that penalty is not prescribed by law for homicide. Also,
Article 22 provides that penal laws shall have retroactive effect
insofar as they favor the person who is not a habitual criminal.
Therefore, a law which increases the penalty for an act or
omission cannot be given retroactive effect. Consequently, the
court cannot impose a penalty higher than that prescribed by
law for a particular crime, no matter how perverse the offender
may be.

8. Give examples of ex post facto law.

a. Makes an act punishable as a crime when such act was


not an offense when committed.
b. W h i l e not creating new offenses, aggravates the
seriousness of a crime.
c. Prescribes greater punishment for a crime already
committed.
d. Alters the rules of evidence so as to make it substantially
easier to convict a defendant.
e. Alters, in relation to the offense or its consequences, the
situation of a person to his disadvantage.
f. Assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which
when done was lawful.

g. Deprives the accused of some lawful protection to which


he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.
(Lacson v. Exec. Secretary)

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F U N D A M E N T A L PRINCIPLES

9. Give examples of laws not covered by the ex post facto clause.

Ex post facto law generally prohibits retrospectivity of


penal laws. R . A . 8249 is not a penal law. It is a substantive
law on jurisdiction which is not penal in character. Penal
laws are those acts of the Legislature which prohibit certain
acts and establish penalties for their violations; or those
that define crimes, treat of their nature and provide for their
punishment. R . A . 7975 which amended P . D . 1606 as regards
the Sandiganbayan's jurisdiction, its mode of appeal and other
procedural matters, is not a penal law, but clearly a procedural
statute, i.e., one which prescribes rules of procedure by which
courts applying laws of all kinds can properly administer
justice. N o t being a penal law, the retroactive application of
R . A . 8249 cannot be challenged as unconstitutional, (id.)

T h e prohibition applies only to criminal legislation which


affects the substantial rights of the accused. This being so,
there is absolutely no merit in the contention that sustaining
the extradition treaty's retroactive application with respect
to offenses committed prior to its coming into force and effect
violates the constitutional prohibition. T h e Treaty is neither a
piece of criminal legislation nor a criminal procedural statute.
It merely provides for the extradition of persons wanted
for prosecution of an offense or a crime which was already
committed or consummated at the time the Treaty was ratified.
(Wright v. CA, No. 113213, August 15, 1994)
Bayot v. Sandiganbayan, G.R. No. L-54645-76, December
18, 1986 upheld the inclusion of public officers and employees
earlier charged for suspension pendente lite under the law
amending R . A . 3019. T h e amendment was not ex post facto
even if applied retroactively because the suspension was not
a form of penalty but merely preventive. It is not a penalty
because it is not imposed after and as a consequence of hearing
on the merits.

y 10. What is a bill of attainder? Why is it constitutionally proscribed?


A bill of attainder is a legislative act which inflicts
punishment without judicial trial (People v. Ferrer, 48 SCRA
382). It offends against the due process clause and has the
features of ex post facto law. Moreover, it is an encroachment of
judicial function by the legislative.

RA %t^K - 5
NOTES A N D CASES ON THE REVISED PENAL CODE

Ferrer said that the Anti-Subversion Act is not a bill of


attainder because although the law named the Communist
Party of the Philippines ( C P P ) , it did so only for definitional
purposes and applies not only to that organization but also
to any other organizations having the same purpose and its
successors. Were the Act a bill of attainder, it would be totally
unnecessary to charge communists in court, as the law alone,
without more, would suffice to secure their punishment. But the
fact is that, "The Government has yet to prove at the trial that
the accused joined the Party knowingly, willfully and by overt
acts, and that they joined the Party knowing its subversive
character and with specific intent to further its basic objective,
i.e., to overthrow the existing Government by force, deceit, and
other illegal means and place the country under the control
and domination of a foreign power." [The Anti-Subversion A c t
had been expressly repealed.]

What are the characteristics of penal law?

They are generality, territoriality, and prospectivity.


Generality refers to the persons covered by penal laws;
territoriality, the place where the law is applicable; and
prospectivity, the time when the law should be applied.

What is the generality characteristic of penal law?

Penal laws are binding on all persons who reside or


- sojourn in the Philippines whether citizens or not. This is based
on Article 14 of the N e w Civil Code ( N C C ) and on the equal
protection clause in Article I I I ( l ) of the 1987 Constitution,
which provides, respectively, viz.:

"Art. 14. Penal laws and those of public security and


safety shall be obligatory upon all those who live or sojourn in
Philippine territory."

"Section 1. No person shall be deprived of life, liberty or


property without due process of law, nor shall any person be
denied the equal protection of the laws."

Even aliens are covered by the generality principle


because they are also protected by the laws of the Philippines
during all the time that they sojourn within its territory and
the word "person" in the Constitution does not refer only

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F U N D A M E N T A L PRINCIPLES

to citizens. Excepted w i t h qualification are those covered


by treaties and laws of preferential application such as
ambassadors and heads of State under the principle of par in
parent non habet imperium. , , , * •

As distinguished from the territoriality principle, gener-


ality refers to the persons covered, whereas the former deals
with the situs of the act or the place where the penal law is
applicable.

• 13. Describe the territoriality characteristic of penal law.

T h e law is applicable to all crimes committed within the


limits of Philippine territory. T h e basis of this characteristic
is Article 2 of the R P C . T h e exceptions are preferential laws
and treaties providing for exemption from the coverage of
penal laws for certain classes of persons, on the one hand, and
the expansion of the coverage of the Code outside its territory
for certain acts or omissions listed in Article 2, on the other.
Example of the first is the laws and treaties governing heads of
States and their representatives.

^14. What does prospectivity rule mean?

Prospectivity of penal laws means that laws have


prospective application unless they are favorable to the
offender who is not a habitual delinquent. Conversely, and to
the same effect is irretrospectivity which prescribes that "laws
shall have no retroactive application unless the contrary is
provided." T h e bases of this characteristic are Articles 21 and
yf 22 of the R P C , Article 111(22) of the Constitution on ex post
facto laws and Article 4 of the N C C .
To mete the death penalty reimposed by R . A . 7659 on
December 31, 1993 for a crime committed inl987 would violate
the rule that if the new law imposes a heavier penalty, the law
in force at the time of the commission of the offense shall be
applied. (People v. Bracamonte, G.R. No. 95939, June 17, 1996)

/ 15. Does the prospectivity rule cover only laws?


N o . The prospectivity rule applies also to penal circulars
such as DO J Circular N o . 12 issued on August 8, 1984 which
declared that all checks including guarantee checks are covered

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NOTES A N D CASES ON THE REVISED PENAL CODE

by B.P. 22. This Circular cannot be applied retroactively


because petitioners cannot be faulted for relying on the earlier
official pronouncement of the DOJ Secretary that guarantee
checks issued prior thereto are not covered by said Circular. The
principle of prospectivity of statutes, original or amendatory
has been applied to administrative rulings and circulars, and
to judicial decisions which although in themselves are not
laws, are evidence of what the laws mean, this being the reason
why under Article 8 of the N C C , judicial decisions applying or
interpreting the laws or the Constitution shall form part of our
legal system. (Co v. CA, G.R. No. 100776, October 28, 1993)

16. What effect does the court's interpretation upon a written law
have?
The interpretation placed upon a written law by a
competent court has the force of law. W h e n a doctrine
enunciated by the Supreme Court is overruled and a different
view adopted, the new doctrine should be applied prospectively
and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof. This is especially true
in the construction and application of criminal laws, where
it is necessary that the punishability of an act be reasonably
foreseen for the guidance of society, (id.)

17. What is the rationale against retroactivity of laws?

Lex prospicit, non respicit, the law looks forward not


backward. T h e rationale against retroactivity is that a law
„ •-/> It ^ usually derides rights which may have already become
-> vested or impairs the obligations of contract and hence,
is unconstitutional. There is the improvised necessity to
take account of the actual existence of a statute prior to its
nullification as an operative fact negating acceptance of a
"principle of absolute retroactive invalidity." Prior to such
nullification, the statute must have been in force and had to be
complied with. It will deprive the law of its quality of fairness
and justice if there be no recognition of what had transpired
prior to such adjudication, (id.)

i/18. Enumerate the different philosophies underlying the criminal


law system.
F U N D A M E N T A L PRINCIPLES

There are four schools of thought: a) the classical or


j> juristic; b) the positivist or realistic; c) the ecclectic; and d) the
£ utilitarian.
u
19. Distinguish the classical (juristic) from the positivist (realistic).
•^Classical or juristic.
1. Basis of criminal liability — human free will. The
subscribers to this theory believe that man has the
capacity to choose between right and wrong, good
and evil. Hence, when he does or omits to do an
act, he does so willingly and voluntarily with full
knowledge of the effects and consequences thereof.
2. Purpose of the penalty — retribution — "an eye for an
eye; a tooth for a tooth." In v i e w of the voluntariness
of the act or omission of the offender, he should be
given the penalty that he deserved. Justice is for the
offended party also which requires that the offender
be repaid with commensurate punishment.
3. Determination of penalty — predetermined and
rigid established by a specific and predetermined
penalty for the offense committed. T h e penalty is
mechanically determined in direct proportion to the
crime committed. Thus, homicide is penalized with
reclusion temporal; murder with reclusion perpetua;
kidnapping and serious illegal detention with
reclusion perpetua, and so on.
4. Emphasis of the law — on the offense and not on the
offender.

^ P o s i t i v i s t or realistic.
t, 1. Basis of criminal liability — the proponents are of
the v i e w that man is inherently good but the offender
is socially sick. He is a product, not only of biological
factors, but also of his environment. His thoughts
and actions are influenced by his upbringing, social
environment and associations.
2. Purpose of the penalty — reformation. Since the
offender is not inherently evil but only made so
by his environment, then the penalty should be

9
NOTES A N D CASES ON THE REVISED PENAL CODE

corrective or curative to reform him or bring him


back to his good nature. (Thus, jails are also called
reformatories.)
3. Determination of the penalty — case to case basis
— arrived at after an individual examination of
the offender. The penalty should be suited to the
individual offender precisely because the purpose is
to reform him.
4. Emphasis of the law — on the offender and not on
the offense.
T h e basic principle in our criminal law is that
a person is criminally liable for a felony committed
by him. Under the classical theory on which the R P C
is mainly based, the basis of criminal liability is
human free will. M a n is essentially a moral creature
with an absolutely free will to choose between good
and evil. W h e n he commits a felonious or criminal
act (delito doloso), the act is presumed to have been
done voluntarily, i.e., with freedom, intelligence
and intent. M a n therefore, should be adjudged or
held accountable for wrongful acts so long as free
will appears unimpaired. (People v. Genosa, G.R.
135981, September 29, 2000)

T h e rigid penalty in Book II under the classical


theory is tempered by factors approximating the
positivist theory, e.g.:

1. Indeterminate Sentence L a w ( I S L ) ;
2. Modifying Circumstances;
3. Extenuating/absolutory circumstances;
4. Probation L a w ;
5. Three-fold rule on multiple penalties;
/ 6. 40-year maximum limit for penalty; and
7. Executive clemency under Articles 5 and 70
and the Constitution.

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F U N D A M E N T A L PRINCIPLES

/ 20. What is meant by the ecclectic (or mixed) philosophy?

This combines the good features of both the classical and


the positivist theories. Ideally, the classical theory should be
applied to grievous or heinous crimes, whereas, the positivist
is made to apply on economic and social crimes.

/ 21. What does the utilitarian theory believe on the function of


punishment?

T h e primary function of punishment in criminal law is


v / t o protect society from potential and actual wrongdoers. The
retributive aspect of penal laws should be directed against them.
Thus, in applying the punishment imposed upon the accused,
the objective of the retribution of a wronged society should be
directed against the 'actual and potential wrongdoers.' M M ' s
four checks w e r e used to collateralize an accommodation, and
not cover the actual 'account or credit for value' as this was
absent, and therefore, petitioner should not be punished for the
mere issuance of the checks in question. Following this theory,
in M M ' s stead, the 'potential wrongdoer' whose operation could
be a menace to society, should not be glorified by convicting
M M . " (Magno v. CA, G.R. No. 96132, June 26, 1992) Since the
machineries guaranteed by the check were already foreclosed,
the payee had no more right over the checks and should not
have deposited them in the first place. By doing so, he was the
menace to society. , , ^ , . ,„ _ .

22. When an act is perverse, but there is no law that punishes it, is
there a crime committed?
Nullum crimen nulla poena sine lege — there is no
crime when there is no law that defines and punishes it. The
Philippines is a civil law country (as against a common law
country where laws are evolved.) Penal laws are enacted
hence, no matter how heinous an act, it is not considered a
crime unless there is a law that punishes it (Article 5). Since
a penalty cannot be imposed if not previously prescribed for a
specific crime, then, when there is no law yet defining that act
as a crime and prescribing that penalty, it cannot be imposed.
(Article 21) This is also covered by the rule on ex post facto
law.

11
NOTES A N D CASES ON THE REVISED PENAL CODE

What is the rule in the interpretation of penal laws in relation to


the accused's culpability?
In dubio pro reo, all laws must be interpreted liberally in
favor of the accused and strictly against the State. This is so
because it is the State which drafted and prescribed the law,
hence in case of ambiguity, the law must be read, interpreted
and construed against the State.
Thus, whenever a situation obtains where two interpreta-
tions are possible, one exculpatory and the other inculpatory,
the former shall prevail, consistent with the rule on presump-
tion of innocence.

Stated otherwise, where a penal law is susceptible of two


interpretations, one consistent with acquittal, and the other
with conviction, the offender is entitled to acquittal as a matter
of right. Or, where the evidence is equipoised, the balance of
justice should be tilted in favor of the accused because the
State should prove the guilt of the accused beyond reasonable
doubt and should rely on the strength of its own evidence, not
on the weakness of the evidence of the accused.

C A . 142 being a penal statute should be construed


strictly against the State and in favor of the accused. T h e
reason for this principle is the tenderness of the law for the
rights of the individuals and the object is to establish a certain
rule by conformity by which mankind would be safe and the
discretion of the court limited. "Our mind cannot rest easy on
the proposition that the petitioner should be convicted on a law
that does not clearly penalize the act done by him. T h e r e exists
a valid presumption that undesirable consequences w e r e never
intended by a legislative measure and that a construction for
which will avoid all objectionable, mischievous, indefensible,
wrongful, evil and injurious consequences." (Ursua v. CA, G.R.
No. 112170, April 10, 1996)

What is the equipoise rule?

T h e equipoise rule — that if the inculpatory facts and


circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused and the
other consistent with his guilt, then the evidence does not fulfill
the test of ^rioral certainty, and does not suffice to produce a

12
F U N D A M E N T A L PRINCIPLES

conviction the same must be denied. (Abarquez v. People, G R


No. 150762, January 20, 2006)

W h e r e the evidence of the prosecution and of the defense


are equally balanced, the scale should be tilted in favor of the
accused in v i e w of the constitutional presumption of innocence.
(Corpuz v. People, G.R. No. 74259, February 14, 1991) Where
the State fails to meet the quantum of proof required to
overcome such constitutional presumption, the accused is
entitled to acquittal, regardless of the weakness or even the
absence of his defense. For any conviction must rest on the
strength of the prosecution's case and not on the weakness of
the defense. In every criminal prosecution, if the State fails to
discharge its burden of proving the guilt of the accused beyond
reasonable doubt, it fails utterly. Accordingly, when the guilt
of the accused has not been proven with moral certainty, it is
the policy of long standing that the presumption of innocence
of the accused must be favored and his exoneration granted as
a matter of right. (Cosep v. People, G.R. No. 110353, May 21,
1998)

Conviction must rest on hard evidence showing that the


accused is guilty beyond reasonable doubt of the crime charged.
In criminal cases, moral certainty — not mere possibility —
determines the guilt or the innocence of the accused. Even
when the evidence for the defense is weak, the accused must
be acquitted when the prosecution has not proven guilt with
the requisite quantum of proof required in all criminal cases.
(Ladonga v. People, G.R. No. 141066, February 17, 2005)

What is the relationship of presumption of law and prima facie


evidence on the constitutional presumption of innocence?
A " p r e s u m p t i o n of l a w " is sanctioned by a statute
prescribing that "a certain inference must be made whenever
facts appear which furnish the basis of the interference."
This is to be set apart from a " p r e s u m p t i o n of fact" which
is a "[conclusion] drawn from particular circumstances, the
connection between them and the sought for fact having received
such a sanction in experience as to have become recognized
as justifying the assumption." When there is a presumption
of law, the onus probandi (burden of proof), generally imposed
upon the State, is now shifted to the party against whom the

13
NOTES A N D CASES ON THE REVISED PENAL CODE

interference is made to adduce satisfactory evidence to rebut


the presumption and hence, to demolish the prima facie case.
Article 217 no longer requires proof by the State that
accused actually appropriated, took, or misappropriated public
funds or property. Instead, a presumption, though disputable
and rebuttable, was installed that upon demand by any duly
authorized officer, the failure of a public officer to have duly
forthcoming any public funds or property — with which said
officer is accountable — should be prima facie evidence that he
had put such missing funds or property to personal use. W h e n
these circumstances are present, a "presumption of law" arises
that there was malversation of public funds or property.
Prima facie e v i d e n c e is evidence good and sufficient on
its face; such evidence, in the judgment of the law, is sufficient
to establish a given fact, or the group or chain of facts consti-
tuting the party's claim or defense, and which if not rebutted
or contradicted will remain sufficient. Evidence which if unex-
plained or uncontradicted is sufficient to sustain a judgment in
favor of the issue it supports, but which may be contradicted by
other evidence.
The establishment of a prima facie case does not take
away the presumption of innocence which may be such as to
rebut and control it. Such prima facie evidence, if unexplained
or uncontradicted can counterbalance the presumption of
innocence to warrant a conviction. (Wa-acon v. People, G.R. No.
164575, December 6, 2006)

26. Cite some provisions of the Revised Penal Code which apply the
liberality of the law on the accused.
This liberal disposition in favor of the accused is
manifested in the three-fold rule, the rules on mitigation of
crimes, the requirement that qualifying circumstance should
be proved by the same quantum of evidence necessary to
establish guilt, the analogous circumstances in Article 13 on
mitigating circumstances without the corresponding analogous
circumstances on aggravating circumstances, among others.

What does actus non facit reum, nisi mens sit rea mean?
T h e act cannot be criminal unless the mind is criminal.
Since intent is an essential element of intentional felony

14
F U N D A M E N T A L PRINCIPLES

(dolo), when the accused acted in good faith, there is no crime


committed. This maxim therefore applies to dolo and not to
culpa. T h e error of the accused may be one of the heart and not
of the mind that would render them criminally liable. (Llamoso
v. Sandiganbayan, G.R. Nos. L-63408 & 64026, August 7, 1985;
People v. Pepito, G.R. Nos. 112761-65, February 3, 1997)

v/ 28. How are crimes variously classified?


A. As to commission (Article 3) —

1. Dolo or felonies committed with deliberate intent;


and

2. Culpa or those committed by means of fault.


B. As to stage of execution (Article 6) —

^ 1. Attempted;

* 2. Frustrated; and
O
3. Consummated.

C. Related to this is the classification of felonies as to —

Formal felonies or those which are always consum-


^ mated because the offender cannot perform the acts
j. necessary for their execution without consummating
the offense. Examples are crimes punished on the
basis of the result or gravity such as physical inju-
ries. Physical injuries are punished as to whether
they are serious, less serious, or slight. The degree of
injury cannot be determined without first consum-
mating the offense.
i / /
2. Material felonies or those which can be committed in
any of the three stages of execution.
3. Felonies which cannot be committed in the frustrated
stage, such as rape which can be either attempted
or consummated because the essence of rape is
carnal knowledge. Hence, even slight penetration
of the female organ consummates the crime of rape
because then there is already carnal knowledge;
(People v. Clopino, G.R. No. 117322, May 21, 1998)
or theft which cannot be frustrated because its

15
NOTES A N D CASES ON THE REVISED PENAL CODE

element of unlawful taking is deemed complete from


the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the
same. (Valenzuela v. People, G.R. No. 160188, June
21, 2007)
D. As to gravity (Article 9) —
1. Grave felonies;
2. Less grave felonies; and
3. Light felonies.
E. As to count — compound, complex, composite or special
complex crimes, continued, and continuing crimes.
Usurpation of real property or real interest therein
under Article 312 is the sixth classification for unlike the
above which are deemed one crime composed of several
distinct crimes with one penalty, usurpation is one crime
with two penalties - fine for the usurpation plus the
penalty for the means to commit the usurpation.

F. As to nature — mala in se (singular — malum in se) and


mala prohibita (singular — malum prohibitum.)

What are crimes mala in se?

Crimes mala in se are acts or omissions which are


inherently evil (mala — evil; in se — by itself.) Generally,
crimes mala in se are felonies punished under the R P C . T h e r e
are however crimes which although punished under special
laws are deemed mala in se, such as those which are mere
modification of the provisions of the Code like cattle rustling
which modifies Articles 308, 309 and 310 on qualified theft.
Thus, P . D . 533 is not a malum prohibitum but a modification of
theft and malicious mischief. Therefore, the rules and system
on penalties under the R P C apply. (People v. Macatanda,
infra). (However, the anti-carnapping law which modifies the
same Article was declared as malum prohibitum.)

What are crimes mala prohibita?

T h e y are acts which are made evil because there is a law


prohibiting the same. These would not be wrong but for the fact

16
F U N D A M E N T A L PRINCIPLES

that positive law forbids them. In this case, the only question
asked is, has the law been violated? W h e n the act is illegal,
intent of the offender is immaterial. (Dunlao, Sr. v. CA, G.R
No. 111342, August 22, 1996)

W h e n a check is presented for payment, the bank will


generally accept the same whether or not it was issued in
payment of an obligation or merely to guarantee the said ob-
ligation. W h a t the law punishes is the issuance of a bouncing
check not the purpose for which it was issued nor the term and
conditions relating to its issuance. T h e mere act of issuing a
worthless check is malum prohibitum. (Cruz v. CA, G.R. No.
108738, June 17, 1992) H o w e v e r , Magno following the utilitar-
ian school of thought acquitted the accused as it considered the
purpose for the issuance of the bouncing check in relation to
the payee's conduct which manifested her ba,d faith.

31. If a special law uses the nomenclatures of penalties in the


Revised Penal Code, what is the effect on the nature of the
crime covered by the special law?

T h e fact alone that a special l a w uses the terms of penalties


in the R P C will not make the act or omission malum in se.
T h e law may only intend to make the R P C apply suppletorily
thereto. For instance, R . A . 6425, as amended by R . A . 7659
employed the penalties used in the R P C but its violations were
still deemed as malum prohibitum. Nevertheless, the system
of penalties under the R P C was applied to violations involving
dangerous drugs under that law. Likewise, the penalty
imposable pursuant to the Indeterminate Sentence L a w ( I S L )
was also determined following the rules under the R P C .
( R . A . 9165 further amended R . A . 6425 and reverted back
to the "non-RPC" penalties, e.g., life imprisonment thus, R.A.
9165 now is a purely special law.)

V( 32. Which between malum in se and malum prohibitum involves


moral turpitude?
In determining whether a criminal act involves moral
turpitude, the Court is guided by the general rule that crimes
mala in se involve moral turpitude while crimes mala prohibita
do not. T h e rationale was set forth in Zari vs. Flores, November
21, 1979: "It implies something immoral in itself, regardless

n MIX 17
NOTES A N D CASES ON THE REVISED PENAL CODE

of the fact that it (moral turpitude) is punishable by law or


not. It must not be merely mala prohibita, but the act itself
must be inherently immoral. The doing of the act itself, and
not its prohibition by statutes fixes the moral turpitude. Moral
turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in its positively
being prohibited." (Dela Torre v. COMELEC, G.R. No. 121592,
July 5, 1996)

Compare mala in se and mala prohibita.

In mala in se:
1. The basis of criminal liability is the offender's moral
trait, hence, good faith or lack of criminal intent is a
defense.
2. Modifying circumstances are taken into account
in imposing the penalty on the offender precisely
because his moral trait is the basis of this crime.
Thus, if the offender is perverse, Article 14 on
aggravating circumstances shall apply, whereas, if
the offender shows remorse or the like, his penalty
shall be mitigated pursuant to Article 13.
3. T h e degree of participation determines the penalty
imposable so that it is computed on the basis of
whether he is a principal offender, or merely an
accomplice or accessory.
4. T h e stage of accomplishment affects the penalty
imposed thus the penalty depends on whether the
crime is consummated, frustrated, or attempted.
5. Generally, crimes mala in se involve moral turpitude.
6. Generally, crimes mala in se are punishable under
the R P C .

In mala prohibita:

1. T h e basis of criminal liability is the offender's


voluntariness, hence, good faith or lack of criminal
intent is not accepted as a defense, unless this is
an element of the crime such as in Section 3(e) of
R . A . 3019, the Anti-Graft and Corrupt Practices A c t
(evident bad faith).

18
F U N D A M E N T A L PRINCIPLES

2. Modifying circumstances are not considered because


the law intends to discourage the commission of
the act specially prohibited. Moreover, the act
prohibited is not inherently evil but made evil only
by the prohibition of the statute, hence, does not
involve perversity or lack of it by the offender which
is the basis for the aggravation or mitigation of the
penalty.
3. T h e degree of participation of the offenders does
not affect their liability, hence, the penalty on all of
them are the same whether they are principals or
merely accomplices or accessories.
4. T h e stage of accomplishment considered is only
when the crime is accomplished or consummated.
T h e r e is no attempted or frustrated stage because it
is the commission of the act itself that is prohibited
and also since intent which is inherent in attempted/
frustrated stage is not an element. Thus, just like
culpa, mala prohibita is always consummated.
5. Generally, crimes mala prohibita do not involve
moral turpitude.
6. Generally, crimes mala prohibita cover violations of
special penal laws.
Can a malum in se absorb or be complexed with a malum
prohibitum?
N o . A malum in se felony, such as reckless imprudence
resulting in damage to property, cannot absorb malum
prohibitum offense, such as violations of P.D. 1067, P . D . 984
and R . A . 7942. W h a t makes the former a felony is criminal
intent (dolo) or negligence (culpa); what makes the latter
crimes are the special laws enacting them. (Loney v. People,
G.R. No. 152644, February 10, 2006)
As to the relationship of rape and sexual abuse, Abay, G.R.
N o . 177752, February 24, 2009 explains that per Section 5(b),
Article I I I of R . A . 7610 in relation to R . A . 8353, if the victim
of sexual abuse is below 12 years of age, the offender should
not be prosecuted for sexual abuse but for statutory rape and
penalized with reclusion perpetua. If the victim is 12 years or
older, the offender should be charged with either sexual abuse

19
NOTES A N D CASES ON THE REVISED PENAL CODE

under Section 5(b) or rape under Article 266-A. However,


offender cannot be accused of both crimes for the same act
because his right against double jeopardy will be prejudiced.
A person cannot be subjected twice to criminal liability for a
single criminal act. Likewise, rape cannot be complexed with
sexual abuse. Article 48 of the R P C does not allow a felony to
be complexed with an offense penalized by a special law.

35. Violation of what species of special laws is not deemed malum


prohibitum?
Laws that merely amend provisions of the R P C , such
as P . D . 533 which amended Articles 308, 309, and 310 do
not convert their violations into mala prohibita. Thus, cattle-
rustling is still malum in se. (Taer v. CA, infra)

i 36. What is a heinous crime?


It is a grievous, odious and hateful offense which by rea-
son of its inherent or manifest wickedness, viciousness, atroc-
ity and perversity, is regarded as seriously outrageous to the
common standards or norms of decency and morality in a just,
civilized and orderly society. (Whereas clause, R . A . N o . 7659.)

T h e fact that R . A . 9346 killed the death penalty does not


declassify heinous crimes as such. T h e y remain heinous for
purposes of the award of civil liabilities. (People v. Bon, infra.)

37. What is the effect of the repeal of penal law on the accused?

T h e effect depends upon the nature of the repeal. Thus:

a. In absolute or total or express repeal, the act or omission


is decriminalized so that if a case is pending, it shall be
dismissed whether the accused is a habitual delinquent
or not because there is no more crime for which he should
be tried. If he w e r e already convicted and/or serving
sentence, he shall be released if he is not a habitual
delinquent or unless the law provides that detention is to
continue.

b. In partial or relative or implied repeal or repeal by re-


enactment, the first law will govern if the accused is
a habitual delinquent or if the favorable second law

20
F U N D A M E N T A L PRINCIPLES

prohibits retroactivity. W h i l e the second law will govern if


favorable to the offender who is not a habitual delinquent
or the law is silent as to its retroactivity.
T h e beneficent provisions of R . A . 7659 can be applied
retroactively to judgments which have become final and
executory prior to December 31, 1993 and even to those
who are already serving sentences. (People v. Velasco,
G.R. No. 135231-33, February 28, 2001)
To impose upon the accused the death penalty
reimposed by R . A . 7659 for a crime committed way back
in 1987 would violate the basic rule that if the new law
imposes a heavier penalty, the law in force at the time of
the commission of the offense shall be applied. (People v.
Bracamonte, G.R. No. 95939, June 17, 1996)

In case of conflict between the Spanish text and the English


version of the Revised Penal Code, which should prevail?

T h e Spanish text is controlling as provided in Section 15


of the Revised Administrative Code ( R A C ) since the R P C was
originally approved and enacted in Spanish. Thus:
"SEC. 15. Language that should prevail in the interpreta-
tions of laws. — In the interpretation of a law officially promul-
gated in English and Spanish, the English text shall govern,
but in case of ambiguity, omission, or mistake, the Spanish may
be consulted to explain the English text. The converse rule shall,
however, be applied if so provided in the particular statute: Pro-
vided, however, That in the interpretation of laws enacted by
the Philippine legislature after October sixteenth, nineteen hun-
dred and sixteen, the language of the text used by the house that
finally passed the same shall prevail, and in case of ambiguity,
omission, or mistake, the official translation filed in the office of
the Secretary of said House may be consulted."
For instance, the Spanish version of Article 267 uses the
term "lockup" (encerrar) rather than "kidnap" (secuestrar or
raptar). Lockup is included in the broader term of "detention,"
which refers not only to the placing of a person in an enclosure
which he cannot leave, but also to any other deprivation of
liberty which does not necessarily involve locking up. (People
v. Astorga, G.R. No. 110097, December 22. 1997)

21
NOTES A N D CASES ON THE REVISED PENAL CODE

The word "immediate" is an incorrect translation into


English of the controlling Spanish text for the word "proximo."
The Spanish text allows for a lapse of time between the grave
offense and the actual vindication. However, the lapse of
two weeks from the discovery of the wife's infidelity and the
killing of the alleged paramour could no longer be considered
proximate. There can be no immediate vindication of a grave
offense when accused had sufficient time to recover his sanity.
(People v. Ignas, G.R. No. 140514-15, September 30, 2003)

What is the finality-of-acquittal rule? Give its rationale and legal


basis.
"The fundamental philosophy highlighting the finality of
an acquittal by the trial court cuts deep into the 'humanity
of the laws and in a jealous watchfulness over the rights of
the citizen, when brought in unequal contest with the State.'
Thus Green expressed the concern that the underlying idea,
one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent, he
may be found guilty." (People v. Velasco, 340 SCRA 207)

It is axiomatic that on the basis of humanity, fairness


and justice, an acquitted defendant is entitled to the right of
repose as a direct consequence of the finality of his acquittal.
The philosophy underlying this rule establishing the absolute
nature of acquittals is part of the paramount importance
criminal justice system attaches to the protection of the innocent
against wrongful conviction. T h e interest in the finality-of-
acquittal rule, confined exclusively to verdicts of not guilty, is
easy to understand: it is a need for 'repose,' a desire to know
the exact extent of one's liability. W i t h this right of repose, the
criminal justice system had built in a protection to insure that
the innocent, even those whose innocence rests upon a jury's
leniency, will not be found guilty in a subsequent proceeding.
(People v. Sandiganbayan, February 2001)

22
BOOK ONE
General Provisions Regarding the Date
of Enforcement and Application of the
Provisions of this Code, and Regarding
the Offenses, the Persons Liable
and the Penalties
NOTES A N D CASES ON THE REVISED PENAL CODE

24
Preliminary Title
Date of Effectiveness and Application
of the Provisions of this Code

t/d& A r t i c l e 1. Time when Act takes effect. — T h i s C o d e shall


take effect on the F i r s t d a y of J a n u a r y , 1932.

T h e people w e r e given two years from its publication before


the R P C was made to take effect for a fuller understanding thereof.
Logically so for penal laws involve the life, liberty and property of
a person, especially since the N C C excuses no one from compliance
with the law due to ignorance.

A r t . 2. Application of its provisions. — E x c e p t as p r o v i d e d


in the treaties a n d l a w s of p r e f e r e n t i a l application, the
p r o v i s i o n s of this C o d e shall be e n f o r c e d not only w i t h i n
the P h i l i p p i n e A r c h i p e l a g o , i n c l u d i n g its a t m o s p h e r e , its
interior w a t e r s a n d m a r i t i m e zone, b u t also outside of its
j u r i s d i c t i o n , a g a i n s t those w h o :

1. S h o u l d commit an offense w h i l e on a P h i l i p p i n e
ship o r a i r s h i p ;
2. S h o u l d f o r g e or counterfeit any coin or c u r r e n c y
note of the P h i l i p p i n e I s l a n d s or obligations a n d securities
issued by the G o v e r n m e n t of the P h i l i p p i n e Islands;

3. S h o u l d be l i a b l e for acts connected with the


introduction into these islands of the obligations and
securities mentioned in the p r e c e d i n g n u m b e r ;
4. W h i l e b e i n g p u b l i c officers or employees, should
commit an offense in the exercise of their functions; or
5. S h o u l d commit any of the crimes against national
security a n d the l a w of nations, defined in Title One of Book
T w o of this C o d e .

25
NOTES A N D CASES ON THE REVISED PENAL CODE

• How should the Government and the country be referred to


today?
The Philippine Government should be called Government
of the Republic of the Philippines, not Government of the
Philippine Islands pursuant to Section 2, Introductory
Provisions, E.O. 292, the "Administrative Code of 1987," which
partly defines that term as the corporate governmental entity
through which the functions of government are exercised
throughout the Philippines.

The country should be referred to as the Republic of the


Philippines not Philippine Islands which impresses in the mind
scattered islands implying the lack of oneness or singularity of
this nation.

• What are the two scopes of application of the Revised Penal


Code?

They are the intra-territorial and the extra-territorial


applications. T h e intra-territorial application is found in the
first paragraph of Article 2 - the R P C shall be enforced, except
as provided in the treaties and laws of preferential application,
within the Philippine Archipelago, including its atmosphere,
its interior waters and maritime zone.

Its extraterritorial application is enumerated in the


second paragraph to be enforced 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 Republic of the Philippines or obligations and
securities issued by the Government of the Republic
of the Philippines;

3. Should be liable for acts connected with the


introduction into the Philippines of the obligations
and securities mentioned in the preceding number;

4. While being public officers or employees, should


commit an offense in the exercise of their functions;
or

26
DATE OF EFFECTIVENESS A N D APPLICATION
OF THE P R O V I S I O N S OF THIS C O D E

5. Should commit any of the crimes against national


security and the law of nations, defined in Title One
of Book T w o of the Code.

Outside of these five cases, Philippine courts cannot


take jurisdiction over a crime committed outside the country.
For instance, R . A . 8491, the "Flag and Heraldic Code of the
Philippines" provides: "Sec. 37. T h e rendition of the National
Anthem, whether played or sung, shall be in accordance with
the musical arrangement and composition of Julian Felipe."
A Filipino artist who sings the Philippine national anthem
in L a s Vegas, U . S . A . during the fights of Filipino boxers in
contravention of said provision cannot be prosecuted before
Philippine courts because such offense is not among the
exceptions in Article 2.

What does the phrase, "except as provided in treaties and laws


of preferential application," mean?

That phrase means that the treaties and laws of


preferential application shall be given preference over the
provisions of the R P C . Thus, R . A . 75 which gives immunity
to diplomatic representatives of foreign countries. Under
international laws, sovereigns and heads of states and their
official representatives enjoy immunity from suits. In the
Constitution, members of Congress enjoy parliamentary
immunity in connection with any speech delivered in Congress.

W h o comprises the different heads and staff of diplomatic


missions?
T h e Vienna Convention on Diplomatic Relations lists the
classes of heads of diplomatic missions to include:
(a) ambassadors or nuncios accredited to the heads of
^ State;
(b) envoys, ministers or internuncios accredited to the
heads of States; and
(c) charges d' affairs accredited to the ministers of
foreign affairs.
Comprising the staff of the (diplomatic) mission are the
diplomatic staff, the administrative staff and the technical
and service staff. Only the heads of missions, as well as

27
NOTES A N D CASES ON THE REVISED PENAL CODE

members of the diplomatic staff, excluding the members of the


administrative, technical and service staff of the mission, are
accorded diplomatic rank. (Minucher v. CA, G.R. No. 142396,
February 11, 2003)

Who among the heads and staff of diplomatic missions are


entitled to immunity in the host sovereign and on what basis?
Even while the Vienna Convention on Diplomatic
Relations provides for immunity to the members of diplomatic
missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic
agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits.
The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly
withholding the same privileges from all others. Even consuls,
who represent their respective states in concerns of commerce
and navigation and perform certain administrative and
notarial duties, such as the issuance of passports and visas,
authentication of documents, and administration of oaths, do
not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they
are not charged with the duty of representing their states in
political matters.

T h e main yardstick in ascertaining whether a person is a


diplomat entitled to immunity is the determination of whether
or not he performs duties of diplomatic nature, (id.)

Vesting a person with diplomatic immunity is a prerogative


of the executive branch of the government. WHO v. Aquino, 48
SCRA 242 said that in such matters, the hands of the courts
are virtually tied. A m i d s t apprehensions of indiscriminate
and incautious grant of immunity, designed to gain exemption
from the jurisdiction of courts, it should behoove the Philippine
government, specifically its D F A , to be most circumspect, that
should particularly be no less than compelling, in its post
litem motam issuances. T h e privilege is not an immunity from
the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction, (id.)

28
DATE OF EFFECTIVENESS A N D APPLICATION
OF THE P R O V I S I O N S OF THIS C O D E

• What international principle forms the basis for granting


immunity for diplomatic heads?

T h e precept that a State cannot be sued in the courts of a


foreign State is a long-standing rule of customary international
law. Suing a representative of a State is suing the State itself.
T h e proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim —par
in parem, non habet imperium — that all States are sovereign
equals and cannot assert jurisdiction over one another. T h e
implication, in broad terms, is that if the judgment against an
official would require the State to perform an affirmative act
to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must
be regarded as being against the State itself, although it has
not been formally impleaded, (id.)

USA v. Guinto, 182 SCRA 644, involving officers of the


US A i r Force and A i r Force Office of Special Investigators
charged with preventing the distribution, possession and use
of prohibited drugs, ruled that the doctrine of State immunity
is also applicable to complaints filed against officials of the
State for acts allegedly performed by them in the discharge
of their duties. It follows that for discharging their duties as
agents of the U S , they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to
be sued. As they have acted on behalf of the government, and
within the scope of their authority, it is that government, and
not the petitioners personally, who were responsible for their
acts.

• What are the limitations to the immunity principle?


Director v. Aligaen, 33 SCRA 368, explains the limitations,
thus: "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit.
In the same tenor, it has been said that an action at law or
suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the

29
NOTES A N D CASES ON THE REVISED PENAL CODE

State, he violates or invades the personal and property rights


of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the
State may not be sued without its consent. The rationale for
this ruling is that the doctrine of State immunity cannot be
used as an instrument for perpetrating an injustice."
The doctrine of immunity from suit will not apply and
may not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. T h e cloak
of protection afforded the officers and agents of the government
is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official
acts without authority or in excess of the powers vested in him.
A public official may be liable in his personal private capacity
for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and
jurisdiction. (Shaufv. CA, 191 SCRA 713)

A foreign agent, operating within a territory, can be


cloaked with immunity from suit but only as long as it can
be established that he is acting within the directives of the
sending State. T h e consent of the host State is an indispensable
requirement of basic courtesy between the two sovereigns.
Guinto and Shauf both involve officers and personnel of the
U S , stationed within Philippine territory, under the R P -
US Military Bases A g r e e m e n t . W h i l e evidence is wanting to
show any similar agreement between the governments of the
Philippines and of the US (for the latter to send its agents
and to conduct surveillance and related activities of suspected
drug dealers in the Philippines), the consent or imprimatur .
of the Philippine government to the activities of the US Drug
Enforcement Agency ( U S D E A ) , however, is evident. T h e
official exchanges of communication between agencies of the
government of the two countries, certifications from officials of
both the Philippine D F A and the US Embassy, as well as the
participation of members of the Philippine Narcotics Command
in the "buy-bust operation" conducted at the residence of MM at
the behest of SS, may be inadequate to support the "diplomatic
status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not

30
DATE OF EFFECTIVENESS A N D APPLICATION
OF THE P R O V I S I O N S OF THIS CODE

consent, to the activities of SS within Philippine territory. The


job description of SS has tasked him to conduct surveillance
on suspected drug suppliers and, after having ascertained the
target, to inform local law enforcers who would then make
the arrest. In conducting surveillance activities on M M , later
acting as the poseur-buyer during the buy-bust operation, and
then becoming a principal witness in the criminal case against
M M , SS hardly can be said to have acted beyond the scope of
his official function or duties. SS, as an agent of the U S D E A
allowed by the Philippine government to conduct activities in
the country to help contain the problem on the drug traffic, is
entitled to the defense of State immunity from suit. (Minucher
v. CA, February 11, 2003)

Does immunity from suit of officers of international bodies


include that for defamation?

T h e immunity of officers of international bodies is not


plenary. Liang discussed this principle hereunder.

Petitioner is an economist working with the Asian


Development Bank ( A D B ) . For allegedly uttering defamatory
words against a fellow A D B worker, he was charged before
the M T C with two counts of grave oral defamation. T h e judge
received an "offer of protocol" from the D F A stating that LL
is covered by immunity from legal processes under Section 45
of the A g r e e m e n t between A D B and the Philippines. Based
on said protocol, the judge without notice to the prosecution
dismissed the two cases. In rebuking the action of the court a
quo the Supreme Court held that:

First, courts cannot blindly adhere and take on its face


the communication from the D F A that petitioner is covered by
any immunity. T h e D F A ' s determination that a certain person
is covered by immunity is only preliminary which has no
binding effect in courts. In receiving ex-parte the DFA's advice
and in motu proprio dismissing the cases without notice to
the prosecution, the latter's right to due process was violated.
T h e needed inquiry in what capacity petitioner was acting at
the time of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the proper
time. At any rate, mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.

31
NOTES A N D CASES ON THE REVISED PENAL CODE

Second, under Section 45 of the Agreement, the immunity


therein is not absolute but subject to the exception that the
act was done in "official capacity." It is therefore necessary to
determine if petitioner's case falls within the ambit of Section
45(a). Thus, the prosecution should have been given the chance
to rebut the D F A protocol and it must be accorded the opportu-
nity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by
the immunity agreement because Philippine laws do not allow
the commission of a crime, such as defamation, in the name of
official duty. The imputation of theft is ultra vires and cannot
be part of official functions. A public official may be liable in his
personal capacity for whatever damage he may have caused by
his act done with malice or in bad faith or beyond the scope of
his authority or jurisdiction.
Fourth, under the Vienna Convention, a diplomatic
agent, assuming LL is such, enjoys immunity from criminal
jurisdiction of the receiving State except in an action relating
to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside of his official
functions. T h e commission of a crime is not part of official duty.

What comprises the Philippine Archipelago?

T h e national territory comprises the Philippine Archi-


pelago, with all the islands and waters embraced therein, and
all other territories over which the Philippines has sovereignty
or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. T h e waters
around, between, and connecting the islands of the archipelago
regardless of their breadth and dimensions, form part of the in-
ternal waters of the Philippines (Archipelagic Doctrine; Article
1, 1987 Constitution).

What is a Philippine ship or airship? How is jurisdiction over


crimes committed therein determined?

A Philippine ship or airship is one that is duly registered


in the Philippines and under Philippine laws.
When a ^ e r c h a n t ship of Philippine nationality is in
the Philippines and a crime is committed therein, there is no

32
DATE OF EFFECTIVENESS A N D APPLICATION
OF THE P R O V I S I O N S OF THIS C O D E

question as to the jurisdiction over the crime, it being within


the Philippine territory. If it is in the high seas where no
country has jurisdiction, the Philippines still has jurisdiction.
But if it is within the territory of another country, the
jurisdiction is generally with that foreign State because penal
laws are primarily territorial in application. But if that foreign
country w i l l not take cognizance the Philippines can assume
jurisdiction.
But Philippine warship and the official vessel of the
President of the Philippines, wherever they are, are extensions
of the Philippines and its sovereignty.

What are the two recognized rules on jurisdiction oveprnerchant


vessels?

These are the French Rule ( F R ) and the English Rule


( E R ) . These rules refer to the jurisdiction of one country (flag)
over its merchant vessels situated in another country (host). It
does not apply to war vessels over which a country always has
jurisdiction.

Compare the English Rule and the French Rule on jurisdiction.

Under the ER, the host country has jurisdiction over


crimes committed in the vessel unless they involve the
internal management of the vessel. T h e FR, on the other hand,
recognizes the jurisdiction of the flag country over crimes
committed within the vessel except if the crime disturbs the
peace and order of the host country.
T h e ER is strictly territorial, unlike the FR. But the effect
on jurisdiction over the crime is about the same because the
general rule of one is the exception on the other. For instance,
if drug trafficking is committed in the vessel, under the FR, the
^ / l i o s t country will have jurisdiction because that act disturbs
the peace of the host country. Same with the ER, because the
crime does not relate to the internal management of the vessel.

W h o are public officers and employees within the purview of


Article 2, Revised Penal Code?
They are the public officers and employees of the Philippine
Government when the crime is related to the exercise of their
office. Without this intimate relation between the office and

33
NOTES A N D CASES ON THE REVISED PENAL CODE

the crime committed, the officers are acting in their private


capacity and hence, bound by the law of the host country.

What are included in the crimes against national security and


the law of nations?
They include Treason, Espionage, Provoking W a r and
Disloyalty in case of War, and Piracy and Mutiny. Rebellion
is not included because it is a crime against Public Order.
Hence, if rebellion is planned abroad and acts of rebellion were
committed there, there is no criminal liability over which the
Philippine courts can assume jurisdiction because rebellion is
not one of those in Title I of Book I I .
TITLE ONE

FELONIES AND CIRCUMSTANCES


WHICH AFFECT CRIMINAL LIABILITY

Chapter One
FELONIES

A r t . 3. Definitions. — A c t s a n d omissions p u n i s h a b l e by
l a w a r e felonies (delitos).

F e l o n i e s a r e committed not only by m e a n s of deceit


(dolo) b u t also by m e a n s of fault (culpa).

T h e r e is deceit w h e n the act is p e r f o r m e d w i t h deliberate


intent; a n d t h e r e is fault w h e n the w r o n g f u l act results from
i m p r u d e n c e , n e g l i g e n c e , lack of foresight, or lack of skill.

• What are felonies?


Felonies (delitos) are acts or omissions punishable under
the R P C . Felonies are classified on the basis of how they are
committed either as dolo or culpa which are the classifications of
crimes thereunder. Crimes involving special laws are properly
called offenses; violations of ordinances are infractions.

• How are felonies committed?


Felonies are committed either by means of deceit or fault.
There is deceit when the act is performed with deliberate intent.
There is fault when the wrongful act results from imprudence,
negligence, lack of foresight or lack of skills. In both cases it is
necessary that there is voluntariness which is presumed from
the elements of freedom of action and intelligence.

35
NOTES A N D CASES ON THE REVISED PENAL CODE

• What are the elements of intentional felonies and of culpable


felonies?
DOLO CULPA
1. Freedom of action; 1. Freedom of action;
2. Intelligence; and 2. Intelligence; and
3. Intent. 3. Negligence, imprudence,
lack of foresight, lack of
skill.
Felonies in general have all the foregoing elements
whereas specific felonies in Book II such as homicide have their
own elements, which should be alleged in the Information. T h e
elements under Article 3 appertain to the actor. T h e elements
of specific felonies relate to the act or acts constituting the
felony.

• To which kind of felony is the principle that "the act cannot be


criminal unless the mind is criminal" relevant?

Strictly to intentional felonies because in culpable felonies


and in crimes mala prohibita, good faith and lack of intent are
not material. This is why both culpa and mala prohibita are
in the consummated stage only because intent is inherent in
attempted and frustrated felonies.

Under the maxim "actus non facit reum, nisi mens sit rea,"
a crime is not committed if the mind of the person performing
the act complained of is innocent. Thus, to constitute a crime,
except for culpa and crimes mala prohibita, the act must be
accompanied by a criminal intent. Though criminal intent is -
presumed disputably, the act from which such presumption
is grounded must be a criminal or unlawful act. (Abdulla v.
People, G.R. No. 150129, April 6, 2005)

• What is intent?

Intent refers to the use of a particular means to bring


about the desired result. T h e use of a lethal weapon shows the
criminal intent to kill although death may not result therefrom.
Intent is a mental state, the existence of which is demonstrated
by the overt acts of a person. T h e only w a y to know what is in

36
FELONIES

the mind of a person is to look at the external manifestation


thereof demonstrated by the overt acts or means employed.

What is the rule on the existence of intent?

As a general rule, criminal intent is presumed (general


intent). But where intent is an element of the crime (specific
criminal intent), the intent cannot be presumed but must be
established. In attempted or frustrated homicide, intent to kill
is a specific criminal intent because if not established only
physical injuries will be charged. Inference of intent to kill
should not be drawn in the absence of circumstances sufficient
to prove the fact beyond reasonable doubt. When such intent is
lacking but wounds were inflicted, the crime is physical injuries
only. (People v. Paganor, G.R. Nos. 140006-10, April 20, 2001)

Between acts of lasciviousness and attempted rape,


intent to rape must be shown otherwise the felony is only
acts of lasciviousness. W h e n the act is equivocal or capable of
giving rise to different felonies, specific criminal intent must be
proved.

Abdulla stated that Section 5(b) of Rule 131 of the Revised


Rules on Criminal Procedures ( R R C P ) presumes disputably
that an unlawful act was done with an unlawful intent:
"Indeed, clear it is from its v e r y language that the disputable
presumption of the existence of unlawful or criminal intent
presupposes the commission of an unlawful act." Therefore,
the intent to kill is presumed when the victim dies because the
act of killing clearly constitutes an unlawful act. Gemoya, G.R.
No. 132633, October 4, 2000, held: "The intent to kill is likewise
presumed from the fact of death, unless the accused proves by
convincing evidence that any of the justifying circumstances in
Article 12, xxx is present." Delim, G.R. No. 142773, January
28, 2003 was more emphatic when it categorically stated that:
"If the victim dies because of a deliberate act of the malefactor,
intent to kill is conclusively presumed."

How is intent manifested?


Intent is a mental state which cannot be seen and
therefore its existence can only be demonstrated by the o v e r t /
acts of a person. The choice of a particular means will show the
true intent of the actor.

37
NOTES A N D CASES ON THE REVISED PENAL CODE

Animus furandi is presumed from the commission of an


unlawful act in bringing out from the bodega of the petitioner
the tires which were loaded on his pick-up. Dolo is not required
in crimes punished by a special statute because it is the act
alone, irrespective of the motive which constitutes the offense.
When it was proved that petitioner committed the unlawful acts
alleged in the information, it was properly presumed that they
were committed with full knowledge and with criminal intent,
and it was incumbent upon him to rebut such a presumption.
Moreover, Section 5, P . D . 1612 provides for the presumption
from the mere possession of anything of value which has been
the subject of robbery or thievery as prima facie evidence
of fencing. This presumption must be upheld in the light of
petitioner's shallow demurrer premised on a denial and alibi,
since a disputable presumption is sufficient until overcome by
contrary evidence. (Lim v. CA, G.R. No. 100311, May 18, 1993)

May a crime be committed without criminal intent?

Yes, in two instances: in crimes mala prohibita and in


culpable felonies. For instance, intent to gain need not be
proved in crimes punishable by a special law such as the Anti-
Fencing L a w . T h e law has long divided crimes into acts wrong
in themselves called acts mala in se, and acts which would
not be wrong but for the fact that positive l a w forbids them,
called acts mala prohibita. This distinction is important with
reference to the intent with which a wrongful act is done. T h e
rule is that in acts mala in se, the intent governs, but in acts
mala prohibita, the only inquiry is, has the law been violated?
When an act is illegal, the intent of the offender is immaterial.
(id.)

What is motive? Is it determinative of criminal liability?

Motive is the moving power or force which impels a


person to commit acts toward a desired result. Generally,
motive is immaterial in incurring criminal liability; it is intent
which is material. M o t i v e may be illustrated in this manner:
in homicide, the intent to kill is demonstrated by the use of
a lethal weapon by the offender. M o t i v e , on the other hand,
may be vengeance or the desire to vindicate a wrong committed
against the accused which moved him to kill the victim.

38
FELONIES

When is motive material in determining the criminal agency?


M o t i v e becomes material when:

a. T h e act brings about variant crimes (People v. Puno,


February 1993);

b. There is doubt whether the accused committed the


crime, or the identity of the accused is doubtful
(People v. Salamat, August 1993, 44 SCAD);

c. T h e evidence on the commission of the crime is


purely circumstantial; or

d. T h e evidence of guilt of the accused is inconclusive.

M o t i v e alone w i l l not give rise to criminal liability


because under the R P C , there must be an overt act or an
omission. No matter how evil the internal thought is, as
long as there are no overt acts, no crime is committed.
T h e rule is that proof of motive is unnecessary to impute
a crime on the accused if the evidence concerning his
identification is convincing. A converso, if the evidence of
identification is unclear, then the jurisprudential doctrine
is that proof of motive is a paramount necessity. (People v.
Bautista, G.R. Nos. 120898-99, May 14, 1998)

W h e r e the identity of the assailant is in dispute,


motive becomes relevant, and when it is supported with
sufficient evidence for a conclusion of guilt, a conviction is
sustainable. (People v. Macoy, G.R. Nos. 96649-50, July
1, 1997) M o t i v e becomes important when the evidence on
the commission of the crime is purely circumstantial or
inconclusive. (People v. Crisostomo)

What factors affect intent and consequently the criminal liability


of the actor or offender?
a. Mistake of fact — negatives criminal liability akin to
justifying circumstance under Article 11;
b. Aberratio ictus (mistake in the victim of the blow) —
generally increases criminal liability;
c. Error in personae (mistake in the identity) — may or may
not lower criminal liability depending upon whether the

39
NOTES A N D CASES ON THE REVISED PENAL CODE

actual crime committed and the intended crime are of


equal or different gravity (Article 49);
d. Praeter intentionem (so grave a wrong caused than that
intended) — lowers criminal liability under Article 13;
e. Proximate cause (the cause of the cause is the cause of the
evil caused) — gives rise to criminal liability by analogy
to Article 4, paragraph 1.

„/ • What is mistake of fact?


That mistake which had the facts been true to the belief
of the offender, can justify his act. It is such mistake that will
negative criminal liability (ignorantia facti excusat) because of
the absence of the element of intent. However, if the offender is
negligent in ascertaining the true state of facts, he may be free
from dolo but not from culpa. /

This is the teaching in Ah Chong, G.R. No. 5272, March


19, 1910. Defendant was a cook and the deceased was a house
boy, and both were employed in the same place and usually
slept in the same room. One night, after the defendant had gone
to bed, he was awakened by someone trying to open the door,
and called out twice, "who is there?" He received no answer,
and fearing that the intruder was a robber, leaped from the
bed and again called out: " I f you enter the room I w i l l kill
you." At that moment he was struck by a chair which had been
placed against the door. Believing that he was being attacked,
he seized a kitchen knife and struck and fatally wounded the
intruder, who turned out to be his roommate. AC was charged
with murder.

While there can be no doubt of defendant's exemption from


liability if the intruder had really been a robber, the question
presented is whether one can be held criminally responsible
when, by reason of a mistake of facts, he does an act for which
he would be exempt if the facts w e r e as he supposed them to be,
but would be murder if he had known the true state of facts at
the time.

There had been several robberies in the area not long prior
to the date of the incident, one of which took place in a house
in which the defendant was employed as cook; and because
FELONIES

of these repeated robberies he kept a knife under his pillow


for his personal protection. There was no offer of reasonable
explanation of the remarkable conduct of the deceased, unless
it be that the boy in a spirit of mischief was playing a trick on
his Chinese roommate, and sought to frighten him by forcing
his w a y into the room, refusing to give his name or say who he
was, in order to make AC believe that he was being attacked
by a robber. U n d e r such circumstances, there is no criminal
liability, provided that the ignorance or mistake of fact was not
due to negligence or bad faith. In other words, if such ignorance
or mistake of fact is sufficient to negative a particular intent
which, under the law, is a necessary ingredient of the offense
charged it destroys the presumption of intent and works an
acquittal; except in those cases where the circumstances
demand a conviction under the penal provisions governing
negligence, and in cases where, under the provisions of the
then Penal Code, a person voluntarily committing an act
incurs criminal liability even though the act be different
from that which he intended to commit. No one, under such
circumstances, would doubt the right of the defendant to resist
and repel such an intrusion, and the thief having forced open
the door notwithstanding defendant's thrice-repeated warning
to desist, and his threat that he would kill the intruder if
he persisted in his attempt, it will not be questioned that in
the darkness of the night, in a small room, with no means of
escape, with the thief advancing upon him despite his warning,
defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and
in striking promptly, without waiting for the thief to discover
his whereabouts and deliver the first blow.

• What is aberratio ictus? How does it affect criminal liability?


In aberratio ictus or error in the victim of the blow, the
offender intends the injury on one person but the harm fell
on another. There are three persons present: the offender,
the intended victim and the actual victim. Consequently,
the act may result in a complex crime (Article 48) or in two
or more separate felonies, but there is only one intent that
characterized the crimes. Thus, aberratio ictus may result to a
greater penalty to the offender.

41
NOTES A N D CASES ON THE REVISED PENAL CODE

May treachery be appreciated in aberratio ictus?


Yes. When the offender fired at his adversary but missed,
the victims were helpless to defend themselves. Their deaths
were murders not simply homicide since the acts were qualified
by treachery. (People v. Flora, G.R. No. 125909, June 23, 2000)

Define error in personae. What is its effect on the liability of the


offender?
In error in personae or mistake in the identity, the offender
committed a mistake in ascertaining the identity of the victim.
The classical example is: " A " shot "B" who turned out to be
his father whom he thought was "B." [The intended crime is
homicide but the actual crime committed is parricide.] Unlike
in aberratio ictus, there are only two persons present here: the
actual but unintended victim and the offender.

The fact that the victims were different from the one the
appellants intended to injure cannot save them from conviction.
Mistake in the identity of the victim carries the same gravity
as when the accused zeroes in on his intended victim. T h e main
reason is that the accused had acted with such a disregard for
the life of the victims without checking carefully the latter's
identity as to place himself on the same legal plain as one who
kills another willfully, unlawfully and feloniously. Neither may
the fact that the accused made a mistake in killing one man
instead of another be considered a mitigating circumstance.
(People v. Pinto, G.R. No. 39519, November 21, 1991) T h e same
intent to kill is present whether offender killed one or the other.
This is true if the intended and the actual crimes
committed are of the same severity or classification e.g., both
are homicide. If the crimes are different, as when the intended
crime is homicide but the actual crime committed is parricide,
or vice-versa the rule is different — Article 49 shall govern.
Error in personae becomes extenuating or mitigating.

Distinguish mistake of fact from mistake in identity.

Mistake of fact refers to the situation itself, not the


identity of the persons involved. If the offenders had the
intention to commit a felonious act, but committed a mistake
in ascertaining the identity of the victim, the criminal liability

42
FELONIES

is not negatived, because intent is present. It is the mistake of


fact, not merely of identity, that will negative criminal liability.
(People v. Oanis, 74 Phil. 257)

• Compare aberratio ictus and error in personae.

In error in personae, two persons are present, the offender


and the actual victim. In aberratio ictus three persons are
involved, the offender, the actual victim and the intended
victim. Error in personae may or may not be mitigating but
aberratio ictus generally aggravates the liability for a complex
crime or two separate felonies may be committed because there
could be two victims.

• What is praeter intentionem? How does it affect the offender's


liability?

In praeter intentionem, the injury is on the intended


victim but the resulting consequence is so grave a wrong than
what was intended. T h e r e should be a great disparity between
the intended felony and the actual felony committed.
Praeter intentionem is a mitigating circumstance. (Article
13[3]) But if the means used to commit the desired crime
would also logically and naturally bring about the actual felony
committed, praeter intentionem w i l l not be appreciated. If the
intended wrong is to injure but the means used is kicking the
victim violently resulting to the death of the victim, it is not
praeter intentionem because the means used would naturally
and logically result to the actual killing caused. This is because
intent is a mental state which is shown by overt acts.

Praeter intentionem is not available in violations of the


hazing l a w as expressly provided therein.

• What is proximate cause? How does it affect the intent and


consequently, the criminal liability of the offender?
Proximate cause is that cause which, in its natural and
continuous sequence, unbroken by an efficient intervening
cause, produces the injury, and without which the result
would not have occurred. That acting first and producing the
injury, either immediately or setting other events in motion,
all constituting a natural and continuous chain of events, each

43
NOTES A N D CASES ON THE REVISED PENAL CODE

having a close causal connection with its immediate predecessor,


the final event in the chain immediately effecting the injury as
a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for
the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably
result therefrom (Mckee v. IAC, 211 SCRA 517). Simply stated,
the cause of the cause is the cause of the evil caused.

• Summarize the effect of the five factors on intent and criminal


liability of the offenders.

FACTOR Effect on Intent Effect on Criminal


Liability
Mistake of fact negative criminal negative criminal liability
intent
Aberratio Ictus intended result falls increases criminal
on another person or liability which generally
may be in addition to result to complex crime
the injury on the (Article 48)
intended victim
Error in intended result falls extenuating if the
Personae on another due to resulting crime is
error in the identity greater than intended
of the victim e.g., parricide when what
is intended is homicide
(Art. 49); no effect if the
resulting crime is the
same as that intended,
e.g., homicide and
homicide
Praeter actual crime is mitigating under Article
Intentionem greater than 13
intended
Proximate results in crime results in criminal
cause although not liability to the actor
intended whether acting with
intent or thru negligence
FELONIES

Compare Articles 3 and 365 on criminal negligence.

Based on Article 3, culpa is a mode of committing a


crime hence, for instance in homicide, killing is denominated
"homicide through reckless imprudence." In Article 365 (quasi-
offenses), culpa itself is the crime punished; hence, the crime is
denominated "reckless imprudence resulting to homicide."

Relate reckless imprudence to malice.

Reckless imprudence consists of voluntarily doing or


failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of precaution
on the part of the person performing or failing to perform such
act. Malice is the antithesis of reckless imprudence. Once
malice is proved recklessness disappears.

Appellant's external acts prove malice or criminal intent.


Resenting his son's meddling in his argument with his wife,
appellant purposely took his gun and shot his son. A deliberate
intent to do an unlawful act is inconsistent with reckless
imprudence. (People v. Agliday, G.R. No. 140794, October 16,
2001)

When the information charges intentional felony but what is


proved is culpable felony, can accused be convicted?

Y e s . "While a criminal negligent act is not a simple


modality of a willful crime, as we held in Quizon v. Justice
of the Peace of Bacolor, July 1995, but a distinct crime in our
Penal Code, designated as a quasi-offense it may however
be said that a conviction for the former can be had under an
information exclusively charging the commission of a willful
offense upon the theory that the greater includes the lesser
offense." (Cabello v. Sandiganbayan, 197 SCRA 94 [1991])

Can negligence and conspiracy co-exist?


N o , because crimes committed through negligence
presupposes lack of intent. On the other hand, conspiracy
denotes a meeting of minds of the co-conspirator, precisely for
the purpose or intention of committing a crime. (Crisostomo v.
Sandiganbayan)

45
NOTES A N D CASES ON THE REVISED PENAL CODE

• Define intelligence within the purview of felonies.


Intelligence is the capacity to understand what is right
and what is wrong. Discernment is relevant to intelligence,
N O T to intent. It does not mean that when a person acted with
discernment, he intended the crime or the wrong done. (People
u. Cordova, July 1993). Discernment is an element of both dolo
and culpa, thus, whether the resulting felony is intentional or
culpable, discernment is an element. Without discernment,
there is neither dolo nor culpa.

• What is the effect when the intelligence is lacking or diminished?


Intelligence may be diminished such as for minors over
15 but under 18 years old; or it may be completely lacking for
minors 15 and below, or insane or imbecile. It is the law itself
which presumes the lack of or the diminished intelligence of
minors. For diminished intelligence, the effect is to mitigate
criminal liability; where intelligence is lacking, there is
exemption from criminal liability.

A r t . 4. Criminal liability. — C r i m i n a l liability shall be


incurred:

1. By any p e r s o n committing a felony (delito) a l t h o u g h


the w r o n g f u l act d o n e be different f r o m that w h i c h he
intended.

2. B y a n y p e r s o n p e r f o r m i n g a n act w h i c h w o u l d b e
an offense a g a i n s t p e r s o n s or p r o p e r t y , w e r e it not for the
inherent impossibility of its a c c o m p l i s h m e n t or on a c c o u n t
of the employment of i n a d e q u a t e or ineffectual m e a n s .

• Compare Articles 3 and 4.

Article 3 defines how felonies are committed; Article 4 is


about who commits a felony.

• Who are liable for felonies?

There are two classes of offenders under this article. First


are those who commit a felony (delito), although the wrongful
act done is different from that intended. Second, those who do
not actually commit a felony but perform an act which would
FELONIES

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. Liability
under the second will result only if the act committed does not
result in a felony under the first paragraph of Article 4.

• How many clauses are there in paragraph 1?

T h e r e are t w o clauses in this paragraph: 1) "By any person


committing a felony (delito)," and 2) "Although the wrongful
act done be different from that which he intended."

• Does the first clause refer only to intentional felony?

N o , because the provision specified "delito" and under


Article 3, delitos are committed either by dolo or by culpa.
Therefore, by the process of substitution, the provision would
be, "By any person committing a dolo or culpa." Thus, the first
clause refers to both dolo and culpa and even if the wrongful
act done was different from what should have been the result
of the culpable or negligent act, a felony is still committed.
For instance, Facundo tried to commit suicide by jumping
to his conclusion from the fifth floor of the school building.
He survived the suicide attempt but killed Chiquito who was
sitting on the bench in the campus where he jumped. Was
Facundo liable for the death of Chiquito?
Y e s , Facundo was not committing a felony when he
attempted to commit suicide because suicide is not a crime.
But by jumping without ascertaining that there is somebody
on his suicide path considering that a school is a populated
place, Facundo was not careful in committing suicide. For his
negligence, he is liable for the death of Chiquito by virtue of
Article 3 and paragraph 1 of Article 4, and also Article 365.
T h e elements here, then, are:
a) A felony is committed; and
b) T h e wrong done must be the direct, natural, and
logical consequence of the felony committed.

• What is the rule of proximate cause?


Under Article 4, paragraph 1, a person committing
a felony is liable for its consequences. For instance, Kevin

47
NOTES A N D CASES ON THE REVISED PENAL CODE

announced a hold-up at a jeepney while brandishing a knife.


Because of fear, Cosme jumped out of the jeepney and was run
over by a truck killing him instantly. K e v i n will be liable for
the death of Cosme even though he had not touched the latter.
When a person causes a belief in the mind of another making
the latter to act in a manner fatal to him, the former will be
liable for that act of engendering such a belief. Even if there is
no intent to kill on the part of the offender, he may be liable for
homicide because of the rule of proximate cause.

Thus, anyone who inflicts injury voluntarily and with


intent is liable for all the consequences of his criminal act, such
as death, that supervenes as a consequence of the injuries.
Here, accused is liable for the demise of the victim for such was
caused by the violent kicks which he inflicted on the vital parts
of the victim's body. (People v. Mores, 252 SCRA 31)

The perceived delay in giving medical treatment to the


victim does not break at all the causal connection between
the wrongful act of the appellant and the injuries sustained
by the victim. It does not constitute an efficient intervening
cause. The proximate cause of the death of the deceased is
the shooting by the appellant. A n y o n e inflicting injuries is
responsible for all the consequences of his criminal act such
as death that supervenes in consequence of the injuries. T h e
fact that the injured did not receive proper medical attendance
would not affect appellant's criminal responsibility. T h e rule
is founded on the practical policy of closing to the wrongdoer a
convenient avenue of escape from the just consequences of his
wrongful act. If the rule w e r e otherwise, many criminals could
avoid just accounting for their acts by merely establishing a
doubt as to the immediate cause of death. (People v. Acuram,
G.R. No. 117954, April 27, 2000)

There should, however, be no effective intervening cause


between the first cause and the resulting injury. For instance,
in a fight, Harrison injured Ford at the palm of his hands.
Thereafter, Ford returned to his work of collecting pig feeds. One
week later, he died of gangrene. T h e gangrene brought about
by his unsanitary work condition is an effective intervening
cause and the death of Ford should not be attributed to the
injury caused by Harrison.
FELONIES

What is an impossible crime?

An impossible crime is one where the acts performed


would have been a crime against persons or property but which
is not accomplished because of its inherent impossibility or
because of the employment of inadequate or ineffectual means.
There is intent (subjective) to commit a crime but actually no
crime is committed (objective).

T h e act performed by the offender cannot produce an


offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2)
the means employed is either (a) inadequate or (b) ineffectual.
(Intod v. CA, G.R. No. 103119, October 21, 1992)

What are the two kinds of inherent impossibility?

a. L e g a l impossibility, where the intended acts, even if


completed would not amount to a crime. It applies to
those circumstances where: (1) the motive, desire and
expectation is to perform an act in violation of the law;
(2) there is intention to perform the physical act; (3) there
is a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not
amount to a crime, (id.). Example: killing a dead person
or stealing property which turned out to belong to the
stealer.

b. Factual or physical impossibility of accomplishing the


intended act. This occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the
consummation of the intended crime, (id.). Example is
stealing from a vault which turned out to be empty.

Is impossible crime a crime?


N o . T h e law states that the act "would be a crime" hence,
it has not ripened to an actual crime because of the ineffectual
means employed or due to its inherent impossibility. Thus,
objectively, no crime has been committed.
Second, this article is under Book II on specific felonies
but is in Chapter One of Book I defining felonies in general.

49
NOTES A N D CASES ON THE REVISED PENAL CODE

• If there is no crime committed, why is impossible crime


punished?
Impossible crime is resorted to only if the acts committed
will not fall under paragraph 1 of Article 4. T h e purpose is to
suppress lawlessness. Subjectively, the offender is a criminal
although objectively no crime has been committed. There is no
attempted or frustrated stage because there is no actual crime
committed.
The R P C inspired by the Positivists School, recognizes in
the offender his formidability and penalizes an act which were
it not aimed at something quite impossible or carried out with
means which proved inadequate, would constitute a felony
against person or property. T h e rationale is to punish such
criminal tendencies, (id.)

• Is there an impossible crime of rape?


Y e s , because rape is now a crime against person since the
Anti-Rape L a w reclassified it from Crimes against Chastity.
Hence, if a person would rape one who unknown to him has
just died, he commits the impossible crime of rape.

• Should the offender know of the impossibility of the crime?

N o , because subjectively he intends to commit an unlawful


act. For instance, in homicide, the offender has the intent to
kill. If he knew that the victim is already dead, he would not
intend to kill the dead. Or, if he knew that the vault is empty,
he would not go to the trouble of breaking into a building with
all the attendant risks to himself to steal nothing.

A r t . 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
M ^excessive penalties. — W h e n e v e r a c o u r t h a s k n o w l e d g e of a n y
act w h i c h it m a y d e e m p r o p e r to r e p r e s s a n d w h i c h is not
p u n i s h a b l e b y l a w , i t shall r e n d e r the p r o p e r decision a n d
shall r e p o r t to the C h i e f E x e c u t i v e , t h r o u g h the D e p a r t m e n t
of Justice, the r e a s o n s w h i c h i n d u c e the c o u r t to b e l i e v e that
said act s h o u l d be m a d e the subject of p e n a l legislation.

In the same w a y the c o u r t shall s u b m i t to the C h i e f


Executive, t h r o u g h the D e p a r t m e n t of Justice, such state-

50
FELONIES

m e n t a s m a y b e d e e m e d p r o p e r , w i t h o u t s u s p e n d i n g the
e x e c u t i o n of the sentence, w h e n a strict enforcement of the
p r o v i s i o n s of this C o d e w o u l d result in the imposition of a
c l e a r l y excessive p e n a l t y , t a k i n g into c o n s i d e r a t i o n the de-
g r e e o f m a l i c e a n d the i n j u r y c a u s e d b y the offense.

• What is the "proper decision" that the court should render if it


tried a case for an act which is not yet punishable by law?

T h e court should render a decision of acquittal or order


the dismissal of the case because of Article 21 which prohibit
the imposition of a penalty not prescribed by law prior to the
commission of a felony; A r t i c l e 22 which prohibits retroactivity
of penal laws; and the constitutional prohibition on ex post
facto law.

T h e present law prohibits and punishes only drunk


driving. T h e r e is no law banning a drunk person from riding
a public vehicle, or the latter's driver from allowing a person
who appears to be drunk to board a public conveyance. A
drunk passenger or one under the influence of liquor or drug
poses a veritable peril to the other passengers. He is prone to
react irrationally and violently, due to lack or diminution of
self-control. Senseless loss of lives and physical harm can be
avoided, and the riding public duly protected, if the potential
danger posed by drunk passengers can be addressed properly.

It is the duty of the court, whenever it has knowledge of


any act which it may deem proper to repress and which is not
punishable by law, to 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.
(People v. Glino, G.R. No. 173793, December 4, 2007)

• What is the duty of the court when the penalty prescribed for a
felony is excessive?
The court should call the attention of the President on
the matter. For instance, abduction with rape was committed
by the son with the complicity of his mother. The penalty of
reclusion perpetua imposed on the mother is the same as the
sons which the Court felt to be excessive. She acquiesced to
cooperate with the accused on account of maternal concern.

51
NOTES A N D CASES ON THE REVISED PENAL CODE

She must have agonized with her son who did not know how
to court the girl of his dreams, both of them being unschooled.
(People v. Villorente, July 1992)

May the court prevent the grant of pardon to a convict when it


feels that the crime committed is so reprehensible?
N o . The trial court, so revolted by the perversity of
appellant's crime that it was moved to include this proposal
in the dispositive portion of its decision: ". . . i n the event that
upon automatic review by the Honorable Supreme Court,
that the penalty of Death is not imposed but that of Reclusion
Perpetua, this Court recommends that accused should not
be granted pardon within the period of thirty (30) years."
Incestuous rape is indeed reprehensible. It deserves full
condemnation. However, the recommendation is improper. It
is the President's prerogative whether or not to grant a pardon
subject to the limitations imposed by the Constitution. (People
v. Orilla, G.R. Nos. 148939-40, February 13, 2004)

Considering that the accused: [i] was only 21 years old


when she committed the crime of kidnapping penalized by
reclusion perpetua; [ii] she did not maltreat the child victim;
and [iii] she has been in preventive detention since 1991, she
should be granted either commutation of sentence or executive
clemency. (People v. Acbangin, G.R. No. 117216, August 9,
2000) Likewise, for the appellant who is already 72 years old,
suffering from an acute heart ailment that requires a heart-
bypass operation and has served a term of imprisonment
consistent with the ends of retributive justice. (People v. Del
Rosario, G.R. No. 134581, October 26, 2000)

The penalty normally imposed for kidnapping and similar


offenses appears too harsh. T h e record does not indicate that HH
has been injured emotionally or physically by her experience.
T h e degree of malice exhibited by the appellant, an unlettered
woman, in committing the offense does not warrant the penalty
of reclusion perpetua, particularly because to date, she has
already spent seven years in prison. Executive clemency was
recommended as a means of mitigating the undue harshness
of the criminal law in this particular case. (People v. Gutierrez,
G.R. No. 81020, May 28, 1991)

52
FELONIES

A r t . 6. Consummated, frustrated, and attempted felonies.


C o n s u m m a t e d felonies, a s w e l l a s those w h i c h a r e f r u s t r a t e d
a n d attempted, a r e p u n i s h a b l e .

A felony is c o n s u m m a t e d w h e n all the elements neces-


s a r y f o r its e x e c u t i o n a n d a c c o m p l i s h m e n t a r e present; a n d
it is f r u s t r a t e d w h e n the o f f e n d e r p e r f o r m s all the acts of
execution w h i c h w o u l d p r o d u c e the felony as a consequence
b u t w h i c h , n e v e r t h e l e s s , d o not p r o d u c e i t b y r e a s o n o f
causes i n d e p e n d e n t o f the w i l l o f the p e r p e t r a t o r .

T h e r e i s a n a t t e m p t w h e n the o f f e n d e r commences the


c o m m i s s i o n of a felony directly by o v e r t acts, a n d does not
p e r f o r m all the acts o f e x e c u t i o n w h i c h s h o u l d p r o d u c e the
felony b y r e a s o n o f some c a u s e o r accident other than his
o w n s p o n t a n e o u s desistance.

• When is a felony consummated?

A felony is consummated when all the acts necessary for


its accomplishment and execution are present. T h e offender
does not have to do anything else to consummate the offense.
He has already reached the objective stage of the offense as he
no longer has control of his acts having already performed all
that is necessary to accomplish his purpose.

• What are formal crimes?


Formal crimes are always consummated because the
offender cannot perform all the acts necessary to execute the
offense without consummating it. Physical injuries are formal
crimes since these are punished as to result and the gravity of
the injury cannot be determined whether slight, less serious
or serious unless and until consummated. Slander is a formal
crime because the moment the defamatory words were uttered
and heard by a third person, the crime is consummated.

• When is a felony frustrated?


A felony is frustrated when the offender performs all the
acts which would produce the felony as a consequence, but the
felony was not produced by reason of causes independent of the
will of the perpetrator. T h e offender has reached the objective
stage because no further action is required on his part. Unlike

53
NOTES A N D CASES ON THE REVISED PENAL CODE

in consummated felony, however, the offense was not produced


because of some causes independent of the will of the offender.
If the cause of frustration is due to the will of the offender, the
felony is not frustrated, but could be another crime.

• What crimes cannot be committed in the frustrated stage?


They are those which, by the definition of a frustrated
felony, the offender cannot possibly perform all the acts of
execution to bring the desired result without consummating
the offense. Examples:
1. Rape, since the gravamen of the offense is carnal
knowledge, hence, no matter how slight is the
penetration, the felony is consummated. If the male
organ failed to touch the pudenda, by some causes or
accident other than his own spontaneous desistance,
the felony is merely attempted. If he desisted
spontaneously, he is not liable for attempted rape,
following Article 6, but he is liable for some other
crime such as acts of lasciviousness.
2. Arson, because this is defined as the burning of
property, hence, the moment burning occurs, even if
a small portion only, the offense is consummated. If
overt acts have been commenced such as drenching
the property with gasoline and fighting a match but
before it can be hurled into the property, the offender
was stopped by the owner, preventing the fire from
touching the property, it is attempted.
3. Corruption of public officers because the offense
requires agreement or participation of two parties,
such that when the offer is accepted, it is consum-
mated; but when rejected, the offense is attempted
because the offender was not able to perform all the
acts of execution as he failed to persuade the public
officer.
4. Adultery because its essence is sexual congress,
hence, the same principle as in rape applies.
5. Theft and robbery because apoderamiento is com-
plete from the moment offender gains possession of
the thing.

54
FELONIES

• When is a felony attempted?

A felony is attempted when the offender commences the


commission of an offense directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance. T h e offender is still in the subjective
phase because he has not performed all acts necessary for its
accomplishment. T h e r e is something yet that he still has to do
to produce the felony. Therefore, he still has control over his
acts as he may or may not continue his overt acts.

W h e n the cause of the non-performance of all the acts


necessary for the commission of the offense is other than the
offender's spontaneous desistance, the felony is attempted.
(People v. Pareja, G.R. No. 88043, December 9,1996). Therefore,
if the cause is his desistance, the act is not yet attempted felony.

• What are overt acts? Preparatory acts?

Overt acts are external acts which if continued will


logically result in a felony. It is the start of criminal liability
because the offender has commenced the commission of an
offense with overt acts. Acts which still require another act so
that a felony will result are called preparatory acts and are not
as a rule punishable unless they are in themselves punished
as independent crimes. Example: buying poison, because that
act cannot be related to any crime as it cannot be determined
whether the poison will be used against a person or against a
pest. Proposal and conspiracy to commit a crime are preparatory
acts; hence, they are not punishable unless the proposal and
conspiracy relate to, for instance, treason or rebellion, because
such "preparatory acts" are independently punished.

• What is required for the "overt act" to be considered an attempt


of a felony?
T h e overt act must be directly related to the offense
committed. T h e attempted felony is that directly linked to the
overt act no matter what the intention is. Example: a person
intending to rob a store made an opening on its wall but before
he could enter he was apprehended. He cannot be charged
with attempted robbery even if that was his intention because

55
NOTES A N D CASES ON THE REVISED PENAL CODE

the overt act of making an opening is not directly linked with


robbery. The reason for this is that while inside he may commit
robbery or murder or rape or any other crime. Since intent is a
state of mind it can only be speculated what he would do inside.
But he may be charged with attempted trespass because that
act is directly related to the purpose of entering the store or
malicious mischief because of the destruction of property.

What is desistance?
It is the act of discontinuing the execution of the felony
which will negative criminal liability of the offender when done
during the attempted stage. It is an absolutory cause which
negates criminal liability because the law encourages a person
to desist from committing a crime.

Desistance has legal effect only in the attempted stage.


The attempted stage exists up to that time when the offender
still has control of his acts. T h e moment he has lost control of
the outcome of his acts the subjective phase is passed; the stage
is now either frustrated or consummated (objective phase). At
this stage, desistance is only factual but has no legal effect
because the law recognizes desistance only in the attempted
stage. Note that in Article 6, there is no desistance in either the
frustrated or the consummated stage.

For instance, Tolits aimed his gun at Bentong and fired


but missed. He again aimed his gun but Bentong begged for
his mercy. Tolits took mercy and desisted from firing his gun.
Is there criminal liability? In the first instance, yes, because
he has already discharged his firearm. His desistance pertains
only to the second instance, hence, only then will his criminal
liability be absolved.

Compare attempted and frustrated felonies.

1. As to acts of execution, in attempted, not all acts of


execution had been done whereas in frustrated all acts of
execution had been performed.
2. As to causes of non-accomplishment, in attempted, the
felony was not produced by reason of cause or accident
other than the offender's own spontaneous desistance; in

56
FELONIES

frustrated, the reason for the frustration is some cause


independent of the will of the perpetrator.

3. In attempted stage, the offender is still in the subjective


phase as he still has control of his acts; whereas in the
frustrated stage, he is already in the objective phase
because all the acts of execution are already there and
the cause of its non-accomplishment is other than the
offender's own will. Hence, if the felony was not produced
due to the w i l l of the offender, such as his giving the
antidote for the poison he administered on the victim,
there is no frustrated murder, but some other crime, e.g.,
physical injuries.

4. A t t e m p t e d is necessarily included in the frustrated stage,


hence, if one is charged with frustrated felony but what
w a s proved is merely attempted, the offender can be
convicted in the same information.

5. In both, intent is inherent for the offender has commenced


the commission of the felony but was unsuccessful because
of causes independent of the will of the perpetrator or
other than his own spontaneous desistance. There is no
attempted or frustrated culpa.

6. Example: In attempted homicide, the wound is not mortal,


hence, the offender should still need to deal another blow
on the victim which he was not able to do because of some
cause or accident like his being apprehended. In frustrated
homicide, the wound is mortal, already sufficient to bring
about death; hence, there is no more need of another
blow from the offender. But death nevertheless did not
supervene because of timely medical attendance.

A mere attempt to commit a felony is subsumed in the full


execution thereof. To attempt is to commence the commission of
a crime by overt acts. If one has been proved to have completely
carried out all the acts necessary to commit the crime, he has
certainly been proved to have executed the initial act required
in an attempt. Thus, the accused could have suffered no
prejudice, had they been tried under either one or the other
section. (People v. Boco, G.R. No. 129676, June 23, 1999)

57
NOTES A N D CASES ON THE REVISED PENAL CODE

• What separates attempted from frustrated homicide/murder?


Where the wound inflicted on the victim is not life threat-
ening, the accused not having performed all the acts of execu-
tion that would have brought about death, the crime is only
attempted. There being no circumstance to qualify the assault
upon FF to attempted murder, the crime is attempted homi-
cide. (People v. Albacin, G.R. No. 133918, September 13, 2000)

Where there is no evidence that without timely medical


attention the wounds inflicted, though serious, would be fatal if
not medically attended to, the character of the wound becomes
doubtful and all doubts are to be construed in favor of the ac-
cused and of lesser penalty, hence the crime is only attempted.
(People v. Costales, G.R. No. 141154-56, January 15, 2002)

• Compare frustrated and consummated felonies.

a. As to acts of execution, in both, all acts of execution had


been done and therefore, both are in the objective phase.
b. However, in frustrated the desire was not accomplished,
whereas in consummated, the purpose was accomplished.
c. Frustrated is subsumed in consummated.

A r t . 7. When light felonies are punishable. — L i g h t felonies


a r e p u n i s h a b l e only w h e n they h a v e b e e n c o n s u m m a t e d ,
with the exception of those committed a g a i n s t p e r s o n s or
property.

• What are light felonies? When are they punishable?

Light felonies are those infractions of law penalized with


arresto menor or a fine not exceeding P200 pesos, or both, is
provided. (Article 9) T h e y are punishable:
a. In general, only when they are consummated;
b. As an exception, in all stages when committed against
persons or against property.

• Who are punishable in light felonies?

Under Article 16, only the principals and the accomplices


are liable. Accessories are not punishable because light felony

58
FELONIES

is penalized with arresto menor. Accessories are penalized two


degrees lower than the principal or two degrees below arresto
menor which is non existent. De minimis non curat lex. (The
law does not deal with trifles.)

A r t . 8. Conspiracy and proposal to commit felony. — C o n -


s p i r a c y a n d p r o p o s a l t o commit felony a r e p u n i s h a b l e only
in the cases in w h i c h the l a w specially p r o v i d e s a penalty
therefor.

A c o n s p i r a c y exists w h e n t w o or m o r e p e r s o n s come to
an a g r e e m e n t c o n c e r n i n g the commission of a felony a n d
d e c i d e to c o m m i t it.

T h e r e i s p r o p o s a l w h e n the p e r s o n w h o has d e c i d e d t o
c o m m i t a felony p r o p o s e s its execution to some other p e r s o n
or persons.

• What is conspiracy? How is its existence determined?

T h e r e is conspiracy when two or more persons come to an


agreement concerning the commission of a felony and decide
to commit it. Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated or inferred from
the acts of the accused when such point to a joint purpose and
design, concerted action and community of interest.

• What quantum of proof is required for conspiracy?


T h e same degree of proof required for establishing the
crime is required to support a finding of conspiracy. It must be
shown to exist as clearly and as convincingly as the commission
of the offense itself in order to uphold the fundamental principle
that no one shall be found guilty of a crime except upon proof
beyond reasonable doubt. (Pecho v. People, G.R. No. 111399,
September 27, 1996)
Conspiracy must be proved. It cannot be surmised that
conspiracy existed just because NN and LL were both seen
raising their arms and aiming at the victim. Conspiracy as a
basis for conviction should be proved in the same manner as the
criminal act. Although direct proof is not essential, conspiracy
must be shown to exist as clearly as the commission of the offense
itself. It is fundamental that a charge of conspiracy must be

59
NOTES A N D CASES ON THE REVISED PENAL CODE

proved, just like any other criminal accusation, "independently


and beyond reasonable doubt." M e r e simultaneous aiming by
appellant and his co-accused at the victim with their firearms
does not by itself demonstrate concurrence of will or unity
of action or purpose that could be a basis for their collective
responsibility.
The evidence only proves with certainty that LL was
present when the victim was killed. It does not prove beyond
doubt who killed him. There is paucity of evidence that indicate
that appellant and NN shared a common design and a unity of
purpose in killing II so as to make both responsible by reason
of a conspiracy. There is even doubt whether both did fire at
the victim. For the victim was hit only once; he suffered only
one bullet wound. Accordingly, acquittal of LL is in order. His
responsibility for the death of II has not been proven beyond
reasonable doubt. (People v. Loreno, June 6, 2002)

"To be sure, conspiracy is not a harmless innuendo to be


taken lightly or accepted at every turn. It is a legal concept
that imputes culpability under specific circumstances; as
such, it must be established as clearly as any element of the
crime. Evidence to prove it must be positive and convincing,
considering that it is a convenient and simplistic device by
which the accused may be ensnared and kept within the penal
fold." (People v. Mandao, G.R. No. 135048, December 3, 2002)

Does the finding of conspiracy require direct proof?

N o , for conspiracy may be inferred from the acts of the


accused before, during and after the commission of the crime,
all of which indubitably point to or indicate a joint purpose, a
concert of action and a community of interest. (People v. Boco)

It is not necessary to show that two or more persons met


together and entered into an explicit agreement setting out
the details of an unlawful scheme or the details by which an
illegal objective is to be carried out. Proof that accused acted
in concert, each of them doing his part to fulfill the common
design to kill the victim w i l l suffice to support a conviction.
(People v. Glinoa)

Batin, G.R. N o . 177223, N o v e m b e r 28, 2007 explained


that conspiracy may be deduced from the acts of the appellants

60
FELONIES

before, during, and after the commission of the crime which are
indicative of a joint purpose, concerted action, and concurrence
of sentiments. Inducement may be by command, advice or
through influence or agreement for consideration. The words
of advice or the influence must have actually moved the hands
of the principal by direct participation. Words of command of a
father may induce his son to commit a crime. Tamayo (44 Phil.
38) held that the moral influence of the words of the father may
determine the course of conduct of a son in cases in which the
same words coming from a stranger would make no impression.

To be liable for conspiracy, what is necessary to be done by a


conspirator?

It is essential for one to be a party to a conspiracy as


to be liable for the acts of others that there is intentional
participation in the transaction with a v i e w to the furtherance
of the common design. Except when he is the mastermind in
a conspiracy, it is necessary that a conspirator should have
performed some overt act as a direct or indirect contribution in
the execution of the crime planned to be committed. The overt
act may consist of active participation in the actual commission
of the crime itself or it may consist of moral assistance to his co-
conspirators by being present at the commission of the crime or
by exerting moral ascendancy over the other co-conspirators.
(id.)

M e r e presence at the situs of the crime or sole relationship


with the other accused does not make one a co-conspirator.
Evidence of actual cooperation and not mere cognizance or
approval of an illegal act is required to establish conspiracy.
Appellant could not have been conspirator for allegedly acting
as a lookout noting his eye defect (for which he was known
as "bulag") and doubted his ability to perform the role of a
supposed lookout. (People v. Tabuso, G.R. No. 113708, October
26, 1999)
T h e prosecution failed to prove that petitioner performed
any overt act in furtherance of the alleged conspiracy.
Petitioner was merely present when her husband signed the
check. T h e nature of her involvement in the commission of the
crime was not specified either by a direct act of participation,
a direct inducement of her co-conspirator, or cooperating in

61
NOTES A N D CASES ON THE REVISED PENAL CODE

the commission of the offense by another act without which


it would not have been accomplished. The only semblance of
overt act that may be attributed to petitioner is that she was
present when the first check was issued.
Conspiracy must be established, not by conjectures, but
by positive and conclusive evidence. Conspiracy transcends
mere companionship and mere presence at the scene of the
crime does not in itself amount to conspiracy. Even knowledge,
acquiescence in or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active
participation in the commission of the crime with a v i e w to the
furtherance of the common design and purpose.

• Can conspiracy co-exist with culpa?


No, for conspiracy presupposes the existence of malice
since it involves a meeting of the minds of the co-conspirators
on the manner and mode of committing a crime.

• What are the two concepts of conspiracy?

They are (1) conspiracy as a crime by itself; and (2)


conspiracy as a means of committing a crime. As a means
of committing a crime, it is either (a) by pre-agreement or
planning; or (b) implied from the concerted acts of the offenders
or implied conspiracy.

• Compare conspiracy as a crime and as a means of incurring


criminal liability.

As a crime by itself. Under paragraph 1 of Article 8, con-


spiracy as a crime is one for which the l a w specially provides
a penalty. As a crime by itself, the crime subject of conspiracy
is not yet committed but the mere act of conspiring is defined
and punished as a crime, for instance, conspiracy to commit re-
bellion or insurrection (Article 136) and conspiracy to commit
treason (Article 115).

As a means of committing a crime or incurring criminal


liability. If in the above, the conspiracy to commit rebellion
is actually carried out, the offenders will be liable not for the
conspiracy but for the rebellion under Article 135. Conspiracy
then will be a means of incurring criminal liability for the
acts of others. Under this concept, distinction should be made

62
FELONIES

between ( a ) conspiracy where there is actual pre-agreement or


planning stage; and (b) implied conspiracy.

• What are the kinds of conspiracy as a means of committing a


crime?
1. Conspiracy by prior agreement on how to commit the
crime. In this case, a conspirator is liable as long as he
appeared in the scene of the crime except when he is the
mastermind who is liable whether or not he appears. This
is because he is a principal by inducement and without his
inducement the crime would not have been committed.
H i s the mens rea.
2. Implied conspiracy, or conspiracy that is deduced from
the acts of the offenders. Here, the offenders acted in con-
cert during the commission of the crime; the agreement
to pursue a common design and united purpose was in-
stantaneous. It is essential for liability to attach that the
conspirator participated in the commission of the crime.
His mere presence or approval of the crime without more
w i l l not make the alleged conspirator liable because there
would be no basis for deducing conspiracy as to him as
there is absent criminis particeps. Since conspiracy is in-
stantaneous or spur of the moment, if he did not partici-
pate, it shows that he had no intent to join in the commis-
sion of the crime.
(In this aspect, it may be commented that there is a
similarity between conspiracy and culpa: both are either
crimes per se or means of committing a crime.)

• In conspiracy by pre-agreement who should be liable for a


second unplanned crime committed by one or some of the
perpetrators?
T h e liability of the conspirators is only for the crime
agreed upon except:
a. W h e n the other crime was committed in their pres-
ence and they did not prevent its commission indi-
cating their approval thereof;
b. When the other crime is the natural consequence
of the crime planned, e.g., homicide resulting from
physical injuries inflicted; and

63
NOTES A N D CASES ON THE REVISED PENAL CODE

c. When the resulting crime was a composite crime


because a composite crime or special complex crime
is indivisible. It cannot be split into different parts,
one part to be deemed covered by the conspiracy and
the other outside of conspiracy, (infra)
In the foregoing three instances, although there was
a crime committed which is not part of the plan or prior
agreement, all the conspirators are liable therefor. In other
cases, an unplanned crime committed will be the liability only
of the one who committed it.
Only the actual perpetrators are to be held liable for acts
beyond the agreement of the conspirators. Conspirators may
only be held accountable for the acts embraced in the criminal
agreement; and as regards felonious acts not included, only
the author thereof would be liable. (People v. Sinoc, G.R. No.
115211-12, July 11, 1997)
The actual participation of the appellants in the killing
of MM having been established by the prosecution, they are
equally liable pursuant to the rule that the act of one is the act
of all. Conspiracy was duly proven by the positive testimonies
of the prosecution witnesses pointing to acts done in concert by
the appellants to carry on their unlawful design but only with
respect to the killing of MM and not the shooting of Sgt. B B .
Thus, EE alone should be held liable for the crime of frustrated
homicide. (People v. Porras, 255 SCRA 514)

It was not established by the evidence that the other


accused had agreed to kill if necessary to carry out successfully
the plan to rob. In fact, one of the robbers berated the gunman
for having shot the security guard. Therefore, appellants joined
with merely the criminal design to rob, which makes them
accomplices. Their complicity must accordingly be limited to
the robbery, not to the killing of T P . W a i t i n g only at the parked
jeep could not have given them the opportunity to prevent the
killing, as is required of one seeking relief from liability for
assaults committed during the robbery. In Adriano, the driver,
who was unaware of the killing perpetrated inside the building
as he stayed always near his jeep, could not be a co-conspirator
in the killing of the guards, as the killing was not part of the

64
FELONIES

original plan but arose only during the exigency of the moment.
(People v. Corbes, G.R. No. 113470, March 26, 1997)

• What is implied conspiracy?

Implied conspiracy is one that is deduced from the mode


and manner in which the offense was committed. T h e concerted
acts of the parties to achieve the same objective signify
conspiracy. This doctrine was first enunciated in Guevarra,
179 S C R A 334, which held that "the act of the appellant in
holding the victim from behind immediately before the latter
was stabbed by Eduardo constitutes a positive and overt act
towards the realization of a common criminal intent which may
be classified as instantaneous. T h e act was impulsively done
on the spur of the moment. It sprang from the turn of events,
thereby uniting the criminal design of the slayer immediately
before the commission of the offense. That is termed as implied
conspiracy." (Subayco v. Sandiganbayan, G.R. No. 117267-
117310, August 22, 1996).

In implied conspiracy, the co-conspirator must do an act


which shows his unity of purpose and design with the other
offenders. M e r e presence at the scene of the crime, without
more, w i l l not make a person liable with the offenders, and
this is true even if he approves of the acts of the offenders.

M e r e knowledge, acquiescence to or approval of the act


without cooperation or agreement to cooperate, is not enough
to constitute one a party to a conspiracy absent the intentional
participation in the act with a view to the furtherance of the
common design and purpose. (People v. Bragaes, G.R. No.
L-62359, November 14, 1991)

• When conspiracy involves a pre-conceived plan, what is required


of a co-conspirator to incur liability?
To be liable as a co-conspirator, unless he is a mastermind,
he should appear in the scene of the crime. It is essential for
one to be a party to a conspiracy as to be liable for the acts
of the others that there is intentional participation in the
transaction with a view to the furtherance of the common
design. Except when he is the mastermind, it is necessary that
a conspirator should have performed some overt act as a direct

65
NOTES A N D CASES ON THE REVISED PENAL CODE

or indirect contribution in the execution of the crime planned


to be committed.
The overt act may consist of:
(a) active participation in the actual commission of the
crime itself; or
(b) moral assistance to his co-conspirators by being
present at the commission of the crime; or
(c) exerting moral ascendancy over the other conspira-
tors. (People v. Pablom, January 2011)

Is it necessary for the co-conspirators to perform equally each


and every part of the acts constituting the offense?

N o . As long as the parts played by each of the principals


in the conspiracy contribute to the realization of the common
design, they are all liable equally.

One who joins a criminal conspiracy adopts in effect the


criminal design of his co-conspirators and he can no longer
repudiate the conspiracy after it has materialized. Conviction
is proper upon proof that the accused acted in concert. T h e act
of one then becomes the act of all and each them w i l l be deemed
equally guilty as co-principals of the crime committed, (id.)

When the defendants by their acts aimed at the same


object, one performing one part and another performing another
part so as to complete it, with a v i e w to the attainment of the
same object, and their acts, though apparently independent,
were in fact concerted and cooperative, indicating closeness
of personal association, concerted action and concurrence of
sentiments, conspiracy is present. (Siton v. CA, G.R. No. 94065,
December 2, 1991)

T h e presence of a conspiracy was established. T h e


appellants were animated by one and the same purpose: to kill
RR and they were united in its execution. T h e question as to
who dealt the fatal blow on their victim is of no consequence for
when a conspiracy exists, the act of one is the act of all. (People
v. Lao, G.R. No. 90627, November 29, 1991)

Even if appellant never fired a gun, he would still be


principally liable as a co-conspirator in the killing of the

66
FELONIES

victims, for while only BB might have inflicted the fatal blows
or wounds, nevertheless, appellant must be held liable for the
killings under the principle that the act of a conspirator is the
act of all co-conspirators. T h e degree of actual participation
in the commission of the crime is immaterial in a conspiracy.
(People v. Maranion, G.R. No. 90672-73, July 18, 1991)

T h e quantity or quality of the participation of a co-


conspirator is immaterial in the determination of the penalty
for the act of one is the act of all. Thus, one who conspired in
the crime of rape by just holding the hands of the victim while
another was doing the act of raping her shall incur the same
guilt and the same penalty as the actual rapist.

M a y a co-conspirator be acquitted while others convicted?

Y e s . Although conspiracy is a joint act, there is nothing


irregular if a supposed co-conspirator is acquitted and others
convicted. Generally, conspiracy is only a means by which a
crime is committed: the mere act of conspiring is not by itself
punishable. Hence, it does not follow that one conspirator
alone (an alleged inducer) cannot be convicted when there is a
conspiracy. As long as the acquittal of a co-conspirator does not
remove the basis of a charge of conspiracy, other conspirators
may be found guilty of the offense. (People v. Tiguman, G.R.
No. 130144, May 24, 2001)

In an indictment based on conspiracy, the acquittal of a


conspirator does not absolve the co-conspirator from criminal
liability. If the prosecution fails to prove conspiracy, the alleged
conspirators should be individually responsible for their
respective acts. (People v. Figueroa, G.R. No. 134056, July 6,
2000)
M e r e knowledge, acquiescence, or agreement to cooperate
is not enough to constitute one as a conspirator, absent any
active participation in the commission of the crime, pursuant
to the common design and purpose. Conspiracy transcends
companionship. (People v. Compo, G.R. No. 112990, May 28,
2001) M e r e presence at the scene of the incident, knowledge
of the plan or acquiescence thereto is not sufficient to hold
a person liable as a co-conspirator. The mere fact that the
accused had prior knowledge of the criminal design of the

67
NOTES A N D CASES ON THE REVISED PENAL CODE

principal perpetrator of the crime does not ipso facto make him
as co-conspirator. Participation in the criminal act is essential
for he may yet be an accomplice. (People v. Samudio, March
2001)

• What are the two structures of multiple conspiracies?


Estrada, G.R. N o . 148965, February 26, 2002, categorized
two structures of multiple conspiracies:
(1) the "wheel" or "circle" conspiracy, in which there is a
single person or group (the "hub") dealing individu-
ally with two or more other persons or groups (the
"spokes"); and
(2) the "chain" conspiracy, usually involving the dis-
tribution of narcotics or other contraband, in which
there is successive communication and cooperation
in much the same w a y as with legitimate business
operations between manufacturer and wholesaler,
then wholesaler and retailer, and then retailer and
consumer.

» Discuss the concept: "The act of one is the act of all."

When conspiracy is established, all who participated


therein, irrespective of the quantity and quality of his
participation is liable equally, whether the conspiracy is pre-
planned or instantaneous. T h e criminal liability of one is the
same as the criminal liability of the other, unless one or some
of the conspirators committed another crime, which is not part
of the intended crime.

» In the absence of a conspiracy, what is the liability of the


offenders?

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 is individual and not collective, and each
of the participants is liable only for the act committed by him.
(People v. Desoy, G.R. No. 127754, August 16, 1999)
FELONIES

At the very least, conspiracy presupposes a prior agree-


ment or contemporaneous understanding on the part of the
conspirators to commit a felony, in this case, to kill I N . Howev-
er, the attack on the victim originated spontaneously from and
was initiated unexpectedly by B B I I . B B , Sr., and his other son,
BB I I I , immediately joined in the fray by attacking the victim
with their knives, whereupon, the two female appellants, also
assisted by hitting the victim with stools.

T h e rapidity of the succession of such consecutive acts


of the assailants, with the last four coming instinctively, as it
were, to the aid of the original assailant, cannot but produce
the conclusion that their actuations were activated without
prior or apparent deliberation. It does not even appear that
there was a call or a signal from one to the other to join the
attack on I N , much less is there even an intimation that they
had a murderous intent or cabal at any time prior thereto. The
spontaneity of their respective reactions, albeit resulting in an
attack w h e r e they all participated, rules out the existence of
a conspiracy. (People v. Lacao, G.R. No. 95320, September 4,
1991 [contra: Subayco v. Sandiganbayan])

To be held guilty as a co-principal by reason of conspiracy,


the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity. The overt act or
acts of the accused may consist of active participation in the
actual commission of the crime itself or may consist of moral
assistance to his co-conspirators by moving them to execute
or implement the criminal plan. (Ladonga v. People, G.R. No.
141066, February 17, 2005)

• Relate conspiracy and the aggravating circumstances of evident


premeditation and price or reward.
Evident premeditation does not automatically follow a
finding of conspiracy or vice versa. Where conspiracy is merely
implied from concerted actions at the time of the commission
of the offense, evident premeditation cannot be appreciated,
absent proof showing how and when the plan to kill the victim
was hatched or the time that elapsed when it was carried out,
in order to determine if the accused had sufficient time between
its inception and its fulfillment to dispassionately consider and

69
NOTES A N D CASES ON THE REVISED PENAL CODE

accept all its consequences. (People v. Dulot, G.R. No. 137770,


January 30, 2001)
Where conspiracy is directly established, with proof of
the attendant deliberation and selection of the method, time
and means of executing crime, evident premeditation can be
appreciated. (People v. Givera, G.R. No. 1132159, January 18,
2001)
The hiring of TT to kill the victims for a price, providing
the victims' picture and the meeting to carry out the killing
provide more than sufficient evidence to appreciate the same.
As to the circumstance of price or reward, it can only be
appreciated against appellant TT since it was he who committed
the felonious act for money. T h e same evidence on price
established conspiracy between the appellants. Consequently
the act of one is the act of all. (People v. Tiguman)

• Is the laxity of a public official in the performance of his duty


supportive of a finding of conspiracy?

N o . T h e actions taken by MM involved the v e r y functions


he had to discharge in the performance of his official duties.
There has been no intimation at all that he had foreknowledge
of any irregularity committed by both DD and E E . MM might
have been indeed lax and administratively remiss in placing
too much reliance on the official report submitted by his
subordinate ( E E ) . But for conspiracy to exist, it is essential
that there must be a conscious design to commit an offense.
Conspiracy is not the product of negligence but of intentionality
on the part of cohorts. (Narciso v. Sandiganbayan, G.R. No.
9826263, January 10, 1994) Conspiracy is not presumed. L i k e
the physical acts constituting the crime itself, the elements of
conspiracy must be proved beyond reasonable doubt. W h i l e
conspiracy need not be established by direct evidence, for it
may be inferred from the conduct of the accused before, during
and after the commission of crime, all taken together, however,
the evidence therefor must reasonably be strong enough to
show a community of criminal design, (id.)

• When may the head of office be held liable for the acts of his
subordinates?

70
FELONIES

T h e head of office may be found liable for the acts of his


subordinates either due to conspiracy or by an act of reckless
imprudence which allowed the commission of estafa thru fal-
sification, or malversation through falsification, without such
act of negligence the crime could not have been accomplished.
Considering, however, that negligence cannot co-exist with
conspiracy, his liability shall be thru culpa but that of his sub-
ordinates thru dolo, sans conspiracy.

When, however, the infraction consists in the reliance in


good faith, albeit misplaced by a head of office on a subordinate
upon w h o m the primary responsibility rests, absent a clear
case of conspiracy, the Arias doctrine must be held to prevail.
(Arias v. Sandiganbayan, 180 SCRA 309)

• What is the Arias doctrine?

A l l heads of offices have to rely to a reasonable extent on


their subordinates and on the good faith of those who prepare
bids, purchase supplies, or enter into negotiations. There has to
be some added reason why he should examine each voucher in
detail. A n y executive head of even small government agencies
can attest to the volume of papers that must be signed. There
are hundreds of documents, letters, memoranda, vouchers, and
supporting papers that routinely pass through his hands. The
number in bigger offices or departments is even more appalling.
(id.)

A r t . 9. Grave felonies, less grave felonies and light felonies. —


G r a v e felonies a r e those to w h i c h the l a w attaches the capital
p u n i s h m e n t or penalties w h i c h in any of their periods are
afflictive, in a c c o r d a n c e w i t h Article 25 of this C o d e .

L e s s g r a v e felonies a r e those w h i c h the l a w punishes with


penalties w h i c h in their m a x i m u m p e r i o d a r e correctional,
in a c c o r d a n c e w i t h the above-mentioned article.

L i g h t felonies a r e those infractions of l a w for the


commission of w h i c h the penalty of arresto menor or a fine
not exceeding 200 pesos, or both, is p r o v i d e d .

71
NOTES A N D CASES ON THE REVISED PENAL CODE

How are felonies classified as to severity?


1. Grave felonies — penalized by capital punishment or af-
flictive penalties in any of its period. This means that
whenever the minimum, medium or maximum period of
the penalty is an afflictive penalty, the felony is a grave
felony. Afflictive penalties cover prision mayor, disqualifi-
cation, reclusion temporal and reclusion perpetua.

2. Less grave felonies — punished with penalties which in


their maximum period are correctional, i.e., the maximum
period of the penalty must be correctional, that is, desti-
erro, suspension, arresto mayor, or prision correccional.
For instance the penalty of arresto menor in its maximum
period to arresto mayor in its minimum period is a less
grave felony because the maximum period of that penalty
is arresto mayor, a correctional penalty.

3. Light felonies — punished with arresto menor or a fine not


exceeding P200. (In Article 26, a P200 fine is a correctional
penalty.)

What is the significance of classifying felonies into grave, less


grave or light?

To determine:

a. Whether a complex crime was committed (Article 48


which requires grave or less grave felonies);

b. T h e duration of the subsidiary penalty to be imposed


(Article 39, N o . 2) where the subsidiary penalty is
based on the severity of the penalty;

c. T h e duration of the detention in case of failure to


post the bond to keep the peace (Article 35);

d. Whether the crime has prescribed (Article 90);

e. Whether or not there is delay in the delivery of


detained persons to the judicial authority (Article
125 where the basis of the 12-18-36 hours is the
severity of the offense alleged); and

f. T h e proper penalty for quasi-offenses. (Article 365)

72
FELONIES

A r t . 10. Offenses not subject to the provisions of this Code. —


Offenses w h i c h a r e o r i n the future m a y b e p u n i s h a b l e u n d e r
special l a w s a r e not subject to the p r o v i s i o n s of this C o d e .
T h i s C o d e shall be s u p p l e m e n t a r y to such l a w s , unless the
latter s h o u l d specially p r o v i d e the c o n t r a r y .

• How are the first and second sentences of Article 10 reconciled?


T h e first sentence provides that offenses punishable
under special laws are not subject to the provisions of the
R P C , while the second makes the Code supplementary to such
laws. W h i l e it seems that the two are contradictory, a sensible
interpretation w i l l show that they can perfectly be reconciled.
T h e first sentence should be understood to mean that
special penal laws are controlling with regard to offenses
therein specifically punished following the rule that special
legal provisions prevail over general ones. Lex specialis
derogant generali. In fact, the clause can be considered as a
superfluity and could have been eliminated altogether. The
second clause contains the soul of the article. T h e main idea
and purpose of the article is embodied in the provision that the
"code shall be supplementary" to special laws, unless the latter
should specifically provide the contrary. (Ladonga v. People)

• What are special laws?


T h e y are laws that define and penalize crimes not included
in the R P C ; they are of a nature different from those defined
and punished in the Code.
T h e r e are special laws however which are mere amend-
ments of the provisions of the R P C , such as P . D . 533 modifying
Articles 308, 309 and 310, which is, thus, not a true special
law. (Taer v. CA; Canta v. People)

• What is the relationship between dolo and special laws?


Dolo is not required in crimes punished by a special
statute because it is the act alone, irrespective of the motives
which constitute the offense. When it was proved that petitioner
committed the unlawful acts alleged in the information, it
was properly presumed that they were committed with full
knowledge and with criminal intent, and it was incumbent

73
NOTES A N D CASES ON THE REVISED PENAL CODE

upon him to rebut such a presumption. (Lim v. CA, G.R. No.


100311, May 18, 1993)

The concept of delito continuado, although an outcrop of


the Spanish Penal Code, has been applied to crimes penalized
under special laws, e.g., violations of R . A . 145 penalizing the
charging of fees for following up claims for veteran's benefits.
Under Article 10, it shall be supplementary to special laws,
unless the latter provide the contrary. Hence, legal principles
developed from Penal Code may be applied in supplementary
capacity to crimes punished under special laws. (People v.
Sabun, 10 SCRA 156)
Article 24 enumerates measures of prevention or safety
which are not considered as penalties, e.g., suspension pendente
lite and preventive detention. Although a provision in the R P C ,
these are applicable to violations of special penal laws. It is
demanded by the constitutional provision on presumption of
innocence. However, Article 29 provides that the period of
preventive imprisonment will be deducted from the term of
imprisonment. (In Re: Petition for Habeas Corpus of Pete C.
Lagran, August 2001)

The rules governing civil/pecuniary liabilities are stated


in the R P C and in the N C C . Under the former the costs of the
proceedings and pecuniary liabilities are respectively found
in Articles 37, 38 and 104 to 108. These pecuniary liabilities
should be applicable to violators of special penal laws.

When is the Revised Penal Code suppletory to special laws?

Whenever the special law uses the nomenclature of


penalties in the R P C , indicating the intent of Congress to
make the Code apply suppletorily to such special laws (People
v. Simon, July 1994), unless the special law, though using
the Code's nomenclatures, specially provide that it shall not
be supplementary to such laws (Last clause of sentence no. 2 ) .
When the R P C supplements the special law, the rules under
the former shall be followed including in the application
of the I S L . But the mere fact that the special law uses the
nomenclature of penalties of the Code does not make the
offense malum in se.

74
FELONIES

When is the suppletory effect of the Code not available?

T h e general rule is that special laws are not subject to


the provisions of the R P C . For instance, the circumstances
affecting criminal liability (Articles 11 to 15) are not applicable
to crimes committed under special laws.

T h e suppletory effect of the Code to special laws under


this article cannot be invoked w h e r e there is legal or physical
impossibility of or a prohibition in special law against such
supplementary application. But, w h e r e the penalty is actually
taken from the Code in its technical nomenclature, then it
is necessarily w i t h its duration, correlation and legal effects
under the system of penalties in the Code. (People v. Simon)

W h e r e the special law expressly grants the court discre-


tion in applying the penalty prescribed for the offense, there
is no room for the application of the Code. Since the Danger-
ous Drugs L a w (prior to its amendment) contains no explicit
grant of discretion to the court in the application of the pen-
alty prescribed by the law, the court must be guided by the
rules prescribed in the Code concerning the applications of
penalties, (id.) But since R . A . 9165 further amending R . A .
6425 reverted back to "non-RPC" penalties, e.g., life impris-
onment the Comprehensive Dangerous Drugs A c t as the law
now stands is a purely special law. Hence, the R P C has no
suppletory effect.

What principles of the Revised Penal Code are applicable to


special penal laws?
Parel, 44 Phil. 437; Ponte, 20 Phil. 379; and Bruhez, 28
Phil. 305, involved the suppletory application of principles
under the then Penal Code to special laws. Parel is concerned
with the application of Article 22 to violations of Act 3030, the
Election L a w , with reference to the retroactive effect of penal
laws if they favor the accused. Ponte involved the application
of Article 17 with reference to the participation of principals
in the commission of the crime of misappropriation of public
funds as defined and penalized by Act 1740. Bruhez covered
Article 45 with reference to the confiscation of the instruments
used in violation of Act 1461, the Opium Law.

75
NOTES A N D CASES ON THE REVISED PENAL CODE

The suppletory application of the principle of conspiracy


is analogous to the application of the provision on principals
under Article 17 in Ponte. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one
is the act of all the conspirators, and the precise extent or
modality of participation of each of them becomes secondary,
since all the conspirators are principals. (Ladonga v. People)

B.P. 22 does not expressly proscribe the suppletory


application of the provisions of the R P C . Thus, in the absence
of contrary provision in B.P. 22, the general provisions of the
Code which, by their nature, are necessarily applicable, may be
applied suppletorily. Yu, G.R. No. 134172, September 20, 2004,
applied suppletorily Article 39 to B.P. 22.
Chapter T w o

JUSTIFYING CIRCUMSTANCES A N D
CIRCUMSTANCES W H I C H EXEMPT FROM
CRIMINAL LIABILITY

• Why is there a need for modifying circumstances?

E v e r y penalty under the R P C is understood to be prescribed


for consummated felonies and against the principal offenders.
L i k e w i s e , the R P C is primarily classical; the penalties are
predetermined without regard to the moral state of the
offender. Thus, the need for circumstances to modify criminal
liability taking into consideration the moral, emotional, and
mental state of the offender and the circumstances when
the offense was committed. T h e R P C , therefore, provides
for circumstances which modify the criminal liability of the
offenders.

• What are the different modifying circumstances?

1. Justifying circumstances — Article 11;


2. Exempting circumstances — Article 12;
3. Mitigating circumstances — Article 13;
4. A g g r a v a t i n g circumstances — Article 14; and
5. Alternative circumstances, either mitigating or
aggravating — Article 15.
Offenders falling under either Article 11 or 12 are
without criminal liability; those benefited by the circumstances
in Article 13 have reduced criminal liability; those proved to
be more perverse by committing the felony with any of the
circumstances in Article 14 have increased criminal liability;
and those who act while under the circumstances stated in
Article 15 will have their liability either increased or reduced
depending upon the situation obtaining in the commission of
the felony. In addition, specific felonies in Book II provide their

77
NOTES A N D CASES ON THE REVISED PENAL CODE

own modifying circumstances, otherwise called absolutory and


extenuating circumstances.

Is there any distinction between Articles 14 and 15?


Orilla differentiated Articles 14 and 15 in that the former
enumerates aggravating circumstances per se whereas the
latter are circumstances which are not aggravating per se but
may be mitigating depending upon the circumstances of the
case. When the term "aggravating circumstances" requires
strict interpretation, it should be confined to Article 14. W h e n it
calls for the award of indemnities, the term should be liberally
construed to include the circumstances in Article 15.
The term "aggravating circumstances" is strictly con-
strued, not only because what is involved is a criminal statute,
but also because its application could result in the imposition
of the death penalty. T h e list of aggravating circumstances in
Article 14 is thus exclusive for the purpose of raising a crime to
its qualified form.
Article 14 does not include relationship as an aggravat-
ing circumstance. Relationship is an alternative circumstance
under Article 15. Otherwise stated, for purposes of death pen-
alty, the aggravating circumstance must come exclusively from
Article 14. Article 15 cannot supply the generic aggravating
circumstance, which should accompany the qualifying circum-
stance to raise the penalty to death pursuant to paragraph 2 of
Article 63.

[With the abolition of the death penalty, the above


disquisition has become a c a d e m i c ]

What other factors affect criminal liability?

1. Absolutory circumstances referring to exempting circum-


stances outside Article 12 such as certain relatives who
acted as accessories to the offenders pursuant to Articles
19 and 20, and those covered by A r t i c l e 332 for crimes and
relatives enumerated therein, among others.

2. Extenuating circumstances which are mitigating but not


found in Article 13, e.g., abandonment in paragraph 3,
Article 333 and concealment of dishonor in Article 255.

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

• Give examples of exempting/absolutory circumstances.


1. Instigation by reason of public policy;
2. Article 6(3) — spontaneous desistance in the attempted
stage unless the overt act committed already constitutes
a crime other than that intended;
3. Article 7 — attempted/frustrated light felonies except
those against persons or property;
4. Article 16 — accessories in light felonies;
5. Article 20 — certain relatives who are accessories subject
to the requisites provided therein;
6. Article 247 — death and physical injuries inflicted under
exceptional circumstances;
7. Article 332 — certain relatives in theft, estafa, and
malicious mischief;
8. Battered woman syndrome - Section 26, R . A . 9262
9. Status offenses in Sections 57 and 58, R . A . 9344
10. Somnambulism;
11. Mistake of fact; and
12. Repeal of a penal law, either absolute or modification of
the penalty when favorable to the offender.

• What is entrapment? Instigation?


Entrapment is the employment of such ways and means
for the purpose of trapping or capturing a lawbreaker. In
entrapment, the idea to commit the crime originates from
the accused. Nobody induces or prods him into committing
the offenses. This act is distinguished from inducement or
instigation wherein the criminal intent originates in the mind
of the instigator and the accused is lured into the commission
of the offense charged in order to prosecute him. The instigator
practically induces another to commit the offense and himself
becomes a co-principal. (People v. Ramos, Jr., G.R. No. 88301,
October 28, 1991)

• What is a buy-bust operation?


It is a form of entrapment which has been accepted as
a valid means of arresting violators of the drugs law. It is

19
NOTES A N D CASES ON THE REVISED PENAL CODE

commonly employed by police officers as an effective way of


apprehending law offenders in the act of committing a crime.
In a buy-bust operation, the idea to commit a crime originates
from the offender, without anybody inducing or prodding him
to commit the offense. Its opposite is instigation or inducement,
wherein the police or its agent lures the accused into committing
the offense in order to prosecute him. Instigation is deemed
contrary to public policy and considered an absolutory cause.
A "buy-bust operation" is a form of entrapment employed
by peace officers to trap and catch a malefactor in flagrante
delicto. Entrapment has received judicial sanction as long as
it is carried out with constitutional and legal circumspection.
This requirement was observed in the present case. T h a t there
was no inducement on the part of the agents is bolstered by the
fact that the test-buy operation conducted by the same Sgt. U U
the day before yielded the same result, i.e., that the cigarettes
the accused was selling w e r e marijuana sticks. In addition
before Sgt. UU bought the 10 sticks of marijuana during the
operation, two other persons w e r e earlier seen buying from the
accused marijuana sticks, and for which they w e r e thereafter
apprehended. It was proved that appellant is indeed guilty as
charged.

How should allegation of frame-up and extortion be viewed?

An allegation of frame-up and extortion by police officers is


a common and standard defense in most dangerous drug cases.
It is viewed with disfavor, for it can be easily concocted. To
substantiate such defense, including instigation, the evidence
must be clear and convincing because of the presumption that
public officers acted in the regular performance of their official
duties, (id.)

Can instigation and frame-up be both present in a case?

No for they are incompatible. In instigation, the crime


is actually performed by the accused except that the intent
originates from the mind of the inducers. In frame-up, however,
the offense is not committed by the accused. Precisely, the
accused is only framed or set up in a situation leading to a false
accusation against him. Instigation and frame-up therefore
cannot be present concurrently, (id.)

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

Distinguish entrapment from instigation.

ENTRAPMENT INSTIGATION
T h e mens rea originated Evil idea originated from
from the accused who was the peace officer who
merely trapped by the induced the accused to
peace officer in flagrante commit the act
delicto

This is not absolutory as absolutory by reason of


to the offender since he public policy
authored the evil idea

Consistent with public contrary to public policy


policy

T r a p for the unwary trap for unwary innocent


criminal (People v.
Marcos, 185 SCRA 154)

T h e peace officer has no T h e peace officer is a


criminal liability for his principal by inducement
acts are in accordance
w i t h law

6. T h e crime has already T h e crime would not


been committed and could not have been
committed were it not for
the instigation

T h e underlying difference between entrapment and


instigation is in the origin of the criminal intent. In entrapment,
mens rea originates from the mind of the criminal. The idea
and resolve to commit the crime comes for him. In instigation,
the law enforcers conceive the commission of the crime and
suggest it to the accused who adopts the idea and carries it into
execution. Entrapment is sanctioned; instigation is tabooed.
(People v. de la Peha, G.R. No. 92534, July 9, 1991)
In entrapment, the entrapper resorts to ways and means
to trap and capture a lawbreaker while executing his criminal
plan; in instigation, the instigator practically induces the
defendant into committing the offense, and himself becomes

81
NOTES A N D CASES ON THE REVISED PENAL CODE

a co-principal. Entrapment is no bar to prosecution and


conviction; in instigation, the defendant will be acquitted.
(People v. Polizon, September 1992)
Entrapment is oftentimes, the only effective way of
apprehending a criminal in the act of the commission of the
offense. A criminal is caught committing the act by ways and
means devised by peace officers. (People v. Juma, G.R. No.
90391, March 24, 1993)
In entrapment, the crime had already been committed
while in instigation, it was not and could not have been com-
mitted were it not for the instigation by the peace officer, (id.)

Why is Article 247 on death inflicted during exceptional


circumstances extenuating?

Article 247, far from defining a felony, merely provides


or grants a privilege or benefit — amounting practically to an
exemption from an adequate punishment — to a legally married
person or parent who shall surprise his spouse or daughter in
the act of committing sexual intercourse with another, and shall
kill any or both of them in the act or immediately thereafter, or
shall inflict upon them any serious physical injury. Thus, in case
of death or serious physical injuries, considering the enormous
provocation and his righteous indignation, the accused — who
would otherwise be criminally liable for the crime of homicide,
parricide, murder, or serious physical injury, as the case may
be — is punished only with destierro. This penalty is mere
banishment and is intended more for the protection of the
accused than a punishment. (People v. Coricor, 79 Phil. 672).
And where physical injuries other than serious are inflicted,
the offender is exempted from punishment.

To hold that it defines and penalizes a distinct crime


would make the exceptional circumstances which practically
exempt the accused from criminal liability integral elements of
the offense, and thereby compel the prosecuting officer to plead
and admit them in the Information. Such an interpretation
would be illogical if not absurd, since a mitigating and much
less an exempting circumstance cannot be an integral element
of the crime charged. Only "acts or omissions . . . constituting
the offense" should be pleaded and a circumstance which

82
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WHICH EXEMPT FROM CRIMINAL LIABILITY

mitigates criminal liability or exempts the accused, not being


an essential element of the offense charged — but a matter of
defense that must be proved — need not be pleaded. (People v.
Abarca, G.R. No. 74433, September 14, 1987)

A r t . 11. Justifying circumstances. — T h e f o l l o w i n g do not


i n c u r c r i m i n a l liability:

1. A n y o n e w h o acts in defense of his p e r s o n or rights,


p r o v i d e d that the f o l l o w i n g circumstances concur:
First. U n l a w f u l a g g r e s s i o n ;

Second. R e a s o n a b l e necessity of the m e a n s e m p l o y e d


to p r e v e n t or r e p e l it;

Third. L a c k of sufficient p r o v o c a t i o n on the p a r t of


the p e r s o n d e f e n d i n g himself.

2. A n y o n e w h o acts in defense of the p e r s o n or rights of


his s p o u s e , a s c e n d a n t s , d e s c e n d a n t s or legitimate,
n a t u r a l or a d o p t e d b r o t h e r s or sisters, or of his
relatives by affinity in the s a m e d e g r e e s , a n d those
by c o n s a n g u i n i t y w i t h i n the fourth civil d e g r e e ,
p r o v i d e d , that the first a n d second requisites
p r e s c r i b e d i n the next p r e c e d i n g circumstance
a r e present, a n d the f u r t h e r requisite, in case the
p r o v o c a t i o n w a s g i v e n b y the p e r s o n attacked, that
the one m a k i n g the defense h a d n o p a r t therein.

3. A n y o n e w h o acts in defense of the p e r s o n or rights


of a s t r a n g e r , p r o v i d e d that the first a n d second
requisites m e n t i o n e d in the first circumstance
of this article a r e present a n d that the person
d e f e n d i n g be not i n d u c e d by r e v e n g e , resentment
or other evil motive.
4. A n y p e r s o n w h o , in o r d e r to a v o i d an evil or injury,
does an act w h i c h causes d a m a g e to another,
p r o v i d e d that the f o l l o w i n g requisites a r e present:
First. T h a t the evil sought to be avoided actually
exists;
Second. T h a t the injury feared be greater than that
done to a v o i d it;

83
NOTES A N D CASES ON THE REVISED PENAL CODE

Third. T h a t there be no other practical a n d less


harmful means of p r e v e n t i n g it.
5. A n y person w h o acts in the fulfillment of a duty or
in the l a w f u l exercise of a right or office.
6. A n y person w h o acts in o b e d i e n c e to an o r d e r
issued by a s u p e r i o r for some l a w f u l p u r p o s e .

• What are justifying circumstances?


Those wherein the acts of the actor are in accordance with
law and hence, he incurs no criminal liability. Since there is no
crime, there is no criminal, hence, he should not be called an
"offender" but an "actor." A n d therefore, no civil liability either.
That is why in Article 101, "in cases falling within subdivision
4 of Article 11, the persons for whose benefit the harm has been
prevented shall be civilly liable in proportion to the benefit
which they may have received." T h e civil liability is not on the
actor.
T h e following are justifying circumstances:
a. Defense of self, of relatives and of strangers;
b. State of necessity;
c. Fulfillment of duty; and
d. Obedience to superior order.

• What are the requisites of self-defense?

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent


or repel it; and

3. Lack of sufficient provocation on the part of the person


defending himself.

Self-defense includes defense of life, of chastity, of property


and of honor. T h e latter includes defense against defamation.

Unlawful aggression is indispensable not only for self


defense but for defense of relatives and strangers as well for
without unlawful aggression, there is nothing to prevent or
repel. There can be no self-defense unless it is proven that

84
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WHICH EXEMPT FROM CRIMINAL LIABILITY

there had been unlawful aggression on the part of the person


injured or killed by the assailant. (People v. Bausing, G.R. No.
L-64965, July 18,1991)

What is unlawful aggression?

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 injury, shall
have been made. A mere threatening or intimidating attitude
is not sufficient; there must be a real danger to life or personal
safety. (People v. Nabayra, October 1991)

Unlawful aggression must be real or at least imminent.


Real aggression means an attack with physical force or with
a weapon such as to cause injury or danger to life or personal
safety. Imminent unlawful aggression means an attack that is
impending or at the point of happening. It must be offensive
and positively strong.

For unlawful aggression to be appreciated there must


be an actual, sudden, unexpected attack or imminent danger
thereof, and not merely a threatening or intimidating attitude.
T h e accused must present proof of positively strong act of real
aggression. Unlawful aggression must be such as to put in real
peril the life or personal safety of the person defending himself
or of a relative sought to be defended and not an imagined
threat, (id.)

What is the importance of unlawful aggression for the existence


of self-defense?
Self-defense, by its very nature, requires the attendance
of unlawful aggression initiated by the victim. (People v. Nell,
G.R. No. 109660, July 1, 1997)
If there is no unlawful aggression, there would be nothing
to prevent or repel. In that event, there could be no defense,
complete or incomplete. Where the unlawful aggression which
has begun no longer exists, the one making the defense has no
more right to kill or even wound the former aggressor. Just
as the presence and severity of a large number of wounds on
the part of the victim disprove self-defense, so do they belie

85
NOTES A N D CASES ON THE REVISED PENAL CODE

the claim of incomplete defense and indicate not the desire to


defend but a determined effort to kill. (People v. Santos, 255
SCRA 309)

When the accused invokes self-defense, what is the effect on


the burden of proof?
Although it is a cardinal principle that the prosecution
has the burden of proving the guilt of the accused, the rule is
reversed where the accused admits committing the crime in
self-defense. In such case, the burden is shifted to the accused
who must prove clearly and convincingly the elements of self-
defense. (People v. Magallanes, G.R. No. 114265, July 8, 1997)
By invoking self-defense, appellant admits the fact that
he did stab the deceased. Correspondingly, it is incumbent
upon him to prove by clear and convincing evidence that he
acted in self-defense. He must rely on the strength of his own
evidence and not on the weakness of that of the prosecution
for, even if the prosecution evidence is weak, it could not be
disbelieved after the accused himself admitted the killing.
(People v. Arroyo, G.R. No. 99258, September 13, 1991).

What is the rule when aggression ceased to exist?

W h e n aggression has ceased to exist, there is no more


necessity for self-defense. "Clearly, whatever act of aggression
was initiated by Tapales against the appellant has already
ceased as demonstrated by the fact that Tapales was running
away from the appellant. T h e tables w e r e turned when the
appellant chased Tapales with the obvious intent of stabbing
him. At this juncture, the appellant had assumed the role of
aggressor, thus, his claim of self-defense cannot obviously
prosper." (id.)

When the aggression no longer exists, such as when the


aggressor ran away after the attack or when the defender was
able to wrest the weapon from the aggressor, there is no need
for self-defense. T h e alleged defender in turn becomes the
aggressor if he would continue the attack.

"Evidence to be believed must not only proceed from the


mouth of a credible witness, but must be credible in itself such
as the common experience and observation of mankind can

86
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

approve as probable under the circumstances. T h e manner of


infliction and the number of physical injuries sustained by the
victim during the incident negate the self-defense posture. If
the intention of the accused was only to defend himself and he
was already able to hack the victim on the left temple, which
wound was fatal, he would not have inflicted further injuries
on the victim who was his uncle. T h e accused continued to hack
the victim on his back and even chased the victim when he
ran away to escape from further torture." (People v. Nabayra,
October 1991)

• What is the effect of presence of a large number of wounds on


the victim on the claim of self-defense?

T h e presence of a large number of wounds on the part


of the victim negates self-defense and instead indicates a
determined effort on the part of the offender to kill the victim.
T h e claim of self-defense can be belied by physical evidence.
Thus, the number, location and nature of the wounds would
reveal whether it was self-defense or intent to kill.

• When is there reasonable necessity of the means employed?

T h e reasonableness of the means employed depends upon


the circumstances surrounding the aggression, the state of
mind of the aggressor and the available weapon at the defend-
er's disposal. It cannot be measured by mathematical calcula-
tion. (People v. Gutual, G.R. No. 115233, February 22, 1996)

In self defense, there should be necessity of the action taken


as well as the means used. T h e latter requires a consideration
of (1) whether the aggressor was armed; (2) the nature and
quality of the weapon used; and (3) the physical conditions and
sizes of both the aggressor and the person defending himself.
(People v. Nell) Reasonable necessity of the means employed
to prevent or repel the unlawful aggression cannot be present
when the unlawful aggression on the part of the victim has
ceased.

• What is "rational equivalence" in the reasonable necessity of


the means employed?
Reasonable necessity of the means employed does not
imply material commensurability between the means of attack

87
NOTES A N D CASES ON THE REVISED PENAL CODE

and defense — what the law requires is rational equivalence.


It would not be proper or reasonable to claim that accused
should have fled or selected a less deadly weapon because
in an emergency in which without any reason whatever he
was placed, there was nothing more natural than to use
the weapon he had to defend himself. In the natural order
of things, following the instinct of self-preservation, he was
compelled to resort to a proper defense. In the consideration
of rational equivalence will enter the principal factors of the
emergency, the imminent danger to which the person attacked
is exposed, and the instinct, more than the reason, that moves
or impels the defense, and the proportionateness thereof does
not depend upon the harm done, but rests upon the imminent
danger of such injury, (id.)

What belies the reasonableness of the means employed?

The means employed becomes unreasonable and unnec-


essary when after the aggression had ceased and the victim
no longer posed any threat of further attack the accused con-
tinued inflicting injuries on the victim who fell on the ground
helpless. (People v. Binondo, G.R. No. 97227, October 20,
1992)

The presence of a large number of wounds inflicted on


the victim clearly indicates a determined effort on the part
of the accused to kill his prey and belies the reasonableness
of the means adopted to prevent or repel an unlawful act of
an aggressor. (People v. Arizala, G.R. No. 130708, October 22,
1999)

What is the paramount consideration in determining the


reasonableness of the means employed?

In determining whether the defender has chosen a


reasonable means to defend himself, self-preservation is of
paramount consideration. A person trapped by circumstances
of person, time and place will not examine the weapon of
the aggressor and calculate the weapon that he should use,
whether or not it is proportionate to that of the aggressor. T h e
only thing on the mind of a trapped defender is how to preserve
his life from imminent peril.
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

• Discuss the concept of lack of sufficient provocation on the part


of the defender.

Lack of sufficient provocation on the part of the defender


shows that there may have been provocation but it should not
be sufficient and it must not immediately precede the act. The
law requires that the provocation be sufficient or proportionate
to the act committed and adequate to arouse one to its
commission. It is not even enough that the provocative act be
unreasonable or annoying.

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, while as a mitigating
circumstance, it refers to its presence on the part of offended
party. (People v. CA, G.R. No. 103613, February 13, 2001)

» What are the rules when a person is attacked?

"Stand ground when in the right" applies when the


aggressor is armed with a weapon and is especially more liberal
if the person attacked is a peace officer in the performance
of his duty. A peace officer is not supposed to retreat from a
trouble maker but is expected to face the latter and pacify him
or prevent him from committing disorderly acts.

This rule has superseded the "retreat to the wall" principle


which makes it a duty of a person assailed to retreat as far as he
can before he meets the assault with force. (U.S. v. Domen, G.R.
No. L-12963, October 25, 1917) As weapons have become more
sophisticated and powerful, and men more harsh and unmerciful,
self-preservation demands that a person must watch his back
and eliminate the aggression as quickly as possible. Retreat to
the wall has been rendered obsolete and dangerous.

• What is the effect when not all of the requisites for defense are
present?
T h e accused should be entitled to either:
a. Ordinary mitigating circumstance of incomplete
defense pursuant to Article 13(1) if only one
requisite is present which should always be unlawful
aggression, or

89
NOTES A N D CASES ON THE REVISED PENAL CODE

b. Privileged mitigating circumstance under Article


69, if majority, that is, two requisites are present,
which should always include unlawful aggression.

For the claim of incomplete defense to prosper, it is essential


to prove the primordial element of unlawful aggression. If there
is no unlawful aggression, there would be nothing to prevent or
repel. In that event, there is no occasion to make any defense,
complete or incomplete. Where the unlawful aggression, which
has begun no longer exists, the one making the defense has no
more right to kill or even wound the former aggressor. Just
as the presence and severity of a large number of wounds on
the part of the victim disprove self-defense, so do they belie
the claim of incomplete defense and indicate not the desire to
defend but a determined effort to kill. (People v. Santos)

• What does defense of honor encompass?

It encompasses defense of one's chastity or reputation.


But there must be imminent and immediate danger of rape
to justify killing. If it were only acts of lasciviousness, killing
is an unreasonable means. Thus, the acts of lasciviousness
committed by a man on a lady beside him in the church provoked
the lady to stab the irreverent man. T h e means employed by
the prayerful lady was adjudged to be unreasonable.

Slander may be a necessary means to repel slander. But


it must only be to the extent necessary to redeem the honor of
the defender against the defamatory remarks.

• Can there be justifying circumstance of defense when what is


involved is property?

If the aggression is on property even if there was no


attack on the defender or owner or possessor, defense is proper
but not to the extent of taking life. K i l l i n g the aggressor w i l l
not be justified because the means used to repel or prevent the
aggression will then be not reasonable. T h e value of property
can never equal the value of life, hence killing is not justified.

The accused awoke to find his house being damaged and


his accessibility to the highway being closed as well as of his
rice mill bodega. This constituted unlawful aggression on the
part of the victims. However, their killing was not a reasonable

90
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

means to prevent or repel the aggression. Nevertheless, he


was credited with the privileged mitigating circumstance of
incomplete self-defense and ordinary mitigating circumstance
of passion and obfuscation. (People v. Narvaez, April 1983)

Under the doctrine of "self-help" in Article 429 of the


N C C , the law justifies the act of the owner or lawful possessor
of a thing in using such force as is necessary to protect his
proprietary or possessory rights at the very moment of unlawful
deprivation. But not to the extent of taking the offender's
life unless there is a like danger posed on the person of the
defender.

• W h o should determine the existence of these justifying


circumstances?

It must be the court, not the police officers. If a person


was killed, such as a thief, the police should file the case and
not declare for themselves that there is complete self-defense.
T h e y should allow the courts to decide the existence of all the
requirements for self-defense. These are matters of defense
that should be litigated.

• What are the elements of defense of relatives?

a. Unlawful aggression;
b. Reasonable necessity of the means employed to prevent
or repel it; and
c. In case the provocation was given by the person attacked,
the person defending had no part therein.
T h e relatives to be defended must be defender's spouse,
ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity in the same degrees,
and those by consanguinity within the fourth civil degree.
Defense of relatives from the fifth degree of consanguinity
falls within defense of strangers and the third element in
defense of relatives will be replaced by the element that the
defender is not induced by revenge, resentment or other evil
motives.
• What are the elements of defense of strangers?
a. Unlawful aggression;

91
NOTES A N D CASES ON THE REVISED PENAL CODE

b. Reasonable necessity of the means employed to prevent


or repel it; and
c. The person defending is not induced by revenge, resent-
ment or other evil motives.
The first and second requisites in the three kinds of
defenses are the same. Only the third requisite varies.

People v. Genosa, G.R. No. 135981, January 15,2004


• Characterize a battered woman.
A battered woman ( B W ) is one who is repeatedly subjected
to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without
concern for her rights. BW include wives or women in any form
of intimate relationship with men. To be classified as such,
the couple must go through the battering cycle at least twice.
A n y woman may find herself in an abusive relationship with
a man once. If it occurs a second time, and she remains in the
situation, she is a B W .
A BW exhibits common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer's
actions; and false hopes that the relationship w i l l improve.

• Define battered woman syndrome.

The battered women syndrome ( B W S ) is characterized by


"cycle of violence," which has three phases:

(a) the tension-building phase;


(b) the acute battering incident; and
(c) tranquil, loving (or, at least nonviolent) phase.

At tension-building phase, minor battering occurs —


verbal, physical abuse or other form of hostile behavior. T h e
woman tries to pacify the batterer but this placatory/passive
behavior only legitimizes the man's belief that he has the right
to abuse her. At some point, the violence "spirals out of control"
and leads to acute battering incident.

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

T h e acute battering incident is said to be characterized


by brutality, destructiveness and, sometimes, death. The BW
deems this incident as unpredictable, yet also inevitable. At
this stage, she has a sense of detachment from the attack and
the terrible pain. Acute battering incidents are often so savage
and out of control that bystanders or intervenors are likely to
get hurt.

T h e final phase of the cycle of violence begins when the


acute battering incident ends. During this period, the couple
experience profound relief. Indeed, the batterer may show
tender, nurturing behavior toward his partner.

» What is the effect on the battered woman of this cycle of


violence?

Because of the recurring cycles of violence experienced the


abused woman's state of mind metamorphoses. In determining
her state of mind, expert evidence on psychological effect of
battering on wives/common-law partners are relevant and
necessary to clarify and refute myths and misconceptions
about B W .
T h e "overwhelming brutality/trauma" could result in
posttraumatic stress disorder which is a form of "anxiety
neurosis or neurologic anxcietism." After being repeatedly and
severely abused, the battered persons may believe that they are
essentially helpless, lacking power to change their situation.
Acute battering incidents can have the effect of stimulating
the development of coping responses to trauma at the expense
of the victim's ability to muster an active response to try to
escape further trauma. She ceases to believe that anything she
can do will have a predictable positive effect.
Just as the BW believes she is responsible for the violent
behavior of her partner, she also believes that he is capable of
killing her, that there is no escape. She feels unsafe, suffers
from pervasive anxiety, and usually fails to leave relationship.

• What should be proved by the battered woman who kills/


injures her batterer?
T h e defense should prove all three phases of cycle of
violence characterizing the relationship of the partners. The

93
NOTES A N D CASES ON THE REVISED PENAL CODE

defense fell short in this. There were acute battering incidents


typical characteristics of this stage. However, that single
incident does not prove the existence of syndrome. She failed to
prove that in at least another battering episode in the past, she
went thru a similar pattern. In criminal cases, all the elements
of the modifying circumstance must be proved.
The existence of B W S in a relationship does not in itself
establish a legal right of the woman to kill her partner. Evidence
must still be considered in the context of self-defense. Crucial
to the battered-woman defense is her state of mind at time of
offense — she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in
order to save her life. One who resorts to self-defense must face
a real threat on his life; the peril sought to be avoided must be
imminent and actual, not merely imaginary.

Unlawful aggression is the most essential element of self-


defense. It presupposes actual, sudden and unexpected attack
or an imminent danger thereof on the life or safety of a person.
According to M M , there was sufficient time interval between
the unlawful aggression of BB and her fatal attack upon him.
She had withdrawn from his violent behavior and escaped to
their children's bedroom. He apparently ceased his attack and
went to bed. T h e reality or imminence of danger had ended
altogether. (But see Section 26 of the R . A . 9262)

Is physical assault at the actual time of the killing indispensable


for self-defense invocation to prosper?

Where the brutalized person if already suffering from


the syndrome, further evidence of actual physical assault at
the time of the killing is not required. Incidents of domestic
battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before
she can defend her life would amount to sentencing her to
'murder by installment.' Still, impending danger prior to the
defendant's use of deadly force must be shown. Threatening
behavior or communication can satisfy the required imminence
of danger. Considering such circumstances and the existence of
the syndrome, self-defense may be appreciated.
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

In summary: First, each of the phases of cycle of violence


must be proved to have characterized at least two battering
episodes. Second, final acute battering episode preceding the
killing of the batterer must have produced in the battered
person's mind actual fear of an imminent harm from the
batterer and honest belief that she needed to use force in order
to save her life. Third, at the time of the killing, the batterer
must have posed probable — not necessarily immediate and
actual — grave harm to the accused based on the history of
violence by the former against the latter. Taken altogether,
these circumstances could satisfy the requisites of self-defense.

• In the absence of complete self-defense, what circumstances


could be appreciated in favor of the battered woman?

T h e r e was the resulting diminution of freedom of action,


intelligence or intent analogous to illness that diminishes
exercise of w i l l power without depriving her of consciousness of
her acts. T h e r e is also the circumstance of having acted upon
an impulse so powerful as to have naturally produced passion
and obfuscation. This state of mind is present when a crime is
the result of an uncontrollable burst of passion provoked by
prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason, as in acute battering incident.

These two circumstances — psychological paralysis, and


passion and obfuscation — did not arise from the same set of
facts. T h e first circumstance arose from the cyclical nature and
severity of battery. T h e second is from violent aggression he had
inflicted on her prior to the killing. That the incident occurred
when she was eight months pregnant was deemed by her as an
attempt not only on her life, but likewise on that of the unborn
child which naturally produced passion and obfuscation on her
part.
[Subsequent to Genosa, Congress passed R . A . 9262.
Section 26 expressly states that the victim or any person acting
pursuant to that law does not incur criminal or civil liability
despite the absence of the requisites of self defense.]

• What are the elements of state of necessity?


a. The evil sought to be avoided actually exists;

95
NOTES A N D CASES ON THE REVISED PENAL CODE

b. The injury feared be greater than that done to avoid it;


and
c. There is no other practical and less harmful means of
preventing it.

What is the civil liability of the person acting under a state of


necessity?
Article 101 provides that in cases falling within subdivi-
sion 4 of Article 11, the persons for whose benefit the harm has
been prevented shall be civilly liable in proportion to the ben-
efit which they may have received. This is because the act here
is legal or justified, and therefore, the actor is not civilly liable.

For instance, if to arrest a conflagration threatening to


engulf a whole town, several houses had to be destroyed by
the local authorities, such act is justified but the owners of the
houses saved by such destruction of property should be made
liable for the value of the property destroyed. [Although it may be
argued that if their houses are not destroyed, these w i l l be eaten
up by the fire, anyway.] Article 101 provides that in this case,
when the respective shares cannot be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town,
and, in all events, whenever the damage has been caused with
the consent of the authorities or their agents, indemnification
shall be made in the manner prescribed by special laws or
regulations. There is no greater danger for a man than for his
life and/or limb to be placed in peril. Thus, if for instance the
only way to save his life is to shove another person in front of
him or to duck behind another, such act should constitute the
justifying circumstance of state of necessity. In this case, since
he was the one benefited, he should be civilly liable.

What are the elements of fulfillment of duty or exercise of right


or office?

a. The offender acted in the performance of a duty or the


lawful exercise of a right or office; and

b. T h e injury caused or the offense committed is the neces-


sary consequence of the due performance of such right or
office.
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

In the absence of the second requisite, the justification


becomes incomplete thereby converting it into a mitigating
circumstance under Articles 13 and 69. (People v. Pinto Jr.
G.R. No. 39519, November 21, 1991)

Appellant was not in the performance of his duties at the


time of the shooting for the girls he was attempting to arrest
w e r e not committing any act of prostitution in his presence.
T h e fatal injuries that appellant caused the victim were not a
necessary consequence of his performance of duties as a police
officer. His duty to arrest the suspects did not include any right
to shoot them. (People v. Peralta, G.R. No. 128116, January 24,
2001)

T h e officers must not be negligent in the fulfillment of


their duties. In one case, the child taken hostage was killed
by the bullets of the police officers and not by the stab wounds
from the offender as shown by the medico legal findings. The
negligence of the police officers was evident from the fact that
the hostage taking was only several meters away from the police
line; that the offender was tired of carrying the boy for hours
and would even sit at times; that onlookers have massed in the
place of the incident; and that they waited until the offender
has stabbed the boy before taking action by indiscriminately
shooting the offender and their bullets killed the boy. This
negligence could not give rise to fulfillment of duty as justifying
circumstance.

When is obedience to superior order appreciated?

W h e n the following elements concur:


a. An order has been issued by a superior;
b. T h e order is for a legal purpose; and
c. T h e means used to carry out such order is lawful.
Even if the order is illegal but it is apparently legal and
the subordinate is not aware of its illegality, the subordinate
is not liable. (Tabuena v. Sandiganbayan, February 1997) This
justifying circumstance was appreciated in favor of TT where
it was shown that: (1) the subordinate-superior relationship
between TT and then President Marcos was clear; (2) the
lawfulness of the order was apparent as it has for its purpose
the partial payment of the liability of one government agency

97
NOTES A N D CASES ON THE REVISED PENAL CODE

to another; and (3) if it were illegal, TT was not aware of its


illegality.

A r t . 12. Circumstances which exempt from criminal liability.


— The following a r e exempt from criminal liability:
1. An imbecile or an insane p e r s o n , unless the latter
has acted d u r i n g a lucid interval.
W h e n a n imbecile o r a n insane p e r s o n has
committed an act w h i c h the l a w defines as a felony
(delito), the court shall o r d e r his confinement in one
of the hospitals or a s y l u m s established for p e r s o n s
thus afflicted, w h i c h he shall not be p e r m i t t e d to
leave w i t h o u t first o b t a i n i n g the p e r m i s s i o n of the
same court.
2. A p e r s o n u n d e r nine y e a r s of a g e .
3. A p e r s o n o v e r nine y e a r s of a g e a n d u n d e r fifteen,
unless he has acted w i t h d i s c e r n m e n t , in w h i c h
case, such m i n o r shall be p r o c e e d e d a g a i n s t in
a c c o r d a n c e w i t h the p r o v i s i o n s of A r t i c l e 80 of this
Code.
W h e n such m i n o r i s a d j u d g e d t o b e c r i m i n a l l y
i r r e s p o n s i b l e , the court, in c o n f o r m i t y w i t h the
p r o v i s i o n s o f this a n d the p r e c e d i n g p a r a g r a p h ,
shall commit h i m to the c a r e a n d custody of his
family w h o shall b e c h a r g e d w i t h his s u r v e i l l a n c e
a n d education; o t h e r w i s e , h e shall b e committed t o
the c a r e of some institution or p e r s o n m e n t i o n e d in
said A r t i c l e 80.
4. A n y p e r s o n w h o , w h i l e p e r f o r m i n g a l a w f u l act
w i t h d u e c a r e , causes a n i n j u r y b y m e r e a c c i d e n t
w i t h o u t fault or intention of c a u s i n g it.
5. A n y p e r s o n w h o acts u n d e r the c o m p u l s i o n o f a n
irresistible force.
6. A n y p e r s o n w h o acts u n d e r the i m p u l s e of an
uncontrollable fear of an equal or greater injury.
7. A n y p e r s o n w h o fails to p e r f o r m an act r e q u i r e d by
l a w , w h e n p r e v e n t e d b y some l a w f u l o r i n s u p e r a b l e
cause.
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

• Is Article 80 of the Revised Penal Code still operative?

N o . Article 80 was expressly repealed by Article 189 of P.


D. 603. ( P . D . 603 itself has been modified by R . A . 9344 which
was approved by the President on A p r i l 23, 2006, infra.)

• What are exempting circumstances?

These are circumstances by virtue of which, although


the act is criminal, the law exempts the actor from liability.
A crime is committed, but circumstances pertaining to the
offender calls for his exemption from criminal liability.
Since there is a crime, although there is no criminal lia-
bility, there is civil liability except in accident and insuperable
cause which strictly are not criminal.

T h e exempting circumstances are:


a. Imbecility/insanity;
b. Minority [amended by R . A . 9344, A p r i l 23, 2006];
c. Accident;
d. Compulsion of irresistible force;
e. Impulse of uncontrollable fear; and
f. Insuperable or lawful cause.
(Refer to notes on absolutory causes.)

• Distinguish justifying from exempting circumstances.

JUSTIFYING EXEMPTING

1. T h e act is legal, within the T h e act is criminal,


bounds of law.
2. There is no crime, hence, There is a crime and a
no criminal. criminal.

3. Since there is no crime, Since there is a crime,


there is no criminal and there is a criminal (but
no civil liability. exempt from criminal
liability) and there is civil
liability.

4. T h e emphasis of the law The emphasis of the law


is on the act. is on the actor.

99
NOTES A N D CASES ON THE REVISED PENAL CODE

Insanity
• What is insanity?
Section 1039 of the R A C defines insanity as "a manifesta-
tion in language or conduct of disease or defect of the brain or
a more or less permanently diseased or disordered condition of
the mentality, functional or organic, and characterized by per-
version, inhibition, or disordered function of the sensory or of
the intellective faculties or by impaired or disordered volition."

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 complete absence of power to discern, or there
is a total deprivation of freedom of the will. M e r e abnormality
of the mental faculties will not exclude imputability. (People v.
Danao, G.R. No. 96832, November 19, 1992)

» How is insanity manifested?

Insanity is evinced by a deranged and perverted condition


of the mental faculties which is manifested in language and
conduct. An insane person has no full and clear understanding
of the nature and consequences of his acts. Hence, insanity may
be shown by the surrounding circumstances fairly throwing
light on the subject, such as evidence of the alleged deranged
person's general conduct and appearance, his acts and
conduct consistent with his previous character and habits, his
irrational acts and beliefs, as w e l l as his improvident bargains.
The vagaries of the mind can only be known by outward acts,
by means of which one reads thoughts, motives and emotions
of a person, and through which can be determined whether the
acts conform to the practice of people of sound mind. (People v.
Villa, Jr., G.R. No. 129899, April 27, 2000)

* How is insanity disproved?

The following circumstances negate a complete absence


of intelligence of the accused: ( a ) immediately after he killed
the victims he thought of surrendering to the PC Detachment;
(b) he showed remorse during his confinement at the M e n t a l
Hospital; and (c) he was able to give a Sworn Statement before

100
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

the Prosecutor's Office immediately after the commission


of the crimes narrating his version of the incident. These
are hardly the acts of a person with a sick mind. Ambal
held: "The fact that immediately after the incident (accused)
thought of surrendering to the law-enforcement authorities is
incontestable proof that he knew that what he had done was
wrong and that he was going to be punished for it." Similarly, a
feeling of remorse is inconsistent with insanity, as it is a clear
indication that he was conscious of his acts, he acknowledged
his guilt and was sorry for them, (id.)

By the appellant's narration in his Sworn Statement,


he slaughtered his victims in a fit of rage after D D , allegedly
accused him of stealing chickens and cursed him. These negate
insanity. T h e r e is a vast difference between a genuinely insane
person and one who has worked himself up into such a frenzy
of anger that he fails to use reason or good judgment in what
he does. A man sometimes does crazy things when enraged but
it does not necessarily and conclusively prove that he is insane.
(id.)

In Rafanan, the fact that the appellant threatened the


victim with death in case she reported her ravishment indicated
that he was aware of the reprehensible moral depravity of
that assault and that he was not deprived of intelligence. In
Dungo, that the accused knew the nature of what he had done
negated his claim that he was insane when he fatally stabbed
the victim. In Aquino, appellant who took 120 cc of cough syrup
and consumed three marijuana sticks before raping his victim
and hitting her head with a stone had some form of mental
illness which did not deprive him of intelligence.

• What is the rule when insanity is interposed as a defense or a


ground of a motion to quash?
T h e burden rests upon the accused to establish that
fact, for the law presumes every man to be sane. Hence, in
the absence of sufficient evidence to prove insanity, the legal
presumption of sanity stands. (Zosa v. CA, G.R. No. 105641,
March 10, 1994) T h e defense of insanity, like self-defense, is in
the nature of avoidance and confession, thus the burden rests
with the accused to prove that he was insane at the time of the

101
NOTES A N D CASES ON THE REVISED PENAL CODE

commission of the offense. Allegations must be proved by the


one making them.
Article 800 of the N C C provides that the law presumes
that every person is of sound mind, in the absence of proof to
the contrary. The allegation of insanity must be clearly proved.
The law presumes all acts to be voluntary. N o t every aberration
of the mind or exhibition of mental deficiency is insanity, (id.)

• When should insanity occur to be exempting?


An inquiry into the mental state of appellant should relate
to the period immediately before or at the precise moment of
doing the act which is the subject of the inquiry, and his mental
condition after that crucial period or during the trial is incon-
sequential for purposes of determining his criminal liability.
More concrete evidence is needed on the mental condition of
the person alleged to be insane at the time of the perpetration
of the crimes in order that insanity may be appreciated in his
favor. Accused failed to discharge the burden of overcoming the
presumption that he committed the crimes freely, knowingly
and intelligently. It could be that he was insane at the time he
was examined at the center. But, in all probability such insan-
ity was contracted during his detention pending trial. He was
without contact with his friends and relatives most of the time.
He was troubled by his conscience, the realization of the grav-
ity of the offenses and the thought of a bleak future for him.
The confluence of these circumstances may have conspired to
disrupt his mental equilibrium. (People v. Villa, Jr.)

• Relate Article 12(1) to Article 79 of the Code.

Article 79 refers to the insanity occurring after the com-


mission of the crime, whereas, insanity in Article 12 refers to
that at the very moment the crime is being committed. "When
the convict shall become insane or an imbecile after final sen-
tence has been pronounced, the execution of said sentence
shall be suspended only with regard to the personal penalty,
the provisions of the second paragraph of circumstance num-
ber 1 of Article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his sentence
shall be executed, unless the penalty shall have prescribed in
accordance with the provisions of [the] Code."

102
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

W h e n insanity is alleged as a ground for exemption from


criminal responsibility, the evidence on this point must refer
to the time preceding the act under prosecution or to the very
moment of its execution. If the evidence pointed to the insanity
subsequent to the commission of the crime, the accused cannot
be acquitted. He is presumed to be sane when he committed it
(id.)

What quantum of evidence is required to overthrow the


presumption of sanity?

Proof beyond reasonable doubt is required. Insanity is a


defense in the nature of confession and avoidance, and as such
must be proved beyond reasonable doubt.
One who suffers from insanity at the time of the commis-
sion of the offense charged cannot in a legal sense entertain a
criminal intent and cannot be held criminally responsible for
his acts. His unlawful act is the product of a mental disease or
defect. In order that insanity may relieve a person from crimi-
nal responsibility, it is necessary that there be a complete de-
privation of intelligence in committing the act, i.e., that he be
deprived of cognition; that he acts without the least discern-
ment; that there be complete absence or deprivation of the
freedom of the will. (People v. Dungo, G.R. No. 89420, July 31,
1991)
Every man is presumed to be sane; hence, the burden of
proof is with the accused to prove that he is insane at the very
moment that the crime is committed. If the offender is known
to be insane prior to the commission of the felony, the burden is
with the prosecution to prove that he is sane at the time of the
commission of the offense.
T h e defense of insanity or imbecility must be clearly
proved for there is a presumption that acts penalized by law
are voluntary. Hence, in the absence of positive evidence that
the accused had previously lost his reason or was demented
moments prior to or during the perpetration of the crime, the
courts will always presume that he was in a normal state of
mind. (People v. Medina, G.R. No. 113691, February 1998)

• What should be done to an insane or imbecile who has


committed a felony?

103
NOTES A N D CASES ON THE REVISED PENAL CODE

Where the imbecile or an insane person has committed


an act which the law defines as a felony, the court shall order
his confinement in one of the hospitals or asylums established
for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court.
(People v. Rafanan, Jr., G.R. No. L-54135, November 21, 1991)

What are the tests or criteria for insanity?


In this jurisdiction, there has been no case that lays down
a definite test or criterion for insanity. However, the definition
of insanity under Section 1039 of the R A C supplies the test or
criterion.
Imbecility or insanity is the complete deprivation of
intelligence in the commission of the act. T h e two tests to
determine this mental state are:

(a) Cognition test or complete deprivation of intelligence


in committing the criminal act; and
(b) Volition test or a total deprivation of the freedom of
the will.

Philippine case law shows common reliance on the test


of cognition, rather than on a test relating to "freedom of the
will." Examination of the case law has failed to turn up any
case where accused was exempted on the sole ground that he
was totally deprived of "freedom of the will," i.e., without an
accompanying "complete deprivation of intelligence." Logically
so for a person's volition naturally reaches out only towards
that which is presented as desirable by his intelligence,
whether that intelligence is diseased or healthy. In any case,
where the accused failed to show complete impairment or loss
of intelligence it is at most a mitigating circumstance in accord
with Article 13(9): such illness of the offender as would diminish
the exercise of his will-power without however depriving him of
the consciousness of his acts, (id.)

What is schizophrenia? How does it affect criminal liability?

Schizophrenia is chronic mental disorder characterized


by inability to distinguish between fantasy and reality, and
often accompanied by hallucinations and delusions. Formerly

104
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

called dementia praecox, it is said to be the most common form


of psychosis and usually develops between the ages of 13 and
30. (id.)

In previous cases where schizophrenia was interposed


as an exempting circumstance, it has mostly been rejected.
In each of these cases, the evidence presented tended to show
that if there was impairment of the mental faculties, such
impairment was not so complete as to deprive the accused of
intelligence or the consciousness of his acts, (id.)

In fact, schizophrenic persons can even be gainfully


employed; hence, they are still conscious of their acts except
for those aspects where they confuse reality and fantasy.

Schizophrenic reaction may be considered as a mitigating


circumstance under Article 13(9). Appellant should have been
credited with this mitigating circumstance, although it would
not have affected the penalty imposable upon him under Article
63: in all cases in which the law prescribes a single indivisible
penalty, it shall be applied regardless of any mitigating
or aggravating circumstances that may have attended the
commission of the deed, (id.)

• What is required for imbecility to be accepted as a defense?

Imbecility, like insanity, is a defense which pertains to


the mental condition of a person. Philippine case law projects
the same standards in respect of both insanity and imbecility,
that is, that the insanity or imbecility must constitute complete
deprivation of intelligence in committing the criminal act, or
a total deprivation of freedom of the will. Where the medical
evidence does not show complete deprivation or even substantial
deprivation of intelligence on the part of the accused he cannot
be exempted from criminal liability. His behavior on the night
he raped the victim showed that he was quite conscious of
his acts and aware of the moral quality thereof. (People v.
Buenaflor, G.R. No. 93752, July 15, 1992)

• How should lack of reason and failure to use reason affect


criminal responsibility?
Care must be taken to distinguish between lack of reason
(insanity) and failure to use reason or good judgment due to

105
NOTES A N D CASES ON THE REVISED PENAL CODE

extreme anger (passion). Mere mental depravity or moral


insanity which results not from any disease of mind, but from
a perverted condition of the moral system, where the person
is mentally sane, does not exempt one from the responsibility
for crimes committed under its influence. Thus, before the
defense of insanity may be accepted, there must be a complete
deprivation of intelligence (test of cognition) — not only of the
will — in committing the criminal act. The presence of his
reasoning faculties, enabling him to exercise sound judgment
and satisfactorily articulate matters, sufficiently discounted
any intimation of insanity when he committed the felony. M e r e
abnormality of the mental faculties does not exclude criminal
culpability. (People v. Medina, G.R. No. 113691, February 6,
1998)

• Can the trial court determine whether or not an accused is


insane?

Estrada, G.R. No. 130487, June 19, 2000, nullified the trial
proceedings and remanded the case for mental examination
on accused, a determination of his competency to stand trial,
and for further proceedings because the court took it solely
upon itself to determine the sanity of accused. T h e judge is
not a psychiatrist or psychologist equipped with the specialized
knowledge of determining the state of a person's mental health.
To determine the accused's competency to stand trial, the court
should at least order the examination of accused, especially in
the light of the latter's history of mental illness. In denying
his examination by a medical expert, the trial court practically
denied him a fair trial prior to conviction, in violation of his
constitutional rights.

Minority

• How are penal laws to be construed as to minor offenders?

Penal laws should be liberally construed in favor of the


offender. Thus, considering the gravity of the offense and in the
interest of justice, the Court has admitted the birth certificate
of an accused to prove minority although said birth certificates
were not presented or offered in the trial court. Since the fact
of minority is established by an official document prepared by

106
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

the Department of Social Services and Development in the


exercise of its functions and incorporated in the records of the
case judicial notice can be taken thereof ex mero motu. (People
v. Regalario, G.R. No. 101451, March 23, 1993)

R e p u b l i c A c t N o . 9344

TITLE I — GOVERNING PRINCIPLES

C H A P T E R 1—TITLE, P O L I C Y A N D D E F I N I T I O N
OF TERMS

S E C T I O N 1. Short Title and Scope. — This A c t shall be


known as the "Juvenile Justice and Welfare A c t of 2006." It shall
cover the different stages involving children at risk and children
in conflict with the l a w from prevention to rehabilitation and
reintegration.

S E C . 2. Declaration of State Policy. — T h e following State


policies shall be observed at all times:

( a ) T h e State recognizes the vital role of children and youth in


nation building and shall promote and protect their physical, moral,
spiritual, intellectual and social well-being. It shall inculcate in the
youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
(b) T h e State shall protect the best interests of the child
through measures that will ensure the observance of international
standards of child protection, especially those to which the
Philippines is a party. Proceedings before any authority shall be
conducted in the best interest of the child and in a manner which
allows the child to participate and to express himself/herself freely.
T h e participation of children in the program and policy formulation
and implementation related to juvenile justice and welfare shall be
ensured by the concerned government agency.
(c) T h e State likewise recognizes the right of children to as-
sistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty and exploitation, and other
conditions prejudicial to their development.
(d) Pursuant to Article 40 of the United Nations Convention
on the Rights of the Child, the State recognizes the right of every

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NOTES A N D CASES ON THE REVISED PENAL CODE

child alleged as, accused of, adjudged, or recognized as having


infringed the penal law to be treated in a manner consistent with
the promotion of the child's sense of dignity and worth, taking
into account the child's age and desirability of promoting his/her
reintegration. Whenever appropriate and desirable, the State shall
adopt measures for dealing with such children without resorting
to judicial proceedings, providing that human rights and legal
safeguards are fully respected. It shall ensure that children are
dealt with in a manner appropriate to their well-being by providing
for, among others, a variety of disposition measures such as care,
guidance and supervision orders, counseling, probation, foster care,
education and vocational training programs and other alternatives
to institutional care.

(e) The administration of the juvenile justice and welfare


system shall take into consideration the cultural and religious
perspectives of the Filipino people, particularly the indigenous
peoples and the Muslims, consistent with the protection of the rights
of children belonging to these communities.

(f) The State shall apply the principles of restorative justice


in all its laws, policies and programs applicable to children in conflict
with the law.

S E C . 3. Liberal Construction of this Act. — In case of doubt,


the interpretation of any of the provisions of this A c t , including
its implementing rules and regulations ( I R R s ) , shall be construed
liberally in favor of the child in conflict w i t h the law.

SEC. 4. Definition of Terms. — T h e following terms as used


in this Act shall be defined as follows:

(a) "Bail" refers to the security given for the release of the
person in custody of the law, furnished by him/her or a bondsman,
to guarantee his/her appearance before any court. Bail may be given
in the form of corporate security, property bond, cash deposit, or
recognizance.

(b) "Best Interest of the Child" refers to the totality of the cir-
cumstances and conditions which are most congenial to the survival,
protection and feelings of security of the child and most encouraging
to the child's physical, psychological and emotional development.
It also means the least detrimental available alternative for safe-
guarding the growth and development of the child.

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(c) "Child" refers to a person under the age of eighteen (18)


years.

(d) "Child at Risk" refers to a child who is vulnerable to and at


the risk of committing criminal offenses because of personal, family
and social circumstances, such as, but not limited to, the following:

(1) being abused by any person through sexual, physical,


psychological, mental, economic or any other means and
the parents or guardian refuse, are unwilling, or unable
to provide protection for the child;
(2) being exploited including sexually or economically;
(3) being abandoned or neglected, and after diligent search
and inquiry, the parent or guardian cannot be found;
(4) coming from a dysfunctional or broken family or without
a parent or guardian;
(5) being out of school;
(6) being a streetchild;
(7) being a member of a gang;
(8) living in a community with a high level of criminality or
drug abuse; and
(9) living in situations of armed conflict.

(e) "Child in Conflict with the L a w " refers to a child who is


alleged as, accused of, or adjudged as, having committed an offense
under Philippine laws.
(f) "Community-based Programs" refers to the programs
provided in a community setting developed for purposes of
intervention and diversion, as well as rehabilitation of the child in
conflict with the law, for reintegration into his/her family and/or
community.
( g ) "Court" refers to a family court or, in places where there
are no family courts, any regional trial court.
(h) "Deprivation of Liberty" refers to any form of detention
or imprisonment, or to the placement of a child in conflict with the
law in a public or private custodial setting, from which the child in
conflict with the law is not permitted to leave at will by order of any
judicial or administrative authority.

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NOTES A N D CASES ON THE REVISED PENAL CODE

(i) "Diversion" refers to an alternative, child-appropriate


process of determining the responsibility and treatment of a child in
conflict with the law on the basis of his/her social, cultural, economic,
psychological or educational background without resorting to formal
court proceedings.
(j) "Diversion Program" refers to the 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.
(k) "Initial Contact With the Child" refers to the apprehension
or taking into custody of a child in conflict with the law by law
enforcement officers or private citizens. It includes the time when
the child alleged to be in conflict with the law receives a subpoena
under Section 3(b) of Rule 112 of the Revised Rules of Criminal
Procedure or summons under Section 6(a) or Section 9(b) of the
same Rule in cases that do not require preliminary investigation or
where there is no necessity to place the child alleged to be in conflict
with the law under immediate custody.

(1) "Intervention" refers to a series of activities which are


designed to address issues that caused the child to commit an
offense. It may take the form of an individualized treatment program
which may include counseling, skills training, education, and other
activities that will enhance his/her psychological, emotional and
psycho-social well-being.

(m) "Juvenile Justice and Welfare System" refers to a system


dealing with children at risk and children in conflict w i t h the law,
which provides child-appropriate proceedings, including programs
and services for prevention, diversion, rehabilitation, reintegration
and aftercare to ensure their normal growth and development.

(n) "Law Enforcement Officer" refers to the person in


authority or his/her agent as defined in A r t i c l e 152 of the Revised
Penal Code, including a barangay tanod.

(o) "Offense" refers to any act or omission whether punishable


under special laws or the Revised Penal Code, as amended.

(p) "Recognizance" refers to an undertaking in lieu of a bond


assumed by a parent or custodian who shall be responsible for
the appearance in court of the child in conflict with the law, when
required.

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
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( q ) "Restorative Justice" refers to a principle which requires


a process of resolving conflicts with the maximum involvement
of the victim, the offender and the community. It seeks to obtain
reparation for the victim; reconciliation of the offender, the offended
and the community; and reassurance to the offender that he/she
can be reintegrated into society. It also enhances public safety by
activating the offender, the victim and the community in prevention
strategies.

(r) "Status Offenses" refers to offenses which discriminate


only against a child, while an adult does not suffer any penalty
for committing similar acts. These shall include curfew violations;
truancy, parental disobedience and the like.

(s) "Youth Detention H o m e " refers to a 24-hour child-caring


institution managed by accredited local government units ( L G U s )
and licensed and/or accredited nongovernment organizations
( N G O s ) providing short-term residential care for children in conflict
with the law who are awaiting court disposition of their cases or
transfer to other agencies or jurisdiction.

(t) "Youth Rehabilitation Center" refers to a 24-hour


residential care facility managed by the Department of Social
Welfare and Development ( D S W D ) , L G U s , licensed and/or
accredited N G O s monitored by the D S W D , which provides care,
treatment and rehabilitation services for children in conflict with
the law. Rehabilitation services are provided under the guidance
of a trained staff where residents are cared for under a structured
therapeutic environment with the end v i e w of reintegrating
them into their families and communities as socially functioning
individuals. Physical mobility of residents of said centers may be
restricted pending court disposition of the charges against them.

(u) "Victimless Crimes" refers to offenses where there is no


private offended party.

C H A P T E R 2 — P R I N C I P L E S IN THE A D M I N I S T R A T I O N
OF JUVENILE JUSTICE A N D W E L F A R E

S E C . 5. Rights of the Child in Conflict with the Law. —


Every child in conflict with the law shall have the following rights,
including but not limited to:

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NOTES A N D CASES ON THE REVISED PENAL CODE

(a) the right not to be subjected to torture or other cruel,


inhuman or degrading treatment or punishment;
(b) the right not to be imposed a sentence of capital punish-
ment or life imprisonment, without the possibility of release;
(c) the right not to be deprived, unlawfully or arbitrarily,
of his/her liberty; detention or imprisonment being a disposition of
last resort, and which shall be for the shortest appropriate period of
time;
(d) the right to be treated with humanity and respect, for
the inherent dignity of the person, and in a manner which takes
into account the needs of a person of his/her age. In particular, a
child deprived of liberty shall be separated from adult offenders at
all times. No child shall be detained together with adult offenders.
He/She shall be conveyed separately to or from court. He/She shall
await hearing of his/her own case in a separate holding area. A child
in conflict with the law shall have the right to maintain contact with
his/her family through correspondence and visits, save in exceptional
circumstances;

(e) the right to prompt access to legal and other appropriate


assistance, as well as the right to challenge the legality of the
deprivation of his/her liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on
such action;
(f) the right to bail and recognizance, in appropriate cases;
( g ) the right to testify as a witness in his/her own behalf
under the rule on examination of a child witness;
(h) the right to have his/her privacy respected fully at all
stages of the proceedings;
(i) the right to diversion if he/she is qualified and voluntarily
avails of the same;
(j) the right to be imposed a judgment in proportion to the
gravity of the offense where his/her best interest, the rights of the
victim and the needs of society are all taken into consideration by
the court, under the principle of restorative justice;
(k) the right to have restrictions on his/her personal liberty
limited to the minimum, and where discretion is given by law to
the judge to determine whether to impose fine or imprisonment, the
imposition of fine being preferred as the more appropriate penalty;

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

(1) in general, the right to automatic suspension of sentence;


( m ) the right to probation as an alternative to imprisonment,
if qualified under the Probation L a w ;
(n) the right to be free from liability for perjury, concealment
or misrepresentation; and
(o) other rights as provided for under existing laws, rules and
regulations.

T h e State further adopts the provisions of the United Nations


Standard M i n i m u m Rules for the Administration of Juvenile Justice
or "Beijing Rules," United Nations Guidelines for the Prevention of
Juvenile Delinquency or the "Riyadh Guidelines," and the United
Nations Rules for the Protection of Juveniles Deprived of Liberty.

S E C . 6. Minimum Age of Criminal Responsibility. — A


child fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program pursuant to
Section 20 of this A c t .
A child above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal liability and
be subjected to an intervention program, unless he/she has acted
with discernment, in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
T h e exemption from criminal liability herein established does
not include exemption from civil liability, which shall be enforced in
accordance with existing laws.

S E C . 7. Determination of Age. — The child in conflict with


the law shall enjoy the presumption of minority. He/She shall enjoy
all the rights of a child in conflict with the law until he/she is proven
to be eighteen (18) years old or older. The age of a child may be
determined from the child's birth certificate, baptismal certificate or
any other pertinent documents. In the absence of these documents,
age may be based on information from the child himself/herself,
testimonies of other persons, the physical appearance of the child
and other relevant evidence. In case of doubt as to the age of the
child, it shall be resolved in his/her favor.
A n y person contesting the age of the child in conflict with the
law prior to the filing of the information in any appropriate court

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NOTES A N D CASES ON THE REVISED PENAL CODE

may file a case in a summary proceeding for the determination of


age before the Family Court which shall decide the case within
twenty-four (24) hours from receipt of the appropriate pleadings of
all interested parties.
If a case has been filed against the child in conflict with the
law and is pending in the appropriate court, the person shall file a
motion to determine the age of the child in the same court where the
case is pending. Pending hearing on the said motion, proceedings on
the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law.

TITLE II — STRUCTURES IN THE A D M I N I S T R A T I O N OF


JUVENILE JUSTICE A N D W E L F A R E

X X X

SEC. 11. Child Rights Center (CRC). — T h e existing Child


Rights Center of the Commission on Human Rights shall ensure
that the status, rights and interests of children are upheld in
accordance with the Constitution and international instruments
on human rights. T h e C H R shall strengthen the monitoring of
government compliance of all treaty obligations, including the
timely and regular submission of reports before the treaty bodies, as
well as the implementation and dissemination of recommendations
and conclusions by government agencies as w e l l as N G O s and civil
society.

TITLE III — P R E V E N T I O N OF J U V E N I L E D E L I N Q U E N C Y

C H A P T E R 1—THE R O L E O F T H E D I F F E R E N T S E C T O R S
X X X

CHAPTER 2 — COMPREHENSIVE JUVENILE


INTERVENTION PROGRAM
X X X

SEC. 19. Community-based Programs on Juvenile Justice


and Welfare. — Community-based programs on juvenile justice
and welfare shall be instituted by the L G U s through the L C P C ,

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WHICH EXEMPT FROM CRIMINAL LIABILITY

school, youth organizations and other concerned agencies. The


L G U s shall provide community-based services which respond to
the special needs, problems, interests and concerns of children and
which offer appropriate counseling and guidance to them and their
families. These programs shall consist of three levels:

( a ) P r i m a r y intervention includes general measures to


promote social justice and equal opportunity, which tackle perceived
root causes of offending;

(b) Secondary intervention includes measures to assist


children at risk; and

(c) T e r t i a r y intervention includes measures to avoid unnec-


essary contact with the formal justice system and other measures to
prevent re-offending.

T I T L E rV — T R E A T M E N T O F C H I L D R E N B E L O W T H E
AGE OF C R I M I N A L RESPONSIBILITY

S E C . 20. Children Below the Age of Criminal Responsibi-


lity. — I f it has been determined that the child taken into custody
is fifteen (15) years old or below, the authority which will have an
initial contact with the child has the duty to immediately release the
child to the custody of his/her parents or guardian, or in the absence
thereof, the child's nearest relative. Said authority shall give notice
to the local social welfare and development officer who will deter-
mine the appropriate programs in consultation with the child and
to the person having custody over the child. If the parents, guard-
ians or nearest relatives cannot be located, or if they refuse to take
custody, the child may be released to any of the following: a duly
registered nongovernmental or religious organization; a barangay
official or a member of the Barangay Council for the Protection of
Children ( B C P C ) ; a local social welfare and development officer; or
when and where appropriate, the D S W D . If the child referred to
herein has been found by the Local Social Welfare and Development
Office to be abandoned, neglected or abused by his parents, or in the
event that the parents will not comply with the prevention program,
the proper petition for involuntary commitment shall be filed by the
D S W D or the Local Social Welfare and Development Office pursu-
ant to Presidential Decree N o . 603, otherwise, known as "The Child
and Youth Welfare Code."

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NOTES A N D CASES ON THE REVISED PENAL CODE

TITLE V — JUVENILE JUSTICE A N D W E L F A R E SYSTEM


CHAPTER 1 — INITIAL CONTACT WITH THE CHILD

SEC. 21. Procedure for Taking the Child into Custody. —


From the moment a child is taken into custody, the law enforcement
officer shall:
(a) Explain to the child in simple language and in a dialect
that he/she can understand why he/she is being placed under custody
and the offense that he/she allegedly committed;
(b) Inform the child of the reason for such custody and advise
the child of his/her constitutional rights in a language or dialect
understood by him/her;
(c) Properly identify himself/herself and present proper
identification to the child;
(d) Refrain from using vulgar or profane words and from
sexually harassing or abusing, or making sexual advances on the
child in conflict with the law;
( e ) A v o i d displaying or using any firearm, weapon, handcuffs
or other instruments of force or restraint, unless absolutely necessary
and only after all other methods of control have been exhausted and
have failed;
(f) Refrain from subjecting the child in conflict with the law
to greater restraint than is necessary for his/her apprehension;
(g) A v o i d violence or unnecessary force;
(h) Determine the age of the child pursuant to Section 7 of
this Act;

( i ) Immediately but not later than eight (8) hours after


apprehension, turn over custody of the child to the Social Welfare
and Development Office or other accredited N G O s , and notify the
child's apprehension. T h e social welfare and development officer
shall explain to the child and the child's parents/guardians the
consequences of the child's act with a v i e w towards counseling
and rehabilitation, diversion from the criminal justice system, and
reparation, if appropriate;

(j) T a k e the child immediately to the proper medical and


health officer for a thorough physical and mental examination. T h e

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

examination results shall be kept confidential unless otherwise


ordered by the Family Court. W h e n e v e r the medical treatment is
required, steps shall be immediately undertaken to provide the
same;

( k ) Ensure that should detention of the child in conflict with


the law be necessary, the child shall be secured in quarters separate
from that of the opposite sex and adult offenders;

(1) Record the following in the initial investigation:


1. W h e t h e r handcuffs or other instruments of restraint
w e r e used, and if so, the reason for such;
2. T h a t the parents or guardian of a child, the D S W D ,
and the P A O have been informed of the apprehension
and the details thereof; and
3. T h e exhaustion of measures to determine the age of
a child and the precise details of the physical and
medical examination or the failure to submit a child
to such examination; and

( m ) Ensure that all statements signed by the child during


investigation shall be witnessed by the child's parents or guardian,
social worker, or legal counsel in attendance who shall affix his/her
signature to the said statement.
A child in conflict with the law shall only be searched by a law
enforcement officer of the same gender and shall not be locked up in
a detention cell.
S E C . 22. Duties During Initial Investigation. — The
law enforcement officer shall, in his/her investigation, determine
where the case involving the child in conflict with the law should be
referred.
T h e taking of the statement of the child shall be conducted
in the presence of the following: (1) child's counsel of choice or in
the absence thereof, a lawyer from the Public Attorney's Office; (2)
the child's parents, guardian, or nearest relative, as the case may
be; and (3) the local social welfare and development officer. In the
absence of the child's parents, guardian, or nearest relative, and
the local social welfare and development officer, the investigation
shall be conducted in the presence of a representative of an N G O ,
religious group, or member of the B C P C .

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NOTES A N D CASES ON THE REVISED PENAL CODE

After the initial investigation, the local social worker conducting


the same may do either of the following:
(a) Proceed in accordance with Section 20 if the child is
fifteen (15) years or below or above fifteen (15) but below eighteen
(18) years old, who acted without discernment; and
(b) If the child is above fifteen (15) years old but below
eighteen (18) and who acted with discernment, proceed to diversion
under the following chapter.

CHAPTER 2 — DIVERSION

SEC. 23. System of Diversion. — Children in conflict with


the law shall undergo diversion programs without undergoing court
proceedings subject to the conditions herein provided:

(a) Where the imposable penalty for the crime committee


is not more than six (6) years imprisonment, the law enforcement
officer or Punong Barangay with the assistance of the local social
welfare and development officer or other members of the L C P C
shall conduct mediation, family conferencing and conciliation
and, where appropriate, adopt indigenous modes of conflict
resolution in accordance with the best interest of the child with a
view to accomplishing the objectives of restorative justice and the
formulation of a diversion program. T h e child and his/her family
shall be present in these activities.

(b) In victimless crimes where the imposable penalty is not


more than six (6) years imprisonment, the local social welfare and
development officer shall meet with the child and his/her parents
or guardians for the development of the appropriate diversion and
rehabilitation program, in coordination with the B C P C .

(c) Where the imposable penalty for the crime committed


exceeds six (6) years imprisonment, diversion measures may be
resorted to only by the court.

S E C . 24. Stages Where Diversion May be Conducted. —


Diversion may be conducted at the Katarungang Pambarangay, the
police investigation or the inquest or preliminary investigation stage
and at all levels and phases of the proceedings including judicial
level.

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

S E C . 25. Conferencing, Mediation and Conciliation. A


child in conflict with law may undergo conferencing, mediation or
conciliation outside the criminal justice system or prior to his entry
into said system. A contract of diversion may be entered into during
such conferencing, mediation or conciliation proceedings.

S E C . 26. Contract of Diversion. — If during the conferencing,


mediation or conciliation, the child voluntarily admits the
commission of the act, a diversion program shall be developed when
appropriate and desirable as determined under Section 30. Such
admission shall not be used against the child in any subsequent
judicial, quasi-judicial or administrative proceedings. The diversion
program shall be effective and binding if accepted by the parties
concerned. T h e acceptance shall be in writing and signed by the
parties concerned and the appropriate authorities. T h e local social
welfare and development officer shall supervise the implementation
of the diversion program. T h e diversion proceedings shall be
completed within forty-five (45) days. T h e period of prescription of
the offense shall be suspended until the completion of the diversion
proceedings but not to exceed forty-five (45) days.

T h e child shall present himself/herself to the competent


authorities that imposed the diversion program at least once a month
for reporting and evaluation of the effectiveness of the program.

Failure to comply with the terms and conditions of the contract


of diversion, as certified by the local social welfare and development
officer, shall give the offended party the option to institute the
appropriate legal action.

T h e period of prescription of the offense shall be suspended


during the effectivity of the diversion program, but not exceeding a
period of two (2) years.

S E C . 27. Duty of the Punong Barangay When There is No


Diversion. — If the offense does not fall under Section 23(a) and
(b), or if the child, his/her parents or guardian does not consent to
a diversion, the Punong Barangay handling the case shall, within
three (3) days from determination of the absence of jurisdiction over
the case or termination of the diversion proceedings, as the case may
be, forward the records of the case of the child to the law enforcement
officer, prosecutor or the appropriate court, as the case may be. Upon
the issuance of the corresponding document, certifying to the fact

119
NOTES A N D CASES ON THE REVISED PENAL CODE

that no agreement has been reached by the parties, the case shall be
filed according to the regular process.

SEC. 28. Duty of the Law Enforcement Officer When There


is No Diversion. — If the offense does not fall under Section 23(a)
and (b), or if the child, his/her parents or guardian does not consent
to a diversion, the Women and Children Protection Desk of the
P N P , or other law enforcement officer handling the case of the child
under custody, to the prosecutor or judge concerned for the conduct
of inquest and/or preliminary investigation to determine whether
or not the child should remain under custody and correspondingly
charged in court. The document transmitting said records shall
display the word " C H I L D " in bold letters.

SEC. 29. Factors in Determining Diversion Program. —


In determining whether diversion is appropriate and desirable, the
following factors shall be taken into consideration:

(a) The nature and circumstances of the offense charged;


(b) T h e frequency and the severity of the act;
(c) The circumstances of the child (e.g., age, maturity,
intelligence, etc.);
(d) The influence of the family and environment on the
growth of the child;
(e) The reparation of injury to the victim;
(f) The weight of the evidence against the child;
(g) T h e safety of the community; and
(h) The best interest of the child.

SEC. 30. Formulation of the Diversion Program. — In


formulating a diversion program, the individual characteristics and
the peculiar circumstances of the child in conflict with the l a w shall
be used to formulate an individualized treatment.

T h e following factors shall be considered in formulating a


diversion program for the child:

(a) The child's feelings of remorse for the offense he/she


committed;
(b) T h e parents' or legal guardians' ability to guide and
supervise the child;

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

(c) T h e victim's v i e w about the propriety of the measures to


be imposed; and
(d) T h e availability of community-based programs for
rehabilitation and reintegration of the child.

S E C . 31. Kinds of Diversion Programs. — T h e diversion


program shall include adequate socio-cultural and psychological
responses and services for the child. At the different stages where
diversion may be resorted to, the following diversion programs may
be agreed upon, such as, but not limited to:

(a) At the level of the Punong Barangay:


(1) Restitution of property;
(2) Reparation of the damage caused;
(3) Indemnification for consequential damages;
(4) W r i t t e n or oral apology;
(5) Care, guidance and supervision orders;
(6) Counseling for the child in conflict with the law and
the child's family;
(7) Attendance in trainings, seminars and lectures on:
(i) anger management skills;
(ii) problem solving and/or conflict resolution
skills;
( i i i ) values formation; and
( i v ) other skills which will aid the child in dealing
with situations which can lead to repetition of
the offense;
(8) Participation in available community-based pro-
grams, including community service; or
(9) Participation in education, vocation and life skills
programs.
(b) At the level of the law enforcement officer and the
prosecutor:
(1) Diversion programs specified under paragraphs (a)
(1) to (a)(9) herein; and
(2) Confiscation and forfeiture of the proceeds or
instruments of the crime;

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NOTES A N D CASES ON THE REVISED PENAL CODE

(c) At the level of the appropriate court:


(1) Diversion programs specified under paragraphs (a)
and (b) above;
(2) Written or oral reprimand or citation;
(3) Fine;
(4) Payment of the cost of the proceedings; or
(5) Institutional care and custody.

CHAPTER 3 — PROSECUTION

SEC. 32. Duty of the Prosecutor's Office. — T h e r e shall


be a specially trained prosecutor to conduct inquest, preliminary
investigation and prosecution of cases involving a child in conflict
with the law. If there is an allegation of torture or ill-treatment of a
child in conflict with the law during arrest or detention, it shall be
the duty of the prosecutor to investigate the same.

SEC. 33. Preliminary Investigation and Filing of Infor-


mation. — The prosecutor shall conduct a preliminary investiga-
tion in the following instances: ( a ) when the child in conflict with the
law does not qualify for diversion; (b) when the child, his/her parents
or guardian does not agree to diversion as specified in Sections 27
and 28; and (c) when considering the assessment and recommenda-
tion of the social worker, the prosecutor determines that diversion is
not appropriate for the child in conflict with the law.

Upon serving the subpoena and the affidavit of complaint, the


prosecutor shall notify the Public Attorney's Office of such service,
as well as the personal information, and place of detention of the
child in conflict with the law.

Upon determination of probable cause by the prosecutor,


the information against the child shall be filed before the F a m i l y
Court within forty-five (45) days from the start of the preliminary
investigation.

CHAPTER 4 — COURT PROCEEDINGS

SEC. 34. Bail. — For purposes of recommending the amount


of bail, the privileged mitigating circumstance of minority shall be
considered.

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S E C . 35. Release on Recognizance. — W h e r e a child is


detained, the court shall order:
( a ) the release of the minor on recognizance to his/her parents
and other suitable person;
(b) the release of the child in conflict with the law on bail; or
(c) the transfer of the minor to a youth detention home/youth
rehabilitation center.
T h e court shall not order the detention of a child in a jail
pending trial or hearing of his/her case.

S E C . 36. Detention of the Child Pending Trial. — Children


detained pending trial may be released on bail or recognizance as
provided for under Sections 34 and 35 under this Act. In all other
cases and whenever possible, detention pending trial may be replaced
by alternative measures, such as close supervision, intensive care
or placement with a family or in an educational setting or home.
Institutionalization or detention of the child pending trial shall be
used only as a measure of last resort and for the shortest possible
period of time.
W h e n e v e r detention is necessary, a child will always be
detained in youth detention homes established by local governments,
pursuant to Section 8 of the F a m i l y Courts Act, in the city or
municipality where the child resides.
In the absence of a youth detention home, the child in conflict
with the law may be committed to the care of the D S W D or a local
rehabilitation center recognized by the government in the province,
city or municipality within the jurisdiction of the court. T h e center
or agency concerned shall be responsible for the child's appearance
in court whenever required.

SEC. 37. Diversion Measures. — W h e r e the maximum penalty


imposed by law for the offense with which the child in conflict with
the law is charged is imprisonment of not more than twelve (12)
years, regardless of the fine or fine alone regardless of the amount,
and before arraignment of the child in conflict with the law, the
court shall determine whether or not diversion is appropriate.

SEC. 38. Automatic Suspension of Sentence. — Once the


child who is under eighteen (18) years of age at the time of the com-
mission of the offense is found guilty of the offense charged, the

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NOTES A N D CASES ON THE REVISED PENAL CODE

court shall determine and ascertain any civil liability which may
have resulted from the offense committed. However, instead of pro-
nouncing the judgment of conviction, the court shall place the child
in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall
still be applied even if the juvenile is already eighteen years (18) of
age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the L a w .

SEC. 39. Discharge of the Child in Conflict with the Law.


— Upon the recommendation of the social worker who has custody
of the child, the court shall dismiss the case against the child
whose sentence has been suspended and against whom disposition
measures have been issued, and shall order the final discharge of
the child if it finds that the objective of the disposition measures
have been fulfilled.

T h e discharge of the child in conflict with the law shall not


affect the civil liability resulting from the commission of the offense,
which shall be enforced in accordance with law.

SEC. 40. Return of the Child in Conflict with the Law


to Court. — If the court finds that the objective of the disposition
measures imposed upon the child in conflict with the law have not
been fulfilled, or if the child in conflict with the law has willfully failed
to comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the l a w shall be brought before
the court for execution of judgment.

If said child in conflict with the law has reached eighteen


(18) years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with this
Act, to order execution of sentence, or to extend the suspended
sentence for a certain specified period or until the child reaches the
maximum age of twenty-one (21) years.

SEC. 41 Credit in Service of Sentence. — T h e child in conflict


with the law shall be credited in the services of his/her sentence
with the full time spent in actual commitment and detention under
this Act.

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S E C . 42. Probation as an Alternative to Imprisonment.


T h e court may, after it shall have convicted and sentenced a child
in conflict with the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence taking into
account the best interest of the child. For this purpose, Section 4
of Presidential Decree N o . 968, otherwise known as the "Probation
L a w of 1976," is hereby amended accordingly.

C H A P T E R 5 — C O N F I D E N T I A L I T Y OF R E C O R D S A N D
PROCEEDINGS

S E C . 43. Confidentiality of Records and Proceedings. —


A l l records and proceedings involving children in conflict with the
law from initial contact until final disposition of the case shall be
considered privileged and confidential. T h e public shall be excluded
during the proceedings and the records shall not be disclosed directly
or indirectly to anyone by any of the parties or the participants in the
proceedings for any purpose whatsoever, except to determine if the
child in conflict with the law may have his/her sentence suspended
or if he/she may be granted probation under the Probation L a w , or
to enforce the civil liability imposed in the criminal action.

T h e component authorities shall undertake all measures to


protect this confidentiality of proceedings, including non-disclosure
of records to the media, maintaining a separate police blotter for
cases involving children in conflict with the law and adopting a
system of coding to conceal material information which will lead to
the child's identity. Records of a child in conflict with the law shall
not be used in subsequent proceedings for cases involving the same
offender as an adult, except when beneficial for the offender and
upon his/her written consent.

A person who has been in conflict with the law as a child shall
not be held under any provision of law, to be guilty of perjury or
of concealment or misrepresentation by reason of his/her failure to
acknowledge the case or recite any fact related thereto in response
to any inquiry made to him/her for any purpose.

TITLE VI — REHABILITATION A N D REINTEGRATION

S E C . 44. Objective of Rehabilitation and Reintegration.


— The objective of rehabilitation and reintegration of children

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NOTES A N D CASES ON THE REVISED PENAL CODE

in conflict with the law is to provide them with interventions,


approaches and strategies that will enable them to improve their
social functioning with the end goal of reintegration to their families
and as productive members of their communities.
SEC. 45. Court Order Required. — No child shall be received
in any rehabilitation or training facility without a valid order issued
by the court after a hearing for the purpose. The details of this order
shall be immediately entered in a register exclusively for children
in conflict with the law. No child shall be admitted in any facility
where there is no such register.
SEC. 46. Separate Facilities from Adults. — In all
rehabilitation or training facilities, it shall be mandatory that
children shall be separated from adults unless they are members
of the same family. Under no other circumstance shall a child in
conflict with the law be placed in the same confinement as adults.

The rehabilitation, training or confinement area of children


in conflict with the law shall provide a home environment where
children in conflict with the law can be provided w i t h quality
counseling and treatment.

SEC. 47. Female Children. — F e m a l e children in conflict


with the law placed in an institution shall be given special attention
as to their personal needs and problems. T h e y shall be handled by
female doctors, correction officers and social workers, and shall be
accommodated separately from male children in conflict w i t h the
law.

SEC. 48. Gender-Sensitivity Training. — No personnel of


rehabilitation and training facilities shall handle children in conflict
with the law without having undergone gender sensitivity training.

SEC. 49. Establishment of Youth Detention Homes. — T h e


L G U s shall set aside an amount to build youth detention homes as
mandated by the Family Courts A c t . Y o u t h detention homes m a y
also be established by private and N G O s licensed and accredited by
the D S W D , in consultation with the J J W C .

SEC. 50. Care and Maintenance of the Child in Conflict


with the Law. — T h e expenses for the care and maintenance of a
child in conflict with the law under institutional care shall be borne by
his/her parents or those persons liable to support him/her: Provided,

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That in case his/her parents or those persons liable to support him/


her cannot pay all or part of said expenses, the municipality where
the offense was committed shall pay one-third (1/3) of said expenses
or part thereof; the province to which the municipality belongs shall
pay one-third (1/3) and the remaining one-third (1/3) shall be borne
by the national government. Chartered cities shall pay two-thirds
(2/3) of said expenses; and in case a chartered city cannot pay said
expenses, part of the internal revenue allotments applicable to the
unpaid portion shall be withheld and applied to the settlement of
said obligations: Provided, further, That in the event that the
child in conflict w i t h the law is not a resident of the municipality/city
where the offense was committed, the court, upon its determination,
may require the city/municipality where the child in conflict with
the law resides to shoulder the cost.

A l l city and provincial governments must exert effort for the


immediate establishment of local detention homes for children in
conflict with the law.

S E C . 51. Confinement of Convicted Children in Agricul-


tural Camps and other Training Facilities. — A child in conflict
with the law may, after conviction and upon order of the court, be
made to serve his/her sentence, in lieu of confinement in a regular
penal institution, in an agricultural camp and other training facili-
ties that may be established, maintained, supervised and controlled
by the B U C O R , in coordination with the D S W D .

S E C . 52. Rehabilitation of Children in Conflict with


the Law. — Children in conflict with the law, whose sentences
are suspended may, upon order of the court, undergo any or a
combination of disposition measures best suited to the rehabilitation
and welfare of the child as provided in the Supreme Court Rule on
Juveniles in Conflict with the L a w .
If the community-based rehabilitation is availed of by a child in
conflict with the law, he/she shall be released to parents, guardians,
relatives or any other responsible person in the community. Under
the supervision and guidance of the local social welfare and develop-
ment officer, and in coordination with his/her parents/guardian, the
child in conflict with the law shall participate in community-based
programs, which shall include, but not limited to:
(1) Competency and life skills development;

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NOTES A N D CASES ON THE REVISED PENAL CODE

(2) Socio-cultural and recreational activities;


(3) Community volunteer projects;
(4) Leadership training;
(5) Social services;
(6) Homelife services;
(7) Health services;
(8) Spiritual enrichment; and
(9) Community and family welfare services.
In accordance therewith, the family of the child in conflict with
the law shall endeavor to actively participate in the community-
based rehabilitation.
Based on the progress of the youth in the community, a final
report will be forwarded by the local social welfare and development
officer to the court for final disposition of the case.

If the community-based programs are provided as diversion


measures under Chapter I I , T i t l e V, the programs enumerated
above shall be made available to the child in conflict with the law.

SEC. 53. Youth Rehabilitation Center. — T h e youth


rehabilitation center shall provide 24-hour group care, treatment and
rehabilitation services under the guidance of a trained staff where
residents are cared for under a structured therapeutic environment
with the end v i e w of reintegrating them in their families and
communities as socially functioning individuals. A quarterly report
shall be submitted by the center to the proper court on the progress
of the children in conflict with the law. Based on the progress of
the youth in the center, a final report will be forwarded to the court
for final disposition of the case. T h e D S W D shall establish youth
rehabilitation centers in each region of the country.

SEC. 54. Objectives of Community-Based Programs. —


The objectives of community-based programs are as follows:

(a) Prevent disruption in the education or means of livelihood


of the child in conflict with the law in case he/she is studying, working
or attending vocational learning institutions;

(b) Prevent separation of the child in conflict with the law


from his/her parents/guardians to maintain the support system

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fostered by their relationship and to create greater awareness of


their mutual and reciprocal responsibilities;

(c) Facilitate the rehabilitation and mainstreaming of the


child in conflict with the law and encourage community support and
involvement; and

(d) M i n i m i z e the stigma that attaches to the child in conflict


with the law by preventing jail detention.

S E C . 55. Criteria of Community-Based Programs. — Every


L G U shall establish community-based programs that will focus on
the rehabilitation and reintegration of the child. A l l programs shall
meet the criteria to be established by the J J W C which shall take into
account the purpose of the program, the need for the consent of the
child and his/her parents or legal guardians, and the participation
of the child-centered agencies whether public or private.

S E C . 56. After-Care Support Services for Children in


Conflict with the Law. — Children in conflict with the law whose
cases have been dismissed by the proper court because of good
behavior as per recommendation of the D S W D social worker and/
or any accredited N G O youth rehabilitation center shall be provided
after-care services by the local social welfare and development
officer for a period of at least six (6) months. T h e service includes
counseling and other community-based services designed to
facilitate social reintegration, prevent re-offending and make the
children productive members of the community.

TITLE VII — GENERAL PROVISIONS

CHAPTER 1 — EXEMPTING PROVISIONS

SEC. 57. Status Offenses. — A n y conduct not considered


an offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed by a
child.
SEC. 58. Offenses Not Applicable to Children. — Persons
below eighteen (18) years of age shall be exempt from prosecution
for the crime of vagrancy and prostitution under Section 202 of the
Revised Penal Code, of mendicancy under Presidential Decree No.

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NOTES A N D CASES ON THE REVISED PENAL CODE

1563, and sniffing of rugby under Presidential Decree N o . 1619, such


prosecution being inconsistent with the United Nations Convention
on the Rights of the Child: Provided, That said persons shall
undergo appropriate counseling and treatment program.

SEC. 59. Exemption from the Application of Death Penalty.


— The provisions of the Revised Penal Code, as amended, Republic
Act N o . 9165, otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, and other special laws notwithstanding, no death
penalty shall be imposed upon children in conflict with the law.

CHAPTER 2 — PROHIBITED ACTS

SEC. 60. Prohibition Against Labeling and Shaming.


— In the conduct of the proceedings beginning from the initial
contact with the child, the competent authorities must refrain
from branding or labeling children as young criminals, juvenile
delinquents, prostitutes or attaching to them in any manner any
other derogatory names. Likewise, no discriminatory remarks and
practices shall be allowed particularly with respect to the child's
class or ethnic origin.

SEC. 61. Other Prohibited Acts. — T h e following and any


other similar acts shall be considered prejudicial and detrimental
to the psychological, emotional, social, spiritual, moral and physical
health and well-being of the child in conflict with the law and
therefore, prohibited:

(a) Employment of threats of whatever kind and nature;

(b) Employment of abusive, coercive and punitive measures


such as cursing, beating, stripping, and solitary confinement;

(c) Employment of degrading, inhuman end cruel forms of


punishment such as shaving the heads, pouring irritating, corrosive
or harmful substances over the body of the child in conflict with the
law, or forcing him/her to walk around the community wearing signs
which embarrass, humiliate, and degrade his/her personality and
dignity; and

(d) Compelling the child to perform involuntary servitude in


any and all forms under any and all instances.

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CHAPTER 3 — PENAL PROVISION

S E C . 62. Violation ofthe Provisions ofthis Act or Rules or


Regulations in General. — A n y person who violates any provision
of this A c t or any rule or regulation promulgated in accordance
thereof shall, upon conviction for each act or omission, be punished
by a fine of not less than T w e n t y thousand pesos (P20.000.00) but not
more than Fifty thousand pesos (P50,000.00) or suffer imprisonment
of not less than eight (8) years but not more than ten (10) years,
or both such fine and imprisonment at the discretion of the court,
unless a higher penalty is provided for in the Revised Penal Code
or special laws. If the offender is a public officer or employee, he/
she shall, in addition to such fine and/or imprisonment, be held
administratively liable and shall suffer the penalty of perpetual
absolute disqualification.

CHAPTER 4 — APPROPRIATION PROVISION

X X X

TITLE VIII — TRANSITORY PROVISIONS

S E C . 64. Children in Conflict with the Law Fifteen (15)


Years Old and Below. — Upon effectivity of this Act, cases
of children fifteen (15) years old and below at the time of the
commission of the crime shall immediately be dismissed and the
child shall be referred to the appropriate local social welfare and
development officer. Such officer, upon thorough assessment of the
child, shall determine whether to release the child to the custody of
his/her parents, or refer the child to prevention programs as provided
under this Act. Those with suspended sentences and undergoing
rehabilitation at the youth rehabilitation center shall likewise be
released, unless it is contrary to the best interest of the child.

S E C . 65. Children Detained Pending Dial. — If the child


is detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not,
determine appropriate alternatives for detention.
If detention is necessary and he/she is detained with adults,
the court shall immediately order the transfer of the child to a youth
detention home.

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SEC. 66. Inventory of "Locked-up" and Detained Children


in Conflict with the Law. — The P N P , the B J M P and the B U C O R
are hereby directed to submit to the JJWC, within ninety (90) days
from the effectivity of this Act, an inventory of all children in conflict
with the law under their custody.

SEC. 67. Children Who Reach the Age of Eighteen (18)


Years Pending Diversion and Court Proceedings. — If a child
reaches the age of eighteen (18) years pending diversion and court
proceedings, the appropriate diversion authority in consultation
with the local social welfare and development officer or the Family
Court in consultation with the Social Services and Counseling
Division (SSCD) of the Supreme Court, as the case may be, shall
determine the appropriate disposition. In case the appropriate court
executes the judgment of conviction, and unless the child in conflict
the law has already availed of probation under Presidential Decree
N o . 603 or other similar laws, the child may apply for probation if
qualified under the provisions of the Probation L a w .

SEC. 68. Children Who Have Been Convicted and are


Serving Sentence. — Persons who have been convicted and are
serving sentence at the time of the effectivity of this Act, and w h o
were below the age of eighteen (18) years at the time the commission
of the offense for which they w e r e convicted and are serving sentence,
shall likewise benefit from the retroactive application of this A c t .
They shall be entitled to appropriate dispositions provided under
this Act and their sentences shall be adjusted accordingly. T h e y
shall be immediately released if they are so qualified under this A c t
or other applicable law.

TITLE K — FINAL PROVISIONS


X X X

SEC. 71. Repealing Clause. — A l l existing laws, orders,


decrees, rules and regulations or parts thereof inconsistent with the
provisions of this A c t are hereby repealed or modified accordingly.

SEC. 72. Effectivity. — This A c t shall take effect after fifteen


(15) days from its publication in at least two (2) national newspapers
of general circulation.

Approved: April 28, 2006.

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• W h o are minors?

R . A . 9344 defines children as persons under the age of 18.


T h e y are in turn classified as:

a. Children at risk — those who are vulnerable to and


at the risk of committing criminal offenses because
of personal, family and social circumstances; and

b. Children in conflict with the law ( C I C L ) — those


w h o are alleged as, accused of or adjudged as having
committed an offense.

It is prohibited for authorities to brand or label these


children as 'young criminals,'juvenile delinquents,' 'prostitutes'
or attach to them any derogatory names in any manner.

• What are the features of R.A. 9344?

a. M i n i m u m age of criminal responsibility

A child 15 years of age or under at the time of the


commission of the offense shall be exempt from criminal
liability. But he shall be subject to an intervention pro-
gram pursuant to Section 20 thereof.

A child over 15 years old but under 18 shall likewise


be exempt from criminal liability and shall be subject to
intervention program unless he acted with discernment
in which case he shall undergo diversion program.
Criminal irresponsibility does not include exemption
from civil liability.
T h e C I C L shall enjoy presumption of minority. In
case of doubt as to the age of the child, it shall be resolved
in his favor.
Cases pending with court involving a C I C L shall
undergo a hearing on the motion to determine the age
of the child and during the pendency of such motion, the
proceedings on the main case shall be suspended.
b. System of diversion instead of prosecution and/or penalty
T h e diversion programs for children over 15 but
under 18 who acted with discernment shall be without

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NOTES A N D CASES ON THE REVISED PENAL CODE

undergoing court proceedings. The crimes covered are


categorized into:
1. Where the imposable penalty is not more than six
years (six years and below); and
There is a victim of the crime — diversion shall
be before the law enforcement officer or the
Punong Barangay and shall be in the form of
mediation, family conferencing and conciliation
attended by the child and his family;
The crime is victimless — diversion shall
be conducted by the local social welfare and
development officer ( S W D O ) with the child and
his parents or guardians.
2. Where the imposable penalty exceeds six years (six
years and one day or more) diversion measures shall
be by courts only.
In case the penalty imposable is not more
than 12 years, regardless of the fine, or fine only
regardless of amount, and before arraignment of
the child, the court shall determine whether or not
diversion is appropriate.
T h e period of prescription of the offense shall
be suspended during the effectivity of the diversion
program but not exceeding two years.

3. If the offense does not fall under any of the above or


if the child, his parents or guardian does not consent
to a diversion, the authority handling the case shall
forward the records to the prosecutor or court within
three days from the determination of absence of
jurisdiction or termination of the proceedings and
shall be filed according to the regular process.

Detention of the child pending trial

Institutionalization or detention shall be a measure


of last resort and for the shortest possible period of time.
Detention may be replaced by alternative measures such
as close supervision, intensive care or placement with a
family or in an educational setting or home.

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d. Automatic suspension of sentence

A child under 18 at the time of commission of the


crime who is found guilty of the offense charged shall
be placed under suspended sentence without need of
application even if the child is already 18 or more at the
time of the pronouncement of guilt unless disqualified
under P . D . 603. (Declador vs. Gubaton)

If the child has reached 18 while under suspended


sentence, the court shall determine whether:
To discharge the child;
To order execution of sentence; or
To extend the suspended sentence for a certain
period or until he reaches the maximum age of
21 years.
T h e child shall be credited in full for the time spent
in actual commitment and detention.
e. Probation privilege
Upon application at any time, the court shall place
the child on probation in lieu of service of sentence. For
this purpose, Section 4 of the Probation L a w is modified.
f. Status offenses
A n y conduct which is not an offense when committed
by an adult shall not be considered an offense and shall
not be punished if committed by a child. An example is
violation of curfew ordinances.
g. Offenses not applicable to persons below 18
1. Vagrancy and prostitution under Article 202, R P C
2. Mendicancy under P . D . 1563, and
3. Sniffing rugby under P . D . 1619.

• When shall a child in conflict with the law be subject to prelimi-


nary investigation and filing of information?
Preliminary investigation shall be conducted by the
Prosecutor in the following cases:
a. When the child does not qualify for diversion;

135
NOTES A N D CASES ON THE REVISED PENAL CODE

b. When the child, his parents or guardian does not


agree to diversion; and
c. When the prosecutor determines that diversion is
not appropriate for the C I C L , considering the as-
sessment and recommendation of the social worker.
Upon determination of probable cause, the information
against the child shall be filed with the Family Court within 45
days from the start of the preliminary investigation.

• Who are the minors exempt from criminal liability?


1. A minor 15 years old or under is absolutely exempt from
criminal liability. T h e age of exemption was increased
from 9 to 15.
2. A minor over 15 and under 18 who did not act with
discernment. This likewise modified the provision of
Article 12 on exemption of those over 9 but under 15 who
did not act with discernment.

• Who are the minors disqualified from suspension of sentence?

Pursuant to P . D . 603 a minor w h o ( a ) has once enjoyed


suspension of sentence under its provisions or (b) convicted for
an offense punishable by death or life imprisonment or (c) by
Military Tribunals cannot avail of suspended sentence. T h e
law was reproduced in A . M . N o . 02-1-18-SC where, except for
those under paragraph 3, Section 32 of the law, the sentence of
the accused is automatically suspended:

Sec. 32. Automatic Suspension of Sentence and


Disposition Order. - T h e sentence shall be suspended
without need of application by the juvenille in conflict
with the law. T h e court shall set the case for disposition
conference within fifteen (15) days from the promulgation
of sentence which shall be attended by the social worker of
the Family Court, the juvenile, and his parents or guardian
ad litem. It shall proceed to issue any or a combination
of the following disposition measures best suited to the
rehabilitation and welfare of the juvenile: care, guidance,
and supervision orders; Drug and alcohol treatment;
Participation in group counseling and similar activities;

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Commitment to the Youth Rehabilitation Center of the


D S W D or other centers for juvenile in conflict with the
law authorized by the Secretary of D S W D .

T h e Social Services and Counseling Division ( S S C D )


of the D S W D shall monitor the compliance by the juvenile
in conflict with the law with the disposition measure
and shall submit regularly to the Family Court a status
and progress report on the matter. T h e Family Court
may set a conference for the evaluation of such report in
the presence, if practicable, of the juvenile, his parents
or guardian, and other persons whose presence may be
deemed necessary.
T h e benefits of suspended sentence shall not apply
to a juvenile in conflict with the law who has once enjoyed
suspension of sentence or to one who is convicted of an
offense punishable by death, reclusion perpetua or life
imprisonment, or when at the time of promulgation of
judgment the juvenile is already 18 years of age or over.

• What is the meaning of "punishable" in the disqualification


from suspension of sentence?
"Punishable" is defined as "deserving of, or capable, or
liable to punishment; liable to be punished; may be punished;
liable to punishment. "It does not mean "must be punished,"
but "liable to be punished" Villalon defined it as "deserving of,
or liable for, punishment." T h e term refers to possible, not to
actual sentence. It is concerned with the penalty which may be,
and not which is imposed.
Disqualification is based on nature of crime charged and
the imposable penalty therefor, and not on the penalty imposed
by the court after trial. It is not the actual penalty imposed
but the possible one which determines the disqualification of a
juvenile. (Declarador v. Gubaton, G.R. No. 159208, August 18,
2006)

• Did R.A. 9344 on automatic suspension of sentence repeal the


grounds for disqualification under P.D. 603?
N o . R . A . 9344 which took effect on M a y 20, 2006 merely
amended Article 192 of P.D. 603 in that the suspension of

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NOTES A N D CASES ON THE REVISED PENAL CODE

sentence shall be enjoyed by the juvenile even if he is already


18 years old or more at the time of the pronouncement of his
guilt. The other disqualifications in Article 192 and Section
32 of A . M . No. 02-1-18-SC have not been deleted from Section
38 of R . A . 9344. Evidently, the intention of Congress was
to maintain the other disqualifications in P . D . 603. Thus,
juveniles convicted of a crime the imposable penalty for which
is reclusion perpetua, life imprisonment, or reclusion perpetua
to death or death, are disqualified from having their sentences
suspended.
Statutes in pari materia should be read and construed
together because enactments of the same legislature on the
same subject are supposed to form part of one uniform system;
later statutes are supplementary or complimentary to the
earlier enactments and in the passage of its acts the legislature
is supposed to have in mind the existing legislations on the
subject and to have enacted the new act with reference thereto.
Statutes in pari materia should be construed together to attain
the purposes of an expressed national policy, (id.)

• When else can suspension of sentence not be availed of?

Section 40 provides that once the child reaches 18, the


court shall determine whether to discharge the child, order
execution of sentence, or extend the suspended sentence for a
certain specified period or until the child reaches the maximum
age of 21. Petitioner already reached 21 or over and could no
longer be considered a child. Thus, the application of Sections
38 and 40 appears moot and academic. (Padua v. People, G.R.
No. 168546, July 23, 2008) In this case, PP was charged with
drug trafficking, hence, disqualified for probation under the
Dangerous Drugs L a w . He cannot argue that his right under
R . A . 9344 was violated or that Section 32 of A . M . N o . 02-1-
18-SC, "Rule on Juveniles in Conflict with the L a w " applies
herein. Section 38 of R . A . 9344 and Section 32 of A . M . 02-1-18-
SC both pertain to suspension of sentence and not probation.

Accident

• What is the meaning of accident?

An accident is an occurrence that "happens outside the


sway of our will, and although it comes about through some

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JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

act of our will, lies beyond the bounds of humanly foreseeable


consequences." It connotes the absence of criminal intent.
Intent is a mental state, the existence of which is shown
by a person's overt acts. Appellant got his shotgun and
returned to the kitchen to shoot his son who had intervened in
the quarrel between appellant and CC. A shotgun would not
have fired off without first being cocked. Appellant cocked the
shotgun before discharging it, showing a clear intent to fire it.
(People v. Agliday, G.R. No. 140794, October 16, 2001)

• What is required for accident to be accepted?

T h e following requisites must concur:


(1) Accused was performing a lawful act with due care;
(2) T h e injury is caused by mere accident; and
(3) T h e r e was no fault or intent of causing the injury. (People
v. Mat-an, December 1992)

W h e n the act is with fault, it will fall under culpa; when


with intent it will become an intentional felony. T h e accident
must not be foreseeable or there will be fault or criminal
negligence.

• What is the effect when accused claims the circumstance of


accident?
H a v i n g claimed that the shooting was accidental, peti-
tioner must prove the same by clear and convincing evidence.
H o w e v e r , the burden of proving the commission of the crime re-
mained with the prosecution. (People v. CA, G.R. No. 1036613,
February 23, 2001)

• What is the basis for exemption from criminal liability for


accident?
Under Article 12, criminal liability does not arise in case
a crime is committed by any person who while performing a
lawful act with due care, causes an injury by mere accident
without fault or intention of causing it. The exemption from
criminal liability under the circumstance showing accident
is based on the lack of criminal intent. For an accident to be
exempting, the act has to be lawful. The act of firing a shotgun
at another is not a lawful act. (People v. Agliday)

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NOTES A N D CASES ON THE REVISED PENAL CODE

Relate accident to self-defense.


Accident and self-defense are two incompatible defenses.
Accident presupposes lack of intention, while self-defense
assumes voluntariness, but induced only by necessity. (People
v. Lao-as, G.R. No. 126396, June 29, 2001) When an accused
claims that the crime was the result of an accident, the burden
of proving self-defense will not come into play.

It is hardly a lawful act when accused struggled with


the victim for the ax as the latter's act of taking hold of the
ax was equivocal, and it cannot be deduced therefrom that he
was under the threat of an unlawful aggression from her. T h e
defense of accident, therefore, cannot exempt accused from
liability.
Although the Information charged frustrated murder, a
finding of guilt for the lesser offense of less serious physical
injuries may be made considering that the latter offense
is necessarily included in the former since the essential
ingredients of physical injuries constitute and form part of
those constituting the offense of murder. Similarly, an accused
may be convicted of slight, less serious or serious physical
injuries in a prosecution for homicide or murder, inasmuch as
the infliction of physical injuries could lead to any of the latter
offenses when carried to its utmost degree despite the fact that
an essential requisite of the crime of homicide or murder —
intent to kill — is not required in a prosecution for physical
injuries. (Aradillos v. CA, G.R. No. 135619, January 15, 2004)

What is negligence?

Negligence is the omission to do something which a rea-


sonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do.
(Raynera v. Hiceta, G.R. No. 120027, April 21, 1999)

What is the presumption when a driver bumps the rear of


another vehicle?

Drivers of vehicle who bump the rear of another vehicle are


presumed to be the cause of the accident, unless contradicted by
other evidence. The rationale behind this presumption is that

140
JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

the driver of the rear vehicle has full control of the situation
as he is in a position to observe the vehicle in front of him.
Consequently, the responsibility to avoid the collision with the
front vehicle lies with the driver of the rear vehicle. His is the
last chance of avoiding the accident. (Raynera v. Hiceta)

Irresistible Force

• What are the elements of irresistible force? compulsion

a. T h e force must be physical, must come from an outside


source, and the accused must act not only without a will
but even against his will.
b. T h e actor must be reduced to a mere instrument, such
that the element of freedom is wanting.
c. T h e duress, force, fear or intimidation must be present,
imminent and impending and of such a nature as to
induce a well-grounded fear of death or serious bodily
injury if the act is not done.

• What is essential for duress to be a valid defense?

For duress to be validly availed of as a defense, it should


be anchored on a real, imminent or reasonable fear for one's
own life or limb and should not be speculative, fanciful, or
imagined. It is based on the complete absence of freedom on the
part of the accused and has its roots in the maxim "Actus me
invito factus non est meus actus" [an act done by me against my
will is not my act]. T h e compulsion employed upon the accused
must have been of such character as to leave no opportunity for
him to spring an escape or to himself foist any act of defense
for self-preservation. Thus, duress is unavailing where the
accused had every opportunity to run away if he had wanted to
or to resist any possible aggression because he was also armed.
L i k e a bare denial, the defense of duress is a self-serving and
negative device which judicial experience shows is conveniently
conjured by felons to justify their participation in a crime.
Hence, like a bare denial, it must fail if unsubstantiated by
clear and convincing evidence and cannot be given greater
evidentiary value than the testimony of credible witnesses who
testify on affirmative matters. (People v. Salvatierra, G.R. No.
111124, June 20, 1996)

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NOTES A N D CASES ON THE REVISED PENAL CODE

Uncontrollable Fear comes from within the person.

• What are the elements of uncontrollable fear?


1. Threat which caused the fear of an evil greater than or
at least equal to that which the accused was required to
commit.
2. It promised an evil of such gravity and imminence that
the ordinary man would have succumbed to it.
Just like irresistible force, uncontrollable fear is founded
on duress or lack of voluntariness on the part of the actor.
There must be no possibility of avoiding or escaping from the
situation creating the fear, such as the case of the hostage who
decapitated his fellow hostage because otherwise he shall be
killed by his captors.
The fear experienced by men who allege hearing voices or
suspect other persons would kill or harm them cannot qualify
as the fear that could exempt from criminal liability. At most,
such fear which drive these persons suffering from nervous
breakdown could be mitigating under Article 13 on illness or
defect or circumstances analogous thereto.

Insuperable Cause

• What is insuperable cause?

It is an exempting circumstance which applies to felonies


by omission. The law imposes a duty on the offender to perform
an act but his failure to do so is due to a lawful or insuperable
cause. There is no civil liability because his acts are lawful. For
instance, Article 125 provides for the number of hours when a
person arrested must be delivered to the judicial authorities.
If the peace officers failed to do so because of circumstances
beyond their control such as long holidays when the judicial
offices are not open, that is insuperable cause and the peace
officers will not be liable under Article 125.

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Chapter Three
CIRCUMSTANCES W H I C H MITIGATE
C R I M I N A L LIABILITY

A r t . 13. Mitigating circumstances. — T h e f o l l o w i n g a r e


m i t i g a t i n g circumstances:

1. T h o s e m e n t i o n e d in the p r e c e d i n g chapter, w h e n
all the r e q u i s i t e s n e c e s s a r y to justify the act or to
e x e m p t f r o m c r i m i n a l liability in the respective
cases a r e not attendant.

2. T h a t the o f f e n d e r is u n d e r 18 y e a r s of a g e or o v e r 70
y e a r s . In the case of the m i n o r , he shall be p r o c e e d e d
a g a i n s t in a c c o r d a n c e w i t h the p r o v i s i o n s of Article
80.

3. T h a t the o f f e n d e r h a d no intention to commit so


g r a v e a w r o n g as that committed.

4. T h a t sufficient p r o v o c a t i o n or threat on the p a r t of


the o f f e n d e d p a r t y immediately p r e c e d e d the act.

5. T h a t the act w a s committed in the immediate vindi-


cation of a g r a v e offense to the one committing the
felony (delito), his spouse, ascendants, descendants,
legitimate, n a t u r a l or a d o p t e d b r o t h e r s or sisters,
or relatives by affinity w i t h i n the same degrees.

6. T h a t of h a v i n g acted u p o n an impulse so p o w e r f u l as
n a t u r a l l y to h a v e p r o d u c e d passion or obfuscation.
7. T h a t the offender h a d voluntarily s u r r e n d e r e d
himself to a p e r s o n in authority or his agents, or
that he h a d voluntarily confessed his guilt before
the court p r i o r to the presentation of the evidence
for the prosecution.
8. T h a t the offender is d e a f a n d d u m b , blind or
o t h e r w i s e suffering some physical defect which

143
NOTES A N D CASES ON THE REVISED PENAL CODE

thus restricts his m e a n s of action, defense, or


communication w i t h his fellow beings.
9. Such illness of the offender as w o u l d diminish the
exercise of the w i l l - p o w e r of the offender w i t h o u t
h o w e v e r d e p r i v i n g h i m of consciousness of his
acts.
10. A n d , finally, any other circumstance of a similar
nature and a n a l o g o u s to those a b o v e mentioned.

• What are mitigating circumstances?


Mitigating circumstances show the lesser perversity of the
offender and has the effect of lowering the penalty prescribed
for the offense. T h e y are matters of defense which do not
have to be alleged in the information. A r t i c l e 13 enumerates
ordinary mitigating circumstances. T h e r e are circumstances,
too, which have the effect of reducing the penalty but are
not included in this article and are also called extenuating
circumstances. Examples are concealment of dishonor on
the part of the mother in infanticide and abandonment of
the wife by the husband in adultery. U n l i k e aggravating
circumstances, Article 13 allows analogous circumstances to
mitigate the offender's liability.

• What is the rationale for mitigating circumstances?

The rationale behind the whole concept of mitigating


circumstance is to show mercy and some extent of leniency
in favor of an accused who has shown lesser perversity in
the commission of an offense. W h e r e the evidence on record
bespeaks of vileness and depravity, no mercy or leniency
should be accorded an accused who should be made to suffer
in full for acts perpetrated with complete voluntariness and
intent for their tragic consequences. (People v. Santos)

• What are the classifications of mitigating circumstances?

a. Ordinary — lowers the penalty to the minimum period.


Article 13 enumerates ordinary mitigating as well as
provisions on specific felonies where the penalty is
lowered to the minimum period.

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C I R C U M S T A N C E S W H I C H MITIGATE C R I M I N A L LIABILITY

b. Privileged — lowers the imposable penalty, whether


divisible or indivisible, by one or more degrees.

c. Specific — applies to a specific felony like concealment of


dishonor in the case of abortion by the pregnant woman
herself. These circumstances can either be ordinary or
privileged depending upon the effect on the penalty.

Distinguish ordinary from privileged mitigating circumstances.

ORDINARY PRIVILEGED

1. Can be offset by a generic cannot be offset by


aggravating circumstance any aggravating
circumstance

2. Penalty is lowered to the Penalty is lowered by


minimum period of the one or two degrees
penalty prescribed

3. N o t considered when what A l w a y s considered


is prescribed is single whether the penalty
indivisible penalty imposable is divisible or
indivisible

M i t i g a t i n g circumstances are personal to an accused in


whose favor they exist and cannot be enjoyed by his co-accused.
R R , being below 18 at the time he committed the crime, is en-
titled to the privileged circumstance of minority notwithstand-
ing that the penalty imposable is reclusion perpetua. (People v.
Barreta, G.R. No. 120367, October 16, 2000)
Paragraph 2 of Article 63 states that when what is imposed
on the convict is a penalty made up of two indivisible penalties,
ordinary mitigating circumstance shall operate to bring down
the penalty to the minimum. R . A . 9346 banned the imposition
of the death penalty, thus said provision is inoperatable. There
is now only one indivisible penalty of reclusion perpetua.

Ordinary mitigating lowers the penalty to the minimum


period. As an exception, where there are two ordinary mitigating
with no aggravating circumstance attendant, Article 64(5)
allows the penalty is to be lowered by one degree.

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NOTES A N D CASES ON THE REVISED PENAL CODE

Paragraph 1 — Incomplete justifying or exempting circumstances


• What are the requirements for the mitigating circumstance of
incomplete justification/exemption to be present?
In the incomplete justification of defense, there must
always be unlawful aggression otherwise there is nothing to
defend and consequently no occasion to justify the act in defense
of self or relatives or strangers. Without unlawful aggression,
there is neither complete nor incomplete defense.
In accident, the requisites of due care and lack of fault are
indispensable without which negligence will be present giving
rise to culpable felony. If the requisites of lawful act and lack
of intention of causing the injury are absent, an intentional
act results taking the case out of the benefit of this mitigating
circumstance.

• When is incomplete defense ordinary mitigating? When


privileged?
Unlawful aggression is indispensable in self-defense,
complete or otherwise. W h e n unlawful aggression alone is
proved, such incomplete self-defense is appreciated as ordinary
mitigating under Article 13(1). W h e n it is combined with another
element, such incomplete self-defense becomes privileged
mitigating under Article 69. Article 69 which provides for the
imposition of a penalty lower by one or two degrees than that
prescribed by law where the killing is not wholly excusable
applies only where a majority of the conditions required to
justify a criminal act or to exempt from liability are present.
(People v. Deopante, G.R. No. 102772, October 30, 1996)

It is necessary that there be present majority of the


elements of the circumstance for Article 69 to apply. W h e n
the circumstance requires only two elements, the presence
of one is considered a majority. This is privileged mitigating
which cannot be offset by any aggravating circumstance and
is considered even if the penalty prescribed is single and
indivisible under paragraph 1 of Article 63.

If there is only one or less than majority of the elements


present, the incompleteness is an ordinary mitigating circum-
stance under Article 13 and as such can be offset by a generic
aggravating circumstance.

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C I R C U M S T A N C E S W H I C H MITIGATE C R I M I N A L LIABILITY

• Is unlawful aggression a mitigating circumstance?

N o . A n y first year law student knows that unlawful


aggression is not mitigating. (Estoya v. Singson, A.M. RTJ-
91-758, September 1994) It is incomplete self-defense that
is mitigating, not unlawful aggression which is a mere but
indispensable component of defense of self, of relatives or of
strangers.

Minority

• What amendment was introduced by P.D. 603 on Article 80?

W h a t Article 189 of P . D . 603 modified Article 80 of the


R P C on suspension of sentence; not Article 13(2) which treats
of minority as a mitigating circumstance. Thus, for minority to
be considered as a mitigating circumstance, the offender must
be under 18 years of age at the time the crime was committed
(id.). [But even then, minority is never ordinary mitigating
notwithstanding its inclusion in Article 13. P . D . 603 has been
superseded by R . A . 9344 in that minority up to age 15 in an
absolute exempting circumstance Article 13(2) and Article 68
have been modified accordingly.]

• What is the nature of minority as a mitigating circumstance?


It is never an ordinary mitigating; it is always privileged
mitigating because:
a. Article 47 dictates that if the death penalty is imposable,
the penalty will be lowered to reclusion perpetua;
b. R . A . 9344 mandates that if the minor is 15 or under, he
shall be exempt from criminal liability; and
c. Article 68(2) in relation to R . A . 9344 requires that if
the minor is over 15 but under 18 and he acted with
discernment he shall be entitled to a reduction of penalty
to the next lower penalty but in the proper period.
A l l of these provisions have been modified by R.A. 9344
and 9346.
Penal laws should be liberally construed in favor of
the offender. Accordingly, the mitigating circumstance of
minority should be appreciated in favor of DC who was clearly
a minor when he committed the offense, especially in light

147
NOTES A N D CASES ON THE REVISED PENAL CODE

of the compassionate liberty the Court has granted to minors


involved in serious crimes. Thus, considering the gravity of
the offense and in the interest of justice, the Court allowed
the presentation of and admitted the birth certificate of the
accused to prove minority although said birth certificates were
not presented or offered in the trial court. T h e same equitable
consideration with respect to DC can be adopted since the fact
of his minority is established by an official document prepared
by the Department of Social Services and Development in the
exercise of its functions and incorporated in the records of this
case which can be taken judicial notice ex mero motu. (People v.
Regalario, G.R. No. 101451, March 23, 1993)

Praeter Intentionem
• What is praeter intentionem?

It is the lack of intention to commit so grave a wrong as


that committed. There should be a great disparity between the
intent (means employed to accomplish the criminal act) and
its consequences. Lack of intent to commit so grave a wrong is
shown by the means employed by the accused, the nature and
the location of the wound.
Praeter intentionem should be appreciated where the
accused had no intent to kill but only to inflict injuries when he
attacked the victim. (People v. Flores, supra)

• When can praeter intentionem not be invoked?

Praeter intentionem cannot be invoked if the acts of the


accused are sufficient to bring about the result intended or
when the means employed would naturally result to the felony
committed. It does not apply to culpa or to crimes not involving
intent. T h e word "intentionem" denotes intentional felonies.
T h e Anti-hazing law express prohibits the application of
this circumstance in favor of the offender.

Sufficient Provocation

• What are the requirements for sufficient provocation?

T h e provocation must be sufficient; immediate to the


commission of the crime; and must originate from the offended

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C I R C U M S T A N C E S W H I C H MITIGATE C R I M I N A L LIABILITY

party. Provocation is immediate if no interval of time elapsed


between the provocation and the commission of the crime.
(People v. Pagal, 79 SCRA 570 [1977]) [See notes under self-
defense on the comparison between provocation as an element
of self defense and as a mitigating circumstance.]

Sufficient provocation could not mitigate the criminal


liability of the accused. He cannot claim that he was provoked
by 00 when the latter ran away from him because, the hapless
victim feared for his life having been beaten up twice by his
assailants that same evening. To flee when danger lurks is
human and can never be regarded as a source of provocation
sufficient to come within the ambit of the law. In fact, when
an offended party flees from his aggressor, the latter has no
reason to pursue and attack him. (People v. Padilla, G.R. No.
75508, June 10, 1994)

Immediate Vindication of a Grave Offense

• Must the "offense" in immediate vindication be a crime?

N o , but it may be any act or event which offends the ac-


cused causing mental agony to him and moves him to vindi-
cate himself of such offense. For instance, insulting an old man
(U.S. v. Ampar, 37 Phil. 301), or eloping with the offender's
daughter. (People v. Diokno, 63 Phil. 601)

• How should the word "immediate" be understood?


"Immediate" means proximate and allows for a lapse of
time as long as the offender is still suffering from the mental
agony brought about by the "offense" to him. (People v. Parana,
64 Phil. 331) It is unlike in sufficient provocation where there
should be no lapse of time between the provocation and the
commission of the crime.
This circumstance cannot be considered in favor of the
accused when he had sufficient time to recover his serenity.
(People v. Santos)
Appellant should be credited with having acted in the
immediate vindication of a grave offense committed by the
deceased against his wife, consisting of a libidinous attempt
against her virtue and a cowardly attack against her person.
While the law speaks of an "immediate" vindication of a grave

149
NOTES A N D CASES ON THE REVISED PENAL CODE

offense, the same should be understood to mean "proximate."


(People v. Babor, G.R. No. 106875, September 24, 1996)

Passion and Obfuscation


• What is necessary for passion or obfuscation to be considered?
The passion or obfuscation must arise from accused's law-
ful sentiments. The offended must have done an act unlawful
and sufficient to excite passion or obfuscation on the part of the
accused. (People v. Tiongco, September 1994)
For instance, a person who maintains an illicit relation-
ship with the wife of another is courting the passion or obfus-
cation of the husband because his act of having an affair with
the wife is unjust and sufficient to make the passion of the
husband arise. As the relationship of the husband and the wife
is legitimate, the passion or obfuscation of the husband would
result from lawful sentiments.

» When is passion and obfuscation not appreciated?


The court will not appreciate passion and obfuscation
where the anger did not arise from lawful sentiments. T h e delay
of FF in obeying EE's request to buy a ball caster bearing is too
trivial a matter as to fairly and justly cause such overreaction
on the part of EE. (People v. Tiongco, September 1994)
This circumstance cannot co-exist w i t h treachery or
evident premeditation because passion or obfuscation must be
a spur of the moment. It cannot be appreciated if the acts of
the accused were done in the spirit of revenge and lawlessness,
for which no mitigating circumstance can arise. (People v. CA,
G.R. No. 103613, February 23, 2001). It cannot be claimed in
addition to vindication of grave offense if the t w o circumstances
arose from the same cause.

» Will injury resulting from a quarrel constitute passion or


obfuscation?
N o . For passion and obfuscation to be mitigating, the
same must originate from lawful feelings. T h e turmoil and
unreason that naturally result from a quarrel or fight should
not be confused with the sentiment or excitement in the mind
of a person injured or offended to such a degree as to deprive

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C I R C U M S T A N C E S W H I C H M I T I G A T E C R I M I N A L LIABILITY

him of his sanity and self-control. T h e excitement which is


inherent in all persons who quarrel and come to blows does not
constitute obfuscation. (People v. Rabanillo, G.R. No 130010
May 26, 1999)
For battered women, there is also the circumstance of
having acted upon an impulse so powerful as to have naturally
produced passion and obfuscation. This state of mind is
present when a crime is the result of an uncontrollable burst
of passion provoked by prior unjust or improper acts or by a
legitimate stimulus so powerful as to overcome reason, as in
acute battering incident. (People v. Genosa, supra)

• How further should the act that produces passion or obfuscation


be from the commission of the crime?
T h e act producing obfuscation must not be far removed
from the commission of the crime by a considerable length of
time, during which the accused might have regained his normal
equanimity. Thus, where at least half an hour elapsed between
the previous fight and the killing, the accused cannot be given
the benefit of the attenuating circumstance of obfuscation.
In this case, 30 minutes intervened between the fistfight
and the killing of MM by R R . T h e attack cannot, therefore,
be said to be the result of a sudden impulse of natural and
uncontrollable fury. H a v i n g been actuated more by the spirit
of revenge or by anger and resentment for having been publicly
berated by M M , RR cannot be credited with the extenuating
circumstance of passion and obfuscation. (People v. Rabanillo)

• Compare sufficient provocation, immediate vindication of a


grave offense and passion or obfuscation.
These three mitigating circumstances are based on the
same ground — the overwhelming emotion that blinds a person
or causes him to lose reason and equanimity. Thus, the offender
cannot be credited with three mitigating circumstances but
only one if all of these are invoked in a case.

Voluntary Surrender
• What are the elements of voluntary surrender?
a. The offender surrendered to a person in authority or his
agent;
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NOTES A N D CASES ON THE REVISED PENAL CODE

b. The offender surrendered before arrest is effected; and


c. The surrender must be voluntary, i.e., spontaneous and
must show the intent of the accused to submit himself
unconditionally to the authorities, either because he
acknowledges his guilt or he wishes to save them the
trouble and expense incidental to his search and capture.
Taraya, G.R. No. 135551, October 27, 2000 added a
fourth requisite, that there is no pending warrant of arrest
or information filed. When AA learned that the police were
looking for him, he immediately went to the police station
where he confessed to killing SS in self-defense. However, the
said surrender does not constitute as a mitigating circumstance
for at the time of his surrender, he had a pending warrant of
arrest issued five days before his surrender. His arrest by that
time was imminent.

Be Vera v. De Vera, G.R. No. 172832, April 7, 2009,


clarified that the mere filing of an information and/or the
issuance of a warrant of arrest w i l l not automatically make
the surrender "involuntary." Oco, 458 S C R A 815 appreciated
voluntary surrender because immediately upon learning that a
warrant for his arrest was issued, and without the same having
been served on him, the accused surrendered to the police.
Notwithstanding the pendency of a warrant for his arrest, the
accused may still be entitled to the mitigating circumstance in
case he surrenders, depending on the actual facts surrounding
the very act of giving himself up.

Voluntary surrender is present even if the accused


surrendered one week after the crime. T h e fact is they
voluntarily surrendered to the police before arrest could be
effected. (People v. Amaguin, G.R. No. 54344-45, January 10,
1994)

What determines whether the surrender is voluntary?

T h e surrender must be spontaneous and deliberate,


that is, there must be intent to submit unconditionally to the
authorities. Since it was the police officer who went looking
for the accused immediately after obtaining information from
eye witnesses as to who had perpetrated the crime, even if he
did not resist arrest or deny his criminal act, this cannot be

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equated with voluntary surrender. (People v. Rebamontan


G.R. No. 125318, April 13, 1999)

On the day following the killing, accused surrendered to


the Provincial Commander. T h a t the latter announced over the
radio that he would issue a "shoot to kill" order unless accused
voluntarily surrenders, and that he was persuaded to surrender
by his employer do not militate against the consideration of his
voluntary surrender. T h e stubborn fact was he was not arrested
and that he presented himself to the Provincial Commander to
surrender. (People v. Morato, G.R. Nos. 95358-59, July 5, 1993)

T h e mitigatingcircumstance of voluntary surrender should


have been considered. T h e evidence shows that immediately
after slaying C C , accused walked all the w a y straight to the
Calinan Patrol Station in Davao City to surrender. (People v.
Curaraton, G.R. No. 96765, July 5, 1993)
T h a t accused admitted that he surrendered because of
fear of reprisal does not retract from the spontaneity of his
surrender and the fact that he had saved the government of the
time and trouble of searching for him. (People v. Amazon, G.R.
No. 136251, January 16, 2001) T h e fact that accused yielded
his weapon to his superior at the time of the incident, albeit
w i t h some persuasion from the latter, should be considered in
his favor. (People v. Amion, G.R. No. 140511, March 1, 2001)

• W h o should surrender?
T h e offender himself should surrender. W h e r e the
offender did not submit himself to the authorities investigating
the commission of the crime, and it was his superior who
surrendered him to the custody of the court, such is not the
voluntary surrender contemplated by law. (People v. Acuram)
T h e essence of voluntary surrender is spontaneity and
the intent of accused to give up and submit unconditionally
to the authorities either because he acknowledges his guilt or
he wishes to save them the trouble and expense necessarily
incurred in his search and capture. Here, it was appellant's
commanding officer who surrendered him to the custody of
the court. Being restrained by one's superiors to stay within
the camp without submitting to the investigating authorities
concerned is not tantamount to voluntary surrender, (id.)

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NOTES A N D CASES ON THE REVISED PENAL CODE

Voluntary plea of guilt


• What are the elements of voluntary plea of guilt?
Voluntary plea of guilt must be made:

(1) in open court;


(2) spontaneously and unconditionally; and
(3) prior to the presentation of the evidence of the prosecution.
An extra-judicial confession is not within the concept of
voluntary plea of guilt because it is not made in open court.
The court must be one of original jurisdiction because it must
be made before the presentation of the prosecution's evidence,
which means that the case is being tried for the first time.
Likewise, the court must be possessed with jurisdiction to hear
and decide the case for, if the court is acting without jurisdiction,
all proceedings there are void for lack of jurisdiction, including
the taking of the plea of the accused.

• Why is voluntary plea of guilt mitigating?

It is mitigating because it is an act of repentance and


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

• What is the effect of an improvident plea of guilt?

T h e accused must be acquitted if the only evidence of his


guilt is his improvident plea due to the prodding of his lawyer
from the Public Attorney's Office. (People v. Mendoza, G.R.
No. 80845, March 1994)

• May voluntary plea of guilt and voluntary surrender be both


considered in one case?

Y e s . These two circumstances are separate and distinct


from each other. T h e y do not arise out of the same facts and
circumstances, hence, will entitle the offender to two mitigating
circumstances when both are present.

• Relate voluntary plea of guilt to plea bargaining.

When accused did not plead to a lesser offense but pleaded


guilty to the rape charges and only bargained for a lesser
penalty, he did not plea bargain but made conditions on the

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penalty to be imposed. This is erroneous because by pleading


guilty to the offense charged, accused should be sentenced to
the penalty to which he pleaded. It is the essence of a plea of
guilty that the accused admits absolutely and unconditionally
his guilt and responsibility for the offense imputed to him.
Hence, an accused may not foist a conditional plea of guilty on
the court by admitting his guilt provided that a certain penalty
will be meted unto him. (People v. Magat, G.R. No. 130026
May 31, 2000)
For voluntary confession to be appreciated as an extenu-
ating circumstance it must not only be unconditional but the
accused must admit to the offense charged. (People v. Gano,
G.R. No. 134373, February 28, 2001)

Physical defects and illness

• What is required for the defect of the offender to be mitigating?

T h e offender's being deaf and dumb or blind or otherwise


suffering from some physical defect must relate to the offense
because the law requires that the defect has the effect of
restricting his means of action, defense, or communication to
his fellow beings. T h e illness or defect is the contributory cause
that moved him to commit the offense. Thus, rape committed
by a deaf and dumb on the girl of his dreams to whom he
cannot convey his feelings will mitigate his liability unless
the circumstances justify the imposition of a single indivisible
penalty where modifying circumstances have no effect.
T h e fact that the offender suffers from a physical defect, a
severed left hand does not automatically mean that he should
be credited with this mitigating circumstance. In order for
this condition to be appreciated, it must be shown that such
physical defect limits his means of communication with his
fellow beings to such an extent that he did not have complete
freedom of action, consequently resulting in diminution of the
element of voluntariness. Such cannot be appreciated where
appellant's physical condition clearly did not limit his means
of action, defense or communication, nor affect his free will.
Despite his handicap, appellant managed to attack, overcome
and fatally stab his victim. T h e fact that he had only one hand
in no way limited his freedom of action to commit the crime.
(People v. Deopante, G.R. No. 102772, October 30, 1996)
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NOTES A N D CASES ON THE REVISED PENAL CODE

• What is necessary for illness to be considered as mitigating?


The illness must only diminish and not deprive the
offender of the consciousness of his acts; otherwise he will be
exempt from criminal liability. (People v. Rafaran)
The defect or illness must be contributory to the
commission of the crime. Without such relation, the defect or
illness shall not be considered.

Analogous circumstances
• Is being a non-Christian an analogous mitigating circumstance?
The appreciation of this circumstance lies within the sound
discretion of the trial court considering all the facets of the
case that would best serve the interest of justice. Even if their
formal education be ignored, such attenuating circumstance is
nonetheless unavailing. T h e fact that defendants belong to the
cultural minorities cannot reduce from the subjective point of
view the defendants' awareness of the gravity of their offense
for robbery and killing are by their v e r y nature just as wrong to
the ignorant as they are to the enlightened. W h a t e v e r may be
the religious or cultural affiliation of a person, heinous crimes
are universally regarded as evil.

Membership in a cultural minority is not expressly


mentioned among the mitigating circumstances, nor would
it come under Article 13(10) which speaks of "any other
circumstances of a similar nature and analogous to those above
mentioned." (People v. Macatanda)

• Is extreme poverty an analogous mitigating circumstance?

Extreme poverty is not among the mitigating circumstances


enumerated in Article 13 and it is doubtful whether it may be
considered as a circumstance of a similar nature or analogous
to those mentioned in said Article. (Gallardo v. Tabamo, Jr.,
Adm. Mat. RTJ-92-881, June 2, 1994)

• Cite some examples of analogous circumstances.

Restitution may be considered mitigating circumstance


in malversation of public funds analogous to voluntary plea

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C I R C U M S T A N C E S W H I C H MITIGATE C R I M I N A L LIABILITY

of guilty. (Nizurtado v. Sandiganbayan, G.R. No. 107383,


December 7, 1994)

T h a t the petitioner voluntarily took the cow to the


municipal hall to place it unconditionally in the custody of
the authorities and thus save them the trouble of recovering
the cow, can be analogous to voluntary surrender and should
be considered in his favor. (Canta v. People, G.R. No. 140937,
February 28, 2001)
Chapter Four

CIRCUMSTANCES W H I C H AGGRAVATE
CRIMINAL LIABILITY

A r t . 14. Aggravating circumstances. — T h e f o l l o w i n g a r e


a g g r a v a t i n g circumstances:
1. T h a t a d v a n t a g e be t a k e n by the offender of his
p u b l i c position.
2. T h a t the crime be committed in contempt of or w i t h
insult to the p u b l i c authorities.
3. T h a t the act be committed w i t h insult or in d i s r e g a r d
of the respect d u e the offended p a r t y on a c c o u n t of
his r a n k , a g e , or sex, or that it be committed in the
d w e l l i n g of the o f f e n d e d p a r t y , if the latter h a s not
given provocation.

4. T h a t the act be committed w i t h a b u s e of confidence


or obvious ungratefulness.
5. T h a t the c r i m e be committed in the p a l a c e of the
C h i e f E x e c u t i v e , o r i n his p r e s e n c e , o r w h e r e p u b l i c
authorities a r e e n g a g e d i n the d i s c h a r g e o f their
duties or in a p l a c e d e d i c a t e d to r e l i g i o u s w o r s h i p .

6. T h a t the c r i m e be c o m m i t t e d in the nighttime or in


an uninhabited place, or by a b a n d , w h e n e v e r such
circumstances m a y facilitate the c o m m i s s i o n of the
offense.

W h e n e v e r more than three a r m e d malefactors


shall h a v e acted t o g e t h e r in the c o m m i s s i o n of an
offense, it shall be d e e m e d to h a v e b e e n c o m m i t t e d
by a b a n d .

7. T h a t the crime be committed on the occasion of a


conflagration, s h i p w r e c k , e a r t h q u a k e , e p i d e m i c , o r
other calamity o r m i s f o r t u n e .

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8. T h a t the c r i m e be committed w i t h the aid of a r m e d


m e n o r p e r s o n s w h o i n s u r e o r afford impunity.
9. T h a t the a c c u s e d is a recidivist.

A recidivist is o n e w h o , at the time of his trial


for one c r i m e , shall h a v e p r e v i o u s l y b e e n convicted
by final j u d g m e n t of a n o t h e r c r i m e e m b r a c e d in the
s a m e title of this C o d e .

10. T h a t the o f f e n d e r h a s b e e n p r e v i o u s l y p u n i s h e d for


an offense to w h i c h the l a w attaches an e q u a l or
g r e a t e r p e n a l t y o r for t w o o r m o r e crimes t o w h i c h
it attaches a lighter penalty.

11. T h a t the c r i m e be committed in consideration of a


price, r e w a r d , or promise.

12. T h a t the c r i m e be committed by m e a n s of i n u n d a -


tion, fire, poison, explosion, s t r a n d i n g of a vessel or
intentional d a m a g e thereto, d e r a i l m e n t of a loco-
motive, or by the use of a n y other artifice involving
great waste and ruin.

13. T h a t the act be committed w i t h evident p r e m e d i t a -


tion.
14. T h a t craft, f r a u d , or disguise be e m p l o y e d .
15. T h a t a d v a n t a g e be t a k e n of s u p e r i o r strength, or
m e a n s be e m p l o y e d to w e a k e n the defense.

16. T h a t the act be committed w i t h t r e a c h e r y (alevosia).


T h e r e is t r e a c h e r y w h e n the offender commits
a n y of the crimes against the p e r s o n , employing
m e a n s , m e t h o d s or forms in the execution thereof
w h i c h tend directly a n d specially to insure its
execution, w i t h o u t risk to himself arising from the
defense w h i c h the offended p a r t y might make.
17. T h a t m e a n s be e m p l o y e d or circumstances b r o u g h t
a b o u t w h i c h a d d ignominy to the natural effects of
the act.
18. T h a t the crime be committed after an u n l a w f u l
entry.

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NOTES A N D CASES ON THE REVISED PENAL CODE

T h e r e is u n l a w f u l entry w h e n an entrance is
effected by a w a y not intended for the p u r p o s e .
19. T h a t as a means to the commission of a crime a
w a l l , roof, floor, door, or w i n d o w be b r o k e n .
20. T h a t the crime be committed w i t h the a i d of
persons u n d e r 15 y e a r s of a g e , or by m e a n s of m o t o r
vehicles, motorized w a t e r c r a f t , a i r s h i p s , or other
similar means. (As amended by R.A. No. 5438.)

21. T h a t the w r o n g d o n e in the commission of the c r i m e


b e deliberately a u g m e n t e d b y c a u s i n g other w r o n g
not necessary for its commission.

• Compare aggravating and mitigating circumstances.


Mitigating circumstances consider the lesser perversity of
the offender, hence, the penalty is reduced. T h e list in A r t i c l e
13 is not exclusive because there are analogous circumstances
which manifest the liberal interpretation of the l a w in favor
of the offender. A g g r a v a t i n g circumstances recognize that the
offender is of greater perversity hence, the penalty is increased.
The list in Article 14 is exclusive — there are no analogous
circumstances and this is due to the strict interpretation of
the law against the State. A g g r a v a t i n g circumstances must be
alleged in the Information, because they increase the penalty
and the offender must be given the opportunity to defend
himself against these; mitigating are matters of defense, hence
not required to be alleged in the Information.

The rationale for the lack of analogous circumstance in


Article 14 is that a penal law is liberally construed in favor of
the offender and no person should be brought within its terms
if he is not clearly made so by the statute. (People v. Regala,
G.R. No. 130508, April 5, 2000)

Immoral motive may not be considered as it does not


fall under any of the aggravating circumstances in A r t i c l e 14.
Unlike mitigating circumstances, there is no such thing as
similar nature and analogous to those mentioned as aggravating
circumstances. (People v. Villaver, G.R. No. L-32104, March
25, 1983)

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• What are the different kinds of aggravating circumstances?


1. Generic aggravating circumstances which:
a. A p p l y generally to all crimes;

b. Can be offset by an ordinary mitigating circumstance;

c. Increase the penalty to the maximum period of the


penalty prescribed in the law provided alleged in the
information as required under the Revised Rules on
Criminal Procedure ( R R C P ) .

2. Qualifying circumstances which:

a. cannot be offset by any mitigating circumstance;

b. change the nature of the crime and the designation


of the offense;

c. must be alleged in the Information, otherwise,


cannot be considered against the offender because
it will violate his right to be informed of the nature
of the accusation against him since a qualifying
circumstance changes the nature of the offense; and

d. must be proved as conclusively as the guilt of the


offender because of its effect which is to change the
nature of the offense and consequently increase the
penalty by degrees.
3. Special or specific aggravating circumstances which
apply to a particular felony. They are found elsewhere
than Article 14.
4. Inherent circumstance which is an element of the felony
committed thus no longer considered against the offender
in the determination of the penalty. (Article 62, no. 1)

• Do qualifying circumstances increase the penalty to a higher


degree?
N o . T h e penalty prescribed by the law cannot be increased
because that will violate the rule that a penalty not prescribed
by law cannot be imposed (Article 21). Also, the ex post facto
rule prohibits the imposition of a penalty greater than that
prescribed by law when the crime was committed.

161
NOTES A N D CASES ON THE REVISED PENAL CODE

It is not the qualifying circumstance itself that increases


the penalty by degree. What the qualifying circumstance does
is to change the nature of the crime resulting to the increase in
the penalty. Thus, homicide becomes murder and the penalty
for murder is higher than for the homicide. The penalty for
homicide is always reclusion temporal which can be lowered
but not increased to reclusion perpetua. T h e homicide has to
be changed by a qualifying circumstance to murder for the
penalty to increase to reclusion perpetua.

Qualifying circumstances proved during the trial but not


alleged in the Information cannot be considered as generic
aggravating because of the amendment made in the new R R C P .

• What is the nature of the circumstances in Article 14?


The circumstances enumerated in Article 14 are generic
circumstances although some are qualifying in particular
crimes made so by specific provisions of the R P C . Treachery
is qualifying for murder because Article 248 made it so but
generic for parricide or less serious physical injuries because
the provisions for these crimes are silent as to treachery, hence,
Article 14 shall govern.
There is no law providing that the additional rape/s or
homicide/s should be considered as aggravating circumstance.
The enumeration of aggravating circumstance under Article 14
is exclusive as opposed to Article 13 where there is,-a- specific
paragraph (paragraph 10) providing for analogous mitigating
circumstances. (People v. Regala)
It is true that the additional rapes or killing would result
in the "anomalous situation" where from the standpoint of
the gravity of the offense, robbery with one rape or homicide
would be on the same level as robbery with multiple rapes or
homicides. However, the remedy lies with the legislature. A
penal law is liberally construed in favor of the offender and no
person should be brought within its terms if he is not clearly
made so by the statute.

• When is the term "aggravating circumstances" broadly con-


strued to include those in Article 15?

Catubig, G.R. No. 137842, August 23, 2001 considered the


alternative circumstance of relationship as basis for an award

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C I R C U M S T A N C E S W H I C H AGGRAVATE
C R I M I N A L LIABILITY

of exemplary damages because the term "aggravating circum-


stances" must be understood in its broad or generic sense. How-
ever, this interpretation is only applicable to the civil aspect,
not the criminal aspect of rape, which involves the imposition
of the proper penalty. W h e n the penalty to be imposed on the
accused is teetering between reclusion perpetua and death, the
term "aggravating circumstance" in Article 63 must be under-
stood in the strictest sense. T h e "aggravating circumstance"
that would spell the difference between life and death for the
accused must be that listed in Article 14.
In all other cases where the maximum penalty is not
death, "aggravating circumstance" must be interpreted in its
broad or generic sense so as to include the circumstances under
Article 15. (People v. Orilla, G.R. Nos. 148939-40, February 13,
2004). (Moot and academic because of R . A . 9346J

What is the new rule on the allegation of generic aggravating


circumstances in the Information?

T h e R R C P now requires that generic aggravating


circumstances must be alleged in the information just like
qualifying circumstances. In effect, the distinction between
generic and qualifying circumstances as to the allegation in the
Information has been obliterated. T h e rule that a qualifying
circumstance proved during the trial but was not alleged in
the Information can be considered as generic aggravating is
no longer true. W h e n the circumstance was not alleged in the
Information, the accused was not forewarned of, and could not
have prepared his defense against, such circumstance. This
constitutes violation of his right to be informed of the nature of
the accusation against him.
T h e rule on generic aggravating circumstances has now
been formalized in the R R C P , which took effect on December
1, 2000. Sections 8 and 9 of Rule 110 now respectively provide
that:
Sec. 8. Designation of the offense. — The complaint or
information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense,
and specify its qualifying and aggravatins circumstances. If
there is no designation of the offense, reference shall be made to
the section or subsection of the statute punishing it.

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NOTES A N D CASES ON THE REVISED PENAL CODE

Sec. 9. Cause of the accusation. — The acts or omissions


complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as
its qualifying circumstances and aggravating circumstances
and for the court to pronounce judgment, (emphasis supplied)

Treachery attended the commission of the crime and it


was merely a generic aggravating circumstance. However, it
was not alleged in the information as mandated by Section 8,
Rule 110. Treachery cannot be considered even as a generic
circumstance. Although the crime took place before the R R C P
took effect, it should be applied retroactively as it is favorable
to the appellant. (Rugas v. People, G.R. No. 147789, January
14, 2004)

• What is the fundamental requirement before qualifying circum-


stances are considered?

T h e fundamental requirement is that qualifying circum-


stances should be alleged in the information. To allow other-
wise would be to deny the accused the right to be informed of
the nature and the cause of the accusation against him. "There
was abuse of superior strength, but it could not qualify the kill-
ing to murder because it has not been sufficiently alleged in the
information." (People v. Feran, October 1992). T h e rationale for
this requirement of the right to be informed of the existence
of the qualifying circumstance is for the accused to prepare
properly for his defense to meet head-on the qualifying circum-
stance and because such circumstance changes the nature of
the charge against him. Due process requires that the accused
be given fair notice of what he is being tried for.

It is error to consider nighttime, use of fire and abuse


of superior strength as "attendant qualifying aggravating
circumstances." T h e information alleged only treachery and
evident premeditation as qualifying circumstances. N i g h t t i m e ,
band, use of fire, craft, fraud or disguise and ignominy w e r e
alleged as generic aggravating circumstances. T h e trial court
cannot elevate the status of any of the generic circumstances

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C R I M I N A L LIABILITY

and consider them as qualifying for the crime of murder.


(People v. Valeriano, September 1993)

What is the requirement as to proof of qualifying circumstances?

Qualifying circumstance must be proved beyond reason-


able doubt as convincingly as the crime itself for it is not mere-
ly a modifying circumstance but an element of the crime. It
changes the nature of the crime. An allegation of treachery
changes the offense from homicide to murder and increases
tremendously the penalty. Homicide is penalized with reclu-
sion temporal (12 years and 1 day to 20 years), whereas, mur-
der carries reclusion perpetua (20 years and 1 day to 40 years).
In effect, this qualifying circumstance carries with it another
reclusion temporal, hence, the requirement that it should be
proved as convincingly as the crime itself.

How many circumstances are required to be used as qualifying


circumstance?

Only one is required. W h e r e one of the aggravating cir-


cumstances has been used as a qualifying circumstance, the
others w i l l be deemed as generic. Since treachery has already
been used to qualify the crime to murder, evident premedi-
tation should be considered as only a generic aggravating
circumstance. (People v. Fabros, October 1992)

What are special aggravating circumstances?

Special aggravating circumstances are those applicable to


specific crimes. T h e y do not change the character of the offense
charged but guides the court in imposing the proper penalty.
Agguihao, G.R. No. 104725, March 10, 1994 ruled that just
like a generic aggravating the special circumstance of spite
does not change the character of the arson charged. However,
unlike generic aggravating which can be offset by an ordinary
mitigating circumstance, special aggravating cannot be offset
by an ordinary mitigating circumstance. (People v. De Leon,
G.R. No. 179943, June 26, 2009)

Give examples of special aggravating circumstances.


R . A . 7659 added "organized/syndicated group" in Article
6 2 [ l ] [ a ] . This is a special aggravating circumstance because

165
NOTES A N D CASES ON THE REVISED PENAL CODE

Article 14 which contains generic aggravating circumstances


was not correspondingly amended. The maximum penalty
shall be imposed if the offense was committed by any person
belonging to an organized/syndicated crime group. An
organized/syndicated crime group means a group of two or
more persons collaborating, confederating, or mutually helping
one another for purposes of gain in the commission of any
crime. The gain here refers not only to robbery or theft but to
all criminal activities which are "profitable" to the offenders
such as kidnapping for ransom, and estafa.

Moreover, R . A . 7659 modified Article 62, no.l in relation


to Article 64, no. 4 in that when advantage is taken by the
public officer of his public position, Article 64, no. 4 on offsetting
shall not operate; instead, Article 62, no 1 (a) shall be followed
and regardless of the presence of mitigating circumstances, the
penalty shall be imposed in its maximum period.

T h e use of unlicensed firearm is a special aggravating


circumstance for homicide or murder, pursuant to R . A . 8294.
(People v. De Leon)

• Is conspiracy an aggravating circumstance?

N o . Conspiracy is neither aggravating nor qualifying


but rather a manner of incurring collective criminal hability
among every co-conspirator in an equal degree, whereby the
effect is that the act of one becomes the act of all. T h e presence
of conspiracy cannot qualify a killing to murder. (People v.
Feran)

Abuse of official position

• When is abuse or taking advantage of official position present?

In the circumstance of taking advantage of official posi-


tion, the test is: Did the accused abuse his office in order to
commit the crime? If he did, then this circumstance is present.
(Sanchez v. Demetriou) An example is when the offender falsi-
fies a document in connection with the duties of his office which
consist of either making or preparing or otherwise intervening
in the preparation of a document. (Layno v. People, September
1992). T h e public official must use the influence, prestige and

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C R I M I N A L LIABILITY

ascendancy which his office gives him in realizing his purpose.


T h e r e must be an intimate connection between the offense and
the office of the accused.

• Is the offender's being a public officer ipso facto aggravating?

N o . For such to be considered aggravating, the public


official must use the influence, prestige and ascendancy which
his office gives him in realizing his purpose. That accused
used his service firearm in shooting the victim should not be
considered as taking advantage of public position. (People v.
Amion, G.R. No. 140511, March 1, 2001) T h e mere fact that
accused was a member of the C A F G U and was issued an M - l
Garand rifle is not sufficient to establish that he misused his
public position in the commission of the crimes. (People v. Villa,
Jr., G.R. No. 129899, April 27, 2000)

T h e dual functions of a jail guard are to insure the safe


custody and proper confinement of persons detained in the
jail. T h e victim was a detention prisoner when the jail guard
conspired with some inmates to kill him. Murder or homicide
is never the main function of any public office. No public office
w i l l ever be the constituent element of murder or homicide.
Montejo, 108 Phil. 613, held that a public officer commits an
offense in relation to his office if he perpetrates the offense
while performing, though in an improper or irregular manner,
his official functions and he cannot commit the offense without
holding his public office. In such a case, there is an intimate
connection between the offense and the office of the accused.
As jailer, accused has access to the victim prisoner. Without
his office he cannot have access to the prisoner because the
latter is under the watchful eye of his jailer whose function is
to insure the proper confinement of persons, access to whom
is restricted by law. (Crisostomo u. Sandiganbayan, G.R. No.
152398, April 14, 2005)

Insult to public authorities


• Who are included by the term "public authority"?
It covers not only persons in authority but also agents of
persons in authority and other public officers. Rodriguez, 19
Phil 150; Siojo, 61 Phil. 307; and Verzo, 21 SCRA 1403, were

167
NOTES A N D CASES ON THE REVISED PENAL CODE

reconsidered in Rodil, G.R. No. L-35156, November 20, 198,


because it is not justified by the employment of the term public
authority in Article 14 (2) instead of the term person in authority
which is specifically used in Articles 148 and 152. There is no
extended reasoning of the doctrine enunciated in those three
cases why the phrase public authority should comprehend only
persons in authority. The lawmaker could have easily utilized
the term "persons in authority" in Article 14 in much the same
way that it employed the said phrase in Articles 148 and 152.
The lawmaker must have intended a different meaning for the
term public authority which may include but not limited to
persons in authority.

A municipal mayor, barangay captain, or barangay tanod


is a person in authority or a public authority. Even a public
school teacher is a person in authority under CA 578 amending
Article 152. So is the town municipal health officer, or a nurse,
a municipal councilor or an agent of the B I R .

• Relate this circumstance to the crime of direct assault.

The circumstance of contempt of or insult to public


authorities requires that the public- authority is engaged in
the discharge of his duties and the offender knows that he is a
public authority. This is an aggravating circumstance because
it shows disrespect of the offender in the commission of the
crime notwithstanding the presence of public authority.

If the public authority is a person in authority or an agent


of person in authority as the term is used in A r t i c l e 152, the
crime committed against him is direct assault and as such, this
aggravating circumstance will be deemed absorbed because it
is inherent thereto. (See Article 62, no. 2)

Age, sex, rank, dwelling

• What are the common factors with regard to the circumstances


of "insult or lack of regard due to the offended party by reason
of age, sex, or rank or the crime is committed in the dwelling of
the offended party"?

These four circumstances show lack of respect to the


offended. There must be proof that offender deliberately

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intended to offend or insult the offended. These circumstances


cannot co-exist with passion or obfuscation where the offender
lost his control or reason. They are considered in crimes against
persons, security, or honor but not in crimes against property.
T h e circumstance of sex is not considered in crimes where being
a woman is an element thereof as in parricide, rape, abduction,
or seduction.

T h e circumstance of disregard of the respect due the


offended party on account of his rank is unavailing. There is
no showing that appellants intended to deliberately offend
or insult the rank of the victim, which is the essence of said
aggravating circumstance. This is so because the raiding police
officers w e r e not even in uniform. (People u. Verchez, G.R. No.
82729-32, June 1994)

What is the rationale for these aggravating circumstances?

Those generally considered of high station in life, on


account of their rank, age or sex, deserve to be respected.
Therefore, whenever there is a difference in social condition
between the offender and the offended party, any of these
circumstances sometimes is present. (People v. Rodil)

What is the meaning of the word "rank" as used in the Article?

T h e term "rank" should be given its plain, ordinary


meaning, and as such, refers to a high social position or
standing such as a grade in the armed forces; or to a graded
official standing or social position or status; 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 other officers in matters of privileges, precedence,
and sometimes command or by which to determine his pay and
emoluments as in the case of army 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,
scale of comparison within a position, (id.)

Give examples of cases where rank aggravated the crime


committed.

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NOTES A N D CASES ON THE REVISED PENAL CODE

1. The killing of a staff sergeant by his corporal (People v.


Mil, 92 SCRA 89)
2. The killing of the Assistant Chief of Personnel Transaction
of the CSC by a clerk (People v. Benito, 62 SCRA 351)
3. The murder by a pupil of his teacher (People v. Aragon,
107Phil. 706)
4. The murder of a municipal mayor (People v. Lopez de
Leon, 69 Phil. 298)
5. The murder of a city chief of police by the chief of the
secret service division (People v. Hollero, 88 Phil. 167)
6. Assault upon a 66-year old Judge of the C F I by a justice
of the peace (People v. Torrecarreoni, CA 52 OG 7644);
7. The killing of a Spanish consul by his subordinate (People
v. Godinez, 106 Phil. 597) and
8. The killing of an army general (People v. Torres, L-4642,
May 29, 1953)(id.)

What consideration affects the appreciation of rank?

The charge should not include rank as an element thereof.


If the accused were charged with the complex crime of murder
with assault against an agent of a person in authority, and not
merely murder, then the aggravating circumstance of disre-
gard of rank or contempt of or insult to public authority cannot
be appreciated as aggravating because either circumstance is
inherent in the charge of assault against a person in authority.
If the accused is charged of murder only, then, either aggravat-
ing circumstance should be considered in the imposition of the
penalty, (id.)

Is the mere fact that the victim of the offense is a female an


aggravating circumstance of disregard of sex?

N o . It must also be shown that the offender specially


saw to it that his victim would be a woman. T h e aggravating
circumstance of sex is not sustained by the fact that the victim
was a woman, unless it further appears that aside from the
unlawful taking of her life, there was in the commission of
the crime some specific insult or disrespect shown to her
womanhood. (People v. Ursal, 121 SCRA)

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To what crimes do this group of circumstances pertain?

T h e circumstance of insult or in disregard of the respect


due the offended party can be appreciated only in crimes
against person or honor — not in the special complex crime
of robbery with homicide which is a crime against property.
(People v. Paraiso, G.R. No. 127849, November 29, 1999) To be
appreciated, it should be clearly demonstrated that the accused
deliberately intended to act with insult or in disregard of the
respect due the victim on account of his rank. That the accused
was cognizant of the rank of the deceased police officer or that
he articulated hatred against all policemen in general does not
by itself suffice to prove this aggravating circumstance.

Does age pertain only to old age?

N o , but it includes tender age. J V was barely six years


old when ruthlessly stabbed 14 times before his body was
submerged in the pail. It was error not to have considered his
age as an aggravating circumstance. (People v. Lapan, G.R. No.
88300, July 6, 1992)

What is included in dwelling?

"Dwelling" includes dependencies, staircase, and enclo-


sures under the house. It is not necessary that the house is
owned by the offended. It may include a room in a boarding
house, for home is that which the law seeks to protect or up-
hold whether the dweller is a lessee, a boarder or a bed spacer.

A dwelling must be a building or structure, exclusively


used for rest and comfort. W h e r e the crime was committed in
a store, which is about 15 meters away from the complainant's
house, dwelling cannot be considered. T h e store cannot be
considered a dwelling or even a dependency of complainant's
home. (People v. Joya, G.R. No. 79090, October 1, 1993) As
dwelling must exclusively be used for rest and comfort, a
combination store and dwelling is not a "dwelling" as used in
the law.

Why is dwelling (morada) an aggravating circumstance?


The reason is that it reveals the offender's greater perver-
sity in deliberately invading the tranquility of one's domicile.

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The trial court erred in disregarding morada inasmuch as


the crime took place and was committed by the accused in the
house of the victims. The accused showed greater perversity in
his deliberate invasion of the tranquility and privacy of P F s
domicile. (People v. Lapan, G.R. No. 88300, July 6, 1992)

To what situations is the circumstance of dwelling appreciated?


The commission of the crime in the dwelling of the offended
party who has not given any provocation is an aggravating
circumstance. (People v. Banez, September 1992)
In abduction and illegal detention, where the offended
party is taken from his house, dwelling may be taken into
account as an aggravating circumstance. (People v. Grefiel,
G.R. No. 77228, November 13, 1992)
Dwelling should be taken into account in the imposition
of the proper penalty because robbery with homicide can be
committed without necessarily transgressing the sanctity of
the home. (People v. Delos Reyes, October 1992)
Dwelling is aggravating since that the assailants w e r e
in the sanctity of the victims' own home — which is perhaps
the last bulwark of their safety. An unsuspecting knock on
the door betrayed that trust of peace in the family who w e r e
only conversing. Dwelling is aggravating when a crime is
committed in the dwelling of the offended party who has not
given provocation. Provocation in dwelling must be: ( a ) given
by the offended party; (b) sufficient; and (c) immediate to the
commission of the crime. (People v. Tiguman, supra)

Must the offender enter the dwelling of the victim?


N o . Although the triggerman fired the shot from outside
the house, his victim was inside. For dwelling to be considered,
it is not necessary that the accused should have 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. Although the attack was made not from inside
the house but from below the floor of the house, dwelling may
be considered as attending the shooting, as in fact, the target
victim was hit inside his own house. (People v. Dacibar, G.R.
No. 111286, February 17, 2000)

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BB was at the main door when he called W W . When WW


refused to go with B B , it was there that he forced WW to go
with him. WW was abducted while she was still in her house.
Thus, dwelling may be appreciated considering that it is not
necessary that the accused should have entered the dwelling of
the victim. (People v. Magat, G.R. No.)

• When is dwelling not aggravating?

Dwelling is not aggravating if the offended has given


provocation or if both the offended and the offender live
there or if inherent in the crime such as those which could be
committed in no other place (trespass to dwelling, robbery in
an inhabited place). It is not appreciated separately as it is
absorbed in treachery. (People v. Catapang, G.R. No. 128126,
June 25, 2001)

Abuse of confidence

• What are the requisites of abuse of confidence/obvious


ungratefulness?

a. T h e offended had trusted the offender;


b. T h e offender abused such trust; and
c. Such abuse of confidence facilitated the commission of the
crime.
For abuse of confidence to exist, it is essential to show
that the confidence between the parties must be immediate and
personal as would give the accused some advantage or make
it easier for him to commit the criminal act. The 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. (People v. Arojado,
350 SCRA 679)

Palace of Chief Executive


• Is performance of public function necessary in the appreciation
of the aggravating circumstances in paragraph 5 of Article 14?
Only in the third circumstance — where public authorities
are engaged in the discharge of their duties — is performance

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of function necessary. The other three circumstances require


merely that the crime be committed in the places specified —
in the palace of the Chief Executive, in his presence, or in a
place dedicated to religious worship. It is necessary though
that the offender must have sought the above places for the
commission of the crime which shows his lack of respect for the
places enumerated.

Nighttime (Nocturnity)
• What is nocturnity and when is it aggravating?
Nocturnity or nighttime, by and of itself, is not an
aggravating circumstance. It becomes so only when it is
especially sought by the offender, or taken advantage by
him to facilitate the commission of the crime or to ensure his
immunity from capture. If there was no proof that nighttime
was deliberately sought by the accused in committing the
crime, said circumstance should be disallowed. (People v.
Pasiliao, G.R. No. 98152-53, October 26, 1992)

Nighttime is appreciated as an aggravating circumstance,


when:
(a) Nighttime was especially sought by the offender;
(b) It was taken advantage of by him;
(c) It facilitated the commission of the crime by insuring
the offender's immunity from capture; and
(d) T h e place where the crime was committed was not
illuminated. (People v. Espina)

• What time period is covered by nocturnity?

"Nighttime" is the period from sunset to sunrise. T h e


crime must be committed exclusively at nighttime and not
commenced at daytime because it is necessary that the time
was especially chosen by the offender to commit the offense.

• Is the commission of the offense at night per se aggravating?

N o . Nocturnity cannot be considered where the


prosecution established no more than the simple fact that
the crime was committed at night. W h i l e nighttime must be
deliberately sought in the perpetration of the crime, a close

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examination of the records shows no factual support that the


appellants deliberately considered the cover of darkness as an
indispensable factor in assaulting A A . (People v. Ferrer)

• What are the two tests for the appreciation of nocturnity?

T h e objective test — that nocturnity facilitated the


commission of the crime and the subjective test — that it was
purposely sought by appellants in order to afford impunity.

It is error to accept nocturnity as aggravating for during


the incident the moon was shining brightly. T h e light was
bright enough to see what was going on and to recognize the
assailants. It, therefore, does not qualify as an aggravating
circumstance under either the subjective or objective tests.
(People v. Bigcas, G.R. No. 94534, July 2, 1992)

• What factors will disallow nighttime as aggravating?

W h e n nighttime is neither especially sought by the offender


nor taken advantage of by him to facilitate the commission of
the crime by ensuring the offender's immunity from capture. It
is not especially sought when the notion to commit the crime
was conceived only shortly before its commission or when the
crime was committed at night upon a mere casual encounter.
Here, other than the time of the crime, there is nothing else to
suggest that accused deliberately availed or took advantage of
the circumstance of nighttime. (People v. Labrador, G.R. No.
126787, May 24, 1999)

• Is nighttime a qualifying circumstance?


Nighttime is not qualifying under Article 248. (People
v. Valeriano) It is absorbed in treachery if it is part of the
treacherous means to insure execution of crime, otherwise
nighttime is to be considered separately but as generic
aggravating. (People v. Ong, January 1975)

Uninhabited Place
• What determines whether a place is uninhabited?
T h e uninhabitedness of a place of locus delicti is deter-
mined not solely by the distance of the nearest house to the

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scene but also whether or not in the place of the commission


of the offense, there was reasonable possibility of the victim
receiving some help. A place where there are no people or any
number of houses within a perimeter of 200 meters is uninhab-
ited. It is not only the distance to the nearest occupied habita-
tion but also the possibility of securing assistance that should
be considered. (People v. Balisteros, G.R. No. 110289, October
7, 1994)

Band
• What comprises a band (cuadrilla)?

Band consists of:


a. More than three (four or more persons);
b. A r m e d malefactors (bad elements, not males; at
least four must be armed);
c. Acting together in the commission of an offense
(presupposing the presence of conspiracy.)

A crime is deemed committed by a band w h e n more than


three armed malefactors acted together in the commission of
the offense. (People v. Robiego, November 1993)

• Compare band under Article 14 and under Articles 295 and 296.

Under Article 14, band is a generic aggravating circum-


stance whereas under Articles 295 and 296 it is a qualifying
circumstance. T h e latter articles apply only to robbery with
unnecessary violence or physical injuries under Article 263,
paragraphs 2, 3, and 4 in relation to Article 294, paragraphs
3, 4 and 5. Article 294 enumerates five classes of robbery with
violence against or intimidation of persons and prescribes the
corresponding penalties. Article 295 provides that when the of-
fenses described in subdivisions 3, 4, and 5 of Article 294 are
committed by a band, the proper penalties must be imposed
in the maximum period. Band is therefore qualifying only in
robbery punished by subdivisions 3, 4, and 5 of Article 294.
Consequently, Article 295 is inapplicable to robbery with homi-
cide, rape, intentional mutilation, and lesiones graves result-
ing in insanity, imbecility, impotency or blindness. If the rob-

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bery in Article 294(1) and (2) are perpetrated by a band, they


would not be punishable under Article 295, but then cuadrilla
would be generic aggravating under Article 14. Hence, with
the present wording of Article 295, there is no "robbery with
homicide in band." If robbery with homicide were committed by
a band, the indictable offense is "robbery with homicide" under
Article 294(1), but band would be appreciated as an ordinary
aggravating circumstance. (People v. Apduhan, Jr., G.R. No.
L-19491, August 30, 1968)

Under Article 14(6), a crime is deemed committed by a


band when more than three armed malefactors acted together
in the commission of the offense. In this case, there were only
three culprits. T h e trial court incorrectly characterized the
crime as robbery in band with homicide. It has not been shown
that more than three persons perpetrated the crime. T h e crime
committed is therefore the special complex crime of robbery
with homicide. (People v. Robiego, November 1993)

• When is band not appreciated?

T h e trial court erred in finding the presence of the


aggravating circumstance of band. T h e circumstance that the
crime was committed with the use of a deadly weapon or by
two or more persons was already taken into account when the
law imposed the penalty of reclusion perpetua to death for such
offense. (People v. Villagracia, G.R. No. 94311, September 14,
1993)

• When conspiracy is proved, can band be appreciated?


Y e s , because conspiracy is not an aggravating circumstance
but a means to commit a crime. Hence, one cannot absorb the
other.

Calamity or Misfortune
• To what does "other calamity or misfortune" refer?
It refers to events similar in nature as conflagration,
shipwreck, earthquake or epidemic. It cannot refer to "acts of
men" because they are different from the events enumerated.
Under the principle of "ejusdem generis," where general terms
such as "other calamity or misfortune," follow the enumeration

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NOTES A N D CASES ON THE REVISED PENAL CODE

of particular things, the general term will include only those


classes of things or persons of the same class or nature as those
mentioned in the preceding enumeration.

• Distinguish paragraph 7 from paragraph 12 of Article 14.


Paragraph 12 refers to the means in the commission of
the crime; paragraph 7 refers to the occasion or during any of
the calamities mentioned when the crime is committed. These
circumstances are aggravating because these are indicative of
the greater perversity of the offender, who, instead of lending
aid to the victims, adds to their sufferings. The offender should
particularly seek the opportunity provided by the calamities
mentioned to perpetrate his crime.

Aid of armed men


• What are the elements of aid of armed men? When is it not
appreciated?

1. That armed men or persons took part in the commission


of the crime, directly or indirectly; and

2. That the accused availed himself of their aid or relied


upon them when the crime was committed.
A i d of armed men cannot be appreciated when there is
conspiracy, accused acting under the same plan and for the
same purpose. Hence, they are all principals in the commission
of the crime. (People v. Amion, G.R. No. 140511, March 1,
2001)

• Compare "band," "aid of armed men," "organized crime


syndicate," "syndicated estafa," and "illegal recruitment in a
large scale."

1. In band and organized crime syndicate, all the members


are principal; in aid of armed men, the armed men merely
aided the principal offender and are accomplices.

2. In band, there must be at least four armed men; in aid


of armed men, their number is not specified nor required
as long as there is more than one; in organized crime
syndicate, there must be at least two members who are
not required to be armed.

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3. In band and aid of armed men, the crimes are not specified;
in organized crime syndicate, the purpose is to commit
crimes for gain.

Syndicated estafa under P . D . 1689 is different from or-


ganized crime syndicate under Article 62 ( l a ) . T h e former re-
quires at least five members whereas the latter needs only two.

Illegal recruitment in a large scale requires that it be


committed by at least three offenders.

Habituality

• What are the different forms of habituality?

T h e y are recidivism (Article 14, no. 9), reiteration (Article


14, no. 10), habitual delinquency (Article 62, no. 5) and quasi-
recidivism (Article 160).

• W h o is a recidivist?

A recidivist is one who:


a. At the time of his trial for one crime;
b. Shall have been previously convicted by final judgment;
c. Of another crime embraced in the same title of the R P C .
Recidivism requires at least two convictions: the first
must be by final judgment and must take place prior to the
second conviction. Both must be felonies embraced in the same
title of the R P C . "Final judgment" means executory, i.e., 15
days have elapsed from its promulgation without the convict
appealing the conviction. (See Article 89)

• What is the nature of recidivism?


Recidivism is a generic aggravating circumstance. There
is no specific period between the prior conviction and the second
conviction. Recidivism can be appreciated even if the convict
was given absolute pardon, as pardon extinguishes the penalty
only but not the effects of the offense.

• What is required for recidivism to be appreciated?


T h e prosecution must allege recidivism in the information
and present certified true copy of the judgment of conviction in

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the other case since the omission to do so is not cured by the


failure of the accused to object to such lack of presentation.
Recidivism is an affirmative allegation whenever alleged in the
information and when the accused enters a plea of not guilty to
such information, there is a joinder of issues not only as to his
guilt or innocence but also as to the presence or absence of the
modifying circumstances so alleged. (People v. Compendio, Jr.,
G.R. No. 114002, July 5, 1996)

• What is reiteration?
In reiteracion, the offender has been previously punished
(has served sentence.) T h e first offense must have been
punished with an equal or greater penalty; or he has committed
two or more crimes previously to which the law attaches a
lighter penalty. It does not require that the offenses be covered
under the same title of the R P C .

The trial court erred in appreciating reiteracion. This


circumstance is not alleged in the information. T h e prosecution
did not prove it. Upon cross-examination of the accused by
the Prosecutor, over the objection of the defense counsel, the
only information elicited is that the accused had earlier been
convicted for the crime of homicide, had served the sentence
and had later been released.

T h e fact of his being out on parole was brought out upon


questioning by the court after the termination of the cross-
examination. Besides, for the same to exist, it is necessary that
the offender has been previously punished for an offense to
which the law attaches an equal or greater penalty or for two
or more crimes to which it attaches a lighter penalty. Appellant
was earlier convicted of homicide which is punishable by
reclusion temporal. That penalty is not equal or greater but is
definitely lower than that provided for rape which is reclusion
perpetua. (People v. Race, Jr., G.R. No. 93143, August 4, 1992)

• Distinguish recidivism from reiteracion.

RECIDIVISM REITERACION
1. Antecedent Previous conviction Service of sentence
by final judgment

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2. Offenses Under the same T i t l e N e e d not be a


of the R P C (felony) felony nor under
the same Title
3. Penalty No requirement as to Prior crime must
penalty imposed in have been penalized
the prior conviction with an equal or
greater penalty or
two or more crimes
was lighter penalty

What is habitual delinquency?

Habitual delinquency is a special aggravating circum-


stance for which is imposed an additional penalty which esca-
lates with the increase in the number of convictions.

A person is a habitual delinquent if:

a. W i t h i n a period of 10 years from his release or last


conviction;
b Of the crimes of falsification, robbery, estafa, theft,
serious or less serious physical injuries;
c. He is found guilty of said crimes a third time or
oftener.

T h e law requires three convictions. The third conviction


for the covered crimes must be committed within 10 years from
the second conviction. T h e 10-year period is counted from the
date of release if he had been released when again convicted.

This is a special aggravating circumstance because it


is not included in Article 14. It is not an "ordinary" special
aggravating circumstance because its effect is to impose an
incremental penalty, that is, an additional penalty to that
imposed for the crime actually committed. T w o penalties shall
therefore be imposed — for the crime committed and for the
habitual delinquency. T h e penalty for the habitual delinquency
escalates with the number of conviction.
It is not also a qualifying circumstance because although
the increase in the penalty is significant, it does not change the
nature of the offense committed.

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It is in effect a crime by itself because it has its own pen-


alty. An offender can be a recidivist and a habitual delinquent
at the same time if he were convicted for the third time of the
crimes of estafa, robbery and theft which are all within T i t l e
10 or for serious and less serious physical injuries which are
within Title 8.

Distinguish between Recidivism and Habitual Delinquency.

HABITUAL
RECIDIVISM
DELINQUENCY

1. Convictions T w o are enough Three are required

2. Crimes Must be both Falsification, robbery,


covered under the same estafa, theft, serious
T i t l e of the Code and less serious
physical injuries

3. Prescription None as no time Prescribes after 10


n d
limit given by law years between the 2
st rd
between the 1 and 3 convictions
n d
and 2 convictions

4. Nature Generic; can be Special circumstance;


offset by ordinary cannot be offset
mitigating
circumstance

5. Penalty Increase is to the Entails additional


M a x i m u m period penalty which
increases with the
number of convictions

What is Quasi-recidivism?

Quasi-recidivism is a special aggravating circumstances


wherein the offender has been previously convicted by final
judgment and before beginning to serve such sentence, or
while serving the same he committed a felony. It is not offset
by ordinary mitigating circumstance.

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T h e new crime committed before or during service of


sentence must be a felony. It has been held the felony need not
be similar as the felony to be served or being served.

Article 16 specifies that quasi-recidivism is in addition to


habitual delinquency because of the opening phrase "Besides
the provisions of Rule 5 of Article 62." T h e effect is to penalize
the convict with the maximum period for the new felony
committed before or during the service of sentence. If: (1) in the
service of the first conviction, he reached the age of 70; or (2) he
shall complete the service of the original conviction after that
age, he shall be pardoned, unless he is a habitual criminal or
his conduct or other circumstances show that he is not worthy
of pardon.

Price, Promise, Reward

• W h o are affected by the circumstance of price, promise, or


reward?

T h e y affect principal by direct participation who com-


mitted the crime for consideration. The other co-conspirators
if there be any who did not benefit from the price, promise
or reward will not have his penalty aggravated because this
circumstance is personal to the receiver. T h e reward is the
primary consideration in the commission of the crime for this
circumstance to be aggravating.

Inundation, Fire, etc.


• Relate the circumstances of inundation, fire, poison, explosion,
etc., with paragraph 1 of Article 62.
These circumstances by themselves constitute a
crime, hence, Article 62(1) shall apply. Thus, "aggravating
circumstances which in themselves constitute a crime specially
punished 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." If
one of these circumstances was a means to kill, the crime is
murder, not homicide, hence, the penalty will be for murder.
The circumstance will no longer be considered aggravating.

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Evident Premeditation
• What is evident premeditation? What are its elements?
Evident premeditation indicates a stubborn adherence
to a decision to commit a felony. It requires a showing of: (1)
a previous decision by the accused to commit the crime; (2)
overt act[s] manifestly indicating that the accused clung to his
determination; and (3) a lapse of time between the decision to
commit the crime and its actual execution sufficient to allow
the accused to reflect upon the consequences of his acts.

Evident premeditation connotes adherence to a plan to


commit a crime. Returning to the scene of an earlier fight four
hours later does not establish these elements. M e r e lapse of
time is not equivalent to evident premeditation. It cannot be
appreciated to qualify a killing to murder in the absence of
evidence, not only of sufficient lapse of time, but also of the
planning and preparation to kill when the plan was conceived.
(People v. Nell)

Otherwise stated, its elements are:

a. T h e T I M E when the offender determined to commit


the crime;

b. An A C T manifestly indicating that he has clung to


his determination; and

c. Sufficient L A P S E of time between such determina-


tion and execution to allow him to reflect upon the
consequences of his act.

» What is the essence of evident premeditation?

The criminal act must be preceded by cool thought and


reflection of the resolution to carry out the criminal intent
during the space of time sufficient to arrive at a calm judgment.
Hence, it must be shown when the plan to execute the crime
was hatched or what time elapsed before it was carried out.

Evident premeditation means that a period sufficient in


a judicial sense to afford full opportunity for meditation and
reflection and sufficient to allow the conscience of the actor to
overcome the resolution of his will if he desires to hearken to

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its warnings has elapsed. In one case, 3 1/2 hours from the plan
to the commission of the crime is sufficient time for the accused
to dispassionately reflect upon the consequences of his act or to
desist from its execution.

• When is evident premeditation not appreciated?

W h e n it is an inherent element of a crime because then, it


had already been considered by the law when it prescribed the
penalty. (Article 62, paragraph 2)

T h e r e is no evident premeditation if the attack was made


in the heat of anger or the meeting of the accused and the
victim was a chance encounter and not sought on purpose.

T h e appellant did not even know the victim and vice


versa prior to their confrontation at the place of the shooting
incident. T a i l i n g the victims is not an overt act that reflects his
determination to kill the victim. Appellant followed the jeep in
order to arrest the women whom he suspected to be prostitutes.
(People v. Peralta, G.R. No. 128116, January 24, 2001)

Evident premeditation is not inherent in robbery with


homicide. T h e premeditation must relate to the killing and not
to the robbery. (People v. Manansala, G.R. No. 88752, July 3,
1992)

• What evidence is required to establish evident premeditation?


Evident premeditation must be clearly proven, established
beyond reasonable doubt and must be based on external acts
which are evident, not merely suspected, and which indicate
deliberate planning. (People v. Florida, September 1992)
W h e n there is no direct evidence of the planning and
preparation to kill or when the plan was conceived, evident
premeditation cannot be considered. The information that EW
heard that AA was "hunting" him because of competition over
a girl is not sufficient proof of evident premeditation. (People v.
Wenceslao, G.R. No. 95583, August 12, 1992)
Evident premeditation may not be appreciated against
the accused, absent proof as to how and when the plan to kill
was hatched or what time elapsed before it was carried out.
(People v. Mallari, G.R. No. 94299, August 21, 1992)

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Proof of alleged resentment does not constitute conclusive


proof of evident premeditation. (People v. Padama, G.R. No.
132137, October 1, 1999)

• What is the relationship between conspiracy and evident


premeditation?
Under normal conditions, where conspiracy is directly
established, with proof of the attendant deliberation and
selection of the method, time and means of executing the crime,
the existence of evident premeditation can be taken for granted.
But in implied conspiracy, it may not be appreciated, in the
absence of proof as to how and when the plan to kill the victim
was hatched or what time elapsed before it was carried out,
so that it cannot be determined if the accused had "sufficient
time between its inception and its fulfillment dispassionately
to consider and accept the consequences." There should be a
showing that the accused has the opportunity for reflection
and persisted in effectuating his criminal design. Absent
such showing, this circumstance should be rejected. (People v.
Manansala, G.R. No. 88752, July 3, 1992)

Proof of conspiracy does not imply the existence of evident


premeditation. It can be presumed only where conspiracy is
directly established, not where conspiracy is only implied.
(People v. Padlan, G.R. No. 111263, May 21, 1998)

Craft, Fraud, Disguise

• Distinguish among craft, fraud and disguise.


Craft is cunning or intellectual trickery or chicanery
resorted to by the accused to carry out his evil design. Example:
The offender assumed position of authority to gain entry in a
house; or feigning friendship to lure a victim to an uninhabited
place. Fraud constitutes deceit and is manifested by insidious
words or machinations. Disguise is resorted to conceal the
identity. If in spite of the disguise, the offender was recognized,
such cannot be aggravating.
These circumstances are not aggravating if they did not
facilitate the commission of the crime or not taken advantage
of by the offender in the course of the assault. If they w e r e used
to insure the commission of the crime against persons without
risk to offender, they are absorbed by treachery.

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Abuse of superior strength or means


taken to weaken the defense

• When is there abuse of superior strength?

T h e r e is abuse of superior strength where the offenders


intentionally and purposely employ excessive force out of
proportion to the means of defense available to the offended
party. T h e r e must be a notorious inequality of forces between
the victim and the aggressor.

Superiority in number does not necessarily mean that


the offenders abused their superior strength or that means
are employed to weaken the defense. It must be proved that
the attackers cooperated in such a w a y as to secure advantage
from superiority of strength.

• Cite examples of abuse of superior strength.

1. T h e aggressors, who w e r e all armed, first hit the legs of


their unarmed victim, causing the latter to fall kneeling;
then, stabbed him above the knee; and, having deprived
him of his means to stand or run, took turns in inflicting
mortal wounds on him. (People v. Apelado, G.R. No.
114937, October 11, 1999)
2. An attack by a man with a deadly weapon upon an
unarmed and defenseless woman is abuse of superior
strength which his sex and weapon afforded him. (People
v. Olivo, G.R. No. 130335, January 18, 2001)
3. W h e n the attack was not made with alevosia, the number
of the assailants and the simultaneity of the attack upon
a defenseless person may constitute abuse of force. By
reason of the synchronal attack on the victim by the two
armed persons, they cooperated and intended to use or to
secure advantage from the superiority of their combined
strength. This is manifest where the victim was unarmed
and was trying to flee while the two felons were armed
and used their weapons in perpetrating the crime. (People
v. Alacar, G.R. No. 64725-26, July 10, 1992)
4. Three persons assaulted the victim inside his house and
the appellant stabbed the deceased while firmly held by
the two companions. Treachery cannot be appreciated

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because it is deemed included in abuse of superior


strength, (id.)

• When is abuse of superior strength not appreciated?


It is not taken into account if the assault was characterized
with passion or obfuscation or made during a quarrel or
when the attack was made on the victim alternately and not
simultaneously. (People v. Pablo, G.R. No. 120394-97, January
16, 2001)
It is inherent in parricide as generally, the husband is
stronger than the wife. It is inherent in rape or is absorbed in
the element of force hence, it is already taken into account in
fixing the penalty. This circumstance absorbs band. L i k e the
circumstance of "means taken to weaken the defense," this
circumstance has the same essence, which is the utilization
of the combined strength of the assailants to overpower the
victim.

Superior strength is not appreciated by mere superiority


in the number of the malefactors, but by the deliberate
employment of excessive force, which is out of proportion to the
means of defense available to the person attacked. N o t e also
that the victim was not alone. (People v. Nell)

Treachery (Alevosia)

• What is treachery? What are its preconditions?

Treachery exists when the offender commits any of the


crimes against the person, employing means, methods, or forms
in the execution thereof which tend directly and especially to
insure its execution, without risk to himself arising from the
defense which the offended party might make. T h e offender
must: (1) insure that the offended at the time of the attack was
not in a position to put up any defense, not even token defense;
and (2) the means, manner, and form was consciously and
deliberately chosen. (People v. Magallanes, August 1997) T h e
means, methods or forms of the execution of the crime must be
consciously adopted because the law requires that the same
insure its execution. T h e attack must be intended to facilitate
the perpetration of the killing without risk to the offender from
a defense that the other party might offer.

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What is the essence of treachery?

Its essence is the swiftness and the unexpectedness of the


attack upon the unsuspecting and unarmed victim, who does
not give the slightest provocation. T h e fact that CJ was facing
accused at the same moment as the latter's attack did not
erase its treacherous nature. Even if the assault were frontal,
it was sudden or totally unexpected, thus giving the victim no
opportunity at all to defend himself or to retaliate, definitely
points to the presence of treachery. (People v. Rebamontan,
G.R. No. 125318, April 13, 1999)
sudden and unexpected. frontal =
general rule, no treachery.
When is treachery appreciated?

An attack upon an unconscious victim who could not have


put up any defense whatsoever; where the victim is a child of
tender age and the assailant is an adult and therefore the child
is helpless to put up any defense at all; where the victim was
hogtied and therefore in a helpless condition before he was
killed; where the victim was totally unconscious, dead drunk,
lying on the pavement when accused administered strong,
vicious and killing kicks at the belly of the victim. Totally
unconscious, the victim could not have put up any defense
whatsoever against the sudden assault by the accused. There
was absolutely no risk to accused from any defense that the
victim might have made. (People v. Flores, supra)

When is treachery not appreciated?


There is no treachery if the attack is an impulse of the
accused or when the killing is due to passion or when the
accused did not make any preparation to kill the deceased so
as to insure the commission of the crime.
It was not shown that there was that swift and unexpected
attack of an unarmed victim, which is the essence of treachery.
T h e victims were not defenseless, since they too were armed.
RR had a 6o/o, while MM had a slingshot with darts. The sight
of the accused at a distance must have sufficiently warned the
them of the accused and their intentions; that was why they
tried to evade them. Thus, an important condition has not been
proved: that the means of execution employed was deliberately
and consciously adopted so as to give the person attacked no
opportunity to defend himself or to retaliate. (People v. Padlan)

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NOTES A N D CASES ON THE REVISED PENAL CODE

The shooting was done at the spur of the moment. The


victim had shouted damning curses at the driver and the
passengers of the jeepney. The shooting was an instantaneous
response to the cursing. Treachery cannot be appreciated where
the accused shot the victim as a result of a rash and impetuous
impulse rather than from a deliberate act of the will. (People v.
Acuram, G.R. No. 117954, April 27, 2000)
There is no evidence that the appellant made preparation
to kill the victim in such a manner as to insure the execution of
the crime or to make it impossible or difficult for DD to defend
himself or retaliate. T h e appellant shot the victim when he was
peeved by DD's failure to give him duck eggs. T h e shooting was
perpetrated at the spur of the moment. A killing done at the
spur of the moment is not treacherous. (People v. Badajos, G.R.
No. 139692, January 15, 2004)

No one saw the killing or how it commenced. In the


absence of any witness, the manner and mode of attack
employed by accused could not be established with certitude.
Treachery cannot be deduced from mere presumptions. (People
v. Pagador, G.R. Nos. 140006-10, April 20, 2001)

Can treachery be present in a chance encounter?

N o . W h e r e the meeting between the accused and the


victim was casual and the act was done impulsively, there is
no treachery even if the attack was sudden and unexpected
and while the victim was running a w a y with his back towards
the accused. T h e accused could not have made preparations for
the attack and the means, method and form thereof could not
have therefore have been thought of by the accused, because
the attack was impulsively done.

Treachery cannot be presumed from the mere suddenness


of the attack or from the fact that the victim was stabbed with
his back towards the appellant. T h e suddenness of an attack
does not of itself suffice to support a finding of alevosia even
if the purpose was to kill so long as the decision was made all
of a sudden and the victim's hapless position was accidental.
From the reaction of RR in running a w a y from the EE brothers
the moment he saw them, he was not completely unaware that
the accused posed a danger to him. This necessarily put him

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on guard, with the opportunity to prevent or repel a possible


assault. (People v. Escoto, G.R. No. 91756, May 11, 1995)

T h e suddenness of attack must be preconceived by the


accused, unexpected by the victim and without provocation on
the part of the latter. Accordingly, chance encounters, impulse
killing or crimes committed at the spur of the moment or
that were preceded by heated altercations are generally not
attended by treachery for lack of opportunity of the accused to
deliberately employ a treacherous mode of attack. (People v.
Abapo, 239 SCRA 469)

• M a y treachery be appreciated if the victim was warned of the


danger?

Y e s , for what is decisive is that the execution of the attack


made it impossible for the victim to defend himself or retaliate.
(People v. Landicho)

• From whom should the "retaliation" in treachery come?

T h e "retaliation" relevant in the appreciation of treachery


must come from the victim, not from anyone else. That the site
of the crime was heavily populated where others could thus
intervene is not significant at all. (People v. Costelo, G.R. No.
134311, October 13, 1999)

• At what stage in the attack must treachery exist?


To appreciate treachery in a continuous aggression, the
same must be present at the inception of the attack. Where
the prosecution failed to definitively establish the manner
in which the initial assault against the deceased victim was
committed to justify the appreciation of treachery, this hiatus
in the evidence cannot be substituted by mere suppositions.
Treachery must be proved by clear and convincing evidence,
or as conclusively as the killing itself. The shooting of peace
officers, who were fully aware of the risks in pursuing the
malefactors, when done in a spur of the moment, can hardly
be characterized as treacherous where it was nowhere proved
that the same was deliberately adopted to deny the victim the
opportunity to defend himself. (People v. Porras)

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Where the lone witness was not able to observe the


commencement of the assault, he could not testify on how it all
began and developed. Absent any particulars as to the manner
in which the aggression commenced or how the act which
resulted in the death of the victim unfolded, treachery cannot
be appreciated to qualify the killing to murder. (People v. Lug-
aw, G.R. No. 85735, January 18, 1994)
In order that alevosia may be considered as qualifying
circumstance to raise the classification of the crime, or
as an aggravating circumstance to augment the penalty,
the treacherous acts must be present and preceded the
commencement of the act which caused the injury complained
of. After the commencement of such an attack, and before its
termination, an accused may have employed means or methods
which were of a treacherous character, and yet such means
or methods would not constitute alevosia. One continuous
attack cannot be broken up into two or more parts and made to
constitute separate, distinct and independent attacks so that
treachery may be injected therein, and considered as qualifying
or aggravating circumstance. T h e second blow delivered on the
victim when he was in such a position where he could not have
defended himself cannot constitute treachery. Treachery must
be present from the commencement of the attack. (People v.
Peran, G.R. No. 95259, October 26, 1992)

When the manner of the attack is not shown, does the fact that
the wound is at the back show treachery?

N o . T h e presence of treachery may not be simply assumed


from the mere fact that the fatal wounds were found at the
back of the deceased. In the absence of proof as to the manner
the victim was attacked, the killing could not be considered as
qualified by treachery. W h e r e no particulars are known as to
the manner the aggression was made or how the act resulting
to the death of the victim began and developed, it could not be
established by mere suppositions that the accused perpetrated
the killing with treachery. Being a qualifying circumstance,
treachery must be proved as convincingly as the crime itself.
Treachery cannot be presumed but must be proved by clear
and convincing evidence, as conclusively as the killing itself.
(People v. Borreros, May 1999)

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• When will a frontal attack constitute treachery?

Generally, a frontal attack is not treachery. But when the


attack although frontal is sudden and in a manner that tends
directly and especially to insure its execution free from danger
and without risk to oneself on account of what the victim might
make to defend himself, there is treachery.

W h i l e even a frontal attack can be treacherous, as when


it is sudden and unexpected and the victim is unarmed, where
it appears that the aggressors did not employ means tending
directly and especially to insure the execution of the crime
without risk to themselves arising from the defense which
the offended parties might make, there is no treachery. T h e
assailants attacked a group of six individuals who could have
been armed. It is highly probable that at least one of those
attacked could offer resistance and could put the lives of the
aggressor in danger. (People v. Amaguin, G.R. Nos. 54344-45,
January 10, 1994)

• What is the nature of treachery as an aggravating circumstance?

It is a special aggravating circumstance in the sense that


it applies only to crimes against persons. It is a qualifying
circumstance in murder. In serious physical injuries, it is a
specific aggravating circumstance. In less serious physical
injuries it is a generic aggravating circumstance. It is usually
given preference over other qualifying circumstances which
then become generic.
Since treachery is included in Article 14, it is a generic
aggravating circumstance for crimes other than killing. It will
only assume the form of a qualifying circumstance to upgrade
killing to murder if it is alleged and proved.
Treachery absorbs both nighttime and taking advantage
of superior strength in the light of the circumstances of this
case. Considering that treachery qualifies the killing of the
four victims, the accused is guilty of four counts of murder.
(People v. Bechayda, G.R. No. 72001, August 7, 1992)

• What proof is required if treachery is to qualify homicide to


murder?

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NOTES A N D CASES ON THE REVISED PENAL CODE

It must be proved as convincingly as the crime itself for


treachery cannot be presumed. It cannot be inferred just from
the location of the wound because the evidence should show the
manner of the attack and how the victim reacted thereto. But
if the victim is a child of tender age, there is treachery even if
the manner of the attack is not shown for a child cannot put up
a defense against an adult assailant.
Treachery changes the nature of the offense and increases
tremendously the penalty. Homicide is penalized with reclusion
temporal (12 years and 1 day to 20 years); murder, reclusion
perpetua (20 years and 1 day to 40 years). In effect, treachery
carries another reclusion temporal, hence, the requirement
that it should be proved as convincingly as the crime itself.

• How is the allegation of "minor" in the information understood?

The allegation that the victims are minors is compliance


with the rule. It is commonly understood that when the victim
in physical injuries, homicide or murder is a child of tender
years, he is described in the information as a minor. Minority
in such cases should not be equated with its statutory meaning
— below 18 years of age. It is used not so much as to state the
age of the victim (otherwise, the charging fiscal would have
simply placed the exact a g e ) ; rather it is more of a description
of the state of helplessness of the young victim.

T h e information in this case is sufficient to inform the


accused that the manner of his attack is alleged to be treacher-
ous and as such he could be liable for murder. T h e killing of an
11-year old child who by reason of his tender years cannot be
expected to put up a defense is considered attended by treach-
ery even if the manner of attack is not precisely shown. T h e r e
is a blatant inequality of strength between the offender and the
victim, but abuse of superior strength cannot be appreciated as
it is necessarily absorbed in treachery. (People v. Abuyen)

Ignominy

• What is involved in the circumstance of ignominy?

This circumstance pertains to the moral attribute, which


adds disgrace to the material injury caused by the crime. It

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produces more suffering on account of its humiliating effects.


Ignominy relates to moral suffering whereas, cruelty refers
to physical suffering. Ignominy is exemplified by the adage
'adding insult to the injury'; cruelty is compared to 'rubbing
salt to the wound.'

Ignominy pertains to the moral order, which adds disgrace


and obloquy to the material injury caused by the crime. It was
not appreciated where the sexual assault was not done to put
the victim to shame before the killing. (People v. Diaz, October
1999)

Unlawful entry/breaking of wall

• When is there unlawful entry?

W h e n an entrance is through a way not intended for that


purpose; the opening must be used to enter, not to escape. It
qualifies the crime of theft to robbery. It is inherent in the
crimes of trespass and in robbery with force upon things thus
should no longer be aggravating per Article 62, no. 2.

Since paragraph 19 states that "as a means to the


commission of the crime a wall, roof, floor, door, or window
be broken," unlawful entry excludes ingress by means of such
breaking.

Aid of minors/use of motor vehicles

• How are these circumstances treated?


There are two distinct circumstances here: (1) the
commission of crime with the aid of a minor under 15 years
of age; and (2) its commission by means of motor vehicles,
airships, motorized water craft or similar means.
T h e use of a minor in the commission of the offense shows
the greater perversity of the offender because he is educating
the innocent in committing an offense. Especially so in view
of R . A . 9346 exempting 15 year old and below from criminal
liability.
The use of motorized means of conveyance to commit the
crime is penalized because they pose difficulty to the authorities
in apprehending them. This circumstance is considered

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NOTES A N D CASES ON THE REVISED PENAL CODE

when the motor vehicle was purposely used to facilitate the


commission of the offense not when used to escape because the
law used the phrase "committed x x x by means of." "Other
similar means" should refer to other means of transportation
that are similar to motor vehicles such as motorcycles under
the principle of "ejusdem generis."

Cruelty
• What are required to attend the commission of the cruel acts?
To be aggravating there must be evidence to show that
the cruel acts were done while the victim was alive and the
offender delighted in the suffering of the victim. T h e mere
fact that there were numerous stab wounds on the victim will
not cause appreciation of cruelty because the offender may be
overwhelmed by passion or obfuscation or it may be that the
victim was already dead when the stab wounds w e r e inflicted
and can no longer suffer pain in excess of that necessary to
commit the crime.

The test in appreciating cruelty is whether the accused


deliberately and sadistically augmented the wrong by caus-
ing another wrong not necessary for its commission or inhu-
manly increased the victim's suffering or outraged or scoffed
at his person or corpse. Cruelty cannot be appreciated where
the prosecution failed to prove that the accused inflicted the
13 wounds upon the victim in such a w a y that he was made to
agonize before they rendered any of the blows which snuffed
out his life. T h e accused dealt the victim successive blows so
that he must have died instantaneously, considering that nine
of his wounds were fatal. (People v. Ferrer)

• Is the presence of multiple wounds on the victim per se cruelty?

N o . There is cruelty when the culprit delights in making


his victim suffer slowly and gradually, causing unnecessary
moral and physical pain in the consummation of the crime.
T h e victim should still be alive when the cruel acts w e r e done.
T h e number of wounds alone does not indicate cruelty as it is
essential to show that these w e r e inflicted unnecessarily while
the victim was alive to prolong his physical suffering.

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T h e r e is cruelty when the wrong done in the commission


of the crime is deliberately augmented by causing another
wrong which is not necessary therefor. LL did not deliberately
prolong the physical suffering of his victim; his repeated blows
show that he intended to kill YY as soon as he could. (People v.
Llabres, G.R. Nos. 74294-96, August 4, 1993)

In the absence of cruelty, what may be present instead?

Assuming that the victim was still alive during the en-
tire period of the ordeal, there could possibly be cruelty since
appellants deliberately augmented the wrong they committed.
On the other hand, if the victim died immediately after he was
stabbed, then appellants could be held to have outraged his
corpse when they fiendishly slashed his intestines to pieces.
H o w e v e r , neither of these alternative hypotheses was estab-
lished and, further, the intervening time between the initial
attack and subsequent acts was not sufficiently established to
enable the Court to determine whether these were one continu-
ous series of acts or w e r e so deliberately spaced as to constitute
either cruelty or outrage. (People v. Balisteros)
T h e killing was done with cruelty, by deliberately or
inhumanly augmenting the suffering of the victim or outraging
or scoffing at his person or corpse. No greater outrage, insult or
abuse can a person commit upon a corpse than to sever the head
from the body. T h e head represents the dignity of the person
and any violence directed towards it cannot be interpreted in
any other manner than an outrage to his corpse. (People v.
Binondo, G.R. No. 97227, October 20, 1992)
After the victim was ravished, appellant hacked her,
almost splitting her face. Such bestiality is cruelty and per-
versity, it being unnecessary to its commission and manifest-
ly an outrage on the victim's person. (People v. Nescio, G.R.
No. 102008, December 28, 1994)

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ALTERNATIVE CIRCUMSTANCES

A r t . 15. Their concept. — A l t e r n a t i v e circumstances a r e


those w h i c h must be t a k e n into c o n s i d e r a t i o n as a g g r a v a t i n g
or mitigating a c c o r d i n g to the n a t u r e a n d effects of the c r i m e
a n d the other conditions a t t e n d i n g its commission. T h e y a r e
the relationship, intoxication, a n d the d e g r e e of instruction
a n d education of the offender.

T h e alternative c i r c u m s t a n c e of r e l a t i o n s h i p shall
be taken into c o n s i d e r a t i o n w h e n the o f f e n d e d p a r t y is
the spouse, ascendant, d e s c e n d a n t , legitimate, n a t u r a l , or
a d o p t e d b r o t h e r or sister, or relative by affinity in the s a m e
d e g r e e s of the offender.

T h e intoxication of the o f f e n d e r shall be t a k e n into


consideration as a m i t i g a t i n g c i r c u m s t a n c e w h e n the o f f e n d e r
has committed a felony in a state of intoxication, if the s a m e
is not h a b i t u a l or s u b s e q u e n t to the p l a n to c o m m i t s a i d
felony; b u t w h e n the intoxication is h a b i t u a l or intentional,
it shall be c o n s i d e r e d as an a g g r a v a t i n g c i r c u m s t a n c e .

• What are alternative circumstances?

They are circumstances, which are either aggravating or


mitigating according to the nature and effects of the crime and
other conditions attending its commission. T h e y are considered
only when they influenced the commission of the crime. W h e n
the nature of the circumstance has been proved, they are no
longer called alternative circumstances but are denominated
as aggravating or mitigating circumstances, as the case may
be.

• What are the three alternative circumstances?

T h e y are relationship, intoxication, and degree of


instruction and education of the offender. T h e relationship

198
ALTERNATIVE CIRCUMSTANCES

included are exclusively that of spouse, ascendant, descendant,


legitimate, natural, or adopted brother or sister or relative by
affinity in the same degrees. Stepparents and stepchildren
are included by analogy, but not uncles and nieces for there
is no mention of relatives by consanguinity other than those
enumerated in the article.

Compare the circumstances in Articles 14 and 15.

T h e circumstances in Article 14 are per se aggravating


whereas those in Article 15 are not for they could be at times
mitigating. W h e n the term "aggravating" is strictly construed,
it exclusively pertains to Article 14 and excludes Article 15.
(People v. Sabredo, G.R. No. 126114, May 11, 2000; People v.
Orilla)

When is relationship aggravating and when mitigating?

T h e R P C is silent as to when relationship is mitigating


and when it is aggravating. In crimes against chastity such as
acts of lasciviousness, relationship is aggravating. (People v.
Marino, G.R. No. 141183, January 18, 2001) However, rape is
no longer a crime against chastity but a crime against persons
still relationship is aggravating in rape.

Article 264 provides that if the injury is inflicted upon the


father, mother or child, other ascendants or descendants and
spouse, the penalty shall be one or two degrees higher, except
when committed against the offender's child due to excessive
chastisement, in which case it is not aggravating.

When is relationship neither aggravating nor mitigating?


W h e n they are elements of the crime, thus, in parricide,
relationship is neither mitigating nor aggravating. For
abortion practiced by a physician or midwife, their education
and scientific skill are inherent in that crime hence no longer
aggravating. This is because as an element of the felony, it
has already been considered by the law when it prescribed the
penalty therefor. Besides, Article 62 states that any aggravating
circumstance inherent in the crime to such a degree that it
must of necessity accompany the commission thereof shall no
longer be considered in determining the penalty.

199
NOTES A N D CASES ON THE REVISED PENAL CODE

If what was charged was murder or homicide instead


of parricide, relationship can no longer be considered even
if proved because of the requirement of allegation of all
aggravating circumstances in the information.

• What is the effect of the amendments by R.A. 7659 on rape?


The father-daughter relationship in rape cases has
been treated by Congress as a special circumstance. Hence,
relationship as an alternative circumstance should no longer
be applied in view of the amendments introduced by R . A . 7659.
Without the foregoing amendment, relationship would still
be aggravating in rape and acts of lasciviousness. (People v.
Manhuyod, Jr., G.R. No. 124676, May 20, 1998)

• When is intoxication mitigating and when aggravating?


A person pleading intoxication as a mitigating
circumstance must show that: (1) he has taken a quantity
of alcoholic beverage prior to the commission of the crime
sufficient to produce the effect of obfuscating reason; and (2) he
is not a habitual drinker and did not take the alcoholic drink
with the intention to reinforce his resolve to commit the crime.
(People v. Pinca, G.R. No. 129256, November 17, 1999)

T h e offender's mental faculties must be affected by


drunkenness. M e r e drinking of liquor prior to the commission
of the crime does not necessarily produce a state of intoxication.

It is mitigating if it is not habitual, not intentional and self-


control is diminished as a result of the intoxication. Otherwise,
it is aggravating. Therefore, an alcoholic who commits a felony
while intoxicated will always suffer from this circumstance
because either habitual or intentional intoxication w i l l suffice
as the law used the disjunctive "or" in "habitual or intentional."

• What should be the degree of intoxication to be mitigating?

To be mitigating, the accused's state of intoxication


should be proved or established by sufficient evidence. It
should be such an intoxication that would diminish or impair
the exercise of his willpower or the capacity to know the
injustice of his act. T h e accused must then show that: (1) at the
time of the commission of the criminal act, he has taken such

200
ALTERNATIVE CIRCUMSTANCES

quantity of alcoholic drinks as to blur his reason and deprive


him of a certain degree of self-control; and (2) such intoxication
is not habitual or subsequent to the plan to commit the felony
(intentional). (People v. Rabanillo)

When is degree of instruction or education considered?

Whether to be considered as aggravating or mitigating


depends upon the nature of the crime committed. If the crime
is basically wrong, such as parricide, robbery or rape, it is
immaterial whether the offender is schooled or not. It is not
illiteracy alone but the lack of intelligence of the offender that
is considered. If one is not considered literate but is highly
or exceptionally intelligent or mentally alert or comes from a
family of professionals, so that he realizes the significance of
his act, there is no mitigation. T h e mitigating circumstance of
lack of instruction does not apply to crimes of theft and robbery.
(People v. Macatanda)

T h e high degree of learning should be taken in relation


to the crime committed whether his education puts him in
a better position than the ordinary offenders. For instance,
falsification or estafa committed by a lawyer. However, the
degree of instruction or education may already have been
considered in the penalty prescribed such as abortion practiced
by physician. In that case, it is not aggravating.

L o w degree of education or instruction may be mitigating


but is never aggravating; conversely, high degree may be
aggravating but never mitigating.

201
TITLE TWO
PERSONS CRIMINALLY LIABLE
FOR FELONIES

A r t . 16. Who are criminally liable. — T h e f o l l o w i n g a r e


criminally liable for g r a v e a n d less g r a v e felonies:
1. Principals.
2. Accomplices.
3. Accessories.
T h e f o l l o w i n g a r e c r i m i n a l l y l i a b l e for light felonies:

1. Principals.
2. Accomplices.

• Who are criminally liable?

1. For grave and less grave felonies: principals, accomplices


and accessories.

2. For light felonies: principals and accomplices; accessories


are not liable. L i g h t felonies are punished with arresto
menor; accessories are meted with penalty t w o degrees
lower than the principal, hence, the logic of the rule.

Under Article 9 in relation to Article 25:

a. Grave felonies are penalized with capital punishment


or afflictive penalties in any of their periods;

b. Less grave felonies are meted with penalties which


in their maximum period are correctional;

c. Light felonies carry arresto menor or fine not greater


than P200.

A r t . 17. Principals. — The following are considered


principals:

202
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

1. T h o s e w h o t a k e a d i r e c t p a r t in the execution of the


act;
2. T h o s e w h o directly force or i n d u c e others to commit
it;
3. T h o s e w h o c o o p e r a t e in the commission of the
offense b y a n o t h e r act w i t h o u t w h i c h i t w o u l d not
have been accomplished.

Direct participator

• W h o are principals by direct participation?

T h e y are those w h o materially execute the crime. They


must appear at the scene of the crime and perform acts necessary
in the commission of the offense to be liable. In conspiracy by
prior agreement, if the principal by direct participation does
not appear at the scene of the crime, he is not liable because:

a. Non-appearance is desistance which is favored and


encouraged;

b. Conspiracy is not a crime unless the law specially


provides a penalty therefor. By merely conspiring,
the co-conspirator has not yet committed any crime.

c. T h e r e is no basis for criminal liability because there


is no criminal participation.

Inducer

• When is an offender a principal by inducement?


T h e principal by inducement must intend that his
inducement be obeyed. M e r e careless comment of one who
does not possess dominance or moral ascendancy over the
offender will not make the former a principal by inducement.
T h e inducer's utterances must be of such a nature and made in
such a manner as to become the determining cause of the crime.
Where the words uttered did not make any great dominance
or influence on the offenders or is no longer necessary as the
offenders were already determined to commit the offending
acts, the utterance will not make the utterer an inducer.
(People v. Parungao, G.R. No. 125812, January 1996)

203
NOTES A N D CASES ON THE REVISED PENAL CODE

The inducer is generally liable as an accomplice because


the law favors a lesser penalty for if he were regarded as a
principal, his penalty would be heavier.
In fine, an inducer may be a principal, an accomplice or
not criminally liable, in the latter case, if the inducement was
a mere careless remark which is not meant to be obeyed.

• Must the principal by inducement appear at the scene of the


crime?
N o . Principals by inducement (or mastermind) are liable
even if they did not appear in the scene of the crime because the
crime would not have been committed without the inducement.
That is why they induce others to commit the crime — so that
they would remain in the background.
The fact that it was MM and not petitioner who dealt
directly with said fixers cannot exculpate petitioner from the
charge of falsification. He is a principal by inducement in the
commission of said crime, (id.)

• How does an inducer "induce" another to commit a crime?

One is induced to commit a crime either by a command


(precepto) or for a consideration (pacto), or by any other similar
act which constitutes the real and moving cause of the crime
and which was done for the purpose of forcing or inducing such
criminal act and which was sufficient for that purpose. (People
v. Dumancas, G.R. No. 133527-28, December 13, 1999)

Indispensable cooperator

• Who is a principal by indispensable cooperation?

To be a principal by indispensable cooperation, there must


be direct participation in the criminal design by another act
without which the crime could not have been committed. T h e
prosecution failed to present any evidence tending to establish
appellant's conspiracy with the evil designs of the members of
the N P A armed group. Neither was it established that his act
was of such importance that the crime would not have been
committed without him or that he participated in the actual
killing. Under the circumstances, he cannot be considered a
principal by indispensable cooperation. (People v. Fronda)

204
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

An indispensable cooperator may be a co-conspirator


under the doctrine of implied conspiracy. T h e voluntary and
indispensable cooperation of the offender is a concurrence
of the criminal act to be executed. Consequently, he is a co-
conspirator by indispensable cooperation, although the
common design or purpose was never bottled up by previous
undertaking. (Subayco v. Sandiganbayan)

> How does the cooperator participate in the commission of the


offense?

A principal by indispensable cooperation participates


by means of an act without which the crime would not have
been committed. T h e cooperator need not be a party in the
planning stage of a conspiracy for he may become a principal
at the moment of the execution of the crime with the other
principals. His common purpose and unity of design with the
other conspirators may be inferred from the circumstances of
the crime.

T h e participation of the cooperator must be indispensable


to the crime. If his participation is not indispensable, as when
with or without his participation, the offense will be committed,
his liability may only be that of an accomplice.

• When is one an accomplice instead of an indispensable


cooperator?
W h e n his cooperation is not indispensable. Sotto, March
1996 involved the pumpboat owner who helped the offenders
by pretending that his pumpboat needed towing by the passing
boat of the victims. T h e offenders transferred to the boat of the
victims and later robbed and killed them. T h e pumpboat owner
was held as an accomplice for the principal offenders could have
asked the help of other owners, hence, his cooperation was not
indispensable as his participation in the criminal design is not
by another act without which the crime could not have been
committed.

• Even if there is conspiracy, can the liability of the principals


differ?
Y e s . Notwithstanding conspiracy, the liability of the
principals may be different. Since GG did not know the

205
NOTES A N D CASES ON THE REVISED PENAL CODE

treacherous manner by which CC was supposed to kill the


victim, GG shall be liable for homicide while CC for murder.
(People v. Cabillan, G.R. No. 131808, February 6, 2002)

• Describe the nature of the "cooperation" required to incur


criminal liability.
The cooperation that the law punishes is the assistance
knowingly or intentionally rendered, which cannot exist
without previous cognizance of the criminal act intended to
be executed. It is required to be liable either as a principal
by indispensable cooperation, or as an accomplice, that the
accused unite with the criminal design of the principal by
direct participation. Nothing on record shows that appellant
knew that BB was going to stab P P , creating a doubt as to
appellant's criminal intent. (People v. Jorge, G.R. No. 99379,
April 22, 1994)

A r t . 18. Accomplices. — A c c o m p l i c e s a r e those p e r s o n s


w h o , not b e i n g i n c l u d e d in A r t i c l e 17, c o o p e r a t e in the
execution of the offense by p r e v i o u s or s i m u l t a n e o u s acts.

• Who are accomplices? not a conspirator.

An accomplice is one who, not being a principal "cooperates


in the execution of the offense by previous or simultaneous
acts." A person is an accomplice if his role in the perpetration
of the crime is of a minor character. If there is ample evidence
of criminal participation but a doubt exists as to the nature
of liability, courts should resolve to favor the milder form of
responsibility, that of an accomplice. (People v. Fronda) M e r e
presence does not of itself constitute a simultaneous act of
cooperation sufficient to make one an accomplice. (People v.
Lacao)

To be an accomplice:
a. Offender should take part in the execution of the
crime by previous or simultaneous acts; and
b. He intends to take part in the commission of the
crime.

206
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

Is conspiracy necessary for the liability of an accomplice?

Conspiracy is not necessary for he is not a principal


but he supplies material or moral aid to the principal in
an efficacious w a y . He knows of the criminal design of the
principal and he cooperates knowingly or intentionally but in
a manner not indispensable to the commission of the crime,
otherwise he w i l l be considered a principal by indispensable
cooperation.

If there is conspiracy, he ceases to be an accomplice but


instead is considered a principal although his participation is
such that, without the conspiracy, should have been that of an
accomplice.

PP and TT cooperated in the execution of the offense by


simultaneous acts which, although not indispensable to the
commission of the offense, bore a relation to the acts done
by the principal. T h e y supplied material or moral aid in the
execution of the crime in an efficacious way and since they
w e r e aware of the criminal intent of the principals and having
participated in such criminal design sans a conspiracy, they
are guilty of the milder form of responsibility as accomplices.
(People v. Lacao, Sr.)

Compare a principal and an accomplice.

1. A principal by inducement induces the other offenders to


commit an act in such a w a y that without the inducement,
the crime would not be committed. He wills that his
inducement be obeyed by exerting influence or moral
ascendancy over the other malefactors. An accomplice's
inducement or utterance is not indispensable for with or
without such utterance, the crime would be committed
as the principal is already determined to commit the
crime.
2. The cooperation of the principal in the offense is indis-
pensable without which the crime would not be commit-
ted; that of the accomplice is minor.

207
NOTES A N D CASES ON THE REVISED PENAL CODE

A lookout who was not part of the conspiracy but


participated only after such decision was reached is an
accomplice since he is merely an instrument of the crime
and cooperates after the decision to commit the same had
already been made. (People v. De Vera, G.R. No. 128966,
August 18, 1999) A "lookout" is a principal if he was a
co-conspirator in the criminal design and in deciding the
course of action to be taken in its commission. He is a co-
author of the crime and provides his companions effective
means and encouragement to carry out the same. His
being a lookout is a necessary part of the concerted action
to achieve the desired result. (People v. Loreno)

3. Both the principal and the accomplice act before or during


the commission of the crime.
Conspirators decide that a crime should be committed;
accomplices merely concur in it and cooperate in the
accomplishment. Conspirators are the authors of the crime;
accomplices are merely the instruments who perform acts
not essential to the perpetration. Thus, mere knowledge and
participation do not suffice to make one a conspirator, for such
are required also of an accomplice, especially if even without
his participation, the crime could have been accomplished.

Where the acts of an accused show that he shared in


the community of purpose with the principals and their acts
collectively and individually demonstrate the existence of
a common design toward the accomplishment of the same
purpose, conspiracy is evident and all the perpetrators are
liable as principal.

Principals and accomplices are similar in that they know


and agree with the criminal design. T h e y are different however
in that conspirators know the criminal intention because
they themselves have decided upon such course of action;
accomplices come to know about it after the conspirators have
reached the decision and only then do they agree to cooperate
in its execution.

A r t . 19. Accessories. — A c c e s s o r i e s a r e those w h o ,


h a v i n g k n o w l e d g e of the commission of the c r i m e , a n d
without h a v i n g p a r t i c i p a t e d t h e r e i n , either a s p r i n c i p a l s o r

208
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

accomplices, t a k e p a r t s u b s e q u e n t to its commission in any


o f the f o l l o w i n g m a n n e r s :

1. By profiting themselves or assisting the offender to


profit by the effects of the crime;
2. By c o n c e a l i n g or d e s t r o y i n g the b o d y of the crime,
or the effects or instruments thereof, in o r d e r to
p r e v e n t its discovery;
3. By h a r b o r i n g , c o n c e a l i n g , or assisting in the
e s c a p e of the p r i n c i p a l of the c r i m e , p r o v i d e d the
a c c e s s o r y acts w i t h a b u s e of his p u b l i c functions
or w h e n e v e r the a u t h o r of the crime is guilty of
t r e a s o n , p a r r i c i d e , m u r d e r , o r a n attempt t o take
the life of the C h i e f E x e c u t i v e , or is k n o w n to be
h a b i t u a l l y guilty of some other crime.

A r t . 20. Accessories who are exempt from criminal liability. —


T h e p e n a l t y p r e s c r i b e d for accessories shall not b e imposed
u p o n those w h o a r e s u c h w i t h respect t o their spouses,
a s c e n d a n t s , d e s c e n d a n t s , legitimate, n a t u r a l , a n d a d o p t e d
b r o t h e r s a n d sisters, or relatives by affinity w i t h i n the same
d e g r e e s , w i t h the single exception of accessories falling
w i t h i n the p r o v i s i o n s of p a r a g r a p h 1 of the next p r e c e d i n g
article.

• W h o are accessories?

T h e y are those who:


a. H a v e knowledge of the commission of the crime;
b. Without having participated therein; and
c. T a k e part subsequent to its commission in any of the
following manners:
1. By profiting or assisting the offender to profit from
the effects of the crime.
2. By concealing or destroying the body of the crime
(corpus delicti) or effects or the instruments thereof
to prevent its discovery.
3. By harboring, concealing or assisting in the escape
of the principal.

209
NOTES A N D CASES ON THE REVISED PENAL CODE

How do accessories profit by the effects of the crime?


A person who received any property from another and
used it, knowing that the same had been stolen is guilty as an
accessory because he is profiting by the effects of the crime. By
employing the carabaos in his farm, TT was profiting by the
objects of the theft. TT has k n o w l e d g e of the crime and yet
without having participated either as principal or as an
accomplice, for he did not participate in the taking of the
carabaos, he took part subsequent to the commission of the
act of taking by profiting himself by its effects. TT is an
accessory after the fact. (Taer v. CA)

What is the effect of some special laws on accessories who


profit by the effects of the crime?
If the crime is robbery or theft and one bought, sold,
possessed, or in any other manner dealt with the proceeds
which he knew or should have known to be proceeds of robbery
or theft, he is a principal in the crime of fencing. But he must
be charged with fencing in another information, otherwise he
is liable only as an accessory of the principals in robbery or
theft.

If the crime is brigandage and he profited from the loot, he


should be charged with abetting brigandage — an accomplice of
brigands. T h e procedural aspect should be observed, charging
him in another information otherwise he w i l l be liable as an
accessory.

When will an accessory be liable as a principal in another crime?

W h e n he is an accessory whose act or omission is also


penalized in a special law. In violations of special laws or
crimes mala prohibita, the offenders generally are penalized
as principals unless otherwise provided.

What is corpus delicti"?

Corpus delicti is the body or substance of the crime and


in its primary sense refers to the fact that a crime has actually
been committed. As applied to a particular offense, it means
the actual commission by someone of the particular crime
charged. It is a compound fact made up of two things:

210
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

(1) the existence of a certain act or result forming the


basis of the criminal charge; and

(2) the existence of a criminal agency as the cause of


this act or result.

Otherwise stated, its elements are: a) the proof of the


occurrence of a certain event; and b) some person's criminal
responsibility. (People v. Boco, G.R. No. 129676, June 23, 1999)
In of drug sale, an illegal sale of the regulated drug took place
(criminal event); and the accused were the authors thereof
(criminal agent).

W h o are the two kinds of accessory by concealing or harboring


the offender?

a. A public officer who acts with abuse of public functions is


liable whatever crime may have been committed by the
offender;

b. A private individual if the author of the crime is guilty


of treason, attempt on the life of the Chief Executive,
murder, parricide or is known to be habitually guilty of
some other crime.

A police officer who was present when the crime was


committed abused his official function when he failed to
immediately arrest the offender and conduct a speedy
investigation of the crime, but instead left the scene of the
crime together with the offender, thus assisting the offender to
escape. Being a public officer, he is an accessory to the crime.
(People v. Antonio, G.R. No. 128900, July 14, 2000)

For one to be considered accessory, whom should he assist?


T h e offender to be assisted must be a principal; assisting
an accomplice is not included. Those who assist the principal
to escape may be prosecuted under P . D . 1829 on obstruction
of justice not as accessory but as a principal, provided that
a separate information shall be prepared for the crime of
obstruction. W h e n he is convicted, the penalty to be imposed is
the higher penalty under P . D . 1829 or any other law, including
the R P C . (Section 1, last paragraph)

211
NOTES A N D CASES ON THE REVISED PENAL CODE

P R E S I D E N T I A L D E C R E E N O . 1829 —
OBSTRUCTION OF JUSTICE

XXXXXXXXX
SECTION 1. The penalty of prision correccional in
its maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who
knowingly or willfully obstructs, impedes, frustrates, or
delays the apprehension of suspects and the investigation
and prosecution of criminal cases by committing any of the
following acts:
a. Preventing witnesses from testifying in any criminal
proceeding or from reporting the commission of any
offense or the identity of any offenders by means of
bribery, misrepresentation, deceit, intimidation,
force or threats;

b. Altering, destroying, suppressing or concealing any


paper, record, document, or object with intent to
impair its verity, authenticity, legibility, availability
or admissibility as evidence in any investigation of
or official proceedings in criminal cases, or to be
used in the investigation of, or official proceedings
in, criminal cases;

c. Harboring or concealing, or facilitating the escape


of any person he knows, or has reasonable ground to
believe or suspect, has committed any offense under
existing penal laws in order to prevent his arrest,
prosecution and conviction;

d. Publicly using a fictitious name for the purpose


of concealing a crime, evading prosecution or the
execution of a judgment, or concealing his true
name and other personal circumstances for the
same purpose or purposes;
e. Delaying the prosecution of criminal cases by
obstructing the service of process or court orders
or disturbing proceedings in the fiscals' offices, in
Tanodbayan, or in the courts;

212
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

/. Making, presenting or using any record, document,


paper or object with knowledge of its falsity and
with the intent to affect the course or outcome of the
investigation of, or official proceedings in criminal
cases;

g. Soliciting, accepting, or agreeing to accept any ben-


efit in consideration of abstaining from, discontinu-
ing, or impeding the prosecution of a criminal of-
fender;

h. Threatening directly or indirectly another with


the infliction of any wrong upon his person, honor
or property or that of any immediate member or
members of his family in order to prevent a person
from appearing in the investigation of, or official
proceedings in, criminal cases, or imposing a
condition, whether lawful or unlawful, in order to
prevent a person from appearing in the investigation
of, or in official proceedings in criminal cases;
i. Giving of false or fabricated information to mislead
or prevent the law enforcement agencies from
apprehending the offender or from protecting
the life or property of the victim; or fabricating
information from the data gathered in confidence
by the investigating authorities for purposes of
background information and not for publication
and publishing or disseminating the same to
mislead the investigator or the court.

If any of the acts mentioned herein is penalized by any


other law with a high penalty, the higher penalty shall be
imposed.
Section 2. If any of the foregoing acts are committed by a
public official or employee, he shall, in addition to the penalties
provided thereunder, suffev perpetual disqualification from
holding public office.
Section 3. This Decree shall take effect immediately.
Done in the City of Manila, this 16th day of January, in
the year of Our Lord, nineteen hundred and eighty-one.

213
NOTES A N D CASES ON THE REVISED PENAL CODE

Compare an accomplice to an accessory.

ACCOMPLICE ACCESSORY

1. When Participates before Takes part


or during the subsequent to the
commission of the commission of the
offense offense

2. Knowledge Knows the criminal Knows the


design of the commission of the
principal offense

3. Acts Provides material Acts in the three


or moral aid in an specific ways in
efficacious w a y but Article 19
not in a manner
indispensable to the
offense

4. Liability No exemption from M a y be exempted


liability liability per
Articles 19 and
20 and for light
felonies under
Article 16

5. Penalty one degree lower than two degrees lower


the principal's than the principal's

As to when they participate, the accomplices are thus


also known in other jurisdictions as accessories before the fact
while accessories are denominated accessories after the fact.

W h o are the accessories exempt from criminal liability?

They are the offender's spouse, ascendant, descendant,


legitimate, natural, and adopted brothers and sisters,
or relatives by affinity within the same degrees as those
enumerated. Relatives by consanguinity are not included
hence sister in law is better situated than a niece/nephew of
the offender which is not in keeping with normal, traditional
filial affection in this jurisdiction.

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P E R S O N S CRIMINALLY LIABLE
FOR FELONIES

• For what acts are they exempt from liability?

For those acts enumerated in Article 19 except for


profiting by the effects of the crime. W h e n the relatives assist
the principal by concealing or destroying the body of the crime
or by assisting in the escape of the principal, the law recognizes
that they are doing so because they are motivated by their
natural affection for the offender. H o w e v e r , when they profit or
assist the offender in profiting by the effects of the crime, they
are doing so because of greed and not because of filial affection.
Hence, they are not exempted from criminal liability.

• Compare Articles 11, 15, 20, 266-B, 332 on relatives of the


offender.

Article 11 on defense of relatives includes relatives by


consanguinity in the fourth civil degree. Article 15 does not
include as offended party relatives by consanguinity that can
mitigate or aggravate criminal liability of the offender. Article
20 w i l l not benefit relatives by consanguinity from exemption
from criminal liability. Article 266-B on qualified rape includes
relatives by consanguinity in the third civil degree as victims.
Article 332 w i l l not exempt relatives by consanguinity from
criminal liability for theft, estafa and malicious mischief.

215
TITLE THREE
PENALTIES

Chapter One
PENALTIES IN G E N E R A L

A r t . 21. Penalties that may be imposed. — No felony shall be


p u n i s h a b l e b y a n y penalty not p r e s c r i b e d b y l a w p r i o r t o its
commission.

• What are penalties?


Penalties are the punishment imposed by lawful
authority upon a person who commits a deliberate or negligent
act (Moreno, Philippine L a w Dictionary, cf Moron, 44 Phil.
431) or for omitting to act when there is a duty to do so. T h e y
are imposed as a result of judicial proceedings. (Santiago v.
Sandiganbayan)

• Who has the power to prescribe penalties?

Penalties are prescribed by statutes and are essentially


and exclusively legislative. Judges can only interpret and apply
them and have no authority to modify them or revise their
range as determined exclusively by the legislature. (People v.
Dela Cruz, G.R. No. 100386, December 11, 1992)

• What penalties may be imposed upon an offender?

Only those penalties prescribed by law prior to its


commission may be imposed. Unless there is a law defining an
act or omission as a crime and prescribing a penalty therefor,
that act or omission cannot be penalized, no matter how
reprehensible it may be. Nullum crimen, nulla poena sine lege.

216
PENALTIES IN G E N E R A L

• What is the effect of judicial decisions on the power of Congress


to enact statutes?

Decisions of the Court cannot limit the power of Congress


to enact penal statutes. Hernandez, Enrile and other cases
decreed that Article 48 cannot be invoked as the basis for
charging and prosecuting the complex crime of rebellion with
homicide for the purpose of obtaining imposition of the penalty
for the more serious offense in its maximum period. Said cases
did not prohibit the legislature from validly enacting statutes
that would define and punish, as offenses sui generis crimes
which, in the context of Hernandez and the other cases, may be
v i e w e d as a complex of rebellion with other offenses. W h a t the
court stated in said cases about rebellion "absorbing" common
crimes committed in its course or furtherance may be viewed
in light of the fact that at the time they were decided, there
w e r e no penal provisions defining and punishing, as specific
offenses, crimes like murder, etc., committed in the course or
as part of a rebellion. This is no longer true as far as this case is
concerned and there being no question that P . D . 1866 is a valid
statute. (Baylosis v. Chavez, 202 SCRA 405) (But see the effect
of the amendment by R . A . 8294 on P . D . 1866)

• Will the favorable judgment on a co-accused be applied to a


convict who did not appeal?
Y e s , for, the present rule is that an appeal taken by one
or more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate court is
favorable and applicable to the latter.
T h e decision with respect to FF is favorable and applicable
to R R . He should not be treated as the odd man out, but should
also benefit from the more beneficial indeterminate sentence
that will be imposed. In fact, under similar conditions and on
the same ratiocination, the Rule has justified the extension of
the judgment of acquittal "to the co-accused who did not appeal
the judgment of the trial court. (Ladino v. Garcia)

A r t . 22. Retroactive effect of penal laws. — P e n a l laws shall


h a v e a retroactive effect insofar as they favor the person
guilty of a felony, w h o is not a h a b i t u a l criminal, as this term
is defined in R u l e 5 of Article 62 of this Code, although at the

217
NOTES A N D CASES ON THE REVISED PENAL CODE

time of the publication of such l a w s a final sentence has b e e n


pronounced a n d the convict is serving the same.

• May the favorable provisions of a law be given retroactive effect


to entitle the offender to a lesser penalty?
Yes. Article 22 provides the exception to the prospectivity
characteristic of penal law. A n d this favorable application
of penal laws applies equally whether the crime consists of
violations of the R P C or of special penal laws. Although R . A .
6425 was enacted as a special law, by force of Article 10, the
beneficent provisions of Article 22 applies to and shall be given
retroactive effect to crimes punished by special laws. T h e
exceptions in Article 22 would not apply to those convicted of
drug offenses since habitual delinquency refers to convictions
for falsification, robbery, estafa, theft, serious and less serious
physical injuries. (People v. Simon)

• Can the court on its own apply Article 22 when it was not
invoked by the accused?

Y e s . T h e plain precept of Article 22 would be useless and


nugatory if the courts were not under obligation to fulfill such
duty, irrespective of whether or not the accused has applied for
it, just as would also all provisions relating to the prescription
of the crime and the penalty, (id.) (But see Bon where there is
a need for the filing of habeas corpus to benefit from a favorable
law which reduced the penalty for the crime committed)

• Can a law have both retroactive and prospective application?

Y e s . T h e application of R . A . 8294 would not be beneficial


to the accused, as it would increase the penalty for parricide.
Hence, that law was not given retroactive application, as
otherwise it would acquire the character of an ex post facto law.
(People v. Macoy, G.R. No. 126253, August 16, 2000)

On the other hand, a crime was committed before July


6, 1997 when R . A . 8294 took effect. This law is advantageous
to the accused as it spares him from a separate conviction
for illegal possession of firearm. Hence, said law was applied
retroactively. (People v. Lazaro, G.R. No. 112090, October 26,
1999) Before, violation of P . D . 1866 should have been punished

218
PENALTIES IN G E N E R A L

separately under the ruling in Quijada. Nevertheless, P.D.


1866 was recently amended by R . A . 8294. T h e third paragraph
of Section 1 provides that "if homicide or murder is committed
with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance."
Only one offense shall be punished, viz., either homicide or
murder, and the use of the unlicensed firearm is aggravating
circumstance. Being favorable, this provision may be given
retroactive effect, as accused is not a habitual criminal. (People
v. Bergante, G.R. No. 120369, February 27, 1998)

• What is the effect of an absolute repeal of penal laws?

An absolute repeal of a penal law deprives a court of its


authority to punish a person charged with violation of the law
prior to its repeal because an unqualified repeal constitutes
a legislative act of rendering legal what had been previously
declared as illegal, such that the offense no longer exists and it
is as if the person who committed it never did so. T h e exceptions
are:

a. T h e inclusion of a saving clause in the repealing


statute that provides that the repeal shall have no
effect on pending actions.

b. W h e r e the repealing act re-enacts the former statute


and punishes the act previously penalized under the
old law. In such instance, the act committed before
the re-enactment continues to be an offense in the
statute books and pending cases are not affected,
regardless of whether the new penalty to be imposed
is more favorable to the accused. (Benedicto v. CA,
G.R. No. 125359, September 4, 2001)

A r t . 23. Effect of pardon by the offended party. — A p a r d o n


by the offended p a r t y does not extinguish criminal action
except as p r o v i d e d in Article 344 of this Code; but civil
liabilities w i t h r e g a r d to the interest of the injured party is
extinguished by his express w a i v e r .
(Refer to notes under Article 89)

219
NOTES A N D CASES ON THE REVISED PENAL CODE

A r t . 24. Measures of prevention or safety which are not


considered penalties. — T h e f o l l o w i n g shall not be considered
as penalties:
1. The arrest a n d t e m p o r a r y detention of accused
persons, as well as their detention by r e a s o n of
insanity or imbecility, or illness r e q u i r i n g their
confinement in a hospital.
2. T h e commitment of a m i n o r to a n y of the institutions
mentioned in A r t i c l e 80 a n d for the p u r p o s e s
specified therein.
3. S u s p e n s i o n f r o m the e m p l o y m e n t or p u b l i c office
d u r i n g the trial or in o r d e r to institute the p r o c e e d -
ings.
4. Fines a n d other c o r r e c t i v e m e a s u r e s w h i c h , in the
exercise o f their a d m i n i s t r a t i v e o r d i s c i p l i n a r y
p o w e r s , s u p e r i o r officials m a y i m p o s e u p o n their
subordinates.
5. D e p r i v a t i o n of rights a n d the r e p a r a t i o n s w h i c h
the civil l a w m a y establish i n p e n a l f o r m .

• Why are the measures not considered penalties?

The measures under Article 24 are not considered penalty


because of the constitutional provision on presumption of
innocence. T h e y are not imposed after trial on the merits but
are mere preventive measures, hence cannot be considered
as penalties. H o w e v e r , A r t i c l e 29 provides that the period of
preventive imprisonment w i l l be deducted from the term of
imprisonment when the accused is finally convicted.

Preventive suspension is not a penalty because it is not


imposed as a result of judicial proceedings. In fact, if acquitted,
the official concerned shall be entitled to reinstatement and to
the salaries and benefits which he failed to receive during the
suspension. (Santiago v. Sandiganbayan, April 2001)

* What is the nature and rationale of preventive suspension of


public officers pending investigation?

Preventive suspension pending investigation is intended


to enable the disciplining authority to investigate the

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PENALTIES IN G E N E R A L

charges against respondent by preventing the latter from


intimidating or in any w a y influencing witnesses against
him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and
the respondent w i l l be reinstated. If after investigation he is
found innocent of the charges and is exonerated, he should be
reinstated. (Gloria v. CA, G.R. No. 131012, April 21, 1999)

221
Chapter Two
CLASSIFICATION OF PENALTIES

A r t . 25. Penalties which may be imposed. — T h e penalties


w h i c h m a y be imposed, a c c o r d i n g to this C o d e , a n d their
different classes, a r e those i n c l u d e d in the following:

SCALE
PRINCIPAL PENALTIES
Capital punishment:
Death.
Afflictive penalties:
Reclusion perpetua,
Reclusion temporal,
P e r p e t u a l o r t e m p o r a r y a b s o l u t e disqualification,
P e r p e t u a l o r t e m p o r a r y special disqualification,
Prision mayor.
Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
Light penalties:
Arresto menor,
P u b l i c censure.
Penalties common to the last preceding:
Fine, and
B o n d to k e e p the p e a c e .
ACCESSORY PENALTIES
P e r p e t u a l o r t e m p o r a r y a b s o l u t e disqualification,
P e r p e t u a l o r t e m p o r a r y special disqualification,

222
CLASSIFICATION OF PENALTIES

S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote a n d be


voted for, the p r a c t i c e of profession or calling,
Civil interdiction,
Indemnification,
F o r f e i t u r e o r confiscation o f instruments a n d proceeds
of the offense,
P a y m e n t o f costs.

• Characterize the penalties in the Revised Penal Code?

Penalties in Book I I , R P C are:

a. Graduated according to severity;


b. Divided into periods except for reclusion perpetua;
c. Classified into principal or accessory penalties;
d. Deemed imposed for consummated crimes;
e. Imposed against the principal offenders (Article 46);
f. T h e maximum imposable for the particular crime
to which they are respectively prescribed. Thus,
the penalties prescribed for the respective felonies
can never be increased by the court no matter how
perverse the offender may be (Article 64, no. 6); and

g. Understood to be a degree for purposes of lowering


the penalty under the ISL, in case of the presence
of privileged mitigating circumstances, and for
applying the rules under Articles 50 to 57. For
instance, the penalty of arresto mayor, minimum
period for light coercion in Article 287 is one degree
and the penalty next lower in degree is arresto
menor, maximum period.

• What are principal and accessory penalties?


Principal penalties are the specific penalty for specific
felony in the various provisions of Book II defining felonies
and imposing penalties thereon, such as reclusion temporal
for homicide. They must be imposed by the court expressly in
the decision. Accessory penalties are those which follow the
principal penalties by operation of law (Article 73). As such,
they need not be expressly stated in the decision.

223
NOTES A N D CASES ON THE REVISED PENAL CODE

What are the three scales of penalties in the Code and their
significance?
1. Article 25 classifies the penalties into principal and
accessories.
2. Article 70 provides for the scale when there are two or
more sentences to be served, including the 3-fold rule.
3. Article 71 graduates the penalties into the order of
severity for purposes of applying the rules under Article
61 in relation to Articles 50-57, the penalty imposable on
principal, accomplices, and accessories for consummated,
frustrated, and attempted felonies.

Did the 1987 Constitution abolish the death penalty?


There is nothing in Section 19(1) of Article I I I of the 1987
Constitution that expressly declares the abolition of the death
penalty. T h e provision merely says that the death penalty
shall not be imposed unless for compelling reasons involving
heinous crimes, the Congress thereafter provides for it and, if
already imposed, shall be reduced to reclusion perpetua. If the
language under construction is plain, it is neither necessary
nor permissible to resort to extrinsic aids like the records of the
constitutional convention, for its interpretation. (People v. Bon)

When was the death penalty reimposed?

R . A . 7659 which reimposed the death penalty took effect


on December 31, 1993, fifteen days after its publication in the
December 16, 1993 issues of the Manila Bulletin, Philippine
Star, Malaya and Philippine T i m e s Journal; not on January
1, 1994, as is sometimes misinterpreted. (People v. Godoy,
December 1995). ( R . A . 9346 abolished of the death penalty.)

What was the effect on Article 248 of the 1987 Constitutional


proscription on the death penalty?

Article I I I , Section 19(1) does not change the periods of


the penalty prescribed by Article 248 except only insofar as it
prohibits the imposition of the death penalty and reduces it to
reclusion perpetua. T h e range of the medium and the minimum
penalties remains unchanged. (People v. Dela Cruz, 216 SCRA)

224
CLASSIFICATION OF PENALTIES

T h e r e being no generic or mitigating circumstance


attending the commission of the offense, the applicable
sentence is the medium period of the penalty prescribed by
Article 248, which is still reclusion perpetua. (People v. Munoz,
170 SCRA; People v. Dela Cruz) [Prior to R . A . 7659, murder-
is penalized with reclusion temporal maximum to death; hence,
reclusion perpetua was then the medium period.]

R E P U B L I C A C T N O . 9346

S E C T I O N 1. T h e imposition of the p e n a l t y of death is


hereby prohibited. Accordingly, Republic Act N o . Eight
T h o u s a n d O n e H u n d r e d Seventy-Seven ( R . A . N o . 8177),
o t h e r w i s e k n o w n a s the A c t D e s i g n a t i n g D e a t h b y L e t h a l
Injection, i s h e r e b y r e p e a l e d . R e p u b l i c A c t N o . Seven
T h o u s a n d Six H u n d r e d Fifty-Nine ( R . A . N o . 7659), o t h e r w i s e
k n o w n as the D e a t h P e n a l t y L a w , a n d all other l a w s , executive
o r d e r s a n d d e c r e e s , i n s o f a r as they impose the d e a t h penalty
are hereby repealed or amended accordingly.

S E C . 2. In lieu of the d e a t h penalty, the f o l l o w i n g shall


b e imposed:

( a ) the p e n a l t y of reclusion perpetua, w h e n the l a w


violated m a k e s use of the n o m e n c l a t u r e of the penalties of
the R e v i s e d P e n a l C o d e ; o r
( b ) the p e n a l t y of life imprisonment, w h e n the l a w
violated does not m a k e use of the n o m e n c l a t u r e of the
penalties of the R e v i s e d P e n a l C o d e .
S E C . 3. P e r s o n s convicted of offenses p u n i s h e d with
reclusion perpetua, or w h o s e sentences will be r e d u c e d to
reclusion perpetua, by r e a s o n of this A c t , shall not be eligible
for p a r o l e u n d e r A c t N o . 4103, otherwise k n o w n as the
I n d e t e r m i n a t e Sentence L a w , a s a m e n d e d .
S E C . 4. T h e B o a r d of P a r d o n s a n d P a r o l e shall cause
the publication at least once a w e e k for three consecutive
w e e k s in a n e w s p a p e r of general circulation of the names
of persons convicted of offenses punished with reclusion
perpetua or life imprisonment by reason of this Act w h o

225
NOTES A N D CASES ON THE REVISED PENAL CODE

are being considered or r e c o m m e n d e d for commutation or


pardon; Provided, however, T h a t nothing h e r e i n shall limit
the p o w e r of the P r e s i d e n t to g r a n t executive clemency
u n d e r Section 19, Article V I I of the Constitution.
S E C . 5. This Act shall take effect immediately after
its publication in t w o national n e w s p a p e r s of g e n e r a l
circulation.
A p p r o v e d : June 24, 2006.

• When did R.A. 9346 take effect?


Although the letter of the law states that it shall take
effect immediately upon its publication, practically, however,
it took effect even prior thereto because it is a law favorable
to the offender and the rule is that, "Penal laws shall have
retroactive effect insofar as they favor the person guilty of a
felony, who is not a habitual criminal, as this term is defined
in Rule 5 of Article 62 of the Code, although at the time of the
publication of such laws a final sentence has been pronounced
and the convict is serving the same." (Article 22)

Even if the offender is a habitual delinquent, still this


law shall benefit him for from the wordings of the law, the
intent of Congress is to eliminate the death penalty without
regard to whether or not the offender is a habitual delinquent.
Indeed, the crimes covered by habitual delinquent, are not
more heinous than rape, murder, or kidnapping and the
rapists, murderers, etc., who are the primary beneficiaries of
the retroactive application of the law cannot be more benign
than falsifiers, robbers, or swindlers.

• What provisions of the Revised Penal Code are affected by the


law abolishing the death penalty?

1. Article 25 — on the category of capital punishment;


2. Article 47 — cases when the death penalty shall not be
imposed; automatic review of death penalty cases;
3. Paragraph 2 of Article 63 — rules for the application of
indivisible penalties;

226
CLASSIFICATION OF PENALTIES

4. Article 71 — order of severity of penalties (People v. Bon,


infra);
5. Article 74 — penalty higher than reclusion perpetua in
certain cases.

These specific provisions should be deemed as inoperative


due to the abolition of the death penalty.

• Are convicts, whose penalty were reduced to reclusion perpetua


because of R.A. 9346, entitled to parole?

N o . Section 3 of R . A . 9346 expressly bars the convict from


benefiting from the I S L . It is however clear that such prohibition
is a surplusage because the I S L is not applicable for offenders
whose crimes are punishable with life imprisonment, death,
or reclusion perpetua imposed as a single indivisible penalty
under Article 63 in paragraph 1.

• What is the effect of R.A. 9346 on R.A. 7659?

It merely modifies the penalty imposable for the crime


covered by R . A . 7659 but does not affect the provision itself
on how the crime is committed. R . A . 9346 does not affect the
provision of R . A . 7659 on Article 267 making the killing, rape,
torture, ransom-payment, etc., of the victim as qualifying
circumstances in kidnapping. It merely made the penalty
imposable thereon as reclusion perpetua. However, for all
intents and purposes, the graduation of penalty between
simple kidnapping and kidnapping with homicide has been
erased. Thus, it does not make any difference now whether or
not the kidnap victim is killed or raped. It can therefore be
asserted that the new law is an absolutory cause insofar as the
penalty is concerned because the kidnapper can now go ahead
and kill the victim after ransom is paid for impunity for the
penalty will be the same anyway.

People v. Bon, G . R . N o . 166401, O c t o b e r 30, 2006

issues;
1. Whether the penalty for attempted qualified rape should
be two degrees lower from death penalty or from reclusion
perpetua.

227
NOTES A N D CASES ON THE REVISED PENAL CODE

2. Whether R . A . 9346 intended to delete the word "death" in


the graduated scale of penalties under Article 71.
3. Whether the debarring of the death penalty
correspondingly declassified those crimes catalogued as
heinous.
4. Whether retroactive effect should be extended to this new
ruling to persons previously convicted of crimes which,
if consummated or participated in as a principal, would
have warranted the solitary penalty of death.

Held: Mufioz, G.R. No. 38969-70, February 9, 1989 declined


to acknowledge the constitutional abolition of the death penalty
through the 1987 Constitution. Here, it is now necessary to determine
whether R . A . 9346 resulted in the statutory interdiction of the death
penalty. Resultantly, the issue is whether the penalty for attempted
qualified rape should be computed from death or reclusion perpetua.

Article 266-B prescribes the death penalty for qualified rape.


The determination of two degrees lower than the death penalty
entails the application of Articles 61 and 71. Article 71 provides that
in the case in which the law prescribes a penalty lower or higher by
one or more degrees than another given penalty, the rules prescribed
in Article 61 shall be observed in graduating such penalty. T h e lower
or higher penalty shall be taken from the graduated scale in Article
71.

At the same time, the I S L prescribes that "the court shall


sentence the accused to an indeterminate sentence, the maximum
term of which shall be that which, in v i e w of the attending
circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense."
T h e purpose of the prescription of minimum and maximum periods
is to effect the privilege granted under the same law, for prisoners
who have served the minimum penalty to be eligible for parole. Thus,
convicts sentenced to suffer death penalty or life imprisonment are
ineligible under that law, as are persons sentenced to reclusion
perpetua, an indivisible penalty without minimum or maximum
periods. (People v. Tubongbanua)

Prior to R . A . 9346, the death penalty was imposable under two


different frames of reference under the R P C , as amended by R . A .

228
CLASSIFICATION OF PENALTIES

7653: (1) as the maximum penalty for "reclusion perpetua to death"


imposable on several crimes, including murder, qualified piracy,
and treason depending on the appreciation of the aggravating and
mitigating circumstances; and (2) death itself as an automatic and
exclusive penalty for the crimes of qualified bribery "if it is the
public officer who asks or demands such gift or present;" kidnapping
or detention "for the purpose of extorting ransom from the victim
or any other person;" destructive arson wherein "death results;"
and rape qualified by any of the several circumstances enumerated
under the law.

Under Article 6 1 ( 2 ) , " [w] hen the penalty prescribed for the crime
is composed of two indivisible penalties ... the penalty next lower in
degree shall be that immediately following the lesser of the penalties
prescribed in the respective graduated scale." Hence, in passing
sentence on those convicted of attempted felonies which warranted
the penalty of "reclusion perpetua to death" if consummated, it was
consistently held that the penalty two degrees lower than "reclusion
perpetua to death" is prision mayor. In contrast, if the penalty for
the consummated crime is the single indivisible penalty of death,
Article 61(1) provides that "the penalty prescribed for the felony
is single and indivisible, the penalty next lower in degree shall be
that immediately following that indivisible penalty in the respective
graduated scale prescribed in Article 71." Thus, the proper penalty
two degrees lower than death is reclusion temporal.

T h e negation of the word "death" in Article 71 will have the


effect of appropriately downgrading the proper penalties attaching
to accomplices, accessories, frustrated and attempted felonies to the
level consistent with the rest of the penal laws. For example, the
convicted accomplice in kidnapping for ransom, would now bear the
penalty of reclusion temporal, the penalty one degree lower than
that the principal would bear (reclusion perpetua). Such sentence
would be consistent with Articles 52 and 71, as amended, to remove
the reference to "death."
T h e harmonization that would result if R . A . 9346 were
construed as having eliminated the reference to "death" in Article
71 would run across the board in our penal laws. Consistent with
Article 51 those convicted of attempted qualified rape would receive
the penalty two degrees lower than that prescribed by R.A. 9346, for
qualified rape.

229
NOTES A N D CASES ON THE REVISED PENAL CODE

Interpretare et concordare legibus est optimus interpretandi —


a statute should be so construed not only to be consistent with itself,
but also to harmonize with other laws on the same subject matter,
as to form a complete, coherent and intelligible system—a uniform
system of jurisprudence that would secure the rights of all persons
affected by different legislative and quasi-legislative acts. There can
be no harmony between R . A . 9346 and the R P C unless the later
statute is construed as having downgraded those penalties attached
to death by reason of the graduated scale under Article 71.
Advocates of the theory that R . A . 9346 did not amend any
of the penalties other than death in our penal laws would invoke
Munoz which ruled that the constitutional bar on the imposition
of the death penalty did not enact "a corresponding modification in
the other periods [in penalties]," there being no expression of "such
a requirement... in Article I I I , Section 19(1) of the Constitution or
indication] therein by at least clear and unmistakable implication."
It made the pronouncement that there was nothing in the 1987
Constitution "which expressly declares the abolition of the death
penalty."
Would Munoz as precedent, deter the Court from ruling that
R . A . 9346 consequently downgraded penalties other than death?
The accused in Munoz were found guilty of murder which
carried the penalty of reclusion temporal in its maximum period
to death. T h e subject murders therein w e r e not attended by any
modifying circumstance, and thus penalized in the penalty's medium
term. Jurisprudence previous to Munoz held that the proper penalty
in such instances should be "the higher half of reclusion temporal
maximum," with reclusion temporal maximum, divided into t w o
halves for that purpose. Munoz rejected this formulation, holding
instead that the penalty should be reclusion perpetua.
Munoz inquired into the effects of the Constitution on the
proper penalty for murder; while herein, the effects of R. A. 9346
on the proper penalty for attempted qualified rape are ascertained.
Munoz may have pronounced that the Constitution did not abolish
the death penalty, but that issue no longer falls into consideration
herein, the correct query now being whether Congress has banned
the death penalty through R . A . 9346. Otherwise framed, Munoz
does not preclude the Court from concluding that with the express
prohibition of the imposition of the death penalty Congress has
unequivocally banned the same.

230
CLASSIFICATION OF PENALTIES

Munoz interpreted Section 19(1), Article I I I as prohibiting the


actual imposition of the death penalty, as opposed to enacting an
amendatory law that eliminates all references and applications of
the death penalty in our statutes. At the time Munoz was decided, it
would have been polemical to foster an unequivocal pronouncement
that Section 19(1) abolished the death penalty, since the very
provision itself acknowledged that Congress may subsequently
provide for the penalty "for compelling reasons involving heinous
crimes." No such language exists in R . A . 9346. It was that express
stipulation in the Constitution that dissuaded the Court from
recognizing the constitutional abolition of the death penalty; and
there is no similar statutory expression in R . A . 9346 which could be
construed as evocative of intent similar to that of the Constitution.
T h e critical question is whether R . A . 9346 intended to delete
the word "death" in the graduated scale of penalties under Article 71.
Munoz did not engage in an analogous inquiry in relation to Article
71 and the Constitution, for what was relevant therein was not the
general graduated scale of penalties, but the range of the penalties
for murder. Herein, no provision in R . A . 9346 provides a context
within which the concept of "death penalty" bears retentive legal
effect, especially in relation to Article 71. Unlike the Constitution,
R . A . 9346 does expressly stipulate the amendment of all extant laws
insofar as they called for the imposition of the penalty of death.
Munoz impressed that the use of the word "imposition" in the
Constitution evinced the framer's intent to retain the operation
of penalties under the R P C . One might try to construe the use of
"imposition" in R . A . 9346 as a means of Congress to ensure that the
"death penalty," as applied in Article 71, remain extant. If the use
of "imposition" was implemented as a means of retaining "death"
under Article 71, it would have been a most curious, roundabout
means. T h e Court can tolerate to a certain degree the deliberate
vagueness sometimes employed in legislation, yet constitutional due
process demands a higher degree of clarity when infringements on
life or liberty are intended.
There is no material difference between "imposition" and
"application," for both terms embody the operation in law of the
death penalty. Since Article 71 denominates death as an element in
the graduated scale of penalties, the operation of Article 71 involves
the actual application of the death penalty as a means of determining
the extent which a person's liberty is to be deprived. Since R.A.

231
NOTES A N D CASES ON THE REVISED PENAL CODE

9346 unequivocally bars the application of the death penalty, as


well as expressly repeals all such statutory provisions requiring the
application of the death penalty, such effect necessarily extends to
its relevance to the graduated scale of penalties under Article 71.
Following Munoz, the 1987 Constitution might not have willed
the abolition of the death penalty and instead placed it under
a suspensive condition. As such, the death penalty during the
interregnum between the 1987 Constitution and its reimposition
through law was "in a state of hibernation." No longer because R . A .
9346 banned the death penalty.
R . A . 7659 classified the crimes listed therein as "heinous,"
within constitutional contemplation. Such reclassification was
accompanied by certain legal effects other than the imposition of
the death penalty, such as the increase in imposable fines attached
to certain heinous crimes; it officially recognized that some crimes
are more odious than others and consequently affected the proper
pecuniary indemnities awarded to the victims of these crimes.
Hence, a general inclination persists in levying a greater amount of
damages on accused found guilty of heinous crimes.

T h e debarring of the death penalty through R . A . 9346 did not


correspondingly declassify those crimes catalogued as heinous. T h e
amendatory effects of R . A . 9346 extend only to the application of
the death penalty but not to the definition or classification of crimes
which by their abhorrent nature, constitute a special category by
themselves. Accordingly, R . A . 9346 does not serve as basis for the
reduction of civil indemnity and other damages that adhere to
heinous crimes.
As to sentences not yet handed down, or affirmed with finality,
the application is immediate. Henceforth, "death," as utilized in
Article 71, shall no longer form part of the equation in the graduation
of penalties. In the case of appellant, his penalty for attempted rape
shall be reckoned two degrees lower than reclusion perpetua. Hence,
the maximum term of his penalty shall be prision mayor.
Both reclusion perpetua and death are indivisible penalties.
Under Article 61(2) when the penalty prescribed for the crime is
composed of two indivisible penalties the penalty next lower in
degree shall be that immediately following the lesser of the penalties
prescribed in the respective graduated scale. T w o degrees lower
than reclusion perpetua to death is prision mayor.

232
CLASSIFICATION OF PENALTIES

As R . A . 9346 downgraded the penalties for such crimes


the benefit of A r t i c l e 22 has to apply, except as to "habitual
criminal[s]." R . A . 9346 expressly recognized that its enactment
would have retroactive beneficial effects, referring to "persons x x
x whose sentences w e r e reduced to reclusion perpetua by reason of
this Act."
By operation of R . A . 9346 and Article 22, R P C , there may be
convicts presently serving their original sentences whose actual
served terms exceed their reduced sentences. This decision does not
make operative the release of such convicts, especially as there may
be other reasons that exist for their continued detention. There are
remedies under l a w that could be employed to obtain the release
of such prisoners, if warranted. T h e Public Attorney's Office and
non-governmental organizations that assist detainees possess the
capacity and acumen to help implement the release of such prisoners
who are so entitled by reason of this ruling.

• Is reclusion perpetua the same as life imprisonment?

N o . It is erroneous to impose 'life imprisonment' for


felonies as it is nowhere in the scheme of penalties in the R P C
nor is it a penalty similar to reclusion perpetua. Administrative
Circular 6-A-92 (June 21, 1993) which amended Circular 6-92
(October 12, 1992) enjoins trial judges to strictly observe the
distinction between life imprisonment and reclusion perpetua
to curb the practice of using them interchangeably in the
imposition of penalty in serious offenses. (People v. Narca, G.R.
No. 108488, July 21, 1997)

• Distinguish life imprisonment and reclusion perpetua.


Life Imprisonment Reclusion perpetua

a. Violation of special laws of the R P C


b. No fixed duration with fixed duration
c. No accessory penalties with accessory penalties

T h e penalty of reclusion perpetua is invariably imposed for


serious felonies under the R P C . It carries with it imprisonment
for at least 30 years, after which the convict becomes eligible
for pardon, and also accessory penalties, e.g., perpetual special
disqualification, etc. (Article 27)

233
NOTES A N D CASES ON THE REVISED PENAL CODE

Is there a penalty denominated "imprisonment for life"?


None, for that would imply that the culprit will stay in
prison for the rest of his life. It is ignorance of the law to impose
this penalty on a convict.
Courts must employ the proper nomenclature such as
reclusion perpetua not life imprisonment or 10 days of arresto
menor, not 10 days of imprisonment (People v. Latupan, G.R.
Nos. 112453-56, June 28, 2001) because the penalties under
the R P C are different from those prescribed by special penal
laws. The former carries with it accessory penalties not
obtaining in the latter. T h e system of penalties under the R P C
is entirely different from the system of penalties under special
penal laws.

Why is there a need to employ the proper terminology of


penalties?
It is necessary to employ legal terminology in the imposi-
tion of penalties because of the substantial difference in their
corresponding legal effects and accessory penalties. T h e R P C
does not prescribe the penalty of life imprisonment for any of
the felonies therein defined, that penalty being invariably im-
posed for serious offenses penalized by special law.
Murder being penalized under the R P C , the proper
imposable penalty should be reclusion perpetua instead of
life imprisonment. (People v. Cabactulan, G.R. No. 84398,
December 2, 1992)
Mobe, 84 SCRA 167, reiterated in Pilones and in the
concurring opinion of Justice Ramon Aquino in Sumadic,
reclusion perpetua is not the same as imprisonment for life
or life imprisonment. Every judge should take note of the
distinction and not mistake one for the other. (People v. Narca)

Does the suspension for the practice of profession apply to


convicted prisoners only?

N o . A l l prisoners whether under preventive detention


or serving final sentence, cannot practice their profession or
engage in any business or occupation, or hold office, elective or
appointive, while in detention. This is a necessary consequence

234
CLASSIFICATION OF PENALTIES

of arrest and detention. As a matter of law, when a person


indicted for an offense is arrested, he is deemed placed under
the custody of law. He is placed in actual restraint of liberty in
jail so that he may be bound to answer for the commission of
the offense. He must be detained in jail during the pendency
of the case against him unless he is authorized by the court
to be released on bail or on recognizance. An attorney cannot
practice law during that period except where he would appear
in court to defend himself. (People v. Maceda, G.R. No. 89591-
96, January 24, 2000)

» What is the nature of disqualification and suspension as


penalties?

Disqualification and suspension are both principal and


accessory penalties. T h e y are principal penalty when imposed
by the R P C for a specific crime; otherwise, they are accessory
penalty which need not be stated in the sentence but follows
the principal penalty to which they are attached.

• What is bond to keep the peace?

Bond to keep the peace is a principal penalty yet there


is no crime in Book II for which it can be imposed. Therefore,
following Article 21, there is no occasion to impose this penalty.
Compared with bond for good behavior:
a. Bond to keep the peace is a principal penalty which
is not restricted to any crime; Bond for good behavior
is a penalty specifically applicable to grave and light
threat only. (Article 284)
b. Failure to post the former will make the accused
suffer detention; failure to post the latter will make
the accused suffer destierro.

• What is the nature of public censure?


Public censure is a light penalty and is considered under
the graduated scale provided in Article 71 as a penalty lower
than arresto menor. It follows that the offense of reckless
imprudence resulting in slight physical injuries for which it is
prescribed is a light felony. (Reodica v. CA, G.R. No. 125066,
July 8, 1998)

235
NOTES A N D CASES ON THE REVISED PENAL CODE

In the scheme of penalties in the Revised Penal Code, cite


examples where the lesser offense absorbs the graver offense.
a. The lesser offense of rebellion punished with reclusion
temporal, absorbs the graver offense of murder punished
with reclusion perpetua, if committed in furtherance of
rebellion;
b. The lesser offense of forcible abduction punished by reclu-
sion temporal, absorbs the graver offense of illegal deten-
tion of a woman, by reclusion perpetua;

c. The lower offense of slavery involving kidnapping of a


person, punished by prision mayor, absorbs the higher
offense of kidnapping punished by reclusion perpetua.
(People v. Quijada, July 1996, dissenting opinion of
Justice Regalado)

A r t . 26. Fine — When afflictive, correctional, or light penalty.


— A fine, w h e t h e r i m p o s e d as a single or as an a l t e r n a t i v e
penalty shall be c o n s i d e r e d an afflictive penalty, if it exceeds
6,000 pesos; a c o r r e c t i o n a l p e n a l t y , if it does not e x c e e d 6,000
pesos b u t is not less t h a n 200 pesos; a n d a light p e n a l t y , if it
be less t h a n 200 pesos.

• Compare Article 9 and Article 26.

In Article 9, a fine of P200 is a light penalty imposed for


light felonies ("not exceeding 200 pesos") but in Article 26, it is
a correctional penalty as it defines as light penalty fine of less
than P200.

The classification of fine as grave, less grave or light


penalty holds true whether the fine is imposed as a single
penalty or as an alternative for another principal penalty.

• How can the two articles be harmonized?

Article 9 should prevail when the issue is prescription of


crime because it is within the T i t l e pertaining to felonies and
how they are committed. Article 26 should prevail when the
issue is prescription of penalty because it is included in the
title on penalties.

236
Chapter Three
D U R A T I O N A N D EFFECT OF PENALTIES

S e c t i o n O n e . — Duration of Penalties

A r t . 27. Reclusion perpetua. — T h e p e n a l t y of reclusion


perpetua shall be f r o m 20 y e a r s a n d 1 d a y to 40 years.

Reclusion temporal. — T h e p e n a l t y of reclusion temporal


shall be f r o m 12 y e a r s a n d 1 d a y to 20 y e a r s .

Prision mayor and temporary disqualification. — The


d u r a t i o n of the penalties of prision mayor a n d t e m p o r a r y
disqualification shall be f r o m 6 y e a r s a n d 1 d a y to 12 years,
except w h e n the p e n a l t y of disqualification is imposed as an
accessory p e n a l t y , in w h i c h case, its d u r a t i o n shall be that of
the p r i n c i p a l penalty.

Prision correctional, s u s p e n s i o n a n d destierro. — T h e


d u r a t i o n of the penalties of prision correccional, suspension
a n d destierro shall be f r o m 6 months a n d 1 d a y to 6 years,
except w h e n s u s p e n s i o n is imposed as an accessory penalty,
in w h i c h case, its d u r a t i o n shall be that of the p r i n c i p a l
penalty.
Arresto mayor. — T h e d u r a t i o n of the penalty of arresto
mayor shall be f r o m 1 m o n t h a n d 1 d a y to 6 months.
Arresto menor. — T h e d u r a t i o n of the penalty of arresto
menor shall be f r o m 1 d a y to 30 days.
Bond to keep the peace. — T h e b o n d to k e e p the peace shall
be r e q u i r e d to cover such p e r i o d of time as the court may
d e t e r m i n e . (As amended by R.A. No. 7659.)

Reclusion perpetua
• When the law fixed the duration of reclusion perpetua, has it
become a divisible penalty?
N o . Although Section 17 of R . A . 7659 fixed the duration of
reclusion perpetua from 20 years and 1 day to 40 years, there

237
NOTES A N D CASES ON THE REVISED PENAL CODE

was no clear legislative intent to alter its original classification


as an indivisible penalty. If reclusion perpetua were reclassified
as a divisible penalty, then Article 63 would lose its reason and
the basis for existence. If Congress had intended to do so, then
it should have amended Articles 63 and 76. There are also other
provisions involving reclusion perpetua, such as Article 41 on
its accessory penalties and Article 61 (2) and (3), which have
not been correspondingly amended. (People v. Lucas, G.R. Nos.
108172-73, January 9, 1995) (This ruling modified the decision
in the same case dated M a y 1994 which held that reclusion
perpetua had become a divisible penalty.)

Reclusion perpetua remains indivisible notwithstanding


the fixing of its duration. Hence, it is error to impose 30 years
of reclusion perpetua. Accused should suffer the entire extent
of 40 years. (People v. Arrojado, G.R. No. 130492, January 31,
2001)

What was the reason for fixing the duration of reclusion


perpetua?

In Reyes (decided prior to R . A . 7659), Articles 25, 70 and 71


list reclusion perpetua as the penalty immediately next higher
to reclusion temporal. It follows by necessary implication that
the minimum of reclusion perpetua is 20 years and one day
with a maximum duration thereafter to last for the rest of
the convict's natural life although pursuant to Article 70, the
maximum period for the service of penalties shall not exceed 40
years. It would be absurd and violative of the scales of penalties
to reckon the minimum of reclusion perpetua at 30 years since
there would be a resultant lacuna (gap) whenever the penalty
exceeds the maximum 20 years of reclusion temporal but is
less than 30 years. In fixing a specific duration for reclusion
perpetua, R . A . 7659 merely restated the existing jurisprudence.
(id.)

Is a penalty exceeding 20 years within the range of reclusion


perpetua?

Y e s . There is legal basis, both in law and logic for P . D . 818


to declare that any penalty exceeding 20 years is within the
range of reclusion perpetua.

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D U R A T I O N A N D EFFECT OF PENALTIES

The other applicable reference to reclusion perpetua


is in Article 70 laying down the rule on successive service
of sentences where the culprit has to serve more than three
penalties. It provides that the maximum duration of the
convict's sentence shall not be more than three-fold the length
of time corresponding to the most severe of the penalties
imposed upon him. In applying the provisions of this rule, the
duration of perpetual penalties is computed at 30 years.

Since as set out in Articles 25, 70 and 71, reclusion


perpetua is immediately next higher to reclusion temporal, it
follows by necessary implication that the minimum of reclusion
perpetua is 20 years and 1 day. (People v. Reyes, G.R. Nos.
101127-31, August 7, 1992)

• M a y the convict sentenced to reclusion perpetua be allowed to


remain on bail pending appeal?

No bail shall be granted to those charged with an offense,


which under the law at the time of its commission and at
the time of the application for bail is punishable by reclusion
perpetua, when evidence of guilt is strong. Such unequivocal
and explicit provisions in the Constitution and the Rules of
Court admit no exception, qualification or distinction, (id.)

• What is the minimum period of imprisonment of reclusion


perpetua?
Reclusion perpetua entails imprisonment of at least 30
years. T h e statement in the dispositive portion of the decision
of the trial court that the penalty is equivalent to 30 years
gives the impression that after that period, the convict is to be
immediately set free. This is not so; rather, he only becomes
eligible for pardon. (People v. dela Pena, July 1997)

• What is the rationale of the penalty of reclusion perpetua?


T h e provision's intendment is that a person condemned
to undergo the penalty of reclusion perpetua shall remain in
prison perpetually, or for the rest of his natural life. However,
he becomes eligible for pardon by the Chief Executive after he
has been imprisoned for at least 30 years, unless he is deemed
unworthy of such pardon. (This cannot preclude the President
from pardoning a convict by final judgment sentenced to

239
NOTES A N D CASES ON THE REVISED PENAL CODE

reclusion perpetua at anv time pursuant to the constitutional


prerogative to grant executive clemency.)
This period of 30 years vis-a-vis reclusion perpetua is
reiterated in Article 70. Said article pertinently provides that
in applying the "three-fold rule"— that when the culprit has
to serve two or more penalties, the maximum duration of the
convict's sentence shall not be more than three-fold the length
of time corresponding to the most severe of the penalties
imposed upon him — the duration of perpetual penalties (pena
perpetua) shall be computed at 30 years.
The imputation of the 30-year duration to reclusion
perpetua in Articles 27 and 70 is only to serve as the basis
for determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple
penalties.
It is incorrect to specify the duration of 30 years in relation
to the penalty of reclusion perpetua. (People v. Tena, October
1992)

Reclusion Temporal

• Describe the penalty of reclusion temporal.

Reclusion temporal is the most severe of the divisible


penalties with duration of 12 years and 1 day to 20 years. Only
one day separates the divisible penalty of reclusion temporal
from the indivisible penalty of reclusion perpetua. Both have
the same accessory penalties of civil interdiction and perpetual
absolute disqualification. It is an afflictive penalty under Article
25 and therefore it is attached to grave felonies. It prescribes in
15 years.

Prision mayor

• What is the medium period of prision mayor?

The medium period of prision mayor is from 8 years and


1 day to 10 years. It is entirely wrong to describe 12 years, 5
months, and 11 days as the medium period of prision mayor
not only because it already exceeded prision mayor, but also
because it is not the medium period of prision mayor. (Bernabe
v. Memoracion, AM. No. RTJ-95-1303, August 11, 1997)

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D U R A T I O N A N D EFFECT OF PENALTIES

Prision Correctional

• M a y the penalty of reclusion temporal for homicide with no


mitigating circumstance be reduced to prision correctional?
N o , that is gross ignorance of the law since prision
correccional is two degrees lower than reclusion temporal.
T h e duration of prision correccional is from six months and
one day to six years. T h e reduced penalty is therefore two
degrees lower than that prescribed by law for homicide. Since
no mitigating circumstance was found in the original decision,
nothing could justify the reduction of the penalty to six years
of prision correccional. N o t even the claim of the accused that
they did not intend to commit the act of killing and harming
the policemen could justify such reduction. Even if praeter
intentionem w e r e appreciated, and still under the assumption
that one single penalty under Article 249 is permissible, the
said mitigating circumstance would be offset by any of the
aggravating circumstance pursuant to Article 64(4). (id.)

Arresto mayor

• What is the duration and prescriptive period of arresto mayor?


T h e duration of arresto mayor is 1 month and 1 day to 6
months. It is a correctional penalty and has accessory penalties
of suspension of the right to hold office and the right of suffrage
during the term of the sentence. For instance, less serious
physical injuries carries arresto mayor; the indeterminate
sentence law does not apply since the maximum penalty does
not exceed one year. That penalty prescribes in five years.

• Which between destierro and arresto menor is a more severe


penalty?
Uy Chin Hua v. Dinglasan, 86 Phil. 617 and Santos, 87
Phil. 687 explained that destierro is lighter than arresto mayor
thusly:
Destierro is not a higher penalty than arresto mayor
which is imprisonment or complete deprivation of liberty,
whereas destierro means banishment or only a prohibition
from residing within a radius of 25 kilometers from the actual
residence of the accused for a specified length of time. The
respective severities of arresto mayor and destierro must not

241
NOTES A N D CASES ON THE REVISED PENAL CODE

be judged by the duration of each of these penalties, but by


the degree of deprivation of liberty involved. Penologists have
always considered destierro lighter than arresto mayor. Such
criterion is reflected both in the old Spanish Penal Code and
in the R P C . In the graduated scale of Article 71 the lawmaker
has placed destierro below arresto mayor. There is, therefore,
no basis in fact or in law for holding that destierro is a higher
penalty than arresto mayor and that an offense penalized with
destierro falls under the jurisdiction of the C F I . (People v.
Eduarte, G.R. No. 88232, February 26, 1990)

Uy Chin Hua and Santor were decided under the


Judiciary Act of 1948 but there is no mention in said A c t of
crimes for which the penalty is not imprisonment. These cases
were decided on the premise that "there exists a gap in the law
as to which court shall have original jurisdiction over offenses
penalized with destierro or banishment." (id.)

A r t . 28. Computation of penalties. — If the o f f e n d e r shall be


in prison, the t e r m of the d u r a t i o n of the t e m p o r a r y penalties
shall b e c o m p u t e d f r o m the d a y o n w h i c h the j u d g m e n t o f
conviction shall h a v e b e c o m e final.

If the offender be not in p r i s o n , the t e r m of the d u r a t i o n


of the penalty consisting of d e p r i v a t i o n of l i b e r t y shall be
computed f r o m the d a y that the o f f e n d e r is p l a c e d at the
disposal of the j u d i c i a l authorities for the e n f o r c e m e n t
of the penalty. T h e d u r a t i o n of the o t h e r penalties shall
b e computed only f r o m the d a y o n w h i c h the d e f e n d a n t
commences to serve his sentence.

In computing the duration of penalty, regard should be had


of the civil provision on the duration of days, weeks, months and
years. The same rule is followed in the prescription of penalties and
of crimes. Hence, one month and one day means 31 days not 28/29
plus one day of February though incarcerated on that month or 31
plus one day of July though imprisoned in July. In the same vein, six
years and one day means 360 days multiplied by six plus one day,
disregarding leap year or years in between.

A r t . 29. Period of preventive imprisonment deducted from term


of imprisonment. — O f f e n d e r s or a c c u s e d w h o h a v e u n d e r g o n e
preventive i m p r i s o n m e n t shall be c r e d i t e d in the service

242
D U R A T I O N A N D EFFECT OF PENALTIES

of their sentence consisting of d e p r i v a t i o n of liberty, with


the full time d u r i n g w h i c h they h a v e u n d e r g o n e preventive
i m p r i s o n m e n t , if the detention p r i s o n e r a g r e e s voluntarily
in w r i t i n g to a b i d e by the s a m e d i s c i p l i n a r y rules imposed
u p o n convicted p r i s o n e r s , except in the f o l l o w i n g cases:
1. W h e n they a r e recidivists, or h a v e b e e n convicted
p r e v i o u s l y t w i c e or m o r e times of a n y crime; and
2. W h e n u p o n b e i n g s u m m o n e d for the execution
of t h e i r sentence they h a v e failed to s u r r e n d e r
voluntarily.
If the detention p r i s o n e r does not a g r e e to a b i d e by the
s a m e d i s c i p l i n a r y r u l e s i m p o s e d u p o n convicted prisoners,
he shall be c r e d i t e d in the service of his sentence w i t h 4/5
o f the time d u r i n g w h i c h h e has u n d e r g o n e preventive
imprisonment.

W h e n e v e r a n a c c u s e d has u n d e r g o n e preventive impris-


o n m e n t for a p e r i o d e q u a l to or m o r e than the possible maxi-
m u m i m p r i s o n m e n t of the offense c h a r g e d to w h i c h he may
be sentenced a n d his case is not yet terminated, he shall be
r e l e a s e d i m m e d i a t e l y w i t h o u t p r e j u d i c e to the continuation
of the trial t h e r e o f or the p r o c e e d i n g on a p p e a l , if the same
is u n d e r r e v i e w . In case the m a x i m u m penalty to w h i c h the
a c c u s e d m a y be sentenced is destierro, he shall be released
after 30 d a y s of p r e v e n t i v e imprisonment.

• What is the purpose of preventive imprisonment?


It is to prevent the flight of the accused and his going into
hiding. T h e accused is detained if the offense is not bailable;
if bailable he cannot post bail and he is not qualified for
recognizance. T h e offense is not bailable if it is punishable with
death or reclusion perpetua and the evidence of guilt is strong.
T h e mere fact that it is a capital offense does not per se make it
non-bailable. There is the other requirement that the evidence
of guilt is strong.

• How will the time spent in prison by the detention prisoner be


credited?
Full credit is given to the detention prisoner who agrees
voluntarily in writing to abide by the same disciplinary rules

243
NOTES A N D CASES ON THE REVISED PENAL CODE

imposed on convicts unless: (1) he is a recidivist or (2) when


upon being summoned for the execution of his sentence he
failed to surrender voluntarily. Otherwise, he shall be given 4/5
credit.
If the maximum penalty imposable is destierro, the accused
shall be released after 30 days of preventive imprisonment
because arresto menor (1-30 days) is a more severe penalty
than destierro under Article 70. (People v. Eduarte)

• What is the remedy when the person has already served the
maximum penalty imposable?
The appropriate remedy is to file a petition for habeas
corpus. In accordance with the resolution in Angeles January
4, 1995, and Agustin, September 5, 1995, which held that the
rules on habeas corpus should be liberally applied in cases
which are sufficient in substance, the motion can be considered
as substantial compliance with the rules on habeas corpus.
Having served more than the maximum imposable penalty,
the accused should be released. (People v. Labriaga, G.R. No.
92418, November 20, 1995)

• Will the convict who was imposed of the penalty of reclusion


perpetua or destierro be credited of the time of his preventive
imprisonment?

Y e s . Article 29 on the deduction of the period of preventive


imprisonment applies where the accused is sentenced to
destierro because destierro also constitutes deprivation of liberty.
(People v. Bastasa, February 1979) A n d so with offenders who
have undergone preventive imprisonment even if the penalty
imposed is reclusion perpetua because it does not make any
distinction between temporal and perpetual penalties. (People
v. Corpuz, March 1994). M o r e so, since reclusion perpetua now
has a fixed period although still indivisible.

» Can a convict be released on bail or recognizance?


No. It is patently erroneous to release a convict on
recognizance. Section 24, Rule 114 of the Rules of Court
prohibits the grant of bail after conviction by final judgment
and after the convict has started to serve sentence. T h e only
exception thereto is when the convict has applied for probation

244
D U R A T I O N A N D EFFECT OF PENALTIES

before he commences to serve sentence, provided the penalty


and the offense are within the purview of the Probation L a w .
(White v. Bugtas, A.M. No. RTJ-02-1738, November 17, 2005)

In what instance can a convict be allowed to post bail pending


appeal?

Regardless of the nature of the appeal, whether it is on


question of fact or on purely legal issues, the right to bail pending
appeal remains unabridged. T h e right, after conviction, may be
a matter of discretion, but it does not appear in this case that
the lower court denied bail upon consideration of certain facts
and circumstances that relate to the possibility of petitioner
absconding to thwart the process of criminal justice, which
is the primary consideration in granting or denying bail. For
it is not so much in the imposition of an allegedly excessive
penalty that habeas corpus might lie, for appeal is the proper
remedy, but in the denial of bail, without sufficient warrant
that the detention of petitioners is illegal. While the petitioners
pleaded guilty, and their appeal is only on question of law, the
questioned sentence has not become final as to give warrant
to petitioners' detention pending appeal without right to bail.
N o r may petitioners be said to have commenced service of a
sentence since they have assailed their sentence as illegal.
T h e lower court's reason for denying bail pending appeal is,
therefore, legally untenable. Petitioners should have been
allowed to post bail for their provisional liberty while their
appeal is pending in Court. (Zafra v. City Warden, G.R. Nos.
L-49602 & L-49938, May 17, 1980)

R E P U B L I C A C T N O . 6036
Section 1. Any provision of existing law to the contrary
notwithstanding, bail shall not be requiredofa person charged
with violation of a municipal or city ordinance, a light felony
and/or a criminal offense the prescribed penalty for which
is not higher than six months imprisonment and/or a fine of
2,000 pesos, or both, where said person has established to the
satisfaction of the court or any other appropriate authority
hearing his case that he is unable to post the required cash or
bail bond, except in the following cases:

245
NOTES A N D CASES ON THE REVISED PENAL CODE

a. When he is caught committing the offense in


flagrante;
b. When he confesses to the commission of the offense
unless the confession is later repudiated by him in
a sworn statement or in open court as having been
extracted though force or intimidation;
c. When he is found to have previously escaped from
legal confinement, evaded sentence, or jumped bail;
d. When he is found to have previously violated the
provisions of Sec. 2 hereof;
e. When he is found to be a recidivist or habitual
delinquent or has been previously convicted for an
offense to which the law or ordinance attaches an
equal or greater penalty or for two or more offenses
to which it attaches a lighter penalty;

f. When he commits the offense while under parole or


under conditional pardon; and

g. When the accused has previously been pardoned


by the municipal or city mayor for violation of
municipal ordinance for at least two times.

xxx xxx xxx

Approved, August 4, 1969.

Section T w o . — Effects of the penalties according to


their respective nature
A r t . 30. Effects of the penalties of perpetual or temporary
absolute disqualification. — T h e penalties of p e r p e t u a l or
t e m p o r a r y absolute disqualification for p u b l i c office shall
p r o d u c e the f o l l o w i n g effects:

1. T h e d e p r i v a t i o n of the p u b l i c offices a n d e m p l o y -
ments w h i c h the o f f e n d e r m a y h a v e h e l d , e v e n i f
c o n f e r r e d b y p o p u l a r election.

2. T h e d e p r i v a t i o n of the r i g h t to vote in a n y election


for a n y p o p u l a r elective office or to be elected to
such office.

246
D U R A T I O N A N D EFFECT OF PENALTIES

3. T h e disqualification for the offices or p u b l i c em-


p l o y m e n t s a n d for the exercise of any of the rights
mentioned.

In case of t e m p o r a r y disqualification, such dis-


qualification as is c o m p r i s e d in p a r a g r a p h s 2 a n d
3 of this A r t i c l e shall last d u r i n g the t e r m of the
sentence.

4. T h e loss of r i g h t s to r e t i r e m e n t p a y or other pension


for a n y office f o r m e r l y held.

A r t . 31. Effects of the penalties of perpetual or temporary special


disqualification. — T h e penalties of p e r p e t u a l or t e m p o r a r y
special disqualification for p u b l i c offices, profession, or
c a l l i n g shall p r o d u c e the f o l l o w i n g effects:

1. T h e d e p r i v a t i o n of the office, employment, profes-


sion or c a l l i n g affected.

2. T h e disqualification for h o l d i n g similar offices or


e m p l o y m e n t s either p e r p e t u a l l y or d u r i n g the t e r m
of the sentence, a c c o r d i n g to the extent of such
disqualification.

A r t . 32. Effects of the penalties of perpetual or temporary


special disqualification for the exercise of the right of suffrage. —
T h e p e r p e t u a l or t e m p o r a r y special disqualification for the
exercise of the r i g h t of suffrage shall d e p r i v e the offender
p e r p e t u a l l y or d u r i n g the t e r m of the sentence, a c c o r d i n g to
the n a t u r e of s a i d penalty, of the r i g h t to vote in a n y p o p u l a r
election for a n y p u b l i c office or to be elected to such office.
M o r e o v e r , the offender shall not be permitted to hold any
p u b l i c office d u r i n g the p e r i o d of his disqualification.

A r t . 33. Effects of the penalties of suspension from any


public office, profession or calling, or the right of suffrage. — The
suspension f r o m p u b l i c office, profession, or calling, or the
exercise of the right of suffrage shall disqualify the offender
f r o m h o l d i n g such office or exercising such profession or
calling or right of suffrage d u r i n g the t e r m of the sentence.
T h e p e r s o n suspended from h o l d i n g public office shall
not hold another h a v i n g similar functions d u r i n g the period
of his suspension.

247
NOTES A N D CASES ON THE REVISED PENAL CODE

A r t . 34. Civil interdiction. — Civil interdiction shall


deprive the offender d u r i n g the time of his sentence of the
rights of parental authority, or g u a r d i a n s h i p , either as to
the person or p r o p e r t y of any w a r d , or m a r i t a l authority, of
the right to m a n a g e his p r o p e r t y a n d of the r i g h t to dispose
of such p r o p e r t y by any act or a n y conveyance inter vivos.

• What is civil interdiction? What rights does it cover?


Under Article 38 of the N C C , civil interdiction is one of the
restrictions on capacity to act but does not exempt the offender
from certain obligations, as when the latter arise from his act
or from property relations. It is an accessory penalty imposed
upon a person sentenced to the principal penalties of reclusion
perpetua and reclusion temporal. It covers deprivation of the
following rights:

a. Parental authority;
b. Guardianship as to the person or property of any ward;
c. Marital authority;
d. To manage his property; and
e. To dispose of such property by any act or conveyance inter
vivos.

• May a person civilly interdicted appoint an agent?

N o , for the act of the agent is also the act of the principal.
By acting through an agent, the civilly interdicted person is
doing indirectly what the law prohibits to be done directly.
Moreover, one of the causes for the extinction of agency is
civil interdiction. Thus, Article 1919 of the N C C provides that
agency is extinguished by the death, civil interdiction, insanity
or insolvency of the principal or the agent.

• Can the convict prepare his last will and testament?

Y e s , for what the law prohibits is the disposition of


property by an act inter vivos. Further, the will does not dispose
of the property at the time of its making but at the time of
his death subject to the legal requirements under the laws on
succession and the Rules of Court.

248
D U R A T I O N A N D EFFECT OF PENALTIES

A r t . 35. Effects of bond to keep the peace. — It shall be the


d u t y of a n y p e r s o n sentenced to give b o n d to k e e p the peace,
t o p r e s e n t t w o sufficient sureties w h o shall u n d e r t a k e
that such p e r s o n w i l l not commit the offense sought to be
p r e v e n t e d , a n d that in case such offense be committed they
w i l l p a y the a m o u n t d e t e r m i n e d by the c o u r t in its j u d g m e n t ,
or o t h e r w i s e to d e p o s i t such a m o u n t in the office of the clerk
of the c o u r t to g u a r a n t e e s a i d u n d e r t a k i n g .
T h e c o u r t shall d e t e r m i n e , a c c o r d i n g to its discretion,
the p e r i o d o f d u r a t i o n o f the b o n d .
S h o u l d the p e r s o n sentenced fail to give the b o n d as
r e q u i r e d he shall be d e t a i n e d for a p e r i o d w h i c h shall in no
case e x c e e d 6 m o n t h s , if he shall h a v e b e e n p r o s e c u t e d for a
g r a v e or less g r a v e felony, a n d shall not exceed 30 days, if for
a light felony.

• Is the penalty of bond to keep the peace enforceable?

N o , because, being a principal penalty, it must be


specifically prescribed in Book II for a particular felony. There
being none, the penalty is unenforceable by virtue of Article 21,
which states that no felony shall be punishable by any penalty
not prescribed by law prior to its commission.

A r t . 37. Costs — What are included. — Costs shall include


fees a n d indemnities in the course of the j u d i c i a l proceedings,
w h e t h e r they b e f i x e d o r u n a l t e r a b l e amounts previously
d e t e r m i n e d by l a w or r e g u l a t i o n s in force, or amounts not
subject to schedule.
A r t . 38. Pecuniary liabilities — Order of payment. — In case
the p r o p e r t y of the offender should not be sufficient for the
p a y m e n t of all his p e c u n i a r y liabilities, the same shall be
met in the f o l l o w i n g o r d e r :
1. T h e r e p a r a t i o n of the d a m a g e caused.
2. Indemnification of consequential damages.
3. T h e fine.
4. T h e costs of the proceedings.

249
NOTES A N D CASES ON THE REVISED PENAL CODE

• What are the pecuniary liabilities of the offender? How are they
to be paid?
The pecuniary liabilities of an offender are those owing
to the offended: reparation of the damage caused (restitution
first if that is possible) and indemnification of consequential
damages (Article 104); and those owing to the government: fine
and costs of proceedings.
They are to be settled in the order given: reparation, then
indemnification, next fine and lastly costs of the proceedings, if
the means of the convict are not enough to settle them all. Fine,
however, is subject to subsidiary penalty in the proper cases.

• What is a fine?
Esler v. Ledesma, 52 Phil. 114, said that a fine is a
pecuniary punishment imposed by a lawful tribunal upon a
person convicted of a crime. T h e fine in B.P. 22 was intended
as an additional penalty for the act of issuing a worthless
check. This is the only logical conclusion since the law does
not require that there be damage or prejudice to the individual
complainant by reason of the issuance of the worthless check.
(Lazaro v. CA, G.R. No. 105461, November 11, 1993)
Being a penalty, fine is mandatory. In fact, although the
culprit has suffered subsidiary penalty in case of insolvency,
still he is not relieved of the obligation to pay the same if his
circumstances should improve. (Article 39, N o . 5)

• If a person is found guilty of several offenses, how is the order


of payment of civil liabilities observed?

The civil liabilities of a person found guilty of two or


more offenses shall be satisfied by following the chronological
order of the dates of the final judgments rendered against him,
beginning with the first final judgment. (Article 73)

A r t . 39. Subsidiary penalty. — If the convict h a s no p r o p e r t y


with w h i c h to meet the fine m e n t i o n e d in p a r a g r a p h 3 of the
next p r e c e d i n g article, he shall be subject to a s u b s i d i a r y
p e r s o n a l liability at the rate of 1 d a y for e a c h 8 pesos, subject
to the f o l l o w i n g rules:

250
D U R A T I O N A N D EFFECT OF PENALTIES

1. If the p r i n c i p a l p e n a l t y i m p o s e d be prision correc-


cional or arresto a n d fine, he shall r e m a i n u n d e r confine-
m e n t until his fine r e f e r r e d in the p r e c e d i n g p a r a g r a p h is
satisfied, b u t his s u b s i d i a r y i m p r i s o n m e n t shall not exceed
1/3 of the t e r m of the sentence, a n d in no case shall it con-
tinue for m o r e t h a n 1 y e a r , a n d no fraction or p a r t of a d a y
shall b e c o u n t e d a g a i n s t the p r i s o n e r .

2. W h e n the p r i n c i p a l p e n a l t y i m p o s e d be only a fine,


the s u b s i d i a r y i m p r i s o n m e n t shall not e x c e e d 6 months, if the
c u l p r i t shall h a v e b e e n p r o s e c u t e d for a g r a v e or less g r a v e
felony, a n d shall not e x c e e d 15 d a y s , if for a light felony.

3. W h e n the p r i n c i p a l penalty i m p o s e d is h i g h e r than


prision correccional no s u b s i d i a r y i m p r i s o n m e n t shall be
i m p o s e d u p o n the culprit.

4. If the p r i n c i p a l p e n a l t y i m p o s e d is not to be
e x e c u t e d by confinement in a p e n a l institution, b u t such
p e n a l t y is of fixed d u r a t i o n , the convict, d u r i n g the p e r i o d
of time e s t a b l i s h e d in the p r e c e d i n g rules, shall continue to
suffer the s a m e d e p r i v a t i o n s as those of w h i c h the p r i n c i p a l
p e n a l t y consists.

5. T h e s u b s i d i a r y p e r s o n a l liability w h i c h the convict


m a y h a v e s u f f e r e d by r e a s o n of his insolvency shall not
relieve h i m f r o m the fine in case his financial circumstances
should improve.

• What is subsidiary penalty?


It is a penalty that takes the place of the fine for insolvent
convicts. It is neither a principal nor accessory penalty, but a
substitute penalty for fine only. The subsidiary penalty may be
in the form of imprisonment or deprivation of right depending
upon the principal penalty imposed on the convict. It is
imposable whether the violation is under the R P C or under
special laws such as B.P. 22.

minimum daily wage


• How is subsidiary penalty computed?
1. It is computed at l d a y for each P8.00 of fine but in no case
to exceed 1 year. If the penalty is:

251
NOTES A N D CASES ON THE REVISED PENAL CODE

a. Purely a fine
and the felony is: — the subsidiary imprisonment:
- grave or less grave.... shall not exceed 6
months
- light shall not exceed 15 days.
b. Fine and imprisonment of not more than Prision
Correccional (6 years), the subsidiary imprisonment
is computed at
- 1/3 of the principal penalty;
- the quotient of Fine divided by P8.00; or
- 1 year
whichever of these three is least.
c. Fine and Destierro which must be of a fixed duration:
destierro also computed in accordance w i t h the above
rules.

d. T h e same goes with Fine and Suspension.

• When is subsidiary penalty served?

Subsidiary penalty is proper when the penalty imposed


upon the convict includes fine but he cannot pay the same. T h e
court must expressly state that subsidiary penalty shall be
served in case of insolvency because this is not an accessory
penalty that follows the principal penalty as a matter of course.
Also, the penalty imposed must be susceptible of subsidiary
penalty.

• When is subsidiary penalty not proper?

a. T h e principal penalty imposed is more than prision


correccional (6 years and 1 day or more);
b. T h e principal penalty is other than prison sentence which
is not of fixed duration;
c. Subsidiary penalty is not expressly stated in the sentence
to take the place of fine in case of insolvency;
d. T h e sentence imposed does not include fine; and
e. Convict has the means to pay the fine.

252
D U R A T I O N A N D EFFECT OF PENALTIES

How is the gravity of the fine classified?

Fine whether imposed singly or alternatively is:


a. afflictive/grave if more than P6,000.00;
b. correccionaJVless grave if P200.00 to P6,000.00; and
c. light if less than P200.00.

(Under Article 9, a P200 fine is imposed on light felonies.)

When the culprit who had served subsidiary penalty became


solvent, is he still liable to pay the fine?

Y e s . Paragraph 5 of Article 39 states that the subsidiary


personal liability which the convict may have suffered shall
not relieve him from the obligation to pay the fine in case his
financial circumstances should improve.

Is there subsidiary imprisonment in case of failure to pay the


fine in violations of special laws?

Y e s . T h e Supreme Court imposed subsidiary imprison-


ment in case of failure of the offender to pay the fine notwith-
standing the absence of such provision in the law. It is now the
policy to impose fines rather than imprisonment in violations
of B.P. 22. (Diongzon v. CA, December 1999)

Does subsidiary penalty apply to criminal negligence?

Y e s . If the offender cannot pay the fine for damage resulting


from the negligence, he will suffer subsidiary imprisonment
provided that the same is expressed in the sentence. If the
offense is grave or less grave, subsidiary imprisonment should
not be more than 6 months; if light felony, not more than 15
days.

Section T h r e e . — Penalties in which Other


Accessory Penalties are Inherent

Must accessory penalties be expressed in the court's decision?


No for they are ipso facto imposed with the principal
penalties to which these accessory penalties are attached.
Thus, the Title of Section Three specifies that these accessory
penalties are "inherent." Too, Article 73 states that: "whenever

253
NOTES A N D CASES ON THE REVISED PENAL CODE

the courts shall impose a penalty which, by provision of law,


carries with it other penalties, according to the provisions
of Articles 40, 41, 42, 43, 44, and 45 of this code, it must be
understood that the accessory penalties are also imposed upon
the convict."

A r t . 40. Death—Its accessory penalties. — T h e death penalty,


w h e n it is not executed by r e a s o n of commutation or p a r d o n
shall c a r r y with it that of p e r p e t u a l absolute disqualification
a n d that of civil interdiction d u r i n g 30 y e a r s f o l l o w i n g the
date of sentence, unless such accessory penalties h a v e b e e n
expressly remitted in the p a r d o n .
A r t . 41. Reclusion perpetua and reclusion temporal — Their
accessory penalties. — T h e penalties of reclusion perpetua
a n d reclusion temporal shall c a r r y w i t h t h e m that of civil
interdiction for life or d u r i n g the p e r i o d of the sentence as the
case m a y b e , a n d that of p e r p e t u a l a b s o l u t e disqualification
w h i c h the offender shall suffer e v e n t h o u g h p a r d o n e d as
to the p r i n c i p a l penalty, unless the s a m e shall h a v e b e e n
expressly remitted in the p a r d o n .

• When reclusion perpetua is imposed as a penalty next higher


than that provided by law, what is to be the accessory penalty?

W h e n the penalty imposed is reclusion perpetua as a


penalty next higher in degree, the accessory penalty shall be
that under Article 40 but the offender shall not be given the
benefit of the provision of Article 27 until 40 years have elapsed,
otherwise, there could be no difference at all between reclusion
perpetua when imposed as a penalty next higher in degree and
when it is imposed as a penalty fixed by law. (People v. Bago,
G.R. No. 122290, April 6, 2000)

• What are the accessory penalties of reclusion perpetua imposed


as a penalty and reclusion perpetua imposed as next higher?

T h e accessory of reclusion perpetua as a penalty is


provided in Article 41: civil interdiction for life or during
the period of the sentence as the case may be, and 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.

254
D U R A T I O N A N D EFFECT OF PENALTIES

As a penalty next higher, the accessory penalties is that


under Article 40 for the death penalty, when it is not executed
by reason of commutation or pardon: perpetual absolute
disqualification and that of civil interdiction during 30 years
following the date of sentence, unless such accessory penalties
have been expressly remitted in the pardon. (This distinction,
has been obliterated by R . A . 9346 banning the death penalty.)

A r t . 42. Prision mayor — Its accessory penalties. — T h e


p e n a l t y of prision mayor shall c a r r y w i t h it that of t e m p o r a r y
a b s o l u t e disqualification a n d that of p e r p e t u a l special
disqualification f r o m the r i g h t of s u f f r a g e w h i c h the offender
shall suffer a l t h o u g h p a r d o n e d as to the p r i n c i p a l penalty,
unless the s a m e shall h a v e b e e n e x p r e s s l y remitted in the
pardon.

A r t . 43. Prision correccional — Its accessory penalties. —


T h e p e n a l t y of prision correccional shall c a r r y with it
that of s u s p e n s i o n f r o m p u b l i c office, f r o m the right to
f o l l o w a p r o f e s s i o n or calling, a n d that of p e r p e t u a l special
disqualification f r o m the r i g h t of suffrage, if the d u r a t i o n of
s a i d i m p r i s o n m e n t shall exceed 18 months. T h e offender shall
suffer the disqualification p r o v i d e d in this article a l t h o u g h
p a r d o n e d as to the p r i n c i p a l penalty, unless the same shall
h a v e b e e n e x p r e s s l y remitted i n the p a r d o n .

A r t . 44. Arresto — Its accessory penalties. — T h e penalty of


arresto shall c a r r y w i t h it that of suspension of the right to
h o l d office a n d the r i g h t of suffrage d u r i n g the t e r m of the
sentence.
A r t . 45. Confiscation and forfeiture of the proceeds or
instruments of the crime. — E v e r y penalty imposed for the
commission of a felony shall c a r r y with it the forfeiture of
the p r o c e e d s of the crime a n d the instruments or tools with
w h i c h it w a s committed.
S u c h p r o c e e d s a n d I n s t r u m e n t s or tools shall be
confiscated a n d forfeited in favor of the G o v e r n m e n t , unless
they be the p r o p e r t y of a third p e r s o n not liable for the
offense, b u t those articles w h i c h a r e not subject of lawful
commerce shall be destroyed.

255
NOTES A N D CASES ON THE REVISED PENAL CODE

What is required before the proceeds or instruments of the


crime may be confiscated?
The proceeds or instruments which are the property of
third person who has no complicity in the crime cannot be
confiscated unless the said articles are contraband or not subject
of lawful commerce. Since confiscation is an accessory penalty,
it is automatically imposed pursuant to Article 73.
Chapter Four
A P P L I C A T I O N OF PENALTIES

S e c t i o n O n e . — Rules for the application of penalties


to the persons criminally liable and for the
graduation of the same

A r t . 46. Penalty to be imposed upon principals in general. —


T h e p e n a l t y p r e s c r i b e d by l a w for the commission of a felony
shall be i m p o s e d u p o n the p r i n c i p a l s in the commission of
s u c h felony.

W h e n e v e r the l a w p r e s c r i b e s a penalty for a felony in


g e n e r a l terms, it shall be u n d e r s t o o d as a p p l i c a b l e to the
c o n s u m m a t e d felony.

T h e penalties in Book II are understood to be imposed on the


principal offender and in the consummated stage. When the felony
is frustrated or attempted and when accomplices or accessories
participate in its commission, there is a need to lower the penalty by
one or several degrees. Hence, the rules in this chapter.

A r t . 47. In what cases the death penalty shall not be imposed;


Automatic review of death penalty cases. — T h e death penalty
shall be i m p o s e d in all cases in w h i c h it must be imposed
u n d e r existing l a w s , except w h e n the guilty p e r s o n is b e l o w
18 y e a r s of a g e at the time of the commission of the crime
or is m o r e t h a n 70 y e a r s of a g e or w h e n u p o n a p p e a l or
automatic r e v i e w of the case by the S u p r e m e Court, the
r e q u i r e d majority vote is not o b t a i n e d for the imposition
of the death penalty, in w h i c h cases the penalty shall be
reclusion perpetua.
In all cases w h e r e the death penalty is imposed by the
trial court, the r e c o r d s shall be f o r w a r d e d to the S u p r e m e
C o u r t for automatic r e v i e w a n d j u d g m e n t by the court
en banc, w i t h i n 20 d a y s b u t not earlier than 15 days after
p r o m u l g a t i o n of the j u d g m e n t or notice of denial of any

257
NOTES A N D CASES ON THE REVISED PENAL CODE

motion for n e w trial or reconsideration. T h e transcript shall


also be f o r w a r d e d within 10 days after the filing thereof by
the stenographic reporter. (As amended by R.A. No. 7659)

Death Penalty
• What is the effect of R.A. 9346 on Article 47?
Article 47 has become absolute because R . A . 9346 has
proscribed again the imposition of the death penalty and in its
stead shall be reclusion perpetua or life imprisonment as the
case may be without any right of the offender to avail of the
benefit of parole. (Section 3, R . A . 9346)

As a matter of law, though, when a convict is below 18


when he committed the offense, with or without the death
penalty law, the minor shall never be put to death because
minority is a privileged mitigating circumstance, which is
always considered and is never offset by any aggravating
circumstance. (See Article 68)

• Is there an automatic review of conviction where the penalty


imposed is reclusion perpetua?

None. It is only in cases where the penalty imposed is


death that the trial court must forward the records of the case
to the Supreme Court for automatic r e v i e w of the conviction. If
the convicts did not file a notice of appeal or otherwise indicate
their desire to appeal, the decision convicting them and
imposing reclusion perpetua becomes final and unappealable.
(Garcia v. People, G.R. No. 106581, November 18, 1999)

A r t . 48. Penalty for complex crimes. — W h e n a single act


constitutes t w o o r m o r e g r a v e o r less g r a v e felonies, o r w h e n
an offense is a necessary m e a n s f o r c o m m i t t i n g the other,
the penalty for the most s e r i o u s c r i m e shall be i m p o s e d , the
same to be a p p l i e d in its m a x i m u m p e r i o d .

• What are the two kinds of complex crimes?

a. Compound crime or delito compuesto - when a single act


constitutes two or more grave or less grave felonies, and

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APPLICATION OF PENALTIES

b. complex crime proper or delito complejo - when an offense


is a necessary means to commit the other.

What are the elements of compound crimes?

1. A single act is committed by the offender

2. T h a t single act resulted to t w o or more g r a v e and/or less


g r a v e felonies

3. T h e penalty provided is for the most serious in the


m a x i m u m period.

T h e classic example of a single act constituting two


homicides is that of a single bullet successively killing two
victims.

T h e felonies committed may be: [a] two or more grave


felonies; [b] t w o or more less g r a v e felonies; or [c] one or
more g r a v e and one or more less grave felonies. W h e n a light
felony l i k e w i s e resulted, the light felony shall be treated
as a separate offense. T h e basis of compound crimes is the
singularity of the act, such as the single act of throwing hand
grenade, killing some and seriously wounding a number of
persons, thus, the single penalty.

Give an example of a single act that does not result to a complex


crime.
T h e crime committed when a single act of pressing the
trigger of an automatic sub-machine gun is not a complex
crime. In v i e w of the special characteristic or mechanism of
automatic machine guns and the offender knowing this fact,
there are as many offenses as the numbers of victims of the
bullets fired. It is error to impose a single penalty for the four
murders committed relying on the doctrines enunciated in
Pama, C.A., 44 O.G. 339; Lawas, 97 Phil. 975 [unrep., 1955];
and Pineda, 20 SCRA 748. (People v. Tabaco, G.R. Nos. 100382-
100385, March 19, 1997) t

In Pama, there was only one bullet that killed two persons.
Hence, there was only a single act, which produced two crimes.
In the instant case, TT fired the weapon, which
contained 20 rounds of bullets, continuously. When the rifle

259
NOTES A N D CASES ON THE REVISED PENAL CODE

was recovered, the magazine was already empty. Moreover,


several spent shells were recovered from the scene of the
crime. Hence, the ruling Pama cannot be applied. W h a t is on
all fours with these case is Desierto, C.A., 45 O.G. 4542 [1948]
where accused killed five persons with a sub-machine gun
which like an M-14, is capable of firing continuously.
Desierto held that although the burst of shots was caused
by one single act of pressing the trigger of the sub-machine
gun, in view of its special mechanism, the person firing it has
only to keep pressing the trigger with his finger and it would
fire continually. Hence, it is not the act of pressing the trigger
which should produce the several felonies, but the number of
bullets which actually produced them.
Pineda provided the definition of what a complex crime is.
But Article 48 was not applied therein for there were actually
several homicides committed by the perpetrators. It stated
the "deeply rooted doctrine that when various victims expire
from separate shots, such acts constitute separate and distinct
crimes." "To apply the first half of Article 48, there must be
singularity of criminal act; singularity of criminal impulse is
not written into the law."
T h e firing of several bullets by T T , although resulting
from one continuous burst of gunfire, constitutes several acts.
Each person, felled by different shots, is a victim of a separate
crime of murder. T h e r e is no showing that only a single missile
passed through the bodies of all four victims. T h e killing of
each victim is thus separate and distinct from the other.
Consequently, the four murders which resulted from a
burst of gunfire cannot be considered a complex crime. T h e y
are separate crimes. T h e accused must be held liable for each
and every death he has caused, and sentenced accordingly to
four reclusion perpetua. (People v. Tabaco)
In another case, BB and CC fired at SB and R R . T h e bullet
which killed SB was recovered from his head. RR suffered
four gunshot wounds. There were here two offenders and two
victims. T h e logical possibilities may be:

(1) BB shot and killed SS (or JJ), while CC was fatally


wounding JJ (or SS); or

260
APPLICATION OF PENALTIES

(2) BB shot and killed both SS and JJ successively, i.e.,


with different shots; or

(3) CC successively and fatally hit SS and JJ.

Whichever scenario had actually materialized, the accused


performed separate and distinct acts which were animated by a
common criminal intent — to slay SS and the other members
of his group. Since BB and CC had acted in concert with each
other, which of them had in fact fatally wounded SB and JJ
becomes unimportant. T h e r e was no complex crime in the
above scenario but two separate crimes because there was
no singularity of acts. But since there was conspiracy, both
of the accused are liable for the two homicides. They must be
held guilty of two distinct crimes of homicide rather than the
complex crime of double homicide. (People v. Caldito, G.R. Nos.
78432-33, February 9, 1992) (Contra: Lawas)

Give an example of separate acts that constitute a complex


crime.

In Lawas, the accused and other members of the Home


Guard commenced firing at a large group of Maranaos at a
signal from L L , and continued firing until he gave a cease-fire
signal. About 50 Maranaos died in the slaughter. T h e accused
w e r e found guilty of the compound crime of multiple homicide
thusly:
"One last question involves the determination of the
number of crimes for which each of the appellants may be
found guilty, whether each one should be considered as having
committed as many crimes as there were persons who were
killed, or only for one complex crime of multiple homicide. The
information is for multiple murder, and no inference can be
made therefrom, that the accused are being charged of as many
offenses as there were victims. Then the evidence positively
shows that the killing was the result of a single impulse, which
was induced by the order of the leader to fire, and continued
with the intention to comply therewith, as the firing stopped as
soon as the leader gave the order to that effect. There was no
intent on the part of the appellants either to fire at each and
every one of the victims as separately and distinctly from each
other.

261
NOTES A N D CASES ON THE REVISED PENAL CODE

"It has been held that if the act or acts resulted from a
single criminal impulse, it constitutes a single offense. (People
v. Acosta, 60 Phil. 158) So also it has been held that the act of
taking two roosters belonging to two different persons in the
same place and on the same occasion cannot give rise to two
crimes having an independent existence of their own, because
there are not two distinct appropriations nor two intentions that
characterize two separate crimes. (People v. de Leon, 49 Phil.
237) A n d in Guillen, 47 O.G. No. 7, 3433, a single act, that of
throwing a highly explosive hand grenade at President Roxas,
resulting in the death of one victim and in physical injuries on
others was considered as a single act, also falling under the
first part of Article 48. It may be added that there is absolutely
no evidence as to the number of persons killed by each and
every one of the appellants, so even if we were induced to hold
each appellant responsible for each and every death caused
by him, it is impossible to carry that desire into effect as it is
impossible to ascertain the individual deaths caused by each
and everyone. We are, therefore, forced to find the appellants
guilty of only one offense, that of multiple homicide for which
the penalty to be imposed should be in the maximum period."
(Why not 50 counts of homicide for each appellant in v i e w of
conspiracy?)

What are complex crimes proper?

These are felonies denominated complex crime proper


where when one offense is necessary to commit another. T h e
two crimes thus committed comprise one complex crime. T h e
first crime must be a necessary means to commit the other.
This means that the first offense is committed to insure and
facilitate the commission of the next crime.

The bank's custodian of unissued Cashier's Checks, with


grave abuse of confidence reposed in him as Assistant Cashier,
forged the signature of officers authorized to sign the subject
check and then deposited the check in the account of a fictitious
payee. Thereupon, the value of the check was taken by him.
T h e forging of the signature of the officers authorized to sign
the check was resorted to in order to obtain the amount of
P36,480.30. Hence, the falsification of the check was a necessary
means to commit qualified theft, resulting in a complex crime

262
APPLICATION OF PENALTIES

of Qualified Theft Thru Falsification of Commercial Document.


(People v. Salonga, June 2001). (The crime committed was not
estafa but qualified theft because the Assistant Cashier did not
have juridical possession of the funds involved.)

What are cases where commission of two crimes will not result
to complex crimes proper?

a. A crime to conceal another for the law requires a crime to


commit another, not to conceal the other crime.

If the cashier resorted to falsification to hide the


taking of public funds, the falsification and the taking are
separate offenses. W h e r e the treasurer effected payments
to his co-accused for construction materials supposedly
delivered to the province for various projects when in fact
no such materials were delivered. To conceal the defrau-
dation, accused used six vouchers which were intrinsically
fake, the crimes committed are not complex but separate
crimes of falsification and malversation. T h e falsifications
cannot be regarded as constituting one continuing offense
impelled by a single criminal impulse. Each falsification
of a voucher constitutes one crime. T h e falsification of six
vouchers results to six separate offenses; and each mis-
appropriation as evidenced by a provincial voucher con-
stitutes a separate offense. (People v. Sendaydiego, G.R.
Nos. L-33252-54, January 20, 1978)

b. A crime which is an element of the other for in that


case, the former shall be absorbed by the latter such as
trespassing which is an element of robbery.

c. A crime which has the same element as the other crime


committed.
Estafa and falsification of private documents have
the same element of damage. T h e same damage cannot
give rise to two crimes. Thus, there is no complex crime
of estafa thru falsification of private documents.
d. Where the intent is really to commit the second crime
but the first act although also a crime is incidental to
the commission of the second crime. For instance, in the
taking away of a woman for the original intent to commit

263
NOTES A N D CASES ON THE REVISED PENAL CODE

rape on her, the taking is merely incidental to the crime


of rape, hence, it is not complex crime of abduction with
rape but only simple rape.

What is the procedural requirement for the accused to be liable


for a complex crime?
It is a condition precedent that there is one information
charging a complex felony. Although a single act resulted to
two deaths, one murder and one homicide, the accused cannot
be sentenced for a complex crime with one penalty where two
separate informations were filed for said killings. This is true
even though a joint trial of the two criminal cases was held
and a consolidated decision rendered. Accordingly, the accused
should be meted a separate penalty for each of the crime
charged in each information. (People v. De Vera, June 1999)

Only one information should be filed for three murders


and an attempted murder produced by an explosion caused by
the hurling of a hand grenade into the bedroom of the victims.
Article 48 on complex crimes governs inasmuch as all the
felonies were produced by a single act. (People v. Carpo, G.R.
No. 132676, April 4, 2001)

Why is there only one penalty for complex crimes?

T h e penalty for complex crimes for the most serious crime


in the maximum period. Such penalty is beneficial to the ac-
cused for he is given a single penalty instead of as many penal-
ties as there are crimes committed. T h e reason for the single
penalty is that the basis of the felony is the singularity of the
act. For instance, in the single act of shooting with a high-pow-
ered gun killing two persons with one bullet, without Article
48, the offender would have been penalized with two reclusion
temporal. But with the provision on complex crimes, the pen-
alty would be one reclusion temporal in the maximum period.

What is the effect of R.A. 9346 on the penalty for complex


crimes?

T h e effect of the abolition of the death penalty on complex


crimes is that the maximum period cannot be imposed on
complex crimes punishable with reclusion perpetua to death.

264
APPLICATION OF PENALTIES

• What is the effect of complex crimes on the indeterminate


sentence on the convict?

T h e effect is that the minimum of the indeterminate


sentence shall be imposed in the maximum period. Under the
I S L , the minimum penalty should be within the whole range
of the penalty next lower than that prescribed for the offense.
However, under Article 48, the penalty shall be for the most
serious in the maximum period. T a k e the case where the
imposable penalty was prision mayor maximum to reclusion
temporal minimum. One degree lower is prision mayor
minimum to prision mayor medium being the next two periods
in the scale of penalties, the full range of which is 6 years
and 1 day to 10 years. This one degree lower penalty should
be imposed in its maximum period or from 8 years and 1 day
to 10 years. (Nizurtado v. Sandiganbayan, G.R. No. 107383,
December 7, 1994)

• Does Article 48 apply to imprudence?

Y e s . Reckless imprudence resulting in damage to


property is penalized with arresto mayor in its minimum and
medium periods. Since arresto mayor is a correctional penalty,
the quasi-offense is a less grave felony. Clearly, if a reckless,
imprudent or negligent act results in two or more grave or less
grave felonies, a complex crime is committed.
However, where one of the resulting offenses in criminal
negligence constitutes a light felony, there is no complex crime.
T h e resulting offenses may be treated as separate or the light
felony may be absorbed by the grave felony. Thus, the light
felonies of damage to property and slight physical injuries, both
resulting from a single act of imprudence, do not constitute a
complex crime. T h e y cannot be charged in one information.
T h e y are separate offenses subject to distinct penalties.
Slight physical injuries is punishable by public censure
only. Article 9, paragraph 3 defines light felonies as infractions
of law carrying the penalty of arresto menor or a fine not
exceeding P200, or both. Since public censure is classified
under Article 25 as a light penalty, and is considered under the
graduated scale provided in Article 71 as a penalty lower than
arresto menor, it follows that the offense of reckless imprudence
resulting in slight physical injuries is a light felony.

265
NOTES A N D CASES ON THE REVISED PENAL CODE

Where the single act of imprudence resulted in double


less serious physical injuries, damage to property amounting
to P 10,000 and slight physical injuries, it is correct to file a
separate complaint for the slight physical injuries and another
complaint for the lesiones menos graves and damage to property.
(Reodica v. Memoracion)

Can offenses be complexed with felonies?


N o . Offenses punished in special laws cannot be complexed
with felonies penalized under the R P C . For instance, rape
cannot be complexed with violation of Section 5(b), Article I I ,
R.A. 7610 (sexual abuse of minor). Article 48 does not allow a
felony to be complexed with an offense penalized by a special
law. (People v. Araneta, 48 Phil. 650)

Besides complex crime and compound crime, what are the other
kinds of plurality of crimes where a single penalty is imposed?

a. Composite crimes or special complex crimes;


b. Continued crime or delito continuado; and
c. Continuing crimes or transitory crimes.

Article 312 on usurpation of real property or real rights


therein is a distinct specie of plurality of crimes. It is a single
felony composed of different felonies but which carries a two-
tiered penalty of fine for the resurpation and the proper penalty
for the means used to commit the usurpation.

What are composite crimes?

These are crimes which in the eyes of the law are treated
as single indivisible offenses although in reality are made up
of more than one crime. T h e y are also called special complex
crimes. There is only one provision of law violated which defines
the specific crimes composing the single indivisible felony and
imposing a specific penalty therefor. Examples of which are:

1. Article 294 on robbery with homicide, robbery with rape,


robbery with mutilation, robbery w i h serious physical
injuries.

2. Article 320 on arson with homicide.

266
APPLICATION OF PENALTIES

3. Article 267 on kidnapping with homicide, kidnapping


with rape, kidnapping with serious physical injuries.
4. Article 266-A on rape with homicide. Interestingly, rape
with homicide was a complex crime under Article 48 in
relation to Articles 335 and 249, prior to the amendment
by R . A . 7659 and 8353.

Distinguish composite crimes from complex crimes.

a. Composite crime — the combination of the offenses is


fixed by law, e.g., kidnapping with rape (Article 267)
Complex crime — the combination is not specified but
in general terms, that is, grave and/or less grave; or one
offense being the necessary means to commit the other,
e.g. forcible abduction with rape (Article 342 and 266-A)
b. Composite crime — the penalty for the specified combina-
tion of crimes is also specific, e.g., kidnapping with rape
which carries reclusion perpetua [to death].
Complex crime — the penalty is not specific but is for the
most serious offense in the maximum period.
c. Composite crimes — even if there are more than one count
of the component crime such as several rapes or several
homicides accompanying the kidnapping, there is just one
composite crime to be charged. A l l the excess homicides/
rapes accompanying the kidnapping are absorbed in
kidnapping with homicide/rape.
Complex crime — if there is more than one count of the
crime forming part of the complex crime, the first shall
be complexed while the other counts may be treated as
separate crime. In forcible abduction with rape only
the first rape is complexed with the abduction and the
subsequent rapes shall be charged separately. (People v.
Jose)
d. Composite crimes — if a light felony accompanied the
commission of the composite offense, such fight felony
is absorbed. Hence, robbery with serious physical
injuries absorbs maltreatment or slight physical injuries
committed in the course of the robbery.

267
NOTES A N D CASES ON THE REVISED PENAL CODE

Complex crime — if a light felony accompanies the


commission of the complex crime, the light felony may be
subject to separate information.
e. Composite crimes — penalized in a single provision of
law, e.g.. Article 267 on kidnapping with rape and given a
single specific penalty.
Complex crimes — penalized by two provisions of law in
relation to Article 48, e.g., rape under Article 266-A and
forcible abduction under Article 342 and penalized under
Article 48 for the most serious in the maximum period.

f. Composite crimes — offenses under special law can


become composite, e.g., carnapping with homicide.
Complex crimes — It is not possible to complex under
Article 48 two offenses; one felony and one offense.

• What is the effect when one of the crimes in the information


charging complex crimes is not proved?

The effect is that the accused can be convicted of the


other.

Although it is true that the term "homicide" as used in


special complex crime of rape with homicide is to be understood
in its generic sense, and includes murder and slight physical
injuries committed by reason or on the occasion of rape, where
a complex crime is charged and the evidence falls to support
the charge as to one of the component offense, the accused can
be convicted of the other.

In rape with homicide, to be convicted of murder in case


the evidence fails to support the charge of rape, the qualifying
circumstance must be sufficiently alleged and proved.
Otherwise, it would be a denial of the right of the accused to be
informed of the nature of the offense with which he is charged.
Every element of the offense must be alleged in the complaint
or information. T h e main purpose of requiring the various
elements of a crime to be set out in an information is to enable
the accused to suitably prepare his defense. He is presumed to
have no independent knowledge of the facts that constitute the
offense.

268
APPLICATION OF PENALTIES

An accused cannot be convicted of an offense higher than


that for which he is tried. It matters not how conclusive and
convincing the evidence of guilt may be, but an accused cannot
be convicted of any offense, unless it is charged in the complaint
or information for which he is tried, or is necessarily included
in that which is charged. He has a right to be informed of the
nature of the offense with which he is charged before he is put
on trial. To convict an accused of a higher offense than that
charged in the complaint or information under which he is
tried would be an unauthorized denial of that right. (People v.
Gallarde, G.R. No. 133025, February 17, 2000)

W h i l e it may appear that forcible abduction was also


committed, the appellant cannot be convicted of the complex
crime of forcible abduction with rape. W h i l e the information
sufficiently alleges the forcible taking of complainant from
Cebu to Masbate, it fails to allege "lewd designs." When
charging a complex crime such as forcible abduction with
rape, the prosecution must allege and prove all the elements
of forcible abduction, as w e l l as all the elements of rape. When
appellant, using a blade, forcibly took away complainant for
the purpose of sexually assaulting her, as in fact he did rape
her, the rape may then absorb forcible abduction. T h e crime
is simple rape only. (People v. Sabredo, G.R. No. 126114, May
11, 2000)

Is arson with homicide a complex crime?


N o . If death results by reason or on the occasion of arson,
the crime is simply arson although the imposable penalty is
mandatory death (now reclusion perpetua). The deaths here
are not separate crimes but are merely qualifying circumstance
(aggravated arson). (Article 320, as amended by R . A . 7659)
Indeed, arson with homicide is in the nature of a special complex
crime because the crimes composing this felony — arson and
homicide (which is used in the generic sense) are specified and
the penalty therefor is likewise specified — [death] reclusion
perpetua.
For instance, where four persons were killed first and an
infant died as a result of the burning of their house thereafter,
the crime committed is arson and four counts of murder, each
count aggravated by dwelling. For the arson where death

269
NOTES A N D CASES ON THE REVISED PENAL CODE

resulted, they should be sentenced to a separate term of


reclusion perpetua, and for the four counts of murder, four
terms each of reclusion perpetua to be served successively in
accordance with Article 70. (People v. Cedenio, January 1994)

What are continued crimes?


Continued crimes or delito continuado also known as
continuous crimes, the offender, impelled by a single criminal
impulse, commits a series of overt acts at about the same time
in about the same place and all the overt acts violate one and
the same provision of law.
Santiago u. Garchitorena, G.R. No. L-109266, December 2,
1993, explained that technically, only one crime was committed,
hence, only one information should be filed. T h e 32 Amended
Informations charge what is known as "delito continuado" or
"continued crime" and sometimes referred to as "continuous
crime."

The original information charged petitioner with


performing a single criminal act — that of her approving the
application for legalization of aliens not qualified under the law
to enjoy such privilege. T h e original information also averred
that the criminal act committed: [i] was in violation of a law
— E.O. 324 dated A p r i l 3, 1988; [ii] caused undue injury to
one offended party, the Government; and [iii] was done on a
single day, i.e., on or about October 17, 1988. T h e 32 A m e n d e d
Informations reproduced verbatim the allegation of the
original information, except that instead of the word "aliens" in
the original information each amended information states the
name of the individual whose stay was legalized. T h e strong
probability even exists that the approval of the application for
the legalization of the stay of the 32 aliens was done by a single
stroke of the pen, as when the approval was embodied in the
same document.

M a y the principle of delito continuado be applied to special


laws?

Y e s . T h e concept of delito continuado, although an


outcrop of the Spanish Penal Code, has been applied to crimes
penalized under special laws. Under Article 10, the R P C shall

270
APPLICATION OF PENALTIES

be supplementary to special laws, unless the latter provide the


contrary. Hence, legal principles developed therefrom may be
applied in supplementary capacity to crimes punished under
special laws, (id.)

• What is the "single larceny" doctrine?

T h e trend in theft cases is to follow the "single larceny"


doctrine, that is, the taking of several things, whether belonging
to the same or different owners, at the same time and place
constitutes but one larceny. T h e "separate larceny doctrine,"
under which there was a distinct larceny as to the property
of each victim, has been abandoned. Also abandoned was the
doctrine that the government has the discretion to prosecute
the accused for one offense or for as many distinct offenses as
there are victims, (id.)

• Give some examples of cases of delito continuado.

1. T h e theft of 13 cows belonging to different owners


committed by the accused at the same place and at the
same period of time. (People v. Tumlos, 67 Phil. 320)

2. T h e theft of six roosters belonging to two different owners


from the same coop and at the same period of time. (People
v. Jaranillo, 55 SCRA 563)

3. T h e illegal charging of fees for services rendered by a


lawyer every time he collects veteran's benefits on behalf
of a client, who agreed that the attorney's fees shall be
paid out of said benefits. (People v. Sabbun, 10 SCRA 156)
T h e collections of the legal fees were impelled by the same
motive, that of collecting fees for services rendered, and
all acts of collection were made under the same criminal
impulse.

• Give examples when the concept of delito continuado was not


applied.
1. T w o estafa cases one of which was committed during the
period from January 19 to December 1955 and the other
from January to July 1956. (People v. Dichupa, 113 Phil.
306) T h e said acts were committed on different occasions.

271
NOTES A N D CASES ON THE REVISED PENAL CODE

2. Several malversations committed in M a y , June and July


and falsifications to conceal the said offenses committed in
August and October. The malversations and falsifications
were not the result of only one purpose or of only one
resolution to embezzle and falsify. (People v. Cid, 66 Phil.
354)
3. T w o estafa cases, one committed in December involving
the failure of the collector to turn over the installments
for a radio and the other in June involving the pocketing
of the installments for a sewing machine. (People v.
Ledesma, 73 SCRA 77)
4. Estafa cases committed by the conversion by the agent
of collections from customers of the employer made on
different dates. (Gamboa v. CA, 68 SCRA 308)

• What is a continuing crime?

1. In the Rules of Court it is one where any of the elements


of the offense was committed in different localities such
that the accused may be indicted in any of those localities.

2. It may also refer to any offense which is continuing in


time, e.g., rebellion which may have been started years
ago by the offender and continuing up to the present.

Rebellion, insurrection, conspiracy and proposal to com-


mit such crimes are in the nature of continuing offenses, which
set them apart from the common offenses, aside from their es-
sentially involving a massive conspiracy of nationwide magni-
tude. (Garcia-Padilla v. Enrile, 121 SCRA)

Violation of B.P. 22 is in the nature of a continuing crime.


Venue is determined by the place where the elements of mak-
ing, issuing, or drawing of the check and delivery thereof are
committed. Yabut, G.R. No. L-42847, April 29, 1977, explained
that a person indicted with a transitory offense may be validly
tried in any jurisdiction where the offense was in part commit-
ted. T h e place where the bills were written, signed or dated
does not necessarily fix or determine the place where they were
executed. What is of decisive importance is the delivery thereof
which is the final act essential to its consummation as an obli-
gation. (Ibasco v. CA )

272
APPLICATION OF PENALTIES

• When an act or acts constitute more than one offense, for what
shall the accused be liable?

His liability may be for:

a. A single crime, with one crime absorbing the other


offenses;

b. A complex crime when the offenses constitute grave or


less grave felonies;

c. A special complex crime, with each offense constituting


elements of the composite offense; or
d. T w o separate crimes.

For instance, the taking of a woman forcibly and thereaf-


ter, rape was committed on her. H o w should the offenders be
charged?

a. If the original intent is to rape, the taking is merely


incidental to commit the intended offense the crime is
simple rape.

b. If the intention is to take the woman against her will with


l e w d designs, complex crime of forcible abduction with
rape provided the information will allege lewd designs.
c. If the original intention is to kidnap the woman for ransom
and thereafter, rape is committed, the offense committed
is special complex crime of kidnapping with rape.

d. If in (b) above, there were several counts of rape, the first


rape shall be complexed with the forcible abduction and
the subsequent rapes shall be treated as separate crimes.
A r t . 49. Penalty to be imposed upon the principals when the
crime committed is different from that intended. — In cases in
w h i c h the felony committed is different f r o m that which the
offender intended to commit, the f o l l o w i n g rules shall be
observed:
1. If the penalty p r e s c r i b e d for the felony committed
be h i g h e r than that c o r r e s p o n d i n g to the offense
w h i c h the accused intended to commit, the penalty
c o r r e s p o n d i n g to the latter shall be imposed in its
maximum period.

273
NOTES A N D CASES ON THE REVISED PENAL CODE

2. If the penalty p r e s c r i b e d for the felony committed


be l o w e r than that c o r r e s p o n d i n g to the one w h i c h
the accused intended to commit, the penalty for the
former shall be imposed in its m a x i m u m p e r i o d .

3. T h e rule established by the next p r e c e d i n g p a r a -


g r a p h shall not be a p p l i c a b l e if the acts commit-
ted by the guilty p e r s o n shall also constitute an
attempt or frustration of a n o t h e r crime, if the l a w
prescribes a h i g h e r penalty for either the latter of-
fenses, in w h i c h case, the penalty p r o v i d e d for the
attempted or the frustrated c r i m e shall be i m p o s e d
in the m a x i m u m p e r i o d .

• To what circumstance does Article 49 apply?

A r t i c l e 49 applies to error in personae. It cannot apply


to praeter intentionem which is covered by A r t i c l e 13. It
does not apply to complex crimes resulting from aberratio
ictus which are covered by A r t i c l e 48. Article 49 provides for
the imposition of the lower penalty in the maximum period,
whereas Article 48 prescribes the penalty for the most serious
offense in the maximum period.

The penalties for the intended crime and for the actual
crime committed are compared and the lower penalty is
imposed in the maximum period, unless the crime committed
constitutes an attempt or frustration of another, and the law
provides a higher penalty for the frustrated or attempted felony,
the penalty for the latter shall be imposed in the maximum
period.

For instance, if the intended crime is homicide but due


to error in personae, parricide was committed, the penalty
for homicide shall be imposed. If parricide w a s intended, but
homicide was committed, the lower penalty shall be imposed.
In effect, error in personae is an extenuating circumstance. If,
however the intended and the actual crimes committed are
both homicides, there is no lower penalty to impose. Error in
personae in such case is not extenuating.

A r t . 50. Penalty to be imposed upon principals of a frustrated


crime. — T h e penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d

274
APPLICATION OF PENALTIES

b y l a w for the c o n s u m m a t e d felony shall b e imposed u p o n


the p r i n c i p a l s in a f r u s t r a t e d felony.
A r t . 51. Penalty to be imposed upon principals of attempted
crime. — A p e n a l t y l o w e r by t w o d e g r e e s t h a n that p r e s c r i b e d
b y l a w for the c o n s u m m a t e d felony shall b e imposed u p o n
the p r i n c i p a l s in an attempt to commit a felony.
A r t . 52. Penalty to be imposed upon accomplices in a
consummated crime. — T h e penalty next l o w e r in d e g r e e than
that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony shall
be i m p o s e d u p o n the accomplices in the commission of a
c o n s u m m a t e d felony.
A r t . 53. Penalty to be imposed upon accessories to the commission
of a consummated felony. — T h e p e n a l t y l o w e r by t w o d e g r e e s
t h a n that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony
shall be i m p o s e d u p o n the accessories to the commission of a
c o n s u m m a t e d felony.
A r t . 54. Penalty to be imposed upon accomplices in a frustrated
crime. — T h e p e n a l t y next l o w e r in d e g r e e than that p r e s c r i b e d
b y the l a w for the f r u s t r a t e d felony shall b e imposed u p o n
the accomplices in the commission of a frustrated felony.
A r t . 55. Penalty to be imposed upon accessories of a frustrated
crime. — T h e p e n a l t y l o w e r by t w o d e g r e e s than that
p r e s c r i b e d b y l a w for the f r u s t r a t e d felony shall b e imposed
u p o n the accessories to the commission of a frustrated
felony.
A r t . 56. Penalty to be imposed upon accomplices in an
attempted crime. — T h e penalty next l o w e r in d e g r e e than that
p r e s c r i b e d by l a w for an attempt to commit a felony shall be
i m p o s e d u p o n the accomplices in an attempt to commit the
felony.
A r t . 57. Penalty to be imposed upon accessories of an attempted
crime. — T h e penalty l o w e r by t w o degrees than that
p r e s c r i b e d by l a w for the attempt shall be imposed upon the
accessories to the attempt to commit a felony.
A r t . 58. Additional penalty to be imposed upon certain acces-
sories. — T h o s e accessories falling within the terms of p a r a -
g r a p h 3 of Article 19 of this C o d e w h o should act with abuse
of their p u b l i c functions, shall suffer the additional penalty
of absolute p e r p e t u a l disqualification if the principal offend-

275
NOTES A N D CASES ON THE REVISED PENAL CODE

er shall be guilty of a g r a v e felony, a n d that of absolute tem-


p o r a r y disqualification if he shall be guilty of a less g r a v e
felony.
A r t . 59. Penalty to be imposed in case of failure to commit the
crime because the means employed or the aims sought are impossible.
— W h e n the person intending to commit an offense has
a l r e a d y p e r f o r m e d the acts for the execution of the same
but nevertheless the crime w a s not p r o d u c e d by r e a s o n
of the fact that the act intended w a s by its n a t u r e one of
impossible accomplishment or b e c a u s e the m e a n s e m p l o y e d
by such person a r e essentially i n a d e q u a t e to p r o d u c e the
result desired by him, the court, h a v i n g in m i n d the social
d a n g e r a n d the d e g r e e o f criminality s h o w n b y the offender,
shall impose u p o n h i m the penalty of arresto mayor or a fine
r a n g i n g f r o m 200 to 500 pesos.
A r t . 60. Exceptions to the rules established in Articles 50 to 57.
— T h e provisions c o n t a i n e d in A r t i c l e s 50 to 57, inclusive, of
this C o d e shall not be a p p l i c a b l e to cases in w h i c h the l a w
expressly p r e s c r i b e s the p e n a l t y p r o v i d e d for a f r u s t r a t e d
or attempted felony, or to be i m p o s e d u p o n a c c o m p l i c e s or
accessories.

• Why are the rules in Articles 50-57 prescribed?

T h e penalties in Book II are understood to be imposed


upon the principal offender for the consummated felony.
(Article 46) Hence, there is a need to provide for the rules when
the crime is not consummated, and when the offenders include
accomplices and/or accessories.
An additional one-degree deduction from the penalty for
frustrated and attempted parricide, murder or homicide is
granted in Article 250 because of the gravity of the penalty on
said felonies.

• How are Articles 50-57 applied in relation to Article 61?

Whenever the law prescribes a penalty for a felony in


general terms, it shall be understood as applicable to the
consummated felony and against the principal offender. Hence,
every penalty in the R P C should be understood as imposed
upon the principal for a consummated felony.

276
APPLICATION OF PENALTIES

It is thus necessary that the penalty should be deter-


mined according to the degree of participation and the stage of
accomplishment. A p p l y i n g Articles 50-57 in relation to Article
61 below is a table of reduction of penalties by degrees consid-
ering the participation in and the stage of accomplishment of
a felony:

CONSUMMATED FRUSTRATED ATTEMPTED


PRINCIPAL as provided -1 -2
ACCOMPLICE -1 -2 -3
ACCESSORY -2 -3 -4
In consummated homicide the principal gets reclusion
temporal. T h e penalty of an accomplice shall be one degree
lower or prision mayor; accessory shall get two degrees lower
or prision correccional. If the homicide is the frustrated stage,
the accomplice shall get two degrees lower than reclusion
temporal or prision correccional and so on.

Article 249 provides the penalty of reclusion temporal for


homicide. U n d e r Article 51, the penalty for an attempted crime
is two degrees lower than that prescribed by law. Attempted
homicide is thus punishable by prision correccional.

A r t . 61. Rules of graduating penalties. — F o r the p u r p o s e of


g r a d u a t i n g the penalties w h i c h , a c c o r d i n g to the provisions
of A r t i c l e s 50 to 57, inclusive, of this C o d e , a r e to be imposed
u p o n p e r s o n s guilty as p r i n c i p a l s of any frustrated or
attempted felony, or as accomplices or accessories, the
f o l l o w i n g rules shall b e o b s e r v e d :

1. W h e n the penalty p r e s c r i b e d for the felony is


single a n d indivisible, the penalty next l o w e r in
d e g r e e shall be that immediately f o l l o w i n g that
indivisible penalty in the respective g r a d u a t e d
scale p r e s c r i b e d in Article 71 of this Code.

2. W h e n the penalty p r e s c r i b e d for the crime is com-


posed of t w o indivisible penalties, or of one or more
divisible penalties to be imposed to their full ex-
tent, the penalty next l o w e r in d e g r e e shall be that
immediately f o l l o w i n g the lesser of the penalties
p r e s c r i b e d in the respective g r a d u a t e d scale.

277
NOTES A N D CASES ON THE REVISED PENAL CODE

3. W h e n the penalty p r e s c r i b e d for the crime is


composed of one or t w o indivisible penalties a n d
the m a x i m u m p e r i o d of another divisible penalty,
the penalty next l o w e r in d e g r e e shall be composed
of the m e d i u m a n d m i n i m u m periods of the p r o p e r
divisible penalty a n d the m a x i m u m p e r i o d of that
immediately f o l l o w i n g in said respective g r a d u a t e d
scale.

4. W h e n the p e n a l t y p r e s c r i b e d for the c r i m e is


composed of several periods, corresponding to
different d i v i s i b l e p e n a l t i e s , the p e n a l t y n e x t
l o w e r i n d e g r e e s h a l l b e c o m p o s e d o f the p e r i o d
i m m e d i a t e l y f o l l o w i n g the m i n i m u m p r e s c r i b e d
a n d o f the t w o n e x t f o l l o w i n g , w h i c h s h a l l b e t a k e n
f r o m the p e n a l t y p r e s c r i b e d , i f p o s s i b l e ; o t h e r w i s e
f r o m the p e n a l t y i m m e d i a t e l y f o l l o w i n g i n the
a b o v e m e n t i o n e d r e s p e c t i v e g r a d u a t e d scale.

5. W h e n the l a w p r e s c r i b e s a penalty for a c r i m e in


some m a n n e r not specially p r o v i d e d for in the f o u r
p r e c e d i n g rules, the courts, p r o c e e d i n g b y a n a l o g y ,
shall impose c o r r e s p o n d i n g penalties u p o n those
guilty as principals of the f r u s t r a t e d felony, or of
attempt to commit the same, a n d u p o n accomplices
a n d accessories.

Why is there a need for the rules in graduating penalties under


Article 61?

Article 61 is necessary to guide the courts how to lower


the penalty. In the application of the rules therein, it is to
be understood that each penalty prescribed by l a w for every
felony is a degree. Thus, generally when the penalty imposed
comprises of two periods, the two-period penalty is deemed
as one degree and the penalty next lower in degree should be
composed of two periods also. If the penalty is composed of one
period only, that is a degree for purposes of the rules and the
next lower penalty shall also be made up of one period.

T h e scale of penalties provided in Article 71 is to be used in


determining the penalty lower in degree than that prescribed.

278
APPLICATION OF PENALTIES

Explain the rules in Article 6 1 .


R u l e 1: W h e n the penalty imposed for the offense is single
and indivisible, the penalty next lower in degree shall be
that immediately following that indivisible penalty in the
respective graduated scale in Article 71.
T h e r e is now only one indivisible penalty - reclusion
perpetua. T h e next lower in degree is the penalty immediately
following it in which is reclusion temporal.
R u l e 2: W h e n the penalty prescribed is two indivisible
penalties, or one or more divisible penalties to be imposed
to their full extent, the penalty next lower in degree shall
be that immediately following the lesser of the penalties
prescribed.
There is no more two indivisible penalties because of R . A .
9346. Thus, the first part of the rule is no longer operative.
T h e second part says that when the penalty prescribed
is composed of one or more divisible penalties to be imposed to
their full extent, the penalty next lower in degree shall be that
immediately following the lesser of the penalties. For instance,
when the penalty imposed is prision mayor to reclusion temporal
the penalty next lower in degree is that immediately following
prision mayor, which is prision correccional.
R u l e 3: W h e n the penalty prescribed is composed of one
or two indivisible penalties and the maximum period of
another divisible penalty, the penalty next lower in degree
shall be composed of the medium and minimum periods of
the proper divisible penalty and the maximum period of
that immediately following.
This rule refers to a three-period penalty: reclusion
temporal, maximum period to death and the next lower penalty
is also composed of three periods - prision mayor, maximum
period to reclusion temporal, medium period. [This is now
academic due to the demise of the death penalty.]
The rule can also apply to a two-period penalty composed
of one indivisible penalty and the maximum period of a
divisible penalty - reclusion temporal, maximum to reclusion
perpetua. T h e penalty next lower is the same for the three-
period penalty: prision mayor, maximum to reclusion temporal,
medium, as expressly stated in Rule 3 of Article 61.

279
NOTES A N D CASES ON THE REVISED PENAL CODE

R u l e 4: When the penalty prescribed for the crime is


composed of several periods, corresponding to different
divisible penalties, the penalty next lower in degree shall
be composed of the period immediately following the
minimum prescribed and of the two next following, which
shall be taken from the penalty prescribed, if possible;
otherwise from the penalty immediately following in the
respective graduated scale.

The penalty for brigandage under Article 306 is prision


mayor, medium to reclusion temporal, minimum, a penalty
composed of several periods corresponding to different divisible
penalties. The penalty next lower in degree shall likewise be
composed of different divisible penalties - prision correccional,
medium period to prision mayor, minimum.

• When the penalty prescribed is not provided for in the rules


in Article 61, how should the court proceed in lowering the
penalty?

Article 61(5) provides that when the law prescribes a


penalty in some manner not specially provided for in the four
preceding paragraphs, the courts shall proceed by analogy.
Hence, when the penalty prescribed for the crime consists of
one or two penalties to be imposed in their full extent, the
penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71.
For instance, R . A . 6425 as amended by R . A . 7659 imposes the
complex penalty consists of three discrete penalties in their
full extent - prision correccional, prision mayor and reclusion
temporal, then one degree lower would be arresto menor,
destierro and arresto mayor. There can be no further reduction,
since only the penalties of fine and public censure remain in
the scale. (People v. Simon, G.R. No. 930280, July 29, 1994)

S e c t i o n T w o . — Rules for the application of penalties with


regard to the mitigating and aggravating circumstances,
and habitual delinquency

A r t . 62. Effects of the attendance of mitigating or aggravating


circumstances and of habitual delinquency. — M i t i g a t i n g or
a g g r a v a t i n g circumstances a n d h a b i t u a l d e l i n q u e n c y shall

280
APPLICATION OF PENALTIES

be t a k e n into a c c o u n t for the p u r p o s e of d i m i n i s h i n g or


i n c r e a s i n g the p e n a l t y in conformity w i t h the f o l l o w i n g
rules:

1. A g g r a v a t i n g c i r c u m s t a n c e s w h i c h in themselves
constitute a c r i m e especially p u n i s h a b l e by l a w or
w h i c h a r e i n c l u d e d by the l a w in defining a crime
a n d p r e s c r i b i n g the p e n a l t y t h e r e f o r shall not b e
t a k e n into a c c o u n t for the p u r p o s e of i n c r e a s i n g
the p e n a l t y .

1 ( a ) . W h e n i n the c o m m i s s i o n o f the c r i m e , a d v a n t a g e
w a s t a k e n b y the o f f e n d e r o f his p u b l i c position,
the p e n a l t y to be i m p o s e d shall be in its m a x i m u m
r e g a r d l e s s o f m i t i g a t i n g circumstances.

T h e m a x i m u m p e n a l t y shall b e i m p o s e d i f the
offense w a s c o m m i t t e d b y a n y p e r s o n w h o b e l o n g s
to an organized/syndicated crime group.

A n o r g a n i z e d / s y n d i c a t e d crime g r o u p m e a n s a
g r o u p of 2 or m o r e p e r s o n s c o l l a b o r a t i n g , confed-
e r a t i n g o r m u t u a l l y h e l p i n g one a n o t h e r for p u r -
poses of g a i n in the commission of any crime. (As
amended by R.A. No. 7659.)

2. T h e same r u l e shall a p p l y w i t h respect to any


a g g r a v a t i n g circumstances inherent in the crime to
such a d e g r e e that it must of necessity a c c o m p a n y
the c o m m i s s i o n thereof.
3. A g g r a v a t i n g or mitigating circumstances w h i c h
arise f r o m the m o r a l attributes of the offender,
or f r o m his p r i v a t e relations with the offended
p a r t y , or f r o m a n y other p e r s o n a l cause, shall only
serve to a g g r a v a t e or mitigate the liability of the
p r i n c i p a l s , accomplices a n d accessories as to w h o m
each circumstances a r e attendant.
4. T h e circumstances w h i c h consist in the material
execution of the act, or in the means employed
to accomplish it, shall serve to a g g r a v a t e or
mitigate the liability of those persons only w h o had
k n o w l e d g e of them at the time of the execution of
the act or their cooperation therein.

281
NOTES A N D CASES ON THE REVISED PENAL CODE

5. H a b i t u a l delinquency shall have the following


effects:
a. U p o n a 3rd conviction, the culprit shall be
sentenced to the penalty p r o v i d e d by l a w for
the last crime of w h i c h he be f o u n d guilty a n d to
the a d d i t i o n a l penalty of prision correccional
in its m e d i u m a n d m a x i m u m periods;

b. U p o n a 4th conviction, the culprit shall be


sentenced to the penalty p r o v i d e d for the
last crime of w h i c h he be f o u n d guilty a n d to
the a d d i t i o n a l p e n a l t y of prision mayor in its
minimum and m e d i u m periods; and

c. U p o n a 5th or a d d i t i o n a l conviction, the c u l p r i t


shall be sentenced to the p e n a l t y p r o v i d e d for
the last c r i m e o f w h i c h h e b e f o u n d guilty a n d
to the a d d i t i o n a l p e n a l t y of prision mayor in
its m a x i m u m p e r i o d to reclusion temporal in
its m i n i m u m p e r i o d .

N o t w i t h s t a n d i n g the p r o v i s i o n s of this
article, the total of the t w o penalties to be im-
p o s e d u p o n the offender, in conformity h e r e -
w i t h , shall in no case e x c e e d 30 y e a r s .

F o r the p u r p o s e of this article, a p e r s o n


shall b e d e e m e d t o b e h a b i t u a l d e l i n q u e n t , i f
w i t h i n a p e r i o d of 10 y e a r s f r o m the d a t e of
his r e l e a s e or last conviction of the c r i m e s of
serious or less serious p h y s i c a l i n j u r i e s , robo,
hurto, estafa, or falsification, he is f o u n d guilty
of a n y of said c r i m e s a 3rd time or oftener.

What are the different kinds of modifying circumstances in this


article?

a. Those which in themselves constitute a crime such as "by


means of fire" or arson

b. Those included by law in defining a crime and prescribing


the penalty, e.g., laying hands upon a person in authority
which is direct assault.

282
APPLICATION OF PENALTIES

c. Those inherent in the crime, e.g., dwelling in trespass to


dwelling.

These shall no longer be considered in imposing


the penalty because in [a] and [b] they were already
considered by the law in prescribing the penalty for the
offense and in [c] the circumstance is absorbed by the
crime committed.

d. Those which are caused by the moral attributes of the


offender or his relations with the offended or any other
personal causes [paragraph 3] — only the offender
having such attribute shall be affected. Thus, only the
minor shall enjoy the privileged mitigating circumstance
of minority. In parricide, only the relative-offender
shall be liable therefor; the co-conspirator shall be liable
for homicide or murder, as the case may be. Habitual
delinquency w i l l be considered against the one to whom
it pertains and w i l l not aggravate the crime of the other
offenders.

What modifying circumstances were added by R.A. 7659 in this


article?
1. W h e n advantage is taken by the offender of his public
position, the penalty shall be in its maximum period,
regardless of the presence of mitigating circumstances.
T h e rule in offsetting of aggravating and mitigating
circumstances under Article 64 shall not apply when the
offender abused his official position in the commission of
the offense.

2. An organized/syndicated crime group formed for purposes


of gain. "Gain" here should not be taken to mean the
technical word "gain" in theft or robbery but should
pertain to those crimes where the offenders will profit,
such as estafa, kidnapping for ransom, etc.
T h e phrase "same rule" in N o . 2 of this Article should be
understood to refer to paragraph 1 without regard to paragraph
1(a) which is an amendment by R . A . 7659. Therefore,
aggravating circumstances which are inherent to the crime

283
NOTES A N D CASES ON THE REVISED PENAL CODE

shall not increase the penalty to the maximum period and shall
no longer be considered in the determination of the penalty.

What is the essence of a syndicated or organized crime group?


The essence is that it was organized for the general
purpose of committing crimes for gain. It is not enough that
accused and his companions confederate and mutually help
one another for the purpose of gain, there must be proof that
they were a group organized for that general purpose. They
do not merely conspire (which is not aggravating) to commit
a particular crime but formed to commit crimes for gain. They
practically make it their industry or profession to commit such
crimes.
What emerges from the Senate deliberation of what is now
Article 2 ( l ) ( a ) (S.B. N o . 891) is the deed of a group of persons,
at least two in number, which is organized for the purpose of
committing crimes for gain. W h i l e the evidence shows that
the accused and his companions planned to rob SS, there is no
evidence that they were organized to commit crimes for gain.
There was a conspiracy to commit robbery but not a syndicate
or organized crime group. (People v. Alberca, G.R. No. 117106,
June 26, 1996)

In the deliberation of S.B. 891 that became R . A . 7659,


Senator Tolentino explained the difference between conspiracy
and organized crime syndicate: "The difference, of course, is
that in the case of syndicated crime, the group is an organized
group, while such organization is not required in the case of mere
conspiracy. Two or more persons just agree to commit a crime,
we have a conspiracy, while in the case of a syndicate there is a
group that is actually organized for crime purposes, "x x x "Well,
in the case of a band that means all of them participate in the
commission of the offense. All the members, I think, four or more
participate in the commission of the offense. But in the case of a
syndicated crime, maybe one member of the group alone commits
a crime, while in the organized group one or two members may
commit the crime." x x x "Senator Tolentino. Mr. President, I
think the concept of syndicate here is different from conspiracy.
Two or more persons may conspire to commit robbery. All right.
That is a particular offense. But in the case of a syndicate, the

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APPLICATION OF PENALTIES

concept here is a group that is organized for commission of


crimes, not only a particular crime, but of crimes. So, there is
a big difference between the conspiracy and the syndicate." x
x x "But when we talk of conspiracy, we mean an agreement
between two or more persons to commit a particular crime. I
do not think the Gentleman can raise that to a level of making
it an aggravating circumstance because there is no reason for
it. The reason in the syndicated crime is that it is practically a
profession that is being adopted by a group." (cited in People v.
Alberca)

• What are the elements of habitual delinquency and its effect?

T h e elements of habitual delinquency are:

1. T h e felonies must be any of falsification, robbery, estafa,


theft, serious and less serious physical injuries;

2. T h e r e must be at least three convictions; and

3. T h e third conviction must take place within 10 years from


the last conviction or release.

T h e effect of habitual delinquency is to impose upon the


convict an additional penalty, which increases with the number
of his convictions from the third and so forth, but the total of the
two penalties (for the crime and for the habitual delinquency)
should not be more than 30 years. Thus, habitual delinquency
is in effect not a "regular" aggravating circumstance but is akin
to a felony with its own escalating penalty.

Another effect is that habitual delinquents are disqualified


from the retroactive application of a favorable penal law.

A r t . 63. Rules for the application of indivisible penalties. —


In all cases in w h i c h the l a w p r e s c r i b e s a single indivisible
penalty, it shall be a p p l i e d by the courts r e g a r d l e s s of any
mitigating or a g g r a v a t i n g circumstances that may have
attended the commission of the deed.
In all cases in w h i c h the l a w prescribes a penalty
composed of t w o indivisible penalties the following rules
shall be o b s e r v e d in the application thereof:

285
NOTES A N D CASES ON THE REVISED PENAL CODE

1. W h e n in the commission of the d e e d there is present


only one a g g r a v a t i n g circumstance, the g r e a t e r
penalty shall be a p p l i e d .
2. W h e n there a r e neither mitigating n o r a g g r a v a t i n g
circumstances in the commission of the deed, the
lesser penalty shall be a p p l i e d .
3. W h e n the commission of the act is attended by
some mitigating circumstance a n d there is no
a g g r a v a t i n g circumstance, the lesser penalty shall
be applied.
4. W h e n both m i t i g a t i n g a n d a g g r a v a t i n g c i r c u m -
stances a t t e n d e d the commission of the act, the
courts shall r e a s o n a b l y a l l o w t h e m to offset one
a n o t h e r i n c o n s i d e r a t i o n o f their n u m b e r a n d
i m p o r t a n c e , for the p u r p o s e o f a p p l y i n g the p e n a l t y
i n a c c o r d a n c e w i t h the p r e c e d i n g r u l e s , a c c o r d i n g
to the result of s u c h c o m p e n s a t i o n .

• What are the two kinds of penalties in this Article?

They are the following:

1. Single indivisible penalty of reclusion perpetua [or death]


where the penalty imposed shall be applied regardless of
the presence any mitigating or aggravating circumstances.
However, "mitigating" here does not include privileged
mitigating circumstances for these are always considered
even in case of single indivisible penalty.

Even assuming that aggravating or mitigating


circumstances have been proven, the same cannot be
taken into account because the penalty for qualified rape
is single and indivisible. (People v. Palermo, G.R. No.
120630, June 28, 2001)

2. T w o indivisible penalties of reclusion perpetua to


death where the higher penalty shall be imposed when
an aggravating circumstance is present or left after
offsetting. This paragraph is now inoperative due to R . A .
9346 that abolished the death penalty; there is now only
one indivisible penalty of reclusion perpetua.

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APPLICATION OF PENALTIES

• Why is reclusion perpetua still an indivisible penalty when it has


now a fixed duration?

If reclusion perpetua were reclassified as a divisible


penalty, then Article 63 would lose its reason and basis for
existence. T h e r e w e r e only two indivisible penalties — death
and reclusion perpetua. Since the death penalty has been
abolished, only reclusion perpetua is left as an indivisible
penalty. W e r e it considered as divisible in v i e w of its having
now a fixed period, A r t i c l e 63 w i l l have no more applicability.

Since reclusion perpetua is an indivisible penalty, it has


no m i n i m u m , medium or maximum period. A n d where the
l a w prescribes a single indivisible penalty, it shall be applied,
regardless of any modifying circumstance that attended the
commission of the crime. Thus, the I S L is not applied when
reclusion perpetua is imposed as a single indivisible penalty
by virtue of A r t i c l e 63(1). (Infra)

• To what kind of mitigating circumstances do Articles 63 and 64


refer?

T h e mitigating circumstances referred to in Articles


63 and 64 are ordinary mitigating circumstances because
privileged mitigating circumstances are always considered
whether the penalty imposable is divisible or indivisible. Thus,
privileged mitigating circumstances are first considered before
the rules in said articles are applied to determine the proper
penalty and/or period to be imposed on the convict.

A r t . 64. Rules for the application of penalties which contain


three periods. — In cases in w h i c h the penalties p r e s c r i b e d by
l a w contain three p e r i o d s , w h e t h e r it be a single divisible
penalty or c o m p o s e d of three different penalties, each one
of w h i c h forms a p e r i o d in a c c o r d a n c e w i t h the provisions of
Articles 76 a n d 77, the courts shall o b s e r v e for the applica-
tion of the penalty the f o l l o w i n g rules, a c c o r d i n g to whether
there a r e or a r e no mitigating or a g g r a v a t i n g circumstances:
1. W h e n there a r e neither a g g r a v a t i n g nor mitigating
circumstances, they shall impose the penalty pre-
scribed by l a w in its m e d i u m period.

287
NOTES A N D CASES ON THE REVISED PENAL CODE

2. W h e n only a mitigating circumstance is present in


the commission of the act, they shall impose the
penalty in its minimum period.
3. W h e n only an a g g r a v a t i n g circumstance is present
in the commission of the act, they shall impose the
penalty in its m a x i m u m p e r i o d .
4. W h e n both mitigating a n d a g g r a v a t i n g c i r c u m -
stances a r e present, the c o u r t shall r e a s o n a b l y
offset those of one class a g a i n s t the other a c c o r d i n g
to their relative w e i g h t .

5. W h e n there are t w o o r m o r e mitigating circumstances


a n d no a g g r a v a t i n g circumstances a r e present, the
court shall impose the penalty next l o w e r to that
p r e s c r i b e d by l a w , in the p e r i o d that it m a y d e e m
applicable, a c c o r d i n g to the n u m b e r a n d n a t u r e of
such circumstances.

6. W h a t e v e r m a y be the n u m b e r a n d n a t u r e of the
a g g r a v a t i n g circumstances, the courts shall not
impose a g r e a t e r p e n a l t y t h a n that p r e s c r i b e d by
l a w , in its m a x i m u m p e r i o d .

7. W i t h i n the limits of e a c h p e r i o d , the courts shall


d e t e r m i n e the extent of the p e n a l t y a c c o r d i n g to
the n u m b e r a n d n a t u r e o f the a g g r a v a t i n g a n d
m i t i g a t i n g c i r c u m s t a n c e s a n d the g r e a t e r o r lesser
extent of the evil p r o d u c e d by the c r i m e .

Summary of the rules when the penalty imposed is divisible.

Modifying Circumstances Proper Period

1. No aggravating and no — medium


mitigating

2. Mitigating only minimum


3. Aggravating only maximum
4. Some of both present — offset then apply
above rules

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APPLICATION OF PENALTIES

5. T w o or more mitigating — lower the penalty


with no aggravating by one degree in the
proper period

• What can the courts not do under these rules?


Courts cannot:

a. L o w e r the penalty by a degree when there is an


aggravating circumstance even if the net effect
of the offsetting is that two or more mitigating
circumstances are left;

b. L o w e r by two degrees when there are four mitigating


circumstances and no aggravating;

c. Impose a greater penalty than that prescribed by


l a w no matter how many aggravating circumstances
are present.

T h e penalties in Book II are the maximum for the


specific crimes. To impose a higher penalty, the crime must
be upgraded by a qualifying circumstance but in such case,
there is a different crime altogether. For instance, homicide
can only be penalized with reclusion temporal. To increase it
to reclusion perpetua, there must be a qualifying circumstance
but the crime will no longer be homicide but murder.

• What is the relationship between Article 64 and the Indetermi-


nate Sentence Law?
Article 64 is important in the application of the I S L
because the modifying circumstances are first considered
in determining the maximum penalty. On the basis of the
computed maximum penalty, the minimum penalty shall be
within the whole range of the penalty next lower in degree in
the period which the court may deem proper.

Article 64 is not considered in determining the minimum


penalty. Rather, the minimum is the whole range of the penalty
next lower in degree than the computed maximum penalty.

• When there are two or more mitigating, without any aggravating,


what is the proper penalty?

289
NOTES A N D CASES ON THE REVISED PENAL CODE

The penalty next lower to that prescribed by the R P C shall


be imposed in the period that the Court may deem applicable
depending upon the number and nature of mitigating
circumstances pursuant to Article 64 (5). Thus, in homicide
which carries reclusion temporal, where there are present
two mitigating without any aggravating circumstances, the
maximum penalty should be one degree lower or prision
mayor. Applying the I S L , the convict must suffer the penalty
the minimum of which must be within the range of prision
correccional and the maximum within prision mayor. (People
v. Germina, May 1998)

• Do the rules under Article 64 apply to quasi-offenses under


Article 365?
N o , for paragraph 5 of Article 365 provides that in the
imposition of the penalties for the quasi-offense, the courts
shall exercise their sound discretion without regard to the rules
prescribed in Article 64. Modifying circumstances substitute
for the discretion of the judge in the imposition of the penalties
such that when these circumstances are not applicable, the
judge is given leeway to exercise his sound discretion. (People v.
Simon) Modifying circumstances relate to the moral attribute
of the offender which is irrelevant in quasi-offenses, intent
being absent.

A r t . 65. Rule in cases in which the penalty is not composed


of three periods. — In cases in w h i c h the p e n a l t y p r e s c r i b e d
by l a w is not c o m p o s e d of t h r e e p e r i o d s , the courts shall
a p p l y the rules c o n t a i n e d in the f o r e g o i n g articles, d i v i d i n g
into three e q u a l portions the time i n c l u d e d in the p e n a l t y
p r e s c r i b e d , a n d f o r m i n g one p e r i o d o f e a c h o f the t h r e e
portions.

• What is the rule when a divisible penalty is imposed upon an


offender?

Article 76 gives the legal duration of divisible penalties,


i.e., it shall be considered as divided into three periods:
minimum, medium and maximum. W h e n the law prescribes
a penalty that does not comply with this requirement, Article
65 directs that the penalty shall be made to comply therewith

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APPLICATION OF PENALTIES

by dividing it into three periods to conform to the rule that


divisible penalty shall be deemed as divided into three periods.

Robbery in an uninhabited place is penalized by prision


correccional in its medium and maximum periods. T h e duration
of this penalty is 2 years, 4 months and 1 day to 6 years. To
conform to the rule under Article 76 on divisible penalties, the
following steps are followed:

a. Get the duration of the penalty.


6 yrs minus 2 yrs, 4 mos.
= 3 yrs, 8 mos. or 44 mos.

b. Divide by 3 the result in (a) to get the duration of


each period.
44 mos. /3 = 14 mos., 10 days per period or 1 yr, 2
mos. and 10 days

c. A d d the quotient to the minimum of each period:

M i n i m u m period 2 yrs, 4 mos


Duration per period + 1 yr, 2 mos 10 days

M a x i m u m of minimum period 3 yrs 6 mos. 10 days

Thus,

Period From To
Minimum 2 yr 4 mo. 1 day — 3 yr. 6 mo. 10 days
Medium 3 yr. 6 mo. 11 day — 4 yr. 8 mo. 20 days
Maximum 4 yr. 8 mo. 21 day — 6 yr.
This is also true if two full divisible penalties are
imposable, e.g., arresto mayor to prision correccional. The same
rule and procedure shall be followed.

What is the significance of one day in the beginning of each


penalty?
One day separates the duration of penalty:
a. Between two periods, e.g., between arresto menor, mini-
mum and arresto menor, medium
b. Between two degrees, viz., 6 years of prision correccional
from 6 years and 1 day of prision mayor

291
NOTES A N D CASES ON THE REVISED PENAL CODE

c. Between divisible and indivisible penalties, thus up to 20


years is divisible (reclusion temporal). A d d one day and it
becomes indivisible - reclusion perpetua
The effects of this are whether or not: offender is qualified
for probation as the probationable penalty is up to six years
or prision correccional; subsidiary penalty can be imposed or
not, since it applies only if the prison term is not more than six
years; Article 64 on divisible penalty (up to reclusion temporal)
or Article 63 on indivisible penalty (up to reclusion perpetua)
should apply. In the latter, modifying circumstances other
than privileged mitigating affect the penalty whereas in the
former, they do not.

A r t . 66. Imposition of fines. — In i m p o s i n g the fines, the


courts m a y f i x a n y a m o u n t w i t h i n the limits e s t a b l i s h e d b y
l a w ; i n f i x i n g the a m o u n t i n e a c h case a t t e n t i o n shall b e
given, not o n l y t o the m i t i g a t i n g a n d a g g r a v a t i n g c i r c u m -
stances, b u t m o r e p a r t i c u l a r l y t o the w e a l t h o r m e a n s o f
the c u l p r i t .

• What factors are considered in the imposition of fines to the


culprit?

1. Presence of modifying circumstances. In one case, the


P10,000 fine was reduced to P2,000 in v i e w of three
mitigating circumstances. (Nizurtado v. Sandiganbayan)

2. More particularly, the wealth or means of culprit. Thus,


the fine to be imposed may be reduced if, notwithstanding
the presence of aggravating circumstance, the culprit
cannot afford the correct fine.

A r t . 67. Penalty to be imposed when not all the requisites


of exemption of the fourth circumstance of Art. 12 are present. —
W h e n all the conditions r e q u i r e d i n c i r c u m s t a n c e n u m b e r
4 of A r t i c l e 12 of this C o d e to e x e m p t f r o m c r i m i n a l liability
a r e not present, the p e n a l t y of arresto mayor in its m a x i m u m
p e r i o d to prision correccional in its m i n i m u m p e r i o d shall
be imposed u p o n the culprit, if he shall h a v e b e e n guilty of a
g r a v e felony, a n d arresto mayor in its m i n i m u m a n d m e d i u m
periods, if of a less g r a v e felony.

292
APPLICATION OF PENALTIES

A r t . 68. Penalty to be imposed upon a person under eighteen


years of age. — W h e n the o f f e n d e r is e i g h t e e n y e a r s of a g e a n d
his case is o n e c o m i n g u n d e r the p r o v i s i o n s of the p a r a g r a p h
next to the last of A r t . 80 of this C o d e , the f o l l o w i n g rules
shall b e o b s e r v e d :
1. U p o n a p e r s o n u n d e r fifteen b u t o v e r nine years of
a g e , w h o i s not e x e m p t e d f r o m liability b y reason
of the c o u r t h a v i n g d e c l a r e d that he acted with
d i s c e r n m e n t , a d i s c r e t i o n a r y penalty shall be
i m p o s e d , b u t a l w a y s l o w e r b y t w o d e g r e e s a t least
t h a n that p r e s c r i b e d b y l a w for the crime w h i c h h e
committed.

2. U p o n a p e r s o n o v e r fifteen a n d u n d e r e i g h t e e n
y e a r s o f a g e the p e n a l t y n e x t l o w e r t h a n that p r e -
s c r i b e d b y l a w s h a l l b e i m p o s e d , b u t a l w a y s i n the
p r o p e r p e r i o d . proper = medium

• What is the effect of R.A. 9344 on Article 68?

R . A . 9344 is wholly repugnant to Article 68 for the new


law made a child 15 years of age or under at the time of the
commission of the offense absolutely exempt from criminal
liability. Instead he shall be subject to an intervention
program. Thus, Article 68(1) is impliedly repealed for utter
incompatibility with R . A . 9344.
On the other hand, R . A . 9344 exempts a child 15 years old
but under 18 from criminal liability. Instead he shall be subject
to an intervention program unless he acted with discernment
in which case he shall undergo diversion program. In effect,
Article 68(2) is modified in that the minor shall only be crimi-
nally liable if he acted with discernment. The age of discern-
ment was increased from nine to 15 years by the new law.
If a child is criminally responsible and the diversion
program does not apply, the case shall proceed as in other cases.
In such event, the child shall enjoy the privileged mitigating
circumstance under Article 68.

• Who has the burden of proving the circumstance of minority?


Prior to R . A . 9344, Mendoza, July 1998, stated that the
burden of proof that accused was a minor at the time of the

293
NOTES A N D CASES ON THE REVISED PENAL CODE

commission of the offense is on him. Upon the law's effectivity,


the minor need not prove his minority because he enjoys the
presumption of minority pursuant to Section 7 thereof. In case
of doubt as to age, it shall be resolved in favor of minority.

The law provides that the age of a child may be determined


from the child's birth or baptismal certificate or any other
pertinent documents. In the absence of documentary evidence,
the age may be determined from information supplied by the
child himself, testimonies of other persons, physical appearance
of the child and other relevant evidence.

A n y person contesting the age of the child in conflict with


the law prior to the filing of the information in court may file
a case in a summary proceeding for the determination of the
age of the child before the Family Court which shall decide the
case within 24 hours from receipt of the appropriate pleadings
of all interested parties; or a motion in the court if and where a
case is already pending. It shall suspend the proceedings in the
main case while the motion is being heard.

On March 28, 1981, when the crime was committed,


accused was only 17 years old. In many cases, if the accused
alleges minority and the prosecution does not disprove his
claim by contrary evidence, such allegation can be accepted
as a fact. In Bergantino, G.R. No. L-1441, December 29, 1903,
the accused testified that she was below 15 when the crime
was committed. This was corroborated by her mother and her
husband. No other evidence such as baptismal certificate was
presented to support her claim. T h e prosecution did not offer
any contradictory evidence. It was held therein that while
the evidence to this point is not entirely satisfactory, yet it
is sufficient to raise a reasonable doubt upon this material
question in the case, to the benefit of which the defendant is
entitled. T h e baptismal certificate or other evidence of this
character would have been much more satisfactory to the court,
and if obtainable, should have been introduced. (David v. CA,
July 1998)

A r t . 69. Penalty to be imposed when the crime committed is


not wholly excusable. — A p e n a l t y l o w e r by o n e or t w o d e g r e e s
than that p r e s c r i b e d by l a w shall be i m p o s e d if the d e e d is
not w h o l l y e x c u s a b l e by r e a s o n of the lack of some of the

294
APPLICATION OF PENALTIES

conditions r e q u i r e d to justify the s a m e or to exempt f r o m


c r i m i n a l liability in the s e v e r a l cases m e n t i o n e d in Articles
11 a n d 12, p r o v i d e d that the m a j o r i t y of such conditions be
present. T h e c o u r t s shall i m p o s e the penalty in the p e r i o d
w h i c h m a y b e d e e m e d p r o p e r , i n v i e w o f the n u m b e r a n d
n a t u r e of the conditions of e x e m p t i o n p r e s e n t or lacking.

• What kind of a mitigating circumstance is lack of complete


requirement to exempt or justify?

It is a privileged mitigating circumstance because the


penalty may be reduced by one or two degrees if majority of
the conditions required to justify the act committed or to ex-
empt from criminal liability are present. Consequently, such
mitigating circumstance cannot be offset by any aggravating
circumstance.

In the circumstance of defense of self, relatives or strangers


under Article 11, if there is no unlawful aggression, Article 69
is not applicable because this is the condition sine qua non to
justify the act. Without unlawful aggression there is nothing to
defend; there is no justifying circumstance of defense, complete
or incomplete.

If there is present less than a majority of the conditions, it


will be an ordinary mitigating circumstance, which will lower
the penalty to the minimum period, under Article 13(1).

Appellant is guilty of two homicides, there being no


qualifying or aggravating circumstance, but extenuated by the
privileged mitigating circumstance of incomplete self-defense
— in view of the unlawful aggression on the part of the victims
and lack of sufficient provocation on the part of the appellant —
by two generic mitigating circumstance of voluntary surrender
and passion and obfuscation.
The penalty for homicide is reclusion temporal. Pursuant
to Article 69, the penalty lower by one or two degrees shall be
imposed if the deed is not wholly excusable. Considering that
the majority of the requirements for defense of property are
present, the penalty may be lowered by two degrees to prision
correccional. A n d under Article 64(5), the same may further be
reduced by one degree, that is, arresto mayor, because of the

295
NOTES A N D CASES ON THE REVISED PENAL CODE

presence of two mitigating circumstances and no aggravating


circumstance. (People v. Narvaez, 121 SCRA)

A r t . 70. Successive service of sentences. — W h e n the culprit


has to serve t w o or m o r e penalties he shall serve t h e m
simultaneously if the n a t u r e of the penalties w i l l so permit;
otherwise, the following rules shall be o b s e r v e d :
In the imposition of the penalties, the o r d e r of their
respective severity shall be f o l l o w e d so that they m a y be
executed successively or as n e a r l y as m a y be possible, s h o u l d
a p a r d o n have b e e n g r a n t e d as to the penalty or penalties
first imposed, or should they h a v e b e e n s e r v e d out.
F o r p u r p o s e s of a p p l y i n g the p r o v i s i o n s of the next
p r e c e d i n g p a r a g r a p h , the respective severity of the penalties
shall be d e t e r m i n e d in a c c o r d a n c e w i t h the f o l l o w i n g scale:

1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision Correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. P e r p e t u a l a b s o l u t e disqualification,
10. T e m p o r a r y a b s o l u t e disqualification,
11. S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote
a n d be voted for, the r i g h t to f o l l o w a p r o f e s s i o n or
calling, a n d
12. Public censure.

N o t w i t h s t a n d i n g the p r o v i s i o n s of the r u l e next


p r e c e d i n g , the m a x i m u m d u r a t i o n of the convict's
sentence shall not be m o r e t h a n t h r e e f o l d the length of
time c o r r e s p o n d i n g to the most s e v e r e of the penalties
imposed upon him. No other penalty to which he may
be liable shall be inflicted after the s u m total of those
imposed e q u a l s the s a m e m a x i m u m p e r i o d .

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APPLICATION OF PENALTIES

S u c h m a x i m u m p e r i o d shall in no case exceed forty


years.
In a p p l y i n g the p r o v i s i o n s of this r u l e , the d u r a t i o n
of p e r p e t u a l penalties (pena perpetua) shall be comput-
ed at thirty y e a r s . (As amended by Commonwealth Act
No. 217.)

• What is the rule when a convict is given multiple sentences?

T h e general rule is that he shall serve them simultaneously


if the nature of the penalties permits simultaneous service of
sentence. Otherwise, the penalties shall be served successively
in the order of severity as prescribed in this article. For
instance, imprisonment and fine, multiple death sentences,
and imprisonment and disqualification, among others shall
be served simultaneously because these penalties permit
simultaneous service. But several terms of imprisonment like
several reclusion perpetua cannot be served simultaneously
hence, they should be served successively, starting from the
most severe.

• When is simultaneous service of sentence allowed? What


penalties can be served simultaneously?

A r t i c l e 70 allows simultaneous service of two or more


penalties only if the nature thereof so permits. T h e penalties
that can be simultaneously served are: (1) perpetual abso-
lute disqualification, (2) perpetual special disqualification,
( 3 ) temporary absolute disqualification, (4) temporary spe-
cial disqualification, (5) suspension, (6) destierro, (7) public
censure, (8) fine and bond to keep the peace, (9) civil interdic-
tion, and (10) confiscation and payment of costs. These pen-
alties, except destierro, can be served simultaneously with
imprisonment. T h e penalties consisting in deprivation of lib-
erty cannot be served simultaneously by reason of the nature
of such penalties. W h e r e the accused is sentenced to two or
more terms of imprisonment, the terms should be served suc-
cessively.
Petitioner was sentenced to one year imprisonment for
every count of the offense committed. The nature of the sen-
tence does not allow him to serve all the prison terms simul-

297
NOTES A N D CASES ON THE REVISED PENAL CODE

taneously. (In Re: Petition for Habeas Corpus of Pete Lagran,


G.R. No. 147270, August 15, 2001)

• What are the limitations on the service of sentence?


a. The t h r e e - f o l d r u l e - the maximum duration of the
convict's sentence shall not be more than three-fold the
length of time corresponding to the most severe of the
penalties imposed upon him. No other penalty to which
he may be liable shall be inflicted after the sum total of
those imposed equals the same maximum period. In other
words, the maximum penalty is three times the most
severe or the total of the penalties imposed, whichever is
lower.

b. Such maximum period shall in no case exceed 40 years.


Whatever is lowest between the sum of the penalties and
three times the most severe, it shall not be more than 40
years.

• How is the three-fold penalty computed?

Step 1 — Get the most severe penalty imposed following


Article 70
2 — Multiply by 3 the duration of the most severe
penalty
3 — A d d the duration of all the different sentences
4 — Compare the results of steps 2 and 3 and
5 — Accused to serve the lesser period which in no case
shall exceed 40 years
When the most severe penalty is reclusion perpetua, the
imputed duration shall be 30 years, thus 30 x 3 = 90 years. T h e
culprit shall serve not 90 but 40 years pursuant to Article 70.

• What is the significance of the 30-year duration of penal


perpetua in Article 70?

Article 70 pertinently provides that in applying the three-


fold rule, the duration of perpetual penalties (pena perpetua)
shall be computed at 30 years. But the imputation of the 30-
year duration to reclusion perpetua is only to serve as a basis

29B
APPLICATION OF PENALTIES

for determining the convict's eligibility for pardon or for the


application of the three-fold rule in the service of multiple
penalties. (People v. Tena, October 1992) Pena perpetua covers
reclusion perpetua and life imprisonment.

• When the penalty is indeterminate, how is the three-fold


penalty computed?

It is three times the indeterminate sentence also. For


instance, in the service of 12 penalties meted to defendant,
the maximum penalty that he should serve is three times the
indeterminate sentence of 12 years to 17 years, or 36 years to
51 years. T h e maximum duration of his sentence should not
exceed 40 years. (People v. Sendaydiego, G.R. Nos. L-33252-54,
January 20, 1978)

• Should the judge refrain from imposing the correct penalties if


these would exceed the limitation of penalties in this article?

N o . This article deals with service of sentence and not


with imposition, hence, it is for the Director of Prisons to
follow. T h e court should impose the correct penalties even if
these will amount to more than the lifetime of the prisoner.
Consequently, all the sentences on the prisoner imposed by any
court for whatever crimes whenever decided should be covered
by this rule. T h e Director of Prisons must have a record of all
such sentences on a convict.
T h e rationale for imposing the correct penalty is that
when the convict is pardoned for one, he will still serve the
other sentences meted on him.

• If the penalties imposed are all equal, how should the three-
fold rule operate?
If the penalties imposed are all equal, for instance, seven
reclusion perpetua, the period thereof shall be considered as the
most severe penalty for the purpose of applying the three-fold
rule. Thus, 3 x 30 = 90, but the culprit is to serve a maximum of
40 years only.

A r t . 71. Graduated scales. — In the cases in which the l a w


prescribes a penalty l o w e r or higher by one or more degrees

299
NOTES A N D CASES ON THE REVISED PENAL CODE

than another given penalty, the rules p r e s c r i b e d in Article


61 shall be o b s e r v e d in g r a d u a t i n g such penalty.
The l o w e r or higher penalty shall be taken f r o m the
g r a d u a t e d scale in w h i c h is c o m p r i s e d the given penalty.
T h e courts, in a p p l y i n g such l o w e r or h i g h e r penalty,
shall observe the f o l l o w i n g g r a d u a t e d scales:

SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.

SCALE NO. 2

1. P e r p e t u a l a b s o l u t e disqualification,
2. T e m p o r a r y a b s o l u t e disqualification,
3. S u s p e n s i o n f r o m p u b l i c office, the r i g h t to
vote a n d be voted for, the r i g h t to f o l l o w a
profession or calling,
4. Public censure,
5. Fine.

(See notes under Articles 50 - 57 and Article 61.)

What is the effect of R.A. 9346 as to the scale of penalty under


this article?

R . A . 9346 has expressly repealed all provisions of law


in so far as they apply or impose the death penalty. Thus, it

300
APPLICATION OF PENALTIES

has in effect deleted the penalty of death under the scales of


penalty provided in the R P C . Hence, its effect is to reckon the
lower degree of penalty for accomplices and accessories from
the penalty actually imposed. For instance, for qualified rape
punishable with death originally, the penalty on the principal
under the amendatory law shall be reclusion perpetua; for the
accomplice, it shall be reclusion temporal and for the accessory,
prision mayor.

• Compare Articles 70 and 71; Destierro and Arresto Mayor.

Article 70 is relevant to multiple service of sentence;


Article 71 to graduating penalties in relation to Article 61.
Under Article 71, the penalty next lower than arresto mayor is
destierro and not arresto menor. On the other hand, in Article
70, destierro follows arresto menor in the degree of severity.
T h e rationale for this is explained in Duarte, G.R. No. 88232,
February 26, 1990.

Destierro is not a higher penalty than arresto mayor


which is imprisonment or complete deprivation of liberty,
whereas destierro means banishment or only a prohibition
from residing w i t h i n a radius of 25 kilometers from the
actual residence of the accused for a specified length of time.
T h e respective severities of arresto mayor and destierro must
not be judged by the duration of each of these penalties, but
by the degree of deprivation of liberty involved. Penologists
have always considered destierro lighter than arresto mayor.
Such criterion is reflected both in the old Spanish Penal
Code and in the R P C . In the graduated scale of Article 71 the
l a w m a k e r has placed destierro below arresto mayor. There is,
therefore, no basis in fact or in law for holding that destierro
is a higher penalty than arresto mayor and that an offense
penalized w i t h destierro falls under the jurisdiction of the
court of first instance.

A r t . 72. Preference in the payment of the civil liabilities. —


T h e civil liabilities of a p e r s o n f o u n d guilty of t w o or more
offenses shall be satisfied by f o l l o w i n g the chronological
o r d e r of the dates of the final j u d g m e n t s r e n d e r e d against
him, b e g i n n i n g w i t h the first in o r d e r of time.

301
NOTES A N D CASES ON THE REVISED PENAL CODE

Section T h r e e . — Provisions common to the last


two preceding sections
Art. 73. Presumption in regard to the imposition of accessory
penalties. — W h e n e v e r the courts shall impose a penalty which,
by provision of l a w , carries with it other penalties, according
to the provisions of Articles 40, 41, 42, 43, 44, a n d 45 of this
Code, it must be understood that the accessory penalties are
also imposed upon the convict.

• Should a decision impose accessory penalties?


No, for accessory penalties are automatically imposed by
authority of Article 73, which declares that whenever principal
penalties are imposed, it is understood that the accessory
penalties are likewise meted on the accused.

A r t . 74. Penalty higher than reclusion perpetua in certain


cases. — In cases in w h i c h the l a w p r e s c r i b e s a p e n a l t y
h i g h e r t h a n a n o t h e r g i v e n p e n a l t y , w i t h o u t specifically
d e s i g n a t i n g the n a m e o f the f o r m e r , i f s u c h h i g h e r p e n a l t y
s h o u l d b e that o f d e a t h , the s a m e p e n a l t y a n d the a c c e s s o r y
penalties of A r t i c l e 40, s h a l l be c o n s i d e r e d as the n e x t
higher penalty.

A r t . 75. Increasing or reducing the penalty of fine by one or


more degrees. — W h e n e v e r it m a y be n e c e s s a r y to i n c r e a s e or
r e d u c e the penalty of fine by o n e or m o r e d e g r e e s , it shall be
increased or r e d u c e d , respectively, for e a c h d e g r e e , by 1/4 of
the m a x i m u m a m o u n t p r e s c r i b e d b y l a w , w i t h o u t h o w e v e r ,
c h a n g i n g the m i n i m u m .

T h e same rules shall b e o b s e r v e d w i t h r e g a r d t o f i n e s that


do not consist of a fixed a m o u n t , b u t a r e m a d e p r o p o r t i o n a l .

• How is the penalty of fine increased or reduced?

Fines are reduced by one or two degrees when the felony is


attempted or frustrated or when imposed upon the accessory or
the accomplice. For each degree, 1/4 of the maximum amount
is taken. T h e penalty as computed shall in no case be lower
than the minimum prescribed by law. For instance, if the fine
prescribed by law is P200 to P600, 1/4 of the maximum amount

302
APPLICATION OF PENALTIES

of P600 or P150 is taken. If the penalty is to be reduced by two


degrees, the penalty is computed as follows:

Step 1 — P600 divided by 4 = P150


2 — P150 x 2 degrees = P300
3 — P600-P300 = P300

T h e penalty lowered by two degrees is P200 to P300.

A r t . 76. Legal period of duration of divisible penalties. —


T h e l e g a l p e r i o d o f d u r a t i o n o f d i v i s i b l e penalties shall
b e c o n s i d e r e d a s d i v i d e d into t h r e e p a r t s , f o r m i n g three
p e r i o d s , the m i n i m u m , the m e d i u m , a n d the m a x i m u m i n
the m a n n e r s h o w n i n the f o l l o w i n g table:

• How are the periods of a divisible penalty computed?

Using as an example prision mayor with a period of 6


years and 1 day to 12 years, the period is determined as follows:

Step 1 — Get the duration of the penalty:


End of the period [12 years] minus its beginning
[6 years] = 6 years
Step 2 — Divide by 3 periods the duration.
6 years divided by 3 = 2 years.
Each period is 2 years long.
Step 3 — A d d the quotient in step B to the beginning of
each period.
6 years + 2 years = 8 years.
Hence:
Minimum — 6 years and 1 day to 8 years
Medium — 8 years and 1 day to 10 years
Maximum — 10 years and 1 day to 12 years

A r t . 77. When the penalty is a complex one composed of three


distinct penalties. — In cases in w h i c h the l a w prescribes a
penalty c o m p o s e d of three distinct penalties, each one shall
f o r m a p e r i o d ; the lightest of them shall be the minimum, the
next the m e d i u m , a n d the most severe the m a x i m u m period.

W h e n e v e r the penalty p r e s c r i b e d does not have one of


the forms specially p r o v i d e d for in this Code, the periods

303
NOTES A N D CASES ON THE REVISED PENAL CODE

shall be distributed, a p p l y i n g by analogy the p r e s c r i b e d


rules.

• What is a complex penalty?


A complex penalty is one composed of three distinct
penalties, each one forming a period, the lightest being the
minimum; the next, the medium; and the most severe, the
maximum. (This should not be confused with complex crime
under Article 48.)

• How is a law, which prescribes four distinct penalties, construed?

It must be construed as a legislative oversight. Simon


noted in R . A . 6425, an overlapping of penalties.' W h e r e the
quantity of drugs is less than the limit in Section 20, the penalty
prescribed was prision correccional to reclusion perpetua,
whereas violations involving more than the limit in Section
20 is penalized with reclusion perpetua to death. Clearly,
the overlapping of reclusion perpetua was a mere oversight.
Moreover, it violates the rule in Section 77 on complex penalty
which provides for only three separate and distinct penalties
for a crime. Hence, Simon corrected the patent oversight in the
law to conform to Article77.

• What kind of penalty is reclusion temporal in its maximum


period to reclusion perpetua?

T h e first paragraph of Section 1 of P . D . 1866, prior to R . A .


8294 punishes the crime of simple illegal possession of firearm
with reclusion temporal in its maximum period to reclusion
perpetua. This is a complex and divisible penalty consisting of
three periods.

T h e second paragraph of Article 77 which deals with com-


plex penalties, provides that "whenever the penalty prescribed
does not have one of the forms specially provided for in this
Code, the periods shall be distributed, applying by analogy the
prescribed rules," that is, those in Articles 61 and 76. Hence,
the minimum of the penalty of reclusion temporal maximum
period to reclusion perpetua, is 17 years, 4 months and 1 day
to 20 years; and the maximum period is reclusion perpetua.
(People v. Lian)

304
APPLICATION OF PENALTIES

INDETERMINATE SENTENCE LAW


( A c t 4103, as a m e n d e d by A c t 4225;

Section 1. Hereafter, in imposing a prison sentence


for an offense punishable by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term
prescribed by the same.

Section 2. This Act shall not apply to persons convicted of


offenses punished with death penalty or life-imprisonment; to
those convicted of treason, conspiracy or proposal to commit
treason; to those convicted of misprision of treason, rebellion,
sedition or espionage; to those convicted of piracy; to those
who are habitual delinquents; to those who shall have escaped
from confinement or evaded sentence; to those who having
been granted conditional pardon by the Chief Executive shall
have violated the terms thereof; to those whose maximum
term of imprisonment does not exceed one year, nor to those
already sentenced by final judgment at the time of approval
of this Act, except as provided in Section 5 hereof.

x x x x x x xxx
Section 6. Every prisoner released from confinement on
parole by virtue of this Act shall, at such times and in such
manner as may be required by the conditions of his parole,
as may be designated by the said Board for such purpose,
report personally to such government officials or other parole
officers hereafter appointed by the Board of Indeteminate
Sentence for a period of surveillance equivalent to the
remaining portion of the maximum sentence imposed upon
him or until final release and discharge by the Board of
Indeterminate Sentence as herein provided. The officials so

305
NOTES A N D CASES ON THE REVISED PENAL CODE

designated shall keep such records and make such reports


and perform such other duties hereunder as may be required
by the Board. The limits of residence of such paroled prisoner
during his parole may be fixed and from time to time changed
by the said Board in its discretion. If during the period of
surveillance such paroled prisoner shall show himself to be
a law-abiding citizen and shall not violate any of the laws of
the Philippine Islands, the Board of Indeterminate Sentence
may issue a final certification of release in his favor, which
shall entitle him to final release and discharge.
xxx xxx xxx
Section 8. Whenever any prisoner released on parole by
virtue of this Act shall, during the period of surveillance,
violate any of the conditions of his parole, the Board of
Indeterminate Sentence may issue an order for his arrest
which may be served in any part of the Philippine Islands
by any police officer. In such case the prisoner so re-
arrested shall serve the remaining unexpired portion of the
maximum sentence for which he was originally committed
to prison, unless the Board of Indeterminate Sentence shall,
in its discretion, grant a new parole to the said prisoner.

xxx xxx xxx

• What is the Indeterminate Sentence Law?


It is a law which modified the imposition of penalties
under the R P C and special laws. T h e courts are mandated in
imposing a sentence to fix a minimum and a maximum period of
penalty. The minimum sentence must be served and thereupon,
the convict becomes eligible for parole. W h e n released, he is
not actually discharged for the rest of his sentence is served out
of prison under the supervision of a parole officer.

• What are the objectives of the law?


It is to avoid the unnecessary, prolonged imprisonment of
convicts which may result in economic wastefulness. That is why
after the prisoner has served the minimum and has shown that
he has reformed, he is given parole. T h e philosophy underlying
the I S L is that of redeeming valuable human material and
preventing unnecessary deprivation of personal liberty and

306
APPLICATION OF PENALTIES

economic usefulness with due regard to the protection of the


social order. (Vaca v. CA, G.R. No. 131714, November 16, 1998)

Why is there a need to specify the minimum and maximum


periods?

T h e need for specifying the minimum of the indeter-


minate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness
of the accused, since he may be exempted from serving the en-
tire sentence, depending upon his behavior and his physical,
mental, and moral record. T h e requirement of imposing an
indeterminate sentence in all criminal offenses with definite
maximum and minimum terms, as the court may deem proper
within the legal range of the penalty specified by the law, is
mandatory. (Bacar v. de Guzman, Jr., 271 SCRA 328, 1997)

After having served the minimum penalty, the convict


shall be eligible for parole, and if qualified, may be exempt
from serving the entire sentence in tail. The maximum penalty
is necessary for purposes of the accessory penalties and in case
the convict is not given parole because his conduct in prison
did not show that he is worthy to be released from prison. The
I S L is not only for the benefit of the convict but also the society
in general whose welfare should not be prejudiced by his early
release from jail.

When is the law not applicable [What are the exceptions to the
Indeterminate Sentence Law] [When shall a straight penalty be
imposed] [Who are not covered by the Indeterminate Sentence
Law]?
T h e I S L is mandatory except in the following cases:
a. Offenses punished by death or life imprisonment;
b. Those convicted of treason, conspiracy or proposal to
commit treason [Articles 114 - 115];
c. Those convicted of misprision of treason [Article
116], rebellion [Article 134], sedition [Article 139],
or espionage [Article 117];
d. Those convicted of piracy [Article 132];
e. Habitual delinquents [Article 62, par. 5];

307
NOTES A N D CASES ON THE REVISED PENAL CODE

Recidivists are entitled to an indeterminate


sentence. (People v. Jaranilla, February 22, 1974)
Offender is not disqualified even if the crime is
committed while he is on parole. (People v. Calreon,
C.A., 78 O.G. 6701, November 11, 1982);
f. Those who escaped from confinement or those who
evaded sentence;
g. Those granted conditional pardon and who violated
its terms. (People v. Corral, 74 Phil. 359);
h. Those whose maximum period of imprisonment does
not exceed one year;
Where the penalty imposed does not exceed
one year, the accused cannot avail of the benefits
of the law, the application of which is based upon
the penalty actually imposed in accordance with
law and not upon that which may be imposed in the
discretion of the court.
T h e I S L applies even if the penalty is a result
of plea bargaining.
i. Those who are already serving final judgment upon
the approval of the I S L .

It is error to impose a straight penalty of 20 years of


imprisonment for the crime of illegal fishing with the use of
explosive. T h e I S L provides that if the offense is punished by a
law other than the R P C , the court shall sentence the accused
to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by the said law and the
minimum shall not be less than the minimum term prescribed
by the same. (Argoncillo v. CA, G.R. No. 118816, July 10, 1998)

Since Section 1 states, "in imposing a prison sentence,"


therefore, when the penalty is other than prison sentence such
destierro, suspension, and the like, the I S L does not apply,
hence, there is no minimum and maximum penalty.

T h e exceptions can be grouped into the following:

a. Penalties: death and life imprisonment; prison terms


the maximum of which is not more than one year
(one year or less); reclusion perpetua imposed as a

308
APPLICATION OF PENALTIES

single indivisible penalty under Article 63; and non-


prison sentences of fine, destierro, disqualification,
etc. (Section 1).
b. Offenses: Treason, Proposal or Conspiracy to
Commit Treason, Misprision of Treason, Rebellion,
Espionage, Sedition, Piracy.
c. Offenders: habitual delinquents, escapees from con-
finement, evaders of sentence, violators of condition-
al pardon granted by the Chief Executive.

• When the penalty imposed is reclusion perpetua, is the law


applicable?

For offenses in which the law prescribes the single,


indivisible penalty of reclusion perpetua, it is the first paragraph
of Article 63 and not the I S L that applies. Said article provides
that "in all cases in which the law prescribes a single and
indivisible penalty, it shall be applied by the courts regardless
of any mitigating or aggravating circumstances that may have
attended the commission of the deed." (People v. Romua, G.R.
No. 126175, May 29, 1997)

• Is the requirement to impose an indeterminate sentence


discretionary or mandatory?
Since the requirement is to impose an indeterminate
sentence in all criminal offenses whether punishable by the
R P C or by special laws, with definite minimum and maximum
terms, as the Court deems proper within the legal range of
the penalty specified by the law, it must therefore be deemed
mandatory.

• How does the law operate?


a. T h e sentence must state: "Within the range of (for
instance) prision mayor as minimum, and within the
range of reclusion temporal as maximum." This is
necessary because of the accessory penalties.
b. The maximum period is determined by considering the
presence of modifying circumstances applying the rules
on Article 64. Privileged mitigating circumstances must
first be considered before applying the said rules.

309
NOTES A N D CASES ON THE REVISED PENAL CODE

c The minimum is fixed at one degree lower than that


provided by the R P C . The minimum is within the whole
range of the next lower penalty; not necessarily in the
same period as the maximum penalty. In other words, the
period of the minimum and the maximum penalty need
not be the same.
The penalty is indeterminate not indeterminable. Once,
a judge imposed a sentence where both the minimum and
maximum penalty had minimum and maximum period. It was
deemed ignorance of the law.

• What rules govern the computation of the penalty?


In crimes punishable under the R P C , the maximum term
of the indeterminate penalty is determined in accordance with
the rules and provisions of the R P C exactly as if the I S L had
never been enacted.

The rules to determine the maximum term of the indeter-


minate penalty are those in Articles 46, 48, 50 to 57, 61, 62, 64,
65, 68, 69, and 71.

However, the said rules, particularly those in Articles 50


to 57, 62, 64 and 65, are not applicable in fixing the minimum
term of the indeterminate penalty. T h e Court has unqualified
discretion to fix the term of the minimum. T h e only limitation
is that it is within the range of the penalty next lower to that
prescribed by the R P C for the offense committed, without
regard to its three periods.

T a k e for example homicide in which two mitigating cir-


cumstances. T h e penalty prescribed is reclusion temporal. Since
two mitigating circumstances and no aggravating circumstance
attended the commission of the offense, said penalty shall be
lowered by one degree pursuant to Article 64 (5) or is prision
mayor. This penalty shall be imposed in its medium period
considering that no other modifying circumstance attended the
commission of the offense, the two mitigating circumstances
having been already taken into account in reducing the penalty
by one degree. (Basan v. People, L-39483, November 29, 1974)
Applying the I S L , the minimum of the penalty shall be within
the range of the penalty next lower in degree which is prision
correccional and the maximum of which shall be within the

310
APPLICATION OF PENALTIES

range of the medium period of prision mayor. (Nadjirul Takil


v. Esina, 65 SCRA 378 [1975]; Bacar v. de Guzman Jr A M
No. RTJ-96-1349, April 18, 1997)

A t t e m p t e d homicide is punishable with prision correccio-


nal. A p p l y i n g the I S L , the minimum penalty should be any-
where within the range of 1 month and 1 day to 6 months of
arresto mayor, and the maximum should be within the range of
6 months and 1 day to 6 years of prision correccional. Consider-
ing that no aggravating or mitigating circumstance attended
the commission of the crime, the accused shall be sentenced
to an indeterminate prison term of 2 months and 1 day of ar-
resto mayor as minimum, to 2 years, and 4 months of prision
correccional medium as maximum. (People v. Albacin, G.R. No.
133918, September 13, 2000)

For offenses punished by special law, following the doctrine


explained in Simon, a special law which uses the penalties
under the R P C shall be covered by its rules for graduating
by degrees for determining the proper period. (People v. Lian,
G.R. No. 115988, March 29, 1996)

• Where should the penalty next lower than that prescribed by


the Revised Penal Code for the offense be based?
Gabres explains that under the I S L , the maximum term
of the penalty shall be 'that which, in view of the attending
circumstances, could be properly imposed' under the R P C ,
and the minimum shall be 'within the range of the penalty
next lower to that prescribed' for the offense. The penalty
next lower should be based on the penalty prescribed by the
R P C for the offense, without first considering any modifying
circumstance attendant to the commission of the crime. The
determination of the minimum penalty is left by law to the
sound discretion of the court and it can be anywhere within
the range of the penalty next lower without any reference to
the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the
maximum term of the indeterminate sentence. The fact that
the amounts involved here exceed P22.000 should not be
considered in the initial determination of the indeterminate
penalty; instead, the matter should be so taken as analogous
to modifying circumstances in the imposition of the maximum

311
NOTES A N D CASES ON THE REVISED PENAL CODE

term of the full indeterminate sentence. T h e interpretation


of the law accords with the rule that penal laws should be
construed in favor of the accused. (People v. Saley, G.R. No.
121179, July 2, 1998)

When the penalty is originally exempt from the Indeterminate


Sentence Law, and after lowering it, the penalty is now within
the law, shall the law apply?
Yes, because what controls is the penalty imposed not
what is imposable. Take the case of a 17 year-old boy who
committed with discernment incestuous rape on his six-year
old sister. The penalty therefor is now reclusion perpetua.
Assume that he voluntarily surrendered and pleaded guilty to
the felony. What is the proper penalty? (Although the penalty
is single and indivisible, it shall be lowered notwithstanding
Article 63, paragraph 1 because the mitigating circumstance of
minority is privileged which is always considered.)

In v i e w of his minority, pursuant to Article 68 ( 2 ) , his


penalty should be lowered one degree to reclusion temporal.
T w o mitigating without any aggravating circumstance is
another degree reduction under Article 64 (5) or prision mayor.
Since there is no more mitigating or aggravating circumstances
left, the penalty should be in the medium period. T h e penalty
should follow the I S L and the minimum penalty would be
anywhere within the range of prision correccional.

When the crime is a complex one, how should the penalty next
lower in degree be determined?

For purposes of determining the next lower degree, the


full range of the penalty prescribed by law for the offense, not
merely the imposable penalty because of its complex nature,
should, a priori, be considered. T h e ruling in Gonzales, 73
Phil. 549, as opposed to that of Fulgencio, 92 Phil. 1069, is
the correct rule. In fine, the one degree lower than prision
mayor maximum to reclusion temporal minimum is prision
mayor minimum to prision mayor medium the full range of
which is 6 years and 1 day to 10 years. T h i s one degree lower
penalty should, conformably w i t h A r t i c l e 48, be imposed in
its maximum period or from 8 years and 1 day to 10 years.
T h e presence of the third m i t i g a t i n g circumstance of praeter

312
APPLICATION OF PENALTIES

intentionem would result in imposing a period the court may


deem applicable. Considering, however, that the penalty
has to be imposed in the m a x i m u m period, the only effect
of this additional m i t i g a t i n g circumstance is to impose only
the m i n i m u m portion of that m a x i m u m period, that is from
8 years, 8 months and 1 day to 9 years, 6 months and 10
days, from which r a n g e the m a x i m u m of the indeterminate
sentence shall be taken. (Nizurtado v. Sandiganbayan)

• Is the Indeterminate Sentence Law applicable when the penalty


imposed resulted from plea bargaining?

T h e fact that the lesser offense, and its necessarily lower


penalty, resulted from a plea bargaining agreement is of no
moment as far as the penalty to be imposed is concerned. Plea-
bargaining is authorized by the Rules and is required to be
considered at the pre-trial conference. T h e felony which must
constitute the basis for the penalty to be imposed having been
agreed upon among the parties and approved by the trial court,
that downgraded offense and its lower penalty shall control the
adjudgment of and any further proceedings before the court a
quo.

It follows that the I S L , shall necessarily apply. Also, the


determination of whether an indeterminate sentence and not
a straight penalty is proper, what is considered is the penalty
actually imposed by the trial court, after considering the
attendant circumstances, and not the imposable penalty. It
would be an unduly strained postulate that a sentence arrived
at by a court after a valid plea bargaining should constitute an
exception to the I S L in addition to those enumerated in Section
2 thereof. (Ladino v. Garcia)

• Does the Indeterminate Sentence Law cover offenses involving


the Dangerous Drugs Law?
Y e s , since drug offenses are not included in the exceptions
to the application of the I S L as long as the penalty to be
imposed does not involve life imprisonment or death, and
that the penalty as ultimately resolved will exceed one year
imprisonment. Moreover, the second clause of Section 1
provided for sentences under "any other law," hence, special
laws are covered.

313
NOTES A N D CASES ON THE REVISED PENAL CODE

• Compare parole and pardon.


1. In parole, the minimum sentence must be served; in
pardon, service is not required for the grant thereof.
2. Parole is a benefit granted by law, specifically the ISL;
pardon is an exercise of the power of the President under
the Constitution.

PROBATION LAW

P . D . 968, as a m e n d e d by P . D . 1257, B . P . 76 a n d
P . D . 1990

Section 1. Title and Scope of the Decree. — T h i s D e c r e e


shall b e k n o w n a s the P r o b a t i o n L a w o f 1976. I t shall a p p l y
to all offenders except those entitled to the benefits u n d e r
the p r o v i s i o n s o f P . D . N o . 603 a n d s i m i l a r l a w s .

Sec. 2. Purpose. — This D e c r e e shall be interpreted so as


to:
a. P r o m o t e the c o r r e c t i o n a n d r e h a b i l i t a t i o n of an
offender b y p r o v i d i n g h i m w i t h i n d i v i d u a l i z e d
treatment;
b. P r o v i d e an o p p o r t u n i t y for the r e f o r m a t i o n of a
penitent offender w h i c h m i g h t b e less p r o b a b l e i f
he w e r e to s e r v e a p r i s o n sentence; a n d
c. P r e v e n t the c o m m i s s i o n of offenses.

Sec. 3. Meaning of Terms. — As u s e d in this D e c r e e , the


f o l l o w i n g shall, unless the context o t h e r w i s e r e q u i r e s , b e
construed thus:
a. " P r o b a t i o n " is a disposition u n d e r w h i c h a defen-
dant, after conviction a n d sentence, is r e l e a s e d
subject to conditions i m p o s e d by the c o u r t a n d to
the s u p e r v i s i o n of a p r o b a t i o n officer.
b. " P r o b a t i o n e r " m e a n s a p e r s o n p l a c e d on p r o b a t i o n .
c. " P r o b a t i o n Officer" m e a n s one w h o investigates for
the court a r e f e r r a l for p r o b a t i o n or s u p e r v i s e s a
probationer or both.

Sec. 4. Grant of Probation. — S u b j e c t to the p r o v i s i o n s of


this D e c r e e , the trial court m a y , after it shall h a v e convicted

314
APPLICATION OF PENALTIES

a n d sentenced a d e f e n d a n t a n d u p o n a p p l i c a t i o n by said de-


f e n d a n t w i t h i n the p e r i o d for perfecting a n a p p e a l , suspend
the e x e c u t i o n of the sentence a n d p l a c e the defendant on
p r o b a t i o n for such p e r i o d a n d u p o n such terms a n d condi-
tions as it m a y d e e m best: Provided, T h a t no application for
p r o b a t i o n shall b e e n t e r t a i n e d o r g r a n t e d i f the defendant
has perfected the a p p e a l f r o m the j u d g m e n t of conviction.
P r o b a t i o n m a y b e g r a n t e d w h e t h e r the sentence imposes
a t e r m of i m p r i s o n m e n t or a fine only. An application for
p r o b a t i o n shall be filed w i t h the trial court. T h e filing of the
a p p l i c a t i o n shall be d e e m e d a w a i v e r of the r i g h t to a p p e a l .
A n o r d e r g r a n t i n g o r d e n y i n g the p r o b a t i o n shall not b e
a p p e a l a b l e . ( A s a m e n d e d b y P . D . N o . 1257 a n d P . D . N o . 1990.)

Sec. 5. Post-sentence Investigation. — No p e r s o n shall be


p l a c e d o n p r o b a t i o n except u p o n p r i o r investigation b y the
p r o b a t i o n officer a n d a d e t e r m i n a t i o n by the court that the
e n d s of justice a n d the best interest of the p u b l i c as well as
that o f the d e f e n d a n t w i l l b e s e r v e d t h e r e b y .
xxx xxx xxx
Sec. 8. Criteria for Placing an Offender on Probation. — In
determining whether an offender may be placed on proba-
tion, the c o u r t shall c o n s i d e r all i n f o r m a t i o n r e l a t i v e to the
c h a r a c t e r , a n t e c e d e n t s , e n v i r o n m e n t , m e n t a l a n d physical
c o n d i t i o n o f the o f f e n d e r , a n d a v a i l a b l e institutional a n d
c o m m u n i t y r e s o u r c e s . P r o b a t i o n shall be d e n i e d if the court
finds that:
a. T h e offender is in need of correctional treatment
that c a n be p r o v i d e d most effectively by his com-
mitment to an institution; or
b. T h e r e is an u n d u e risk that d u r i n g the period of
p r o b a t i o n the offender will commit another crime;
or
c. P r o b a t i o n w i l l depreciate the seriousness of the
offense committed.
Sec. 9. Disqualified Offenders. — T h e benefits of this Decree
shall not be extended to those:
a. Sentenced to serve a m a x i m u m term of imprison-
ment of m o r e than six (6) years;
315
NOTES A N D CASES ON THE REVISED PENAL CODE

b. Convicted of subversion or any crime against the


national security or the p u b l i c o r d e r ;
c. W h o have previously b e e n convicted by final
j u d g m e n t of an offense p u n i s h e d by i m p r i s o n m e n t
of not less than one month a n d one d a y a n d / o r a
fine of not less than 200 pesos;
d. W h o have b e e n once o n p r o b a t i o n u n d e r the
provisions of this D e c r e e ; a n d
e. W h o a r e a l r e a d y s e r v i n g sentence at the time the
substantive p r o v i s i o n s of this D e c r e e b e c a m e
a p p l i c a b l e p u r s u a n t to Section 33 hereof. ( A s
a m e n d e d b y P . D . N o . 1990.)

Sec. 10. Conditions of Probation. — E v e r y p r o b a t i o n o r d e r


issued by the court shall contain conditions r e q u i r i n g that
the p r o b a t i o n e r shall:
a. P r e s e n t himself to the p r o b a t i o n officer d e s i g n a t e d
to u n d e r t a k e his s u p e r v i s i o n at such p l a c e as m a y
be specified in the o r d e r w i t h i n 72 h o u r s f r o m
receipt of said o r d e r ;
b. R e p o r t to the p r o b a t i o n officer at least once a
m o n t h at s u c h time a n d p l a c e as specified by s a i d
officer.
T h e court m a y also r e q u i r e the p r o b a t i o n e r to:
a) Cooperate with a p r o g r a m of supervision;
b) M e e t his family responsibilities;
c) D e v o t e h i m s e l f to a specific e m p l o y m e n t a n d not to
c h a n g e said e m p l o y m e n t w i t h o u t the p r i o r w r i t t e n
a p p r o v a l of the p r o b a t i o n officer;
d) U n d e r g o medical, psychological o r psychiatric
examination a n d treatment a n d enter a n d r e m a i n
in a specified institution, w h e n r e q u i r e d for that
purpose;
e) P u r s u e a p r e s c r i b e d s e c u l a r study or v o c a t i o n a l
training;
f) A t t e n d or r e s i d e in a facility e s t a b l i s h e d f o r in-
struction, r e c r e a t i o n o r r e s i d e n c e o f p e r s o n s o n
probation;

316
APPLICATION OF PENALTIES

g) R e f r a i n f r o m visiting houses o f ill-repute;

h) A b s t a i n f r o m d r i n k i n g intoxicating b e v e r a g e s t o
excess;

i) P e r m i t the p r o b a t i o n officer or an a u t h o r i z e d social


w o r k e r t o visit his h o m e a n d place o f w o r k ;
j) R e s i d e a t p r e m i s e s a p p r o v e d b y i t a n d not t o change
his r e s i d e n c e w i t h o u t its p r i o r w r i t t e n a p p r o v a l ; or
k) Satisfy a n y o t h e r condition r e l a t e d to the rehabili-
tation of the d e f e n d a n t a n d not u n d u l y restrictive
of his l i b e r t y or i n c o m p a t i b l e w i t h his f r e e d o m of
conscience.

Sec. 11. Effectivity of Probation Order. — A p r o b a t i o n o r d e r


shall t a k e effect u p o n its issuance, at w h i c h time the court
shall i n f o r m the o f f e n d e r of the c o n s e q u e n c e s thereof a n d
e x p l a i n that u p o n his f a i l u r e to c o m p l y w i t h any of the
conditions p r e s c r i b e d in the said o r d e r or his commission of
a n o t h e r offense, he shall serve the penalty imposed for the
offense u n d e r w h i c h h e w a s p l a c e d o n p r o b a t i o n .

xxx xxx xxx

Sec. 14. Period of Probation. —


a. T h e p e r i o d of p r o b a t i o n of a defendant sentenced to
a t e r m of imprisonment of not m o r e than one year
shall not exceed t w o years, a n d in all other cases,
said p e r i o d shall not exceed six years.
b. W h e n the sentence imposes a fine only a n d the
offender is m a d e to serve s u b s i d i a r y imprisonment
in case of insolvency, the p e r i o d of p r o b a t i o n shall
not be less t h a n n o r m o r e t h a n twice the total
n u m b e r of d a y s of s u b s i d i a r y imprisonment as
c o m p u t e d at the rate established in A r t . 39 of the
Revised Penal Code, as amended.
Sec. 15. Arrest of Probationer; Subsequent Dispositions. — At
any time d u r i n g p r o b a t i o n , the court may issue a w a r r a n t
for the a r r e s t of a p r o b a t i o n e r for any serious violation of
the conditions of p r o b a t i o n . T h e p r o b a t i o n e r , once arrested
a n d detained, shall immediately be b r o u g h t before the court

317
NOTES A N D CASES ON THE REVISED PENAL CODE

for a h e a r i n g of the violation c h a r g e d . T h e defendant m a y


be admitted to bail p e n d i n g such h e a r i n g . In such case, the
provisions r e g a r d i n g release on b a i l of persons c h a r g e d w i t h
a crime shall be a p p l i c a b l e to p r o b a t i o n e r s a r r e s t e d u n d e r
this provision.
In the h e a r i n g , w h i c h shall be s u m m a r y in n a t u r e ,
the p r o b a t i o n e r shall have the right to be i n f o r m e d of the
violation c h a r g e d a n d to a d d u c e evidence in his favor. T h e
court shall not be b o u n d by the technical rules of evidence
but m a y inform itself of all the facts w h i c h a r e m a t e r i a l a n d
relevant to ascertain the veracity of the c h a r g e . T h e State
shall be represented by a p r o s e c u t i n g officer in a n y contested
h e a r i n g . If the violation is e s t a b l i s h e d , the c o u r t m a y r e v o k e
or continue his p r o b a t i o n a n d modify the conditions thereof.
If r e v o k e d , the court shall o r d e r the p r o b a t i o n e r to s e r v e the
sentence o r i g i n a l l y i m p o s e d . A n o r d e r r e v o k i n g the g r a n t
o f p r o b a t i o n o r m o d i f y i n g the t e r m s a n d c o n d i t i o n s t h e r e o f
shall not b e a p p e a l a b l e . ( A s a m e n d e d b y P . D . N o . 1257.)

Sec. 16. Termination of Probation. — A f t e r the p e r i o d


o f p r o b a t i o n a n d u p o n c o n s i d e r a t i o n o f the r e p o r t a n d
r e c o m m e n d a t i o n of the p r o b a t i o n officer, the c o u r t m a y
o r d e r the final d i s c h a r g e of the p r o b a t i o n e r u p o n finding
that he has fulfilled the terms a n d conditions of his p r o b a t i o n
a n d t h e r e u p o n , the case is d e e m e d t e r m i n a t e d .

T h e final d i s c h a r g e of the p r o b a t i o n e r shall o p e r a t e to


restore h i m to all civil rights lost or s u s p e n d e d as a r e s u l t of
his conviction a n d to fully d i s c h a r g e his liability for a n y fine
imposed a s t o the offense for w h i c h p r o b a t i o n w a s g r a n t e d .

T h e p r o b a t i o n e r a n d the p r o b a t i o n officer shall e a c h b e


f u r n i s h e d w i t h copy o f such o r d e r .
xxx xxx xxx

• What is the nature of the benefit of probation?

Probation is a privilege, not a right. Its benefits cannot


extend to those expressly excluded. Probation is not a right of the
accused, but rather an act of grace and clemency or immunity
conferred by the State which may be granted by the court to a
deserving defendant who thereby escapes the extreme rigors of

318
APPLICATION OF PENALTIES

the penalty imposed by law for the offense of which he stands


convicted. (Francisco v. CA, G.R. No. 108747, April 6, 1995)
It is a disposition under which the defendant after convic-
tion and sentence is released to serve his sentence outside of
prison subject to the conditions imposed by the court and to the
supervision by a probation officer.

T h e Probation L a w is not a penal statute; the principle


of liberal interpretation in favor of the accused does not apply.
(Pablo v. Judge Castillo)

» What conditions should accompany a grant of probation?

A. Mandatory conditions which are:


1. To report to the designated probation officer within
72 hours after receipt of the order; and
2. To report periodically to the officer at least once a
month or sooner as the latter may deem.
B. Discretionary conditions which the court may impose.
These must be constructive and not unduly restrictive of
the liberty of the offender and not inconsistent with his
conscience.

» What are the objectives of Probation Law?


a. To promote correction and rehabilitation of the offender
by giving him individualized treatment;
b. To provide a better opportunity for the penitent offender
to reform;
c. To prevent further commission of crimes as he is placed
under the supervision of probation officer;
d. To decongest jails; and
e. To save the government funds which would be spent on
maintaining him inside the jail.

• What is the probationable penalty?


T h e penalty imposed must not exceed six years (prision
correccional) imprisonment. An additional one day (prision
mayor) would disqualify the offender from probation.

319
NOTES A N D CASES ON THE REVISED PENAL CODE

Because the accused is earlier imposed a fine of more than


P200 in the first of the three cases charged against him arising
from one act of issuing three bad checks, he is disqualified
under Section 9(c) of P.D. 968. The word "previous" therein
refers to conviction, not to the commission of the offense,
notwithstanding the fact that the crime arose out of a single
transaction. (Pablo v. Judge Castillo)

• Who are the disqualified offenders?


Those who had been:
a. Sentenced to a maximum term of more than 6 years
imprisonment;
b. Convicted of subversion or any crime against national
security or the public order;
c. Previously convicted by final judgment of offense punished
by imprisonment of not less than 1 month and 1 day and/
or fine of not less than P200;
d. Granted probation for it is available only once;
e. Already serving sentence upon the effectivity of the law;
f. Perfected an appeal for appeal and probation are mutually
exclusive remedies.
Disqualification is different from denial of the application.
A qualified offender should not expect that his application w i l l
be granted ipso facto.
Petitioner is not entitled to probation because she has
displayed a dubious and reprehensible character in trying
to evade the implementation of the decision rendering the
judgment against her ineffective. She executed a simulated
deed of sale over her property. Instead of complying with the
orders of the trial courts in the 54 counts of violations of B.P. 22,
she resorted to artifice to evade the implementation of a writ of
execution against her. To allow her to be placed on probation
would be to depreciate the seriousness of her wrongdoing.
(Santos v. CA, December 1999)

• M a y a convict who appealed his conviction still be qualified for


probation?

N o . Section 4 of the law is clear that "no application for


probation shall be entertained or granted if the defendant

320
APPLICATION OF PENALTIES

has perfected the appeal from the judgment of conviction."


Therefore, that an appeal should not bar the accused from
applying for probation if the appeal is taken solely to reduce
the penalty to "qualify" for probation is contrary to the clear
and express mandate of the law. (Francisco v. CA)
T h e spirit of probation is irreconcilable and repugnant to
appeal. T h e application for probation is akin to admission of
guilt and manifestation of remorse whereas appeal is insistence
of innocence on the part of the convict. Thus, they are mutually
exclusive remedies. Probation forecloses the right to appeal.

• When shall the application for probation be filed?

T h e application for probation must be filed within the pe-


riod for perfecting an appeal (15 days). If the application was
filed after the lapse of that period, the decision had attained
finality; no appeal therefrom is possible under the law. The
law simply does not allow probation after an appeal has been
perfected for appeal and probation are mutually exclusive rem-
edies, (id.)

• Should multiple terms imposed against an accused in one


decision be added up for purposes of probation?

N o . Multiple prison terms are distinct from each other,


and if none of the prison terms exceeds the limit set out in the
law, that is, not more than six years, then he is entitled to pro-
bation, unless otherwise specifically disqualified. T h e number
of offenses is immaterial as long as all the penalties imposed,
taken separately, are within the probationable period. For, Sec-
tion 9(a), P . D . 968, as amended, uses the word maximum, not
total, when it says that the "benefits of this Decree shall not be
extended to those x x x sentenced to serve a maximum prison
term of imprisonment of more than six years." (id.)

• To what does the word "previous" in the law refer?


"Previous" in Section 9(c) refers to conviction, not to the
commission of the offense. Where the accused issued three bad
checks to one and the same complainant, three separate infor-
mations were filed and the three cases were not consolidated,
one case was assigned to one Branch which convicted the ac-
cused and imposed a fine of P4.648, while the two other cases

321
NOTES A N D CASES ON THE REVISED PENAL CODE

were assigned to another Branch of the same court, which also


found the accused guilty of the same violation and imposed a
prison term of 30 days in each case, the accused should be dis-
qualified for probation. The earlier conviction imposed a fine
of more than P200 and under Section 9(c), the accused should
be disqualified as the word "previous" refers to the conviction,
not to the commission of the offense, notwithstanding that the
crime arose out of a single act or transaction. T h e probation
law is not a penal statute; the principle of liberal interpretation
does not apply. (Pablo v. Judge Castillo)

• Does the grant of probation affect the applicability of Section


40(a) on disqualification of the Election Code?

N o . The legal effect of probation is only to suspend the


execution of the sentence. T h e conviction for fencing which in-
volves moral turpitude subsists and remains totally unaffected
notwithstanding the grant of probation. In fact, a judgment
of conviction in a criminal case becomes ipso facto final when
the accused applies for probation, although it is not executory
pending resolution of his application. (Dela Torre v. Comelec)

• Distinguish Probation and Indeterminate Sentence Law.

Probation ISL
1. Sentence must not be more than maximum period must
6 years be more than 1 year
2. Penalty imprisonment or fine imprisonment only
3. Disposition sentence is suspended minimum to be served
4. Violation entire sentence shall be unexpired portion
served shall be served
5. Appeal forecloses probation no effect on the
operation of ISL
6. Availability Only once Every time as long as
offender is not
disqualified
7. Nature a privilege; convict mandatory; convict
must applied for it need not apply for it

322
Chapter Five
EXECUTION A N D SERVICE OF PENALTIES

Section O n e . — General Provisions

A r t . 78. When and how a penalty is to be executed. — No


p e n a l t y shall be e x e c u t e d unless by v i r t u e of a final j u d g m e n t .
A p e n a l t y shall not be executed in a n y other f o r m than
that p r e s c r i b e d b y l a w , n o r w i t h a n y other circumstances o r
incidents t h a n those e x p r e s s l y a u t h o r i z e d t h e r e b y .
In a d d i t i o n to the p r o v i s i o n s of the l a w , the special
r e g u l a t i o n s p r e s c r i b e d for the g o v e r n m e n t of the institutions
i n w h i c h the penalties t o b e suffered shall b e o b s e r v e d w i t h
r e g a r d to the c h a r a c t e r of the w o r k to be p e r f o r m e d , the time
of its p e r f o r m a n c e , a n d o t h e r incidents connected t h e r e w i t h ,
the relations of the convicts a m o n g themselves a n d other
p e r s o n s , the relief w h i c h they m a y receive, a n d their diet.
T h e r e g u l a t i o n s shall m a k e p r o v i s i o n for the separation
of the sexes in different institutions, or at least into different
d e p a r t m e n t s , a n d also for the correction a n d r e f o r m of the
convicts.
A r t . 79. Suspension of the execution and service of the penalties
in case of insanity. — W h e n a convict shall become insane or
an imbecile after final sentence has b e e n p r o n o u n c e d , the
execution of the said sentence shall be s u s p e n d e d only with
r e g a r d to the p e r s o n a l penalty, the provisions of the second
p a r a g r a p h of circumstance n u m b e r 1 of Article 12 being
o b s e r v e d in the c o r r e s p o n d i n g cases.
If at any time the convict shall recover his reason, his
sentence shall be executed, unless the penalty shall have
p r e s c r i b e d in a c c o r d a n c e with the provisions of this Code.
T h e r e s p e c t i v e p r o v i s i o n s of this section shall also
be o b s e r v e d if the insanity or imbecility occurs while the
convict is s e r v i n g his sentence.
[Art. 80. — REPEALED BY P.D. 603.]

323
NOTES A N D CASES ON THE REVISED PENAL CODE

Section T w o . — Execution of Principal Penalties

A r t . 81. When and how the death penalty is to be executed. —


The death sentence shall be executed w i t h p r e f e r e n c e to any
other penalty a n d shall consist in putting the p e r s o n u n d e r
the sentence to death by lethal injection. T h e death sentence
shall be executed u n d e r the authority of the D i r e c t o r of
the B u r e a u of Corrections, e n d e a v o r i n g so far as possible
to mitigate the sufferings of the p e r s o n u n d e r the sentence
d u r i n g the lethal injection as w e l l as d u r i n g the p r o c e e d i n g s
p r i o r to the execution.
T h e D i r e c t o r of the B u r e a u of C o r r e c t i o n s shall take
steps to ensure that the lethal injection to be a d m i n i s t e r e d is
sufficient to cause the instantaneous d e a t h of the convict.

P u r s u a n t to this, all p e r s o n n e l i n v o l v e d in the a d m i n i s -


tration of lethal injection shall be t r a i n e d p r i o r to the p e r f o r -
mance of such task.

T h e a u t h o r i z e d p h y s i c i a n o f the B u r e a u o f C o r r e c t i o n s ,
after t h o r o u g h e x a m i n a t i o n , shall officially m a k e a
p r o n o u n c e m e n t of the convict's d e a t h a n d shall certify
thereto in the r e c o r d s of the B u r e a u of C o r r e c t i o n s .

T h e death sentence shall b e c a r r i e d out not e a r l i e r t h a n


one (1) y e a r n o r later t h a n e i g h t e e n (18) m o n t h s after the
j u d g m e n t has b e c o m e final a n d e x e c u t o r y w i t h o u t p r e j u d i c e
to the exercise by the P r e s i d e n t of his executive c l e m e n c y
p o w e r s at all times.

A r t . 82. Notification and execution of the sentence and


assistance to the culprit. — T h e c o u r t shall d e s i g n a t e a w o r k i n g
d a y for the execution, b u t not the h o u r thereof; a n d such
designation shall not be c o m m u n i c a t e d to the o f f e n d e r b e f o r e
sunrise of said d a y , a n d the execution shall not t a k e p l a c e
until after the e x p i r a t i o n of at least 8 h o u r s f o l l o w i n g the
notification, b u t b e f o r e sunset. D u r i n g the i n t e r v a l b e t w e e n
the notification a n d the execution, the c u l p r i t shall, i n s o f a r
as possible, be f u r n i s h e d s u c h assistance as he m a y r e q u e s t
in o r d e r to be a t t e n d e d in his last m o m e n t s by priests or
ministers of the r e l i g i o n he professes a n d to consult l a w y e r s ,
as w e l l as in o r d e r to m a k e a w i l l a n d confer w i t h m e m b e r s

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of his family or p e r s o n in c h a r g e of the m a n a g e m e n t of his


b u s i n e s s , of the a d m i n i s t r a t i o n of his p r o p e r t y , or of the care
of his d e s c e n d a n t s .
?? conjugal visits allowed?
A r t . 83. Suspension of the execution of the death sentence.
— T h e d e a t h sentence shall not be inflicted u p o n a w o m a n
w h i l e she is p r e g n a n t or w i t h i n 1 y e a r after delivery, nor
u p o n a n y p e r s o n o v e r 70 y e a r s of a g e . In this last case, the
d e a t h sentence shall be c o m m u t e d to the penalty of reclusion
perpetua w i t h the a c c e s s o r y penalties p r o v i d e d in Article 40.

In all cases w h e r e the d e a t h sentence has b e c o m e final,


the r e c o r d s of the case shall be f o r w a r d e d immediately by
the S u p r e m e C o u r t to the Office of the P r e s i d e n t for possible
exercise of the p a r d o n i n g p o w e r . (As amended by Sec. 25,
R.A. No. 7659.)

A r t . 84. Place of execution and persons who may witness the


same. — T h e e x e c u t i o n shall take place in the penitentiary
or B i l i b i d in a space closed to the p u b l i c v i e w a n d shall be
w i t n e s s e d only by the priests assisting the offender a n d by
his l a w y e r s a n d by his relatives, not e x c e e d i n g six, if he so
requests, by the p h y s i c i a n a n d the necessary personnel of
the p e n a l establishment, a n d by such p e r s o n s as the D i r e c t o r
of Prisons may authorize.

A r t . 85. Provision relative to the corpse of the person executed


and its burial. — U n l e s s c l a i m e d by his family, the corpse of
the c u l p r i t shall, u p o n completion of the legal p r o c e e d i n g s
s u b s e q u e n t to the execution, be t u r n e d o v e r to the institute
of l e a r n i n g or scientific r e s e a r c h first a p p l y i n g for it, for
the p u r p o s e of study a n d investigation, p r o v i d e d that
such institute shall take c h a r g e of the decent b u r i a l of the
remains. O t h e r w i s e , the D i r e c t o r of P r i s o n s shall o r d e r the
b u r i a l of the b o d y of the culprit at g o v e r n m e n t expense,
g r a n t i n g p e r m i s s i o n to be present thereat to the members
of the family of the culprit a n d the friends of the latter. In
no case shall the b u r i a l of the b o d y of a person sentenced to
d e a t h b e held w i t h p o m p .
A r t . 86. Reclusion perpetua, reclusion temporal, prision
mayor, prision correccional and arresto mayor. — The penalties
of reclusion perpetua, reclusion temporal, prision mayor,
prision correccional a n d arresto mayor, shall be executed and

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served in the places a n d penal establishments p r o v i d e d by


the Administrative C o d e in force or w h i c h m a y be p r o v i d e d
by l a w in the future.

• What is the constitutional policy on penalty as a whole?


No excessive fines or cruel or inhuman punishment should
be imposed.
The counterpart of Section 19(1) in the 1935 Constitution
reads: 'Excessive fines shall not be imposed, nor cruel and
inhuman punishment inflicted.' In the 1973 Constitution, the
phrase became 'cruel or unusual punishment.' The Bill of Rights
Committee of the 1986 Constitutional Commission read the
1973 modification as prohibiting 'unusual' punishment even if
not 'cruel.' It was thus seen as an obstacle to experimentation in
penology. Consequently, the Committee reported out the present
text which prohibits cruel, degrading or inhuman punishment as
more consonant with the meaning desired and with jurisprudence
on the subject. (Echegaray v. Sec. of Justice)

A r t . 87. Destierro. — A n y p e r s o n sentenced to destierro


shall not be p e r m i t t e d to enter the p l a c e or places d e s i g n a t e d
in the sentence, n o r w i t h i n the r a d i u s t h e r e i n specified, w h i c h
shall be not m o r e t h a n 250 a n d not less t h a n 25 k i l o m e t e r s
from the place d e s i g n a t e d .

• To what does the limitation of distance in the law pertain?

It pertains to the place designated by the court in the


decision. This means that the convict can go farther than the
distance but not nearer than that specified by the court. Thus,
if the court imposed the maximum of 250 km., the offender can
go 300 km. away from the restricted area but not nearer. If he
was restricted to 50 km., he can go 75 km. away but not within
50 km. The court cannot impose a distance lower than 25 km.
or higher than 250 km.

• If the offender violates the limitation of distance, is this evasion


of service of sentence?

At first blush, it would appear that this is not evasion


for Articles 156 to 159 refer to evasion of sentence served

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by confinement in prison or penal institution. However,


considering that destierro is a penalty, it should be considered
mandatory. Therefore, the violation of distance by the offender
getting within the prohibited area should be considered as
evasion for otherwise, the offender would be encouraged to
violate his penalty.

A r t . 88. Arresto menor. — T h e penalty of arresto menor


shall be s e r v e d in the m u n i c i p a l j a i l , or in the house of the
d e f e n d a n t h i m s e l f u n d e r the s u r v e i l l a n c e of an officer of the
l a w , w h e n the c o u r t so p r o v i d e s in its decision, t a k i n g into
c o n s i d e r a t i o n the h e a l t h of the offender a n d other reasons
w h i c h m a y s e e m satisfactory to it.

T h e author believes that arresto menor should no longer


be served in jail in keeping with the spirit and intent of the
Probation L a w and the I S L . Rather, it should be converted to
community service or fine as the court deems fit.

327
TITLE FOUR
EXTINCTION OF CRIMINAL LIABILITY

Chapter One
TOTAL EXTINCTION OF CRIMINAL LIABILITY

A r t . 89. How criminal liability is totally extinguished. —


C r i m i n a l liability is totally extinguished:
1. By the d e a t h of the convict, as to the p e r s o n a l
penalties; a n d as to p e c u n i a r y penalties, liability
therefor is e x t i n g u i s h e d o n l y w h e n the d e a t h of the
offender occurs b e f o r e final j u d g m e n t ;
2. By service of the sentence;
3. By amnesty, w h i c h completely e x t i n g u i s h e s the
penalty a n d all its effects;
4. By absolute p a r d o n ;
5. By p r e s c r i p t i o n of the c r i m e ;
6. By p r e s c r i p t i o n of the penalty;
7. By the m a r r i a g e of the o f f e n d e d w o m a n , as p r o v i d e d
in A r t i c l e 344 of this C o d e .

[ A r t . 36. Pardon; its effects. — A p a r d o n shall not w o r k


the restoration of the r i g h t to h o l d p u b l i c office, or the r i g h t
o f s u f f r a g e , unless s u c h r i g h t s b e e x p r e s s l y r e s t o r e d b y the
terms of the p a r d o n .

A p a r d o n shall in no case e x e m p t the c u l p r i t f r o m the


p a y m e n t o f the civil i n d e m n i t y i m p o s e d u p o n h i m b y the
sentence.

A r t . 23. Effect of pardon by the offended party. — A p a r d o n


b y the offended p a r t y does not e x t i n g u i s h c r i m i n a l action
except as p r o v i d e d in A r t i c l e 344 of this C o d e ; b u t civil

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TOTAL EXTINCTION OF C R I M I N A L LIABILITY

liability w i t h r e g a r d to the interest of the i n j u r e d p a r t y i


e x t i n g u i s h e d b y his e x p r e s s w a i v e r . ]

• What causes the total extinction of criminal liability?


a. Death of convict (pecuniary liability is extinguished if
death occurs before final judgment)
b. Service of the sentence
c. Amnesty
d. Absolute pardon
e. Prescription of crime
f. Prescription of penalty and
g- M a r r i a g e of the offended woman under Articles 266-C
and 344

Express repeal of penal law will also extinguish criminal


liability subject to the provisions of Article 22, as the act is
decriminalized.

Death

• What is the effect of death of the offender on his criminal and


civil liabilities?
Death of convict extinguishes criminal liability at
any stage of the proceeding but his civil liability shall be
extinguished if death occurs before final judgment. T h e reason
is that the penalty requires personal service of sentence. If
death occurs, there will be nobody to serve the penalty for the
crime (People v. Bayotas, G.R. No. 102007, September 2, 1994).
T h e rule is that a person can act personally or thru an agent
but there are certain acts which can only be done personally
such as service of sentence, personal military service, and
contracting marriage.

• What is the final judgment in paragraph 1 of Article 89?


"Sentencia firma" should be understood as one which is
definite. Because it is only then that such judgment is confirmed.
When a defendant dies before judgment is executory, there
cannot be any determination by final judgment whether or not

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NOTES A N D CASES ON THE REVISED PENAL CODE

the felony upon which the civil action might arise exists for the
reason that there is no party defendant, (id.)
The legal import of the term final judgment is similarly
reflected in Articles 72 and 78, which mention the term final
judgment in the sense that it is already enforceable. Also
Section 7 of Rule 116 of the R R C P which states that a judgment
in a criminal case becomes final after the lapse of the period for
perfecting an appeal or when the sentence has been partially
or totally satisfied or served or the defendant has expressly
waived in writing the right to appeal, (id.) Or by applying for
probation because that constitutes an express waiver of the
right to appeal.
The term final judgment means judgment beyond recall.
As long as the judgment has not become executory, it cannot be
truthfully said that the accused is definitely guilty of the felony
charged against him. (id.)

Does Article 30 of the Civil Code authorize the appellate court to


continue exercising jurisdiction over the civil liability ex-delicto
when death occurs during appeal?

N o . W h a t A r t i c l e 30 recognizes is an alternative and


separate civil action, which may be brought to demand civil
liability arising from a criminal offense independently of any
criminal action. In the event that no criminal proceedings are
instituted during the pendency of the civil case, the quantum
of evidence needed to prove the criminal act w i l l have to
be that which is compatible with civil liability and that is
preponderance of evidence and not guilt beyond reasonable
doubt. Whether asserted in a criminal action or in a separate
civil action, civil liability ex-delicto is extinguished by the death
of the accused while his conviction is on appeal. In recovering
civil liability ex-delicto, the same has to be determined in a
criminal action rooted as it is in the court's pronouncement of
the guilt or innocence of the accused, (id.)

What is the intendment of Article 100 on civil liability?

Civil liability ex-delicto must be rooted in the court's


pronouncement of the guilt or innocence of the accused. In such
cases, extinction of the criminal action due to the death of the

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accused pending appeal inevitably signifies the concomitant


extinction of the civil liability. Mors omnia solvi. Death dissolves
all things. In sum, in pursuing recovery of civil liability arising
from crime, the final determination of the criminal liability is
a condition precedent to the prosecution of the civil action such
that when the criminal action is extinguished by the death of
the accused pending appeal, said civil action cannot survive
(id.)

• Relate Article 30 of the Civil Code to Articles 89(1) and 100 of


the Revised Penal Code.

Article 30 of the N C C refers to the institution of a


separate civil action that does not draw its life from a criminal
proceeding. T h e claim for civil action survives notwithstanding
the death of the accused if the same may also be predicated
on a source of obligation other than delict (e.g., quasi-delict,
law, contract, quasi-contract.) (id.). Article 100 is civil liability
based on delict or crime.

Accused died while under detention. His death was re-


ported by the provincial warden to the trial court, which should
have dismissed the case against said accused. Under Article
89(1), the criminal liability of an offender is totally extin-
guished by his death as to the personal penalties; while the
pecuniary liability therefor is extinguished when the offend-
er dies before final judgment. (People v. Villagracia, G.R. No.
94311, September 14, 1993)

Service of Sentence

• Should the period of time during which the evader of sentence


was at large be included in the service of his sentences?
The period during which petitioner was not inside prison
walls cannot be regarded as service of sentence. The sentences
imposed on the petitioner consist of deprivation of his liberty.
He cannot be said to have been deprived of his liberty during
the periods he was at large. Moreover, Article 89 stipulates that
penalties like those meted on the petitioner "shall be executed
and served in the places and penal establishments provided
by the Administrative Code in force or which may be provided
by law in the future." The Code thus requires that the service

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NOTES A N D CASES ON THE REVISED PENAL CODE

of sentence be in a penal institution. (Martin v. Eduardo, 121


SCRA)

• In what instances may the sentence be served outside of prison?


A convict may serve his sentence outside of prison if his
penalty is destierro, arresto menor pursuant to Article 88, when
he is granted probation or parole.

Pardon

• What are the effects of pardon by the offended party?


It does not extinguish criminal liability. T h e only exception
is valid marriage in Article 266-C and Article 344 between the
offender and the victim to effect an extinguishment of criminal
liability. But civil liability is extinguished by express waiver of
the offended.

• Compare pardon by the offended and pardon by the President.


Pardon by the President extinguishes the criminal
liability but not the civil; on the other hand, pardon by the
offended does not so extinguish the liability except by the valid
marriage of the victim and the offender in rape and in crimes
against chastity under Articles 266-C and 344. But the offended
can waive the civil liability. Pardon by the President is given
after final judgment; that of the offended party must be given
prior to the institution of the criminal case to be effective. But
Article 266-C now allows pardon even after final judgment by
the valid marriage between the offended and the offender.

An affidavit of desistance is merely an additional ground


to buttress the accused's defenses, not the sole consideration
that can result in acquittal. T h e r e must be other circumstances
which, when coupled with the retraction or desistance, create
doubts as to the truth of the testimony given by the witnesses
at the trial. (People v. Ballabare) A l l that the accused offered
as defenses mainly consisted of denial and alibi which cannot
outweigh the positive identification and convincing testimonies
given by the prosecution. Hence, the affidavit of desistance
which the victim herself intended to disreg