What Is Good Legal Writing and Why Does It Matter

BOOK 1: FUNDAMENTAL PRINCIPLES
BOOK 1 Q: How are penal laws construed?

I. FUNDAMENTAL PRINCIPLES A: Liberally construed in favor of offender and
strictly against the state.
A. DEFINITION OF CRIMINAL LAW
Note: In cases of conflict with official translation,
Q: What is criminal law? original Spanish text is controlling.

A: Criminal law is that branch of law, which defines Q: What are the basic maxims in criminal law?
crimes, treats of their nature, and provides for their
punishment. A:
1. Nullum crimen, nulla poena sine lege
Q: What are the theories in criminal law? (There is no crime when there is no law
punishing the same) – No matter how
A: wrongful, evil or bad the act is, if there is
1. Classical theory – the basis of criminal no law defining the act, the same is not
liability is human free will and the considered a crime.
purpose of the penalty is retribution. It is
endeavored to establish a mechanical and 2. Actus non facit reum, nisi mens sit rea
direct proportion between crime and (The act cannot be criminal where the
penalty, and there is scant regard to the mind is not criminal) – This is true to a
human element. felony characterized by dolo, but not a
felony resulting from culpa. This maxim is
Note: RPC is generally governed by this not an absolute one because it is not
theory. applied to culpable felonies, or those that
result from negligence.
2. Positivist theory – the basis of criminal
liability is the sum of the social, natural 3. Doctrine of Pro Reo – Whenever a penal
and economic phenomena to which the law is to be construed or applied and the
actor is exposed. The purposes of penalty law admits of two interpretations, one
are prevention and correction. This lenient to the offender and one strict to
theory is exemplified in the provisions the offender, that interpretation which is
regarding impossible crimes and habitual lenient or favorable to the offender will
delinquency. be adopted.

3. Eclectic or Mixed theory – It is a 4. Actus me invito factus non est meus actus
combination of positivist and classical (An act done by me against my will is not
thinking wherein crimes that are my act) – Whenever a person is under a
economic and social in nature should be compulsion of irresistible force or
dealt in a positive manner, thus, the law is uncontrollable fear to do an act against
more compassionate. Ideally, the classical his will, in which that act produces a
theory is applied to heinous crimes, crime or offense, such person is
whereas, the positivist is made to work on exempted in any criminal liability arising
economic and social crimes. from the said act.

4. Utilitarian or Protective theory‐ the Q: What is the definition of a crime?
primary purpose of the punishment under
criminal law is the protection of society A: A crime is the generic term used to refer to a
from actual and potential wrongdoers. wrongdoing punished either under the RPC or
The courts, therefore, in exacting under the special law.
retribution for the wronged society,
should direct the punishment to potential Q: What are the various classifications of crimes?
or actual wrongdoers, since criminal law
is directed against acts or omissions A:
which the society does not approve. 1. As to the commission
Consistent with this theory is the mala a. Dolo or felonies committed with
prohibita principle which punishes an deliberate intent
offense regardless of malice or criminal b. Culpa or those committed by means
intent. of fault
1
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S
V ICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

A:
2. As to the stage of execution 1. Piracy in Philippine waters
a. Attempted 2. Brigandage in the highways
b. Frustrated (both under PD 532)
c. Consummated
Note: Likewise, when the special laws require that the
3. As to gravity punished act be committed knowingly and willfully,
a. Grave felonies criminal intent is required to be proved before criminal
b. Less grave felonies liability may arise.
c. Light felonies
Q: If a special law uses the nomenclature of
4. As to count penalties in the RPC, what is the effect on the
a. Composite or special complex nature of the crime covered by the special law?
b. Complex, under Art. 48
c. Continuing A: Even if a special law uses the nomenclature of
penalties under the RPC, that alone will not make
5. Classification of felonies as to the act or omission a crime mala in se. The special
a. Formal felonies – those which are law may only intend the Code to apply as a
always consummated. (e.g. physical supplementary. (People v. Simon, G.R. No. 93028,
injuries) July 29, 1994)
b. Material felonies – those which have
various stages of execution. Q: What are the distinctions between crimes
c. Those which do not admit of the punished under the RPC and crimes punished
frustrated stage. (e.g. rape and theft) under special laws?

6. As to nature A:
a. Mala in se CRIMES UNDER
CRIMES UNDER THE RPC
b. Mala prohibita SPECIAL LAW

Usually crimes mala
Q: What is the difference between crimes mala in Involve crimes mala in se.
prohibita
se and crimes mala prohibita?
As to moral trait of the offender
A:
It is considered. This is why
Mala in se Mala prohibita It is not considered. It
liability would only arise
Acts or omissions which Acts which are made evil is enough that the
when there is dolo or culpa
are inherently evil. because there is a law prohibited act was
in the commission of the
prohibiting it. voluntary done.
punishable act
Punished under the RPC Violations of special laws
As to use of good faith as defense
Note: Not all violations of
special laws are mala It is a valid defense unless
prohibita. the crime is the result of It is not a defense.
culpa.
Even if the crime is
As to the degree of accomplishment of the crime
punished under a special
law, if the act punished is There are no
one which is inherently attempted or
wrong, the same is malum frustrated stages,
in se, and, therefore, good May admit attempted
unless the special law
faith and the lack of and/or frustrated stages
expressly penalizes the
criminal intent is a valid
mere attempt or
defense; unless it is the
product of criminal
frustration of the
negligence or culpa. crime
As to mitigating and aggravating circumstances

Q: What are violations of special laws which are Not taken into account
Taken into account in
considered mala in se? in imposing the
imposing the penalty since
penalty. As an
the moral trait of the
exception, when the
offender is considered
special law uses the
2 CRIMINAL LAW TEAM:
ADVISER: JUDGE RICO SEBASTIAN D. LIWANAG; SUBJECT HEAD: ZANDY A. ZACATE; ASST. SUBJECT HEADS: ANNA FE ABAD & PAUL ROMEO
POLLOSO; MEMBERS: SHARMAGNE JOY BINAY, MARIA CARMELLA BUSTONERA, MARY GRACE CAMAYO, DELFIN FABRIGAS, JR., SPINEL
ALBERT DECLARO, ERIK GALLARDO, KING JAMES CARLO HIZON, CARMINA MAE MANALO, FAYE ANGELA PASCUA, ANTHONY ROBLES, RAISSA
SAIPUDIN, ADRIAN VALBUENA
nomenclature of the
penalties under the Q: What is a Philippine ship?
RPC, the circumstances
can be considered. A: One that is registered in accordance with
Philippine laws. If the vessel is in the high seas, it is
As to the degree of participation of offender
considered as an extension of the Philippine
When there is more than territory and the Philippines still has jurisdiction.
It is not considered. All
one offender, the degree of But if the vessel is within the territory of another
who perpetrated the
participation of each in the country, jurisdiction is generally with the foreign
prohibited act are
commission of the crime is State because penal laws are primarily territorial in
penalized to the same
taken into account in application.
extent. There is no
imposing the penalty; thus,
principal, accomplice
offenders are classified as Q: What are the requirements of “an offense
or accessory to
principal, accomplice and committed while on a Philippine ship or airship?”
consider.
accessory.
A:
Q: What is the legal basis for punishment? 1. The ship or airship must be registered
with the Philippine Bureau of Customs.
A: The power to punish violators of criminal law 2. The ship must be in the high seas or the
comes within the police power of the state. It is the airship must be in international space.
injury inflicted to the public which a criminal action
seeks to redress, and not the injury to the Note: Under International Law rule, a vessel which is
individual. not registered in accordance with the laws of any
country is considered a private vessel and piracy is a
B. SCOPE OF APPLICATION AND CHARACTERISTICS crime against humanity in general, such that wherever
OF THE PHILIPPINE CRIMINAL LAW pirates may go, they can be prosecuted.

Q: What are the two scopes of application of the Q: What are the two recognized rules on
RPC? jurisdiction over merchant vessels?

A: A: The French rule and the English rule. These rules
1. Intraterritorial – refers to the application refer to the jurisdiction of one country over its
of the RPC within the Philippine territory merchant vessels situated in another country.
These do not apply to war vessels over which a
2. Extraterritorial – refers to the application country always has jurisdiction.
of the RPC outside the Philippine
territory. Q: What is the French rule?

Q: In what cases does the RPC have an A: The French rule recognizes the jurisdiction of the
extraterritorial application? flag country over crimes committed on board the
vessel except if the crime disturbs the peace and
A: Against those who: order and security of the host country.
1. Should commit an offense while on a
Philippine ship or airship Q: What is the English rule?
2. Should forge or counterfeit any coin or
currency note of the Philippine Islands or A: The English rule recognizes that the host country
obligations and securities issued by the has jurisdiction over crimes committed on board
Government of the Philippine Islands the vessel unless they involve the internal
3. Should be liable for acts connected with management of the vessel.
the introduction into these islands of the
obligations and securities mentioned in Note: The effect on jurisdiction of both rules is almost
the preceding number the same because the general rule of one is the
exception of the other.
4. While being public officers or employees,

should commit an offense in the exercise
Q: What is the rule on foreign merchant vessels in
of their functions; or
possession of dangerous drugs?
5. Should commit any of the crimes against

national security and the law of nations.

(Art. 2, RPC)

3

A: 7. Malversation of Public Funds or Property
1. In transit – possession of dangerous drugs (Art. 217)
is not punishable, but the use of the same 8. Failure to Render Accounts (Art. 218)
is punishable. 9. Failure to Render Accounts Before
2. Not in transit – mere possession of Leaving the Country (Art. 219)
dangerous drugs is punishable. 10. Illegal Use of Public Funds or Property
(Art. 220)
Q: When is forgery committed? 11. Failure to Make Delivery of Public Funds
or Property (Art. 221)
A: Forgery is committed by giving to a treasury or 12. Falsification (Art.171)
bank note or any instrument payable to bearer or
to order the appearance of a true genuine Q: What are the characteristics of criminal law?
document or by erasing, substituting, counterfeiting
or altering, by any means, the figures, letters, words A:
or sign contained therein. 1. Generality – means that the criminal law
of the country governs all persons within
Note: If forgery was committed abroad, it must refer the country regardless of their race,
only to Philippine coin, currency note, or obligations belief, sex, or creed.
and securities.
Note: The term generality has no reference
Obligations and securities of the GSIS, SSS, and to territory. It refers to persons that may be
Landbank are NOT of the government because they governed by the penal law.
have separate charters.
2. Territoriality – means that the penal laws
Those who introduced the counterfeit items are of the country have force and effect only
criminally liable even if they were not the ones who within its territory.
counterfeited the obligations and securities. On the

other hand, those who counterfeited the items are
Note: The territorial application of criminal
criminally liable even if they did not introduce the
laws is again subject to certain exceptions
counterfeit items.
brought about by treaties or international
agreements.
Q: When does a public officer or employee commit
an offense in the exercise of their functions? Certain exceptions to the territorial
application of criminal laws are also outlined
A: As a general rule, the RPC governs only when the under Art. 2 of the RPC.
crime committed pertains to the exercise of the
public official’s functions, those having to do with 3. Prospectivity – means that acts or
the discharge of their duties in a foreign country. omissions will only be subject to a penal
The functions contemplated are those, which are, law if they are committed after a penal
under the law, to be performed by the public officer law had already taken effect.
in the Foreign Service of the Philippine government
in a foreign country. Note: This is also called irretrospectivity.

Note: This rule is not absolute. The RPC governs if the Q: What are the exceptions to the rule on
crime was committed within the Philippine Embassy or generality of penal laws?
within the embassy grounds in a foreign country. This
is because embassy grounds are considered an A: Exceptions brought about by:
extension of sovereignty.

1. Treaty stipulations and international
Q: What are the crimes included?
agreements. E.g. RP‐US Visiting Forces

Accord.
A:

1. Direct Bribery (Art. 210)
2. Laws of Preferential Application
2. Indirect Bribery (Art. 211)

3. Qualified Bribery (Art. 211‐A) Note: RA 75 penalizes acts which would
4. Corruption (Art. 212) impair the proper observance by the
5. Fraud Against Public Treasury and Similar Republic and its inhabitants of the
Offenses (Art. 213) immunities, rights, and privileges of duly‐
6. Possession of Prohibited Interest (Art.
216)
accredited foreign diplomatic

representatives in the Philippines. Note: An ex post facto law is one wherein if given a
retroactive application will be prejudicial to the
3. The principles of public international law accused.

a. Sovereigns and other chiefs of states A bill of attainder is a legislative act which inflicts
b. Ambassadors, ministers, punishments without trial. Its essence is the
plenipotentiary, ministers resident, substitution of a legislative act for a judicial
and charges d’ affaires. determination of guilt.

Note: Consuls, vice‐consuls, and other 2. No person shall be held to answer for a
commercial representatives of foreign criminal offense without due process of
nation are not diplomatic officers. Consuls law. (Sec. 14, [1], Art. III, 1987
are subject to the penal laws of the country Constitution)
where they are assigned.
3. No person shall be deprived of life,
Q: What is the exception to the prospective liberty, or property without due process
application of penal laws? of law, nor shall any person be denied the
equal protection of the laws. (Sec. 1, Art.
A: Whenever a new statute dealing with crime III, 1987 Constitution)
establishes conditions more lenient or favorable to
the accused. 4. Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment
Note: The retroactive effect shall benefit the accused inflicted. (Sec. 19 [1], Art. III, 1987
even if at the time of the publication of the law, a final Constitution)
judgment has been pronounced and the convict is
serving sentence. Act Prohibiting the Imposition of Death Penalty in
the Philippines (R.A. 9346)
Q: What is the exception to the exception?
Q: Is the death penalty already abolished?
A: The new law cannot be given retroactive effect:
A: No. What is prohibited under R.A. 9346 is only
1. Where the new law is expressly made the imposition of death penalty.
inapplicable to pending actions or existing
causes of actions. Note: However, the corresponding civil liability should
2. Where the offender is a habitual criminal. be the civil liability corresponding to death. (People v.
Salome, G.R. No. 169077, Aug. 31, 2006)
C. CONSTITUTIONAL LIMITATIONS ON THE POWER
OF CONGRESS TO ENACT PENAL LAWS IN THE BILL Q: What penalty would be imposed in lieu of the
OF RIGHTS death penalty?

Q: Who has the power to enact penal laws? A: In lieu of the death penalty, the following shall
be imposed:
A: Only the legislative branch of the government
can enact penal laws. 1. Reclusion perpetua‐ when the law
violated makes use of the nomenclature
Note: While the President may define and punish an of the penalties of the RPC; or
act as a crime, such exercise of power is not executive
but legislative as he derives such power from the law‐ 2. Life imprisonment‐ when the law violated
making body. It is in essence, an exercise of legislative does not make use of the nomenclature
power by the Chief Executive. of the penalties of the RPC. (Sec.2)

Q: What are the constitutional limitations on the
right of the Legislature to enact penal laws?

A:
1. No ex post facto law or bill of attainder
shall be enacted. (Sec. 22, Art. llI, 1987
Constitution)
5

II. FELONIES purely a mental process is presumed.
Such presumption arises from the proof
Q: What are felonies? of commission of an unlawful act. A
mental state, hence, its existence is
A: Felonies are acts or omissions punishable by the shown by overt acts.
RPC.
Note: If there is NO criminal intent, the act
Note: Omission means inaction, the failure to perform is justified. Offender incurs NO criminal
a positive duty which one is bound to do. liability. E.g. The existence of a lawful or
insuperable cause, commission by mere
There must be a law requiring a certain act to be accident.
performed and the person required to do the act fails
to perform it. 2. Freedom of action – voluntariness on the
part of the person to commit the act or
Punishable under the RPC means this element of a omission.
felony is based upon the maxim, nullum crimen, nulla
poena sine lege, that is, there is no crime where there Note: If there is lack of freedom, the
is no law punishing it. offender is exempt from liability. Example is
the presence of irresistible force or
Q: How are felonies committed? uncontrollable fear.

A: Felonies are committed not only by means of Note: The word voluntariness in criminal law
deceit (dolo) but also by means of fault (culpa). does not mean acting in one's own volition.
In criminal law, voluntariness comprehends
Q: What are the kinds of felonies? the concurrence of freedom of action,
intelligence and the fact that the act was
A: intentional.
1. Intentional felonies (Dolo)
2. Culpable felonies (Culpa) 3. Intelligence – means the capacity to know
and understand the consequences of
Q: What are the distinctions between intentional one's act.
felony and culpable felony?
Note: If there is lack of intelligence, the
A: offender is exempt from liability. E.g. is
when the offender is an imbecile, insane, or
DOLO CULPA under 15 years of age.
Act is
Not malicious
malicious Note: If any of these requisites is absent, there is no
With Injury caused is unintentional being dolo. If there is no dolo, there could be no intentional
deliberate incident of another act performed felony.
intent without malice
Wrongful act results from Q: What are the requisites of culpa?
Has intention
imprudence, negligence, lack of
to cause injury A:
foresight or lack of skill
1. Criminal negligence on the part of the

offender, that is, the crime was the result
Q: What is an act in contemplation of criminal
of negligence, reckless imprudence, lack
law?
of foresight or lack of skill.

A: An act refers to any kind of body movement that
Note: Negligence indicates deficiency of
produces change in the outside world. The act must
perception or failure to pay attention and to
be an external act which has a direct connection use diligence in foreseeing the injury or
with the felony intended to be committed. damage impending to be caused. It usually
involves lack of foresight.
Q: What are the requisites of dolo?
Imprudence indicates deficiency of action or
A: failure to take the necessary precaution to
1. Criminal intent – the purpose to use a avoid injury to person or damage to
particular means to effect such result. property. It usually involves lack of skill.
Intent to commit an act with malice being
BOOK 1: Felonies
2. Freedom of action on the part of the 2. Specific criminal intent – Is not presumed

offender, that is, he was not acting under because it is an ingredient or element of a
duress. crime, like intent to kill in the crimes of
attempted or frustrated
3. Intelligence on the part of the offender in homicide/parricide/murder. The
performing the negligent act. prosecution has the burden of proving the
same.
Note: If any of these requisites is absent, there can be
no culpa. Note: In some particular felonies, proof of
specific intent is required to produce the
Q: What crimes cannot be committed through crime such as in frustrated and attempted
culpa (negligence or imprudence)? homicide.

A: Q: What is the distinction between intent and
1. Murder discernment?
2. Treason
3. Robbery A:
4. Malicious mischief INTENT DISCERNMENT
The mental capacity to
The determination to do
Q: What is mens rea? tell right from wrong. It
a certain thing, an aim or
relates to the moral
purpose of the mind. It is
A: Mens rea is referred to as the gravamen of the significance that a person
the design to resolve or
offense. Mens rea of the crime depends upon the ascribes to his act and
determination by which a
relates to the intelligence
elements of the crime. It can only be determined by person acts.
as an element of dolo.
knowing the particular crime committed.

Note: Q: What is motive?
1. In theft, the mens rea is the taking of the
property of another with intent to gain. A: It is the moving power or force which impels a
2. In falsification, the mens rea is the effecting person to a desired result.
of the forgery with intent to pervert the
truth. Q: Is motive determinant of criminal liability?
3. In robbery, the mens rea is the taking of the
property of another coupled with the A: No. Motive alone will not bring about criminal
employment of intimidation or violence liability because the RPC requires that there must
upon persons or things. be an overt act or an omission. When there is
motive in the commission of a crime, it always
Q: What is intent? comes before the intent.

A: Intent refers to the use of a particular means to Note:
effect the desired result. It is a mental state, the In a murder case, the intent to kill is demonstrated by
existence of which is demonstrated by the overt the use of lethal weapon; whereas, the motive may be
acts of a person. vengeance.

Q: What are the categories of intent in criminal Motive is material when:
law? 1. The acts bring about variant crimes
2. There is doubt whether the accused
A: committed the crime, or the identity of the
1. General criminal intent – Is presumed accused is doubtful
3. The evidence on the commission of the
from the mere doing of a wrong act. This
crime is purely circumstantial
does not require proof. The burden is
4. There is a need to determine whether direct
upon the wrongdoer to prove that he
assault is present in offenses against person
acted without such criminal intent. in authority committed when he is not in the
performance of his official duties
Note: In felonies by means of deceit, the 5. In ascertaining the truth between two
third element of voluntariness is a general antagonistic theories or versions of the
intent. killing

7

6. Where there are no eyewitnesses to the A:
crime and where suspicion is likely to fall 1. Grave – those to which the law attaches
upon a number of persons. the capital punishment or penalties which
in any of their periods are afflictive, in
Q: What are the distinctions between motive and accordance with Art. 25 of the RPC. (Art.
intent? 9, par. 1, RPC)

A: 2. Less grave – those which the law punishes
MOTIVE INTENT with penalties which in their maximum
period are correctional, in accordance
It is the moving power It refers to the use of a
with Art. 25 of the RPC. (Art. 9, par. 2,
which impels a person to particular means to
RPC)
act for a definite result achieve the desired result

A crime may be It is an ingredient of dolo 3. Light – those infractions of law for the
committed without or malice and thus, an commission of which the penalty of
motive. It is not element element of deliberate arresto menor or a fine not exceeding 200
of the crime felonies pesos, or both, is provided. (Art. 9, par. 3,
Is essential only when the RPC)
Is essential in intentional
identity of perpetrator is
felonies Q: Who are liable for grave or less grave felonies?
in doubt

A: The principals, accomplices and even
Q: What are the factors that affect intent?
accessories, because the degree of the penalty to

be imposed depends on 3 factors:
A:
1. Stages of execution
1. Mistake of fact‐ that which had the facts
2. The degree of participation
been true to the belief of the offender, his
3. The presence of attending circumstances
act can be justified. It is such mistake that

will negate criminal liability because of
Q: When are light felonies punishable?
the absence of the element of intent.

A:
Note: Mistake refers to the situation itself, not the
GR: Light felonies are punishable only when
identity of the persons involved. Mistake of fact is only
a defense in intentional felony but never in culpable
they are consummated.
felony.
Note: It involves insignificant moral and material
injuries, if not consummated, the wrong done is so
2. Aberratio ictus – mistake in the blow
slight that a penalty is unnecessary.
3. Error in personae – mistake in the identity

4. Praeter intentionem – where the
XPN: Light felonies are punishable in all stages
consequence exceeded the intention
when committed against persons or property.
5. Proximate cause – the cause of the cause

is the cause of the evil caused
Note: It presupposes moral depravity.

A. CLASSIFICATION OF FELONIES (ART. 9)
Q: Who are liable in light felonies?

Q: What is the importance of classifying the
A: Only the principals and the accomplices are liable
felonies as to their severity?
in light felonies. Accessories are not liable for light

felonies.
A: To determine:

Q: What are the crimes considered as light
1. Whether these felonies can be complexed
felonies?
or not

A:
2. The prescription of the crime and the
1. Slight physical injuries
prescription of the penalty.
2. Theft (when the value of thing stolen is

less than 5 pesos and theft is committed
Q: What are the classifications of felonies
under the circumstances enumerated
according to their gravity?
under Art. 308 par.3)

3. Alteration of boundary marks
BOOK 1: Felonies
4. Malicious mischief (when the value of the A:
damage does not exceed 200 or cannot ABERRATIO ICTUS ERROR IN PERSONAE
be estimated.
5. Intriguing against honor A person directed the
The victim actually
blow at an intended
received the blow, but he
B. ELEMENTS OF CRIMINAL LIABILITY (Art. 4) victim, but because of
was mistaken for another
poor aim, that blow
who was not at the scene
landed on somebody
Q: How is criminal liability incurred? of the crime.
else.

A: Criminal liability is incurred by any person: The offender, the
There are only two
intended victim as well as
persons present in error
1. Committing a felony although the the actual victim are all at
in personae ‐ the actual
wrongful act done be different from that the scene of the crime. It
but intended victim and
which he intended. generally gives rise to a
the offender.
complex crime.
2. Performing an act which would be an It generally gives rise to The provisions of Art. 49
offense against persons or property, were the complex crime. This applies in error in
it not for the inherent possibility of its being so, the penalty for personae, that is, the
accomplishment or on account of the the more serious crime is penalty for the lesser
employment of inadequate or ineffectual imposed in the maximum crime will be the one
means. (Art. 4) period. imposed.

Note: Article 4 does not mean to exclude offenders Q: What is praeter intentionem?
who are liable even if they do not fall under any of the

situations spoken of in the said article. Thus, a person
A: In praeter intentionem, the injury is on the
who committed a crime which he really intended is no
intended victim but the resulting consequence is so
doubt liable for that offense like, if A, intending to kill
his father, shot him, he is liable for the death of his grave a wrong than what was intended.
father. The opening sentence of Article 4 should have
been: "Criminal liability shall also be incurred by". Note: There must be a notable disparity between the
means employed and the resulting felony.

Q: What situations are contemplated under the
Praeter intentionem is a mitigating circumstance
first paragraph of Art. 4, "wrongful act done be
particularly covered by paragraph 3 of Article 13.
different from what was intended"?

Q: A and B went on a drinking spree. While they
A:
were drinking, they had some argument so A
1. Aberratio ictus or mistake in the blow
stabbed B several times. A’s defense is that he had
2. Error in personae or mistake in identity
no intention of killing his friend and that he did
3. Praeter intentionem or where the
not intend to commit so grave a wrong as that
consequence exceeded the intention
committed. Is praeter intentionem properly

invoked?
Note: The three enumerated situations are always the

result of an intended felony, and hence, dolo. These
situations do not arise out of criminal negligence. A: No, because praeter intentionem is mitigating
only if there is a notable disparity between the
Q: What is aberratio ictus or mistake in the blow? means employed and the resulting felony. The fact
that several wounds were inflicted on B is hardly
A: In aberratio ictus, the offender intends the injury compatible with the idea that he did not intend to
on one person but the harm fell on another. There commit so grave a wrong as that committed.
are three persons present when the felony is
committed: the offender, the intended victim, and Q: What does Article 4, paragraph 1 ‐ "Criminal
the actual victim. liability shall be incurred by any person
committing a felony although the wrongful act
Q: What are the distinctions between aberratio done be different from that which he intended"
ictus and error in personae? presuppose?

A: It presupposes that the act done is the proximate
cause of the resulting felony. It must be the direct,

9

natural, and logical consequence of the felonious is, calculated to destroy or endanger life, the actor is
act. liable.

Q: What is a proximate cause? It is important that there be no efficient intervening
cause.
A: Proximate cause is that cause which sets into
motion other causes and which, unbroken by any Q: How is proximate cause negated?
efficient supervening cause, produces a felony
without which such felony could not have resulted. A:
(He who is the cause of the cause is the cause of the 1. Active force, distinct act, or fact
evil of the cause.) absolutely foreign from the felonious act
of the accused, which serves as a
As a rule, the offender is criminally liable for all the sufficient intervening cause
consequences of his felonious act, although not 2. Resulting injury or damage is due to the
intended, if the felonious act is the proximate cause intentional act of the victim.
of the felony.
Q: What circumstances are considered as
Q: What are the requisites of proximate cause? inefficient intervening causes?

A: A:
1. The direct, natural, and logical cause 1. The weak physical condition of the victim
2. Produces the injury or damage 2. The nervousness or temperament of the
3. Unbroken by any sufficient intervening victim
cause 3. Causes which are inherent in the victim,
4. Without which the result would not have such as the victim's inability to swim
occurred 4. Refusal of the injured party of medical
attendance
Q: Is proximate cause the same as immediate 5. Erroneous or unskillful medical treatment
cause?
Note: Although the following may have intervened in
A: A proximate cause is not necessarily the the commission of the crime, the offender is still liable
for the resulting crime because the proximate cause is
immediate cause. Immediate cause may be a cause
caused by him.
which is far and remote from the consequence

which sets into motion other causes which resulted
Q: What circumstances are considered for death to
in the felony.
be presumed to be the natural consequence of the

physical injuries inflicted?
As long as the act of the accused contributed to the

death of the victim, even if the victim is about to
A:
die, he will still be liable for the felonious act of
1. That the victim was in normal condition at
putting to death that victim.
the time the physical injuries were

inflicted
Proximate cause does not require that the offender
2. That the death may be expected from the
needs to actually touch the body of the offended
physical injuries inflicted.
party. It is enough that the offender generated in
3. That death ensued within a reasonable
the mind of the offended party the belief that made
time.
him risk himself.

Note: Even if other causes cooperated in producing
Illustration:
the fatal result as long as the wound inflicted is

dangerous, that is, calculated to destroy or endanger
X and Y are crew members of cargo vessel. They had a
life, the actor is liable. This is true even though the
heated argument. X with a big knife in hand
immediate cause of death was erroneous or unskillful
threatened to kill Y. The victim Y, believing himself to
medical treatment, refusal of the victim to submit to
be in immediate peril, threw himself into the water. X
surgical operation, or that the deceased was suffering
died of drowning. In this case, Y is liable for homicide
from tuberculosis, heart disease or other internal
for the death of Y.
malady.

Even if other causes cooperated in producing the fatal
result as long as the wound inflicted is dangerous, that

BOOK 1: Felonies
C. IMPOSSIBLE CRIME [Art. 4 (2)] Note: It is a principle of criminal law that the offender
will only be penalized for an impossible crime if he
Q: What are the requisites of an impossible crime? cannot be punished under some other provision of the
RPC. An impossible crime is a crime of last resort.
A:
1. Act performed would be an offense Q: What are examples of impossible crimes?
against persons or property.
A:
Note: Kidnapping is a crime against personal 1. In employment of inadequate means –
security and not against person or property small quantity of poison which is
inadequate to kill a person.
2. Act was done with evil intent
3. Accomplishment is inherently impossible 2. In employment of inefficient means –
or means employed is either inadequate accused fired a gun, not knowing that it is
or ineffectual empty.
4. Act performed should not constitute a
violation of another provision of RPC Q: Buddy always resented his classmate, Jun. One
day, Buddy planned to kill Jun by mixing poison in
Note: The offender must believe that he can his lunch. Not knowing where he can get poison,
consummate the intended crime. A man stabbing he approached another classmate Jerry to whom
another who he knew was already dead cannot be he disclosed his evil plan. Because he himself
liable for an impossible crime harbored resentment towards Jun, Jerry gave
Buddy a poison, which Buddy placed on Jun's food.
Q: What is the essence of an impossible crime? However, Jun did not die because, unknown to
both Buddy and Jerry, the poison was actually
A: The essence of an impossible crime is the powdered milk. What crime or crimes, if any, did
inherent impossibility of accomplishing the crime or Jerry and Buddy commit?
the inherent impossibility of the means employed
to bring about the crime. A: Jerry and Buddy are liable for the so‐called
impossible crime because, with intent to kill, they
Q: What is inherent impossibility? tried to poison Jun and thus perpetrate murder, a
crime against persons. Jun was not poisoned only
A: Inherent impossibility means that under any and because the would‐be killers were unaware that
all circumstances, the crime could not have what they mixed with the food of Jun was
materialized. powdered milk, not poison. Criminal liability is
incurred by them although no crime resulted,
Q: What are the two kinds of inherent because their act of trying to poison Jun is criminal.
impossibility? (1998 Bar Question)

A: Q: Is impossible crime a formal crime?
1. Legal impossibility – which occurs where
the intended acts, even if completed A: Yes. By its very nature, an impossible crime is a
would not amount to a crime. E.g. killing a formal crime. It is either consummated or not
dead person. consummated at all. There is therefore no
attempted or frustrated impossible crime.
2. Physical impossibility – where extraneous
circumstances unknown to the accused Q: Distinguish impossible crime from
prevent the consummation of the unconsummated felonies (attempted or frustrated
intended crime. E.g. pick pocketing an felony)
empty wallet.

UNCONSUMMATED
Q: What is the reason for penalizing impossible IMPOSSIBLE CRIMES
FELONIES
crime?
Intent is not
Intent is not accomplished
A: To teach the offender a lesson because of his accomplished
criminal perversity. Although objectively, no crime Intent of the offender has
is committed, but subjectively, he is a criminal. Intent of the offender,
possibility of
cannot be accomplished
accomplishment
11

Intent cannot be Q: When is a felony consummated?
accomplished because
Accomplishment is it is inherently A: A felony is consummated when all the acts
prevented by the impossible to necessary for its accomplishment and execution are
intervention of certain accomplish or because present.
cause or accident in which the means employed by
the offender had no part the offender is Q: What are the elements of frustrated felony?
inadequate or
ineffectual A:
1. The offender performs all the acts of
D. STAGES OF EXECUTION (Art. 6) execution.
2. All the acts performed would produce the
Q: What are the classifications of felonies felony as a consequence.
according to the stage of execution? 3. But the felony is not produced.
4. By the reason of causes independent of
A: Consummated, frustrated and attempted the will of the perpetrator.

Q: What is the purpose of classification? Q: What crimes do not admit of frustrated stage?

A: To bring about a proportionate penalty and A:
equitable punishment. 1. Rape – the gravamen of the offense is
carnal knowledge, hence, the slightest
Note: The penalties are graduated according to their penetration to the female organ
degree of severity. The stages may not apply to all consummates the felony.
kinds of felonies. There are felonies which do not
admit of division. 2. Arson – the moment the burning property
occurs, even if slight, the offense is
Q: What are the crimes that do not admit of consummated.
division?
3. Corruption of public officers – mere
A: Formal crimes which are consummated in one acceptance of the offer consummates the
instance, do not admit of division. e.g. physical crime.
injuries and oral defamation.
4. Physical injury – consummated at the
Q: What are the phases of felony? instance the injuries are inflicted.

A: 5. Adultery – the essence of the crime is
1. Subjective phase – that portion of sexual congress.
execution of the crime starting from the
point where the offender begins up to 6. Theft – the essence of the crime is the
that point where he still has control of his possession of the thing, once the thing
acts. has been taken or in the possession of the
person, the crime is consummated.
Note: If it reaches the point where he has no
more control over his acts, the subjective Q: What are the elements of attempted felony?
phase has passed.
A:
If the subjective phase is not yet passed, the 1. The offender commences the commission
felony would be a mere attempt.
of the felony directly by overt acts

If it already passed, but the felony is not
Note: Overt acts are external acts which if
produced, as a rule, it is frustrated.
continued will logically result in a felony. It is

the start of criminal liability because the
2. Objective phase – results of the acts of offender has commenced the commission of
execution, that is, the accomplishment of an offense with an overt act.
the crime.
2. He does not perform all the acts of
Note: If the subjective and objective phases are execution which should produce the
present, there is consummated felony.
felony
BOOK 1: Felonies
A: The difference between the attempted stage and
3. The non‐performance of all acts of the frustrated stage lies on whether the offender
execution was due to a cause or accident has performed all the acts of execution for the
other than the offender's own accomplishment of a felony.
spontaneous desistance
Literally, under the article, if the offender has
Note: The moment the execution of the crime has performed all the acts of execution which should
already gone to that point where the felony should produce the felony as a consequence but the felony
follow as a consequence, it is either already frustrated was not realized, then the crime is already in the
or consummated. If the felony does not follow as a frustrated stage.
consequence, it is already frustrated. If the felony
follows as a consequence, it is consummated. If the offender has not yet performed all the acts of
execution (there is yet something to be performed)
The word directly emphasizes the requirement that but he was not able to perform all the acts of
the attempted felony is that which is directly linked to execution due to some cause or accident other than
the overt act performed by the offender not the felony his own spontaneous desistance, then you have an
he has in his mind. attempted felony.

Q: A person enters the dwelling of another.
However, at the very moment of his entry and Q: What are the distinctions between attempted,
before he could do anything, he is already frustrated and consummated felony?
apprehended by the household members, can he
be charged with attempted robbery? A:

ATTEMPTED FRUSTRATED CONSUMMATED
A: No. He can only be held liable for attempted
robbery when he has already completed all acts criminal purpose criminal purpose Criminal purpose
performed by him directly leading to robbery. The was not was not was
act of entering alone is not yet indicative of robbery accomplished accomplished accomplished.
although that may be what he may have planned to
Offender has Offender has
commit. However, he may be held liable for
Offender merely performed all the performed all
trespassing. commences the acts of execution the acts of
commission of the which would execution which
Q: The accused brought gasoline into a building, crime directly by produce the would produce
with the intent to burn the building, but was overt acts. felony as a the felony as the
apprehended by the security guard, did the crime consequence. consequence.
of arson commence?
The intervention
The intervention of
of certain cause The felony was
A: Yes. The accused in this case is liable for certain cause or
or accident which produced as a
attempted arson because the bringing of the accident which the
the offender had consequence of
gasoline was already an overt act while the offender had no
no part the act of the
apprehension was the reason other than his own part prevented the
prevented the offender
spontaneous desistance. accomplishment
accomplishment

Q: What are the criteria involved in determining Offender has not Offender has Subjective and
the stage (whether it be in the attempted, passed the reached the objective phase
frustrated or consummated stage) of the subjective phase objective stage are present
commission of a felony?
Q: What are the instances wherein the stages of a
A: crime will not apply?
1. The manner of committing the crime
A:
2. The elements of the crime 1. Offenses punishable by Special Penal
Laws, unless otherwise provided for.
3. The nature of the crime itself 2. Formal crimes (e.g., slander adultery, etc.)
3. Impossible crimes
Q: What is the distinction between attempted and 4. Crimes consummated by mere attempt
frustrated felony? (e.g., attempt to flee to an enemy country,
treason, corruption of minors)
5. Felonies by omission
13

6. Crimes committed by mere agreement Note:
(e.g., betting in sports, corruption of GR: When conspiracy exists, the degree of
public officers) participation of each conspirator is not considered
because the act of one is the act of all, they have
E. CONSPIRACY AND PROPOSAL (Art.8) equal criminal responsibility.

Q: What is conspiracy? XPN: Even though there was conspiracy, if a co‐
conspirator merely cooperated in the commission

of the crime with insignificant or minimal acts,
A: Conspiracy exists when two or more persons
such that even without his cooperation, the crime
come to an agreement concerning the commission could be carried out as well, such co‐conspirator
of a felony and decide to commit it. should be punished as an accomplice only. (People
v. Niem, G.R. No. 521, Dec. 20, 1945)
Q: What are the requisites of conspiracy?
XPN to the XPN: When the act constitutes a single
A: indivisible offense.
1. There is an agreement
2. The participants acted in concert or Q: What are the distinctions between conspiracy
simultaneously which is indicative of a and proposal to commit a felony?
meeting of the minds towards a common
criminal goal or criminal objective A:
CONSPIRACY PROPOSAL
Q: When does proposal exist?
There is proposal when
It exists when two or more
A: Proposal exists when the person who has the person who has
persons come to an
decided to commit a felony proposes its execution decided to commit a
agreement concerning the
to some other person or persons. felony proposes its
commission of a felony and
execution to some other
decide to commit it.
Q: Is proposal and conspiracy to commit felony person or persons.
punishable?
Proposal is true only up to
A: Once the proposal is the point where the party
GR: Conspiracy and proposal to commit a felony accepted, a conspiracy to whom the proposal was
are not punishable. arises. made has not yet
accepted the proposal.
Ratio: Because they are mere preparatory acts.
Proposal is unilateral, one
XPN: They are punishable only in cases in which Conspiracy is bilateral, it
party makes a proposition
the law specifically provides a penalty thereof. requires two parties.
to the other.

Note: It is fundamental that there exists a unity of
purpose and the unity in the execution of the unlawful Q: What are the two kinds of conspiracy?
objective among the co‐conspirators.
A:
Mere knowledge, acquiescence to, or approval of the 1. Conspiracy as a crime – The mere
act, without cooperation or at least, agreement to conspiracy is the crime itself. This is only
cooperate, is not enough to constitute a conspiracy. true when the law expressly punishes the
mere conspiracy, otherwise, the
A conspiracy is possible even when participants do not conspiracy does not bring about the
know each other. commission of the crime because
conspiracy is not an overt act but a mere
Q: Is it required that there is an agreement among preparatory act.
the participants to constitute conspiracy?
Note: Treason, rebellion, sedition, and coup
A: No. It is enough that the offenders acted d'etat are the only crimes where the
simultaneously or in a synchronized manner to conspiracy and proposal to commit them
bring about their common intention. are punishable.

2. Conspiracy as a basis of incurring criminal
liability – When the conspiracy is only a
BOOK 1: Felonies
basis of incurring criminal liability, there place where the crime was committed. (1998 Bar
must be an overt act done before the co‐ Question)
conspirators become criminally liable.
F. MULTIPLE OFFENDERS
Q: What is implied conspiracy? (Differences, Rules and Effects)
See also page 42 regarding the different forms of
A: When the conspiracy is just a basis of incurring repetition or habituality of the offender
criminal liability, it may be deduced or inferred
from the acts of several offenders in carrying out 1. Recidivism – the offender at the‐time of
the commission of the crime, i.e. when such acts his trial for one crime shall have been
disclose or show a common pursuit of the criminal previously convicted by final judgment of
objective. another embraced in the same title of the
RPC.
Q: What are the legal effects of implied
conspiracy? Note: It is important that conviction which
came earlier must refer to the crime
A: committed earlier than the subsequent
1. Not all those who are present at the conviction.
scene of the crime will be considered
conspirators A recidivist is entitled to the benefits of the
Indeterminate Sentence Law but is
2. Only those who participated by criminal disqualified from availing credit of his
preventive imprisonment.
acts in the commission of the crime will

be considered as co‐conspirators
2. Reiteracion – the offender has been

Note: In order to hold someone criminally liable, in
previously punished for an offense which
addition to mere presence, there should be overt acts the law attaches an equal or greater
that are closely‐related and coordinated to establish penalty or for two or more crimes to
the presence of common criminal design and which it attaches a lighter penalty.
community of purpose in the commission of the crime.
3. Habitual delinquency — the offender
Q: Juan and Arturo devised a plan to murder Joel. within the period of 10 years from the
In a narrow alley near Joel's house, Juan will hide date of his release or last conviction of
behind the big lamppost and shoot Joel when the the crimes of serious or less serious
latter passes through on his way to work. Arturo physical injuries, robbery, theft, estafa or
will come from the other end of the alley and falsification, is found guilty of any of the
simultaneously shoot Joel from behind. On the said crimes a third time or oftener.
appointed day, Arturo was apprehended by the
authorities before reaching the alley. When Juan 4. Quasi‐recidivism — Any person who shall
shot Joel as planned, he was unaware that Arturo commit a felony after having been
was arrested earlier. Discuss the criminal liability convicted by final judgment before
of Arturo, if any. beginning to serve such sentence or while
serving such sentence shall be punished
A: Arturo being one of the two who devised the by the maximum period prescribed by law
plan to murder Joel, thereby becomes co‐principal for the new felony.
by direct conspiracy. What is needed only is an
overt act and both will incur criminal liability. G. COMPLEX CRIMES vis SPECIAL COMPLEX
Arturo's liability as a conspirator arose from his CRIMES
participation in jointly devising the criminal plan
with Juan, to kill Jose. And it was pursuant to that COMPLEX CRIMES
conspiracy that Juan killed Joel. The conspiracy here (Art. 48)
is actual, not by inference only. The overt act was
done pursuant to that conspiracy whereof Arturo is Q: What is a complex crime?
co‐conspirator. There being a conspiracy, the act of
one is the act of all. Arturo, therefore, should be A: Complex crime exists when two or more crimes
liable as a co‐conspirator but the penalty on him are committed but they constitute only one crime
may be that of an accomplice only because he was in the eyes of the law. Here, there is only one
not able to actually participate in the shooting of criminal intent hence, only one penalty is imposed
Joel, having been apprehended before reaching the
15

Q: What are the concepts of complex crimes? A:
1. When one offense is committed to
A: conceal the other
1. A single criminal act constituting 2 or
more grave or less grave felonies. 2. When one crime is an element of the
other, for in that case, the former shall
2. Offender has only one criminal intent, be absorbed by the latter. E.g.
hence, there is only one penalty trespassing which is an element of the
imposed. robbery with force upon things

Q: What are the kinds of complex crimes? 3. When the crime has the same elements
as the other crime committed E.g. estafa
A: and falsification of private documents
1. Compound crime – when a single act have the same element of damage. Thus
constitutes two or more grave or less there is no complex crime of estafa
grave felonies. through falsification of private document

Requisites: 4. When one of the offenses is penalized by
a. Only a single act is performed by a special law
the offender
b. The single act produces: 5. In continued crimes
i. Two or more grave felonies
Q: What is the penalty for complex crimes under
ii. One or more grave and one or Article 48?
more less grave felonies
A:
iii. Two or more less grave GR: When a complex crime is committed, the
felonies. penalty for the most serious crime in its
maximum period shall be imposed.
2. Complex crime proper – when an offense
is the necessary means for committing XPN: When the law imposes a single penalty
the other. for special complex crimes.

Requisites: Q: What is a continuing crime?
a. At least two offenses are
committed A: It is a single crime, consisting of a series of acts
b. One or some of the offenses must but arising from one criminal resolution (e.g.
be necessary to commit the other violation of BP 22).
c. Both or all the offenses must be
punished under the same statute Q: What is a continued crime?

Note: The first crime must be a necessary means A: Here, the offender is impelled by a single
to commit the other. criminal impulse but committed a series of acts at
about the same time in about the same place and
There should only be one information charging a all the overt acts violate one and the same
complex crime.
provision law. e.g. theft of 13 cows belonging to

different owners committed by the accused at the
Only one penalty is imposed for complex crimes
because there is only one criminal act.
same place and at the same time.

3. Special complex crime – known as Q: What are the distinctions between special
composite crime, the component crimes complex crimes and complex crimes under Art.
constitute a single indivisible offense 48?
and are thus penalized as one crime
A:
SPECIAL COMPLEX COMPLEX CRIME UNDER
Q: When is there no complex crime?
CRIME ART. 48

Combination of The combination is not

BOOK 1: Felonies
offenses are fixed or specified, that is, grave and distinctly punished under the Revised Penal

specified by law and/ or less grave; or one Code. Sedition may not be directed against the
E.g. robbery with offense being necessary government or non‐political in objective, whereas
homicide, robbery with means to commit the other coup d'état is always political in objective as it is
rape directed against the government and led by persons
The penalty imposed is the or public officer holding public office belonging to
The penalty for the
penalty for the most the military or national police. Art. 48 of the Code
specified combination is
serious offense in the may apply under the conditions therein provided.
also specific
maximum period
(2003 Bar Question)

Q: What is plurality of crimes?

A: It is the successive execution by the same
individual of different criminal acts upon any of
which no conviction has yet been declared

Q: What are the kinds of plurality of crimes?

A:
1. Formal or ideal – only one criminal
liability

a. Complex crime – defined in Art 48
b. When the law specifically fixes a
single penalty for 2 or more
offenses committed
c. Continued crimes

2. Real or material – there are different
crimes in law and in the conscience of
the offender. In such cases, the offender
shall be punished for each and every
offense that he committed

Q: Can there be a complex crime of coup d’état
with rebellion?

A: Yes. If there was conspiracy between the
offender/ offenders committing the rebellion. By
conspiracy, the crime of one would be the crime of
the other and vice versa. This is possible because
the offender in coup d’état may be any person or
persons belonging to the military or the national
police or a public officer, whereas rebellion does
not so require. Moreover, the crime coup d’etat
may be committed singly, whereas rebellion
requires a public uprising and taking up arms to
overthrow the duly constituted government. Since
the two crimes are essentially different and
punished with distinct penalties, there is no legal
impediment to the application of Art. 48 of the
Revised Penal Code. (2003 Bar Question)

Q: Can there be a complex crime of coup d’etat
with sedition?

A: Yes, coup d'état can be complexed with sedition
because the two crimes are essentially different
17

III. CIRCUMSTANCES WHICH AFFECT CRIMINAL 8. Adultery and concubinage if the offended
LIABILITY party shall have consented or pardoned
the offenders. (Art. 344)
Q: What are the circumstances affecting criminal
liability? Q: Is mistake of fact an absolutory cause?

A: JEMAA A: Yes. The offender is acting without criminal
1. Justifying circumstances intent. So in mistake of fact, it is necessary that had
2. Exempting circumstances the facts been true as the accused believed them to
3. Mitigating circumstances be, the act is justified. If not, there is criminal
4. Aggravating circumstances liability, because there is no more mistake of fact
5. Alternative circumstances anymore. The offender must believe he is
performing a lawful act.
Q: What are the other two circumstances found in
the RPC affecting criminal liability? Q: Does instigation absolve the offender from
criminal liability?
A:
1. Absolutory cause – has the effect of an A: Yes. In instigation, the offender simply acts as a
exempting circumstance and it is tool of the law enforcers and, therefore, he is acting
predicated on lack of voluntariness such without criminal intent because without the
as instigation instigation, he would not have done the criminal act
which he did upon instigation of the law enforcers.
2. Extenuating circumstances – the effect of
extenuating circumstances is to mitigate Note: This is based on the rule that a person cannot be
the criminal liability of the offender a criminal if his mind is not criminal.

Q: What are examples of absolutory causes? Q: What if the person instigated does not know
that the person instigating him is a law enforcer?
A:
1. Accessory is a relative of the principal. A: If the person instigated does not know that the
(Art. 20) person instigating him is a law enforcer or he knows
2. Discovering secrets through seizure of him to be not a law enforcer, this is not a case of
correspondence of ward by their guardian instigation. This is a case of inducement, both will
is not penalized. (Art. 219) be criminally liable.
3. When only slight or less serious physical
injuries are inflicted by the person who Q: Is entrapment an absolutory cause?
surprised his/her spouse or daughter in
the act of sexual intercourse with another A: No. Entrapment is not an absolutory cause.
person. (Art. 247) Entrapment does not exempt the offender or
4. Crime of theft, swindling or malicious mitigate his criminal liability.
mischief is committed against a relative.
(Art. 332) Q: What is the effect if the person entrapped knew
5. Marriage of the offender with the that the person trying to entrap him is a law
offended party when the crime enforcer?
committed is rape, abduction, seduction,
or acts of lasciviousness. (Art. 344) A: In entrapment, the person entrapped should not
6. Instigation know that the person trying to entrap him is a law
7. Trespass to dwelling when the enforcer. The idea is incompatible with each other
purpose of entering another’s dwelling because in entrapment, the person entrapped is
against the latter’s will is to prevent some actually committing a crime. The officer who
serious harm to himself, the occupants of entrapped him only lays down ways and means to
the dwelling or a third person, or for the have evidence of the commission of the crime, but
purposes of rendering some services to even without those ways and means, the person
humanity or justice, or when entering entrapped is actually engaged in a violation of law.
cafes, taverns, inns and other public
houses, while the same are open. (Art. Q: What is the criteria to determine if the act is an
280 par. 2) entrapment or instigation?

BOOK 1: Circumstances Which Affect Criminal Liability
A: In the case of People v. Doria the SC held that A: In cases of infanticide and abortion, concealment
the conduct of the apprehending officers and the of dishonor is an extenuating circumstance insofar
predisposition of the accused to commit the crime as the unwed mother and the maternal
must be examined: grandparents are concerned

In buy‐bust operations demands that the details of JUSTIFYING CIRCUMSTANCES .
the purported transaction must be clearly and (Art. 11) .
adequately shown. This must start from the initial
contact between the poseur‐buyer and the pusher, Q: What are justifying circumstances?
the offer to purchase, the promise or payment of
the consideration until the consummation of the A: They are those acts of a person said to be in
sale by the delivery of the illegal drug subject of the accordance with law, such that a person is deemed
sale. not to have transgressed the law and is free from
both criminal and civil liability.
The manner by which the initial contact was made,
whether or not through an informant, the offer to They are:
purchase the drug, the payment of the "buy‐bust" 1. Self‐defense
money, and the delivery of the illegal drug, whether 2. Defense of relatives
to the informant alone or the police officer, must 3. Defense of stranger
be the subject of strict scrutiny by courts to insure 4. Avoidance of greater evil or injury
that law‐abiding citizens are not unlawfully induced 5. Fulfillment of duty or exercise of right or
to commit an offense. office
6. Obedience to an order of a superior
Criminals must be caught but not at all cost. At the
same time, however, examining the conduct of the Note: Justifying circumstances are in the nature of
police should not disable courts into ignoring the defensive acts, hence, unlawful aggression must
accused's predisposition to commit the crime. If always exist.
there is overwhelming evidence of habitual
delinquency, recidivism or plain criminal proclivity, Q: Who has the burden of evidence in criminal
then this must also be considered. Courts should case?

look at all factors to determine the predisposition
A: In criminal cases, the burden of proving guilt is
of an accused to commit an offense in so far as they
always the plaintiff/prosecution. But if the accused
are relevant to determine the validity of the
sets up an affirmative defense, the burden is on
defense of inducement.
him to prove such by “clear, affirmative and strong

evidence”
Q: What are the distinctions between instigation
and entrapment?
The foregoing rests on the maxim: EL INCOMBIT
A: PROBOTION QUI DECIT NON QUI NEGAT (He who
asserts, not he who denies, must prove)
INSTIGATION ENTRAPMENT
A law enforcement agent A person has planned, or
induces an innocent is about to commit a 1. SELF‐DEFENSE .
person to commit a crime and ways are
crime and would arrest resorted to by a public Q: What rights are included in self‐defense?
him upon or after the officer to trap and catch
commission of the crime. the criminal. A: Self‐defense includes not only the defense of the
person or body of the one assaulted but also that of
The law enforcement
his rights, the enjoyment of which is protected by
agent conceives the
Idea to commit the crime law.
commission of the crime
comes from the offender.
and suggests it to the
accused. Thus it includes:
1. Defense of the person
An absolutory cause. Not an absolutory cause.
2. Defense of rights protected by law
Q: What are examples of extenuating
circumstances? 3. The right to honor.

19

Note: Hence, a slap on the face is circumstance provided there is unlawful
considered as unlawful aggression since the aggression.
face represents a person and his dignity. It is
a serious, personal attack (Rugas v. People, Q: What is unlawful aggression?
G.R. No. 147789, Jan.14, 2004)
A: It is an attack or a threatened attack which
4. The defense of property rights can be produces an imminent danger to the life and limb
invoked if there is an attack upon the of the one resorting to self‐defense.
property although it is not coupled with
an attack upon the person of the owner Q: What are the types of unlawful aggression?
of the premises. All the elements for
justification must however be present. A:
(People v. Narvaez, G.R. Nos. L‐33466‐67, 1. Actual – the danger must be present, that
Apr. 20, 1983) is, actually in existence.

5. Self‐defense in libel. Physical assault may 2. Imminent – the danger is on the point of
be justified when the libel is aimed at the happening. It is not required that the
person’s good name, and while the libel is attack has already begun, for it may be
in progress, one libel deserves another. too late.

Note: What is important is not the duality of the attack Note: What justifies the killing of a supposed unlawful
but whether the means employed is reasonable to aggressor is that if the offender did not kill the
prevent the attack. aggressor, it will be his own life that will be lost.

Q: What are the requisites of self‐defense? No unlawful aggression when there was an agreement
to fight and the challenge to fight has been accepted.
A: But aggression which is ahead of a stipulated time and
1. Unlawful aggression place is unlawful.
2. Reasonable necessity of the means
employed to prevent or repel it Q: To give rise to self‐defense, should the
3. Lack of sufficient provocation on the part aggression be legal or illegal?
of the person defending himself
A: The aggression must be illegal, like the attack of
Q: What is the reason for lawfulness of self‐ the husband against paramour of his wife whom he
defense? surprised in an uncompromising situation, or a chief
of police who threw stones at the accused who was
A: It is impossible for the State to protect all its running away to elude arrest of a crime committed
citizens. Also, a person cannot just give up his rights in his presence. The aggression must be lawful.
without resistance being offered.
Q: What is the effect if there is a mistake of fact on
Q: What is the meaning of “stand ground when the part of the accused?
right”?
A: In relation to mistake of fact, the belief of the
A: The law does not require a person to retreat accused may be considered in determining the
when his assailant is rapidly advancing upon him existence of unlawful aggression. E.g. there is self‐
with a deadly weapon. defense even if the aggressor used a toy gun
provided that the accused believed it to be a real
Ratio: He runs the risk of being attacked in the back by gun.
the aggressor.
Q: What is the test in order to know if self‐defense
Q: What are the effects of self‐defense? exists?

A: A: One must ask: At the time the accused killed the
1. When all the elements are present – the supposed unlawful aggressor, was his or her life in
person defending himself is free from danger?
criminal liability and civil liability.
Q: What factors are taken into consideration in
2. When only a majority of the elements are determining whether or not the means employed
present – privileged mitigating by the person defending himself are reasonable?
A: A:
1. Nature and quality of the weapon used by SELF‐DEFENSE RETALIATION
the aggression. In self‐defense, the
In retaliation, the
2. Physical condition, character, size and unlawful aggression was
inceptual unlawful
other circumstances of both the offender still existing when the
aggression had already
and defender. aggressor was injured or
ceased when the accused
3. Place and occasion of the assault. disabled by the person
attacked him.
making the defense.
Note: Perfect equality between the weapons used by
the one defending himself and that of the aggressor is Q: One night, Lina, a young married woman, was
not required or material commensurability between sound asleep in her bedroom when she felt a man
the means of attack and defense. on top of her. Thinking it was her husband Tito,
who came home a day early from his business trip,
Ratio: The person assaulted does not have sufficient Lina let him have sex with her. After the act, the
tranquility of mind to think and to calculate and to man said, "I hope you enjoyed it as much as I did."
choose the weapon used. What the law requires is Not recognizing the voice, it dawned upon Lina
rational equivalence. that the man was not Tito, her husband. Furious,
Lina took out Tito's gun and shot the man. Charged
Q: What are the requisites which must be present with homicide, Lina denies culpability on the
to satisfy the “reasonable necessity of the means ground of defense of honor. Is her claim tenable?
employed to prevent or repel it?”
A: No, Lina's claim that she acted in defense of
A: honor is not tenable because the unlawful
1. Means were used to prevent or repel aggression on her honor had already ceased.
2. Means must be necessary and there is no Defense of honor as included in self‐defense, must
other way to prevent or repel it have been done to prevent or repel an unlawful
3. Means must be reasonable—depending aggression. There is no defense to speak of where
on the circumstances, but generally the unlawful aggression no longer exists. (1998 Bar
proportionate to the force of the Question)
aggressor
2. DEFENSE OF RELATIVES .
Q: In what instances can there be lack of sufficient
provocation on the person defending himself? Q: What are the requisites of defense of relatives?

A: A:
1. No provocation at all was given to 1. Unlawful aggression.
aggressor by person defending himself. 2. Reasonable necessity of the means
2. Even if provocation was given, it was not employed to prevent or repel it.
sufficient. 3. Relative being defended gave no
3. Even if provocation was sufficient, it was provocation.
not given by the person defending
himself. Note: The law gives a leeway on the third requisite,
4. Even if provocation was given by person even if the relative being defended gave the
defending himself, it was not the provocation, if the relative making the defense had no
proximate and immediate to the act of part therein, he can successfully invoke the defense of
aggression. relative.
5. Sufficient means proportionate to the
damage caused by the act, and adequate Q: Who are the relatives covered?
to stir one to its commission.
A:
Q: What is the effect if the aggressor retreats? 1. Spouse
2. Ascendants
A: The aggression ceases except when retreat is 3. Descendants
made to take a more advantageous position to 4. Legitimate, adopted brothers and sisters,
insure the success of the attack begun, unlawful or relatives by affinity in the same
aggression continues. degrees.
5. Relatives by consanguinity within the 4th
Q: What are the distinctions between self‐defense civil degree.
and retaliation?
21

Q: What if the person being defended is already a battering relationships as a result of cumulative
second cousin? abuse.

A: It will be considered defense of a stranger. This is The battered woman syndrome is characterized by
vital because if the person making the defense the so‐called cycle of violence, which has 3 phases.
acted out of revenge, resentment or some evil
motive in killing the aggressor, he cannot invoke the Q. What are the cycles of violence?
justifying circumstance if the relative defended is
already a stranger in the eyes of the law. On the A:
other hand, it the relative defended is still within 1. Tension building phase
the coverage of defense of relative, even though he
acted out of some evil motive, it would still apply. It 2. Acute battering incident
is enough that there was unlawful aggression
against the relative defended, and that the person 3. Tranquil, loving (or at least non‐violent)
defending did not contribute to the unlawful phase
aggression.
Note: One must undergo 3 phases to establish the
3. DEFENSE OF STRANGERS . pattern of violence. One must pass 2 cycles, each with
3 phases.
Q: What are the requisites of defense of
strangers? Q. Who is a battered woman?

A: A: She is woman who is repeatedly subjected to any
1. Unlawful aggression forceful physical or psychological behavior by a man
2. Reasonable necessity of the means in order to coerce her to do something he wants
employed to prevent or repel it her to do without concern for her rights.
3. Person defending be not induced by
revenge, resentment or other evil motive Battered women includes wives or women in any
form of intimate relationship with men.
Q: Who is a stranger?
Furthermore, in order to be classified as a battered
A: Any person not included in the enumeration of woman, the couple must go through the battering
relatives mentioned above. cycle at least twice. Any woman may find herself in
an abusive relationship with a man once. If it occurs
Q: What is the distinction between defense of a second time, and she remains in the situation, she
relatives and defense of strangers? is defined as a battered woman. (People v. Genosa,
G.R. No. 135981, Jan. 15, 2004)
A:
Q. Can BWS be used as a defense?
DEFENSE OF RELATIVES DEFENSE OF STRANGERS

In defense of relatives, A: Yes. Victim‐survivors who are found by the
In defense of strangers, if
even though the person courts to be suffering from battered woman
the person making the
making the defense acted syndrome do not incur any criminal or civil liability
defense acted out of
out of some evil motive,
revenge, resentment or notwithstanding the absence of any of the
he can still invoke the
some evil motive in killing elements for justifying circumstances of self‐
justifying circumstance,
the aggressor, he cannot defense under the RPC.
as long as he did not
invoke the justifying
contribute to the
circumstance. In layman’s terms, if an abused woman kills or inflict
unlawful aggression
physical injuries on her abusive husband or live‐in

partner, once the trial court determines that she is
A. Anti‐Violence against Women and their
suffering from the “Battered Woman Syndrome,” the
Children Act of 2004 (R.A. 9262) court will declare her not guilty (People v.Genosa)

Q: What is a battered woman syndrome (BWS)? The law now allows the battered woman syndrome
as a valid defense in the crime if parricide
A: Battered Woman Syndrome" refers to a independent of self defense under the RPC. (Sec.
scientifically defined pattern of psychological and 26)
behavioral symptoms found in women living in
Note: In the determination of the state of mind of the A:

woman who was suffering from battered woman 1. Accused acted in the performance of a
syndrome at the time of the commission of the crime, duty or in the lawful exercise of a right or
the courts shall be assisted by expert psychiatrists/ office.
psychologists. 2. Injury caused or offense committed be
the necessary consequence of the due
4. AVOIDANCE OF GREATER EVIL . performance of duty or the lawful
OR STATE OF NECESSITY . exercise of such right or office.

Q: What are the requisites of state of necessity? Note: If the police officer acted with negligence or
imprudence in apprehending violators of the law, the
A: justifying circumstance of fulfillment of duty cannot be
1. Evil sought to be avoided actually exists. invoked.
2. Injury feared be greater than that done to
avoid it. The shooting by guards of escaping prisoners is always
justified. (People v. Delima, G.R. No. 138692, June 16,
3. There be no other practical and less
2003)
harmful means of preventing it, and

4. There must be no contribution on the
Q: Lucresia, a store owner, was robbed of her
part of the accused what caused the evil
bracelet in her home. The following day, at about
to arise.
5 o'clock in the afternoon, a neighbor, 22‐year old

Jun‐Jun, who had an unsavory reputation, came to
Note: The state of necessity must not have been
brought about by the negligence or imprudence by the
her store to buy bottles of beer. Lucresia noticed
one invoking the justifying circumstances. her bracelet wound around the right arm of Jun‐
Jun. As soon as the latter left, Lucresia went to a
Q: What does damage to another cover? nearby police station and sought the help of a
policeman on duty, Pat. Willie Reyes. He went
A: Damage to another covers injury to persons and with Lucresia to the house of Jun‐Jun to confront
damage to property. the latter. Pat Reyes introduced himself as a
policeman and tried to get hold of Jun‐Jun who
Q: What does the term “evil” mean? resisted and ran away. Pat Reyes chased him and
fired two warning shots in the air Jun‐Jun
A: The term “evil” means harmful, injurious, continued to run and when he was about 7 meters
disastrous, and destructive. As contemplated, it away. Pat Reyes shot him in the right leg. Jun‐Jun
must actually exist. If it is merely expected or was hit and he fell down but he crawled towards a
anticipated, the one acting by such notion is not in fence, intending to pass through an opening
a state of necessity. underneath. When Pat. Reyes was about 5 meters
away, he fired another shot at Jun‐Jun hitting him
Q: Who must be liable civilly? at the right lower hip. Pat Reyes brought Jun‐Jun
to the hospital, but because of profuse bleeding,
A: The persons for whose benefit the harm has he eventually died. Pat Reyes was subsequently
been prevented shall be civilly liable in proportion charged with homicide. During the trial, Pat Reyes
to the benefit which they received. raised the defense, by way of exoneration, that he
acted in the fulfillment of a duty. Is the defense
Note: Generally, there is no civil liability in justifying tenable? Explain.
circumstances. However, it is only in par. 4 of this
Article where there is civil liability. The civil liability A: No. The defense of having acted in the fulfillment
referred to herein is based not on the act committed of a duty requires as a condition, inter alia, that the
but on the benefit derived from the state of necessity. injury or offense committed be the unavoidable or
So the accused will not be civilly liable if he did not necessary consequence of the due performance of
receive any benefit out of the state of necessity. On the duty (People v. Oanis, G.R. No. L‐47722, July 27,
the other hand, persons who did not participate in the 1943). It is not enough that the accused acted in
damage or injury would be civilly liable if they derived fulfillment of a duty. After Jun‐Jun was shot in the
benefit out of the state of necessity. right leg and was already crawling, there was no
need for Pat. Reyes to shoot him further. Clearly,
5. FULFILLMENT OF DUTY . Pat. Reyes acted beyond the call of duty which
brought about the cause of death of the victim.
Q: What are the requisites of fulfillment of duty? (2000 Bar Question)

23

6. OBEDIENCE TO AN ORDER ISSUED . 5. Any person who acts under the
FOR SOME LAWFUL PURPOSE . compulsion of an irresistible force.

Q: What are the requisites of obedience to an 6. Any person who acts under the impulse of
order issued for some lawful purpose? an uncontrollable fear of an equal or
greater injury.
A:
1. An order has been issued by a superior 7. Any person who fails to perform an act
2. Such order must be for some lawful required by law, when prevented by some
purpose lawful or insuperable cause.
3. Means used by the subordinate to carry
out said order is lawful Q: What is the basis for the exemption from
criminal liability?
Note: Both the person who gives the order, and the
person who executes it, must be acting within the A: The reason for the exemption lies on the
limitations prescribed by law. involuntariness of the act, that is, one or some of
the ingredients of voluntariness such as criminal
Q: Is good faith on the part of the subordinate intent, intelligence, or freedom of action on the
material? part of the offender is missing.

A: Yes. If he obeyed an order in good faith, not Q: In case of exempting circumstances, is there a
being aware of its illegality, he is not liable. crime committed?
However, the order must not be patently illegal. If
the order is patently illegal, this circumstance A: Yes. There is a crime committed but no criminal
cannot be validly invoked. liability arises from it because of the complete
absence of any of the conditions which constitute
Note: Even if the order is patently illegal, the free will or voluntariness of the act.
subordinate may still be able to invoke the exempting
circumstances of having acted upon the compulsion of Q: Who has the burden of proof?
an irresistible force, or under the impulse of an
uncontrollable fear.
A: Any of the circumstances is a matter of defense

and must be proved by the defendant to the
EXEMPTING CIRCUMSTANCES .
satisfaction of the court.
(Art. 12) .

1. IMBECILITY AND INSANITY .
Q: Who are exempted from criminal liability?

Q: What are the distinctions between imbecility
A:
and insanity?
1. An imbecile or an insane person, unless

the latter has acted during a lucid
A:
interval.
IMBECILITY INSANITY

An imbecile is one who,
2. A child fifteen years of age or under is while advanced in age, Insanity exists when
exempt from criminal liability under R.A. has a mental there is a complete
9344 development comparable deprivation of
to that of children intelligence in
3. A person over fifteen years of age and between two to seven committing the act.
under eighteen, unless he has acted with years of age.
discernment, in which case, such child No lucid interval There is lucid interval
shall be subject to appropriate Not exempt from
proceedings in accordance with R.A. Exempt in criminal liability criminal liability if it can
9344. in all cases be shown that he acted
during lucid interval
4. Any person who, while performing a
lawful act with due care, causes an injury Q: What are the two tests for exemption on
by mere accident without the fault or grounds of insanity?
intention causing it.

A: A:
1. Test of cognition – whether the accused
acted with complete deprivation of a. Dementia praecox (Schizoprenia)‐ is
intelligence in committing said crime. covered by the term insanity because
homicidal attack is common in such form
2. Test of volition – whether the accused
of psychosis. It is characterized by
acted in total deprivation of freedom of
will. delusions that he is being interfered with
sexually, or that his property is being
Note: In the Philippines, both cognition and volition taken, thus the person has no control
tests are applied. There must be complete deprivation over his acts.
of the intellect or will or freedom.

b. Kleptomania or presence of abnormal,
Q: Is the presumption in favor of sanity?
persistent impulse or tendency to steal, to
A: Yes. The defense must prove that the accused be considered exempting will still have to
was insane at the time of the commission of the be investigated by competent psychiatrist
crime. to determine if the unlawful act is due to
irresistible impulse produced by his
Note: Mere abnormalities of the mental facilities are
mental defect, thus loss of willpower. If
not enough.
such mental defect only diminishes the
Q: What are the effects of the insanity of the exercise of his willpower and did not
accused? deprive him of the consciousness of his
acts, it is only mitigating.
A:
1. At the time of the commission of the crime
c. Epilepsy which is chronic nervous disease
– exempt
characterized by compulsive motions of
2. During trial – proceedings suspended, the muscles and loss of consciousness
accused is committed to a hospital may be covered by the tern insanity.

3. After judgment or while serving sentence – Note: Feeblemindedness is not imbecility because the
execution of judgment is suspended, the offender can distinguish right from wrong. An imbecile
accused is committed to a hospital. The and an insane to be exempted must not be able to
period of confinement in the hospital is distinguish right from wrong.
counted for the purpose of the
prescription of the penalty. 2. MINORITY .

Q: When should insanity be present? B. Juvenile Justice and Welfare Act of 2006
(R.A. 9344)
A: Insanity at the time of the commission of the
crime and not at the time of the trial will exempt Q: What is the meaning of “a child in conflict with
one from criminal liability. the law”?

Q: What is the effect of insanity at the time of the A: It refers to a child who is alleged as, accused of,
trial? or adjudged as, having committed an offense under
Philippine laws.
A: In case of insanity at the time of the trial, there
Note: The child in conflict with the law shall enjoy the
will be suspension of the trial until the mental presumption of minority. He/she shall enjoy all the
capacity of the accused is restored to afford him rights of a child in conflict with the law until he/she is
fair trial. proven to be 18 years old or older.

Q: What are the other instances of insanity? Q: What is the minimum age of criminal
responsibility?

25

A: Upon suspension of sentence and after considering
the various circumstances of the child, the court
CRIMINAL shall impose the appropriate disposition measures
AGE BRACKET TREATMENT as provided in the Supreme Court Rule on Juveniles
LIABILITY
The child shall be in Conflict with the Law. (Sec. 38)
15 years old or subjected to an
Exempt Note: The suspension of sentence under sec.38
below intervention
program R.A.9344 applies regardless of the penalty imposed.
Above 15 but The child shall be The provision therefore modifies the ruling in
below 18, who subjected to an Declarador v. Gubatan
Exempt
acted without intervention
discernment program SEC. 38. Automatic Suspension of Sentence. ‐ Once the
Such child shall be child who is under eighteen (18) years of age at the
Above 15 but subjected to the time of the commission of the offense is found guilty
below 18, who Not appropriate of the offense charged, the court shall determine and
acted with exempt proceedings in ascertain any civil liability which may have resulted
discernment accordance with from the offense committed. However, instead of
R.A. 9344 pronouncing the judgment of conviction, the court
shall place the child in conflict with the law under
Note: The exemption from criminal liability herein suspended sentence, without need of
established does not include exemption from civil application: Provided, however, That suspension of
liability, which shall be enforced in accordance with sentence shall still be applied even if the juvenile is
existing laws already eighteen years (18) of age or more at the time
of the pronouncement of his/her guilt.
Q: How can the age be determined?
Upon suspension of sentence and after considering the
A: The age of a child may be determined from the various circumstances of the child, the court shall
impose the appropriate disposition measures as
child's:
provided in the Supreme Court Rule on Juveniles in
Conflict with the Law. (A.M. No. 02‐1‐18‐SC, November
1. Birth certificate 24, 2009)
2. Baptismal certificate
3. Any other pertinent documents Q: What are the exempting provisions under this
act?
Note: In the absence of these documents,
age may be based on information from the A:
child himself/herself, testimonies of other 1. Status offenses (Sec 57)‐ Any conduct not
persons, the physical appearance of the considered an offense or not penalized if
child and other relevant evidence. In case of
committed by an adult shall not be
doubt as to the age of the child, it shall be
considered an offense and shall not be
resolved in his/her favor.
punished if committed by a child.

Q: What is automatic suspension of sentence as 2. Offenses not applicable to children (Sec.
provided for in Sec. 38 of R.A. 9344? 58)‐ Persons below eighteen (18) years of
age shall be exempt from prosecution for
A: Once the child who is under 18 years of age at the crime of:
the time of the commission of the offense is found
guilty of the offense charged, the court shall a. Vagrancy and prostitution under
determine and ascertain any civil liability which may Section 202 of RPC
have resulted from the offense committed. b. Sniffing of rugby under Presidential
However, instead of pronouncing the judgment of Decree No. 1619
conviction, the court shall place the child in conflict
with the law under suspended sentence, without Ratio: Such prosecution being inconsistent
need of application: Provided, however, That with the United Nations Convention on the
suspension of sentence shall still be applied even if Rights of the Child: Provided, That said
the juvenile is already 18 years of age or more at persons shall undergo appropriate
the time of the pronouncement of his/her guilt. counseling and treatment program.

3. Under Sec 59 with regard to exemption Quasi offenses under Article 365 are committed by

from the application of death penalty. means of culpa. Crimes against Security are
committed by means of dolo.
3. ACCIDENT WITHOUT FAULT OR INTENTION OF
CAUSING IT .(DAMNUM ABSQUE INJURIA) . Article 365, failure to lend help to one's victim is
neither an offense by itself nor an element of the
Q: What are the requisites of damnum absque offense therein penalized. Its presence merely
injuria? increases the penalty by one degree. The last
paragraph of the Article specifically provides:
A:
1. A person is performing a lawful act
The penalty next higher in degree to those provided
2. With due care
for in this article shall be imposed upon the
3. He causes injury to another by mere
offender who fails to lend on the spot to the injured
accident
parties such help as may be in hand to give.

Note: It is something that happens outside
the sway of our will, and although it comes Such being the case, it must be specifically alleged
about through some act of our will, lies in the information. The information against
beyond the bounds of humanly foreseeable petitioner in this case does not so allege.
consequences.
Upon the other hand, failure to help or render
4. Without fault or intention of causing it assistance to another whom one has accidentally
wounded or injured is an offense under paragraph
Q: Is the offender exempt from criminal and civil 2 of Article 275 of the same code which reads: The
liability? penalty of arresto mayor shall be imposed upon:
xxx “ Anyone who shall fail to help or render
A: Yes. The infliction of the injury by mere accident assistance to another whom he has accidentally
does not give rise to a criminal or civil liability, but wounded or injured”.
the person who caused the injury is duty bound to
attend to the person who was injured.
4. COMPULSION OF IRRESISTIBLE FORCE
Illustration:
Q: What is the basis for this exempting
A chauffeur, while driving his automobile on the circumstance?
proper side of the road at a moderate speed and with
due diligence, suddenly and unexpectedly saw a man A: The basis is the complete absence of freedom.
in front of his vehicle coming from the sidewalk and
crossing the street without any warning that he would Q: What is irresistible force?
do so. Because it was not physically possible to avoid
hitting him, the said chauffeur ran over the man with A: It is a degree of force which is external or
his car. It was held that he was not criminally liable, it physical force which reduces the person to a mere
being a mere accident. (U.S. v. Tayongtong, 21 Phil. instrument and the acts produced are done without
476) his will and against his will.

Q: What is the effect of accident in relation to Art. Q: What are the requisites of compulsion of
275, par. 2 (failure to help or render assistance to irresistible force?
another whom he has accidentally wounded or
injured) and Art. 365 (imprudence and negligence). A:
1. Compulsion is by means of physical force
A: In the case of Lamera v. CA, GR. No. 93475 two 2. Physical force must be irresistible
informations are filed against the petitioner, first is 3. Physical force must come from a third
for reckless imprudence (Article 365), falls under person
the sole chapter (Criminal Negligence) of Title
Fourteen (Quasi Offenses) of Book Two of the Note: It presupposes that a person is compelled by
Revised Penal Code. The crime for Abandonment of means of extraneous force or violence to commit a
one's victim (par. 2, Art. 275), falls under Chapter crime.
Two (Crimes Against Security) of Title Nine (Crimes
Against Personal Liberty and Security) of Book Two
of the same Code.
27

The force must be so irresistible as to reduce the actor violence or physical or threat.
to a mere instrument who acted not only without will force.
but against his will.
Q: The evidence on record shows that at the time
Passion or obfuscation cannot amount to irresistible the ransom money was to be delivered, appellants
force. Arturo Malit and Fernando Morales,
unaccompanied by any of the other accused,
Q: Baculi, who was not a member of the band entered the van wherein Feliciano Tan was. At
which murdered some American school teachers, that time, Narciso Saldaña, Elmer Esguerra and
was in a plantation gathering bananas. Upon Romeo Bautista were waiting for both appellants
hearing the shooting, he ran. However, Baculi was from a distance of about one (1) kilometer. Is their
seen by the leaders of the band who called him, defense of uncontrollable fear tenable?
and striking him with the butts of their guns, they
compelled him to bury the bodies. Is he liable as A: By not availing of this chance to escape,
an accessory to the crime of crime? appellants' allegation of fear or duress becomes
untenable. It was held that in order that the
A: It was held that Baculi was not criminally liable as circumstance of uncontrollable fear may apply, it is
accessory for concealing the body of the crime of necessary that the compulsion be of such a
murder committed by the band because he acted character as to leave no opportunity to escape or
under the compulsion of an irresistible force. (U.S. self‐defense in equal combat. Moreover, the reason
v. Caballeros, 4 Phil. 350) for their entry to the van, where the father of the
victims was, could be taken as their way of keeping
5. UNCONTROLLABLE FEAR Feliciano Tan under further surveillance at a most
critical time. (People v. Saldana, G.R. No. 148518,
Q: What is the basis of this exempting Apr. 15, 2004)
circumstance?
6. PREVENTED BY SOME LAWFUL .
A: The basis is complete absence of freedom. OR INSUPERABLE CAUSE .

Q: What are the requisites of uncontrollable fear? Q: What is the basis of this exempting
circumstance?
A:
1. Threat, which causes the fear, is of an evil A: The basis is absence of intent.
greater than or at least equal to that
which he is required to commit. Q: What is insuperable cause?

2. It promises an evil of such gravity and A: Some motive which has lawfully, morally, or
imminence that the ordinary man would physically prevented a person to do what the law
have succumbed to it. commands.

Q: What are the elements? Note: Under the law, the person arrested must be
delivered to the nearest judicial authority at most
A: within 36 hours under Art 125 of RPC, otherwise, the
1. Existence of an uncontrollable fear public officer will be liable for arbitrary detention.

2. Fear must be real and imminent Q: What are the requisites under this exempting
circumstance?
3. Fear of an injury is greater than or equal
to that committed A:
1. An act is required by law to be done.
Q: What is the difference between irresistible
force and uncontrollable fear? 2. A person fails to perform such act.

A: 3. Failure to perform such act was due to
IRRESISTIBLE some lawful or insuperable cause.
UNCONTROLLABLE FEAR
FORCE
A person is compelled A person is compelled by Q: What are the distinctions between justifying
by another to commit a another to commit a crime circumstances and exempting circumstances?
crime by means of by means of intimidation
A: 3. Such information and testimony can be

JUSTIFYING EXEMPTING corroborated on its material points
CIRCUMSTANCE CIRCUMSTANCE
The circumstance affect The circumstance affect 4. The informant or witness has not been
the act, not the actor. the actor. previously convicted of a crime involving
The act complained of is Since the act complained moral turpitude, except when there is no
considered to have been of is actually wrongful, other direct evidence available for the
done within the bounds there is a crime. But State other than the information and
of law; hence, it is because the actor acted testimony of said informant or witness
considered lawful, there without voluntariness
is no crime, and because there is absence of dolo 5. The informant or witness shall strictly and
there is no crime, there is or culpa. There is no faithfully comply without delay, any
no criminal. criminal
condition or undertaking, reduced into
Since there is a crime
writing, lawfully imposed by the State as
committed but there is
further consideration for the grant of
no criminal, there is civil
Since there is no crime or immunity from prosecution and
liability for the wrong
criminal, there is no punishment.
done. However in
criminal liability as well as
paragraphs 4 and 7 of
civil liability. Note: Notwithstanding the provisions of Section 17,
Article 12, there is
neither criminal nor civil Rule 119 of the Revised Rules of Criminal Procedure
liability. and the provisions of Republic Act No. 6981 or the
Witness Protection, Security and Benefit Act of 1991

C. The Comprehensive Dangerous Drugs Act of
Note: Provided, further, That this immunity may be
2002 (R.A. 9165)
enjoyed by such informant or witness who does not
appear to be most guilty for the offense with reference

to which his/her information or testimony were
1. Immunity from prosecution and punishment
given: Provided, finally, That there is no direct
evidence available for the State except for the
Q: Who shall be exempt from prosecution and information and testimony of the said informant or
punishment under RA 9165? witness

A: Any person who: MITIGATING CIRCUMSTANCES .
1. Has violated Sections 7, 11, 12, 14, 15, (Art. 13) .
and 19, Article II of RA 9165
2. Voluntarily gives information Q: What are mitigating circumstances?
a. About any violation of Sections
4, 5, 6, 8, 10, 13, and 16, Article A: Mitigating circumstances are those which if
II of this Act present in the commission of the crime, do not
b. About any violation of the entirely free the actor from criminal liability but
offenses mentioned if serve only to reduce the penalty.
committed by a drug syndicate,
or Note: One single fact cannot be made the basis of
c. Leading to the whereabouts, more than one mitigating circumstance. Hence, a
identities and arrest of all or mitigating circumstance arising from a single fact
any of the members thereof absorbs all the other mitigating circumstances arising
3. Willingly testifies against such persons as from the same fact.
described above
Q: What is the basis of mitigating circumstances?
Provided, That the following conditions
concur: A: The basis is diminution of either freedom of
1. The information and testimony are action, intelligence, or intent or on the lesser
necessary for the conviction of the perversity of the offender.
persons described above
Q: What are those circumstances which can
2. Such information and testimony are not mitigate criminal liability?
yet in the possession of the State

29

A: Q: How may incomplete self‐defense, defense of
1. Incomplete justifying or exempting relative, or defense of stranger affect the criminal
circumstance liability of the offender?
2. The offender is under 18 or over 70 years
old. A: If only the element of unlawful aggression is
3. No intention to commit so grave a wrong present, the other requisites being absent, the
(praeter inentionem) offender shall be given only the benefit of an
4. Sufficient threat or provocation ordinary mitigating circumstance.
5. Vindication of a grave offense
6. Passion or obfuscation However, if aside from the element of unlawful
7. Voluntary surrender aggression another requisite, but not all, is present,
8. Physical defect the offender shall be given the benefit of a
9. Illness of the offender privileged mitigating circumstance. In such a case,
10. Similar and analogous circumstances the imposable penalty shall be reduced by one or
two degrees depending upon how the court regards
Q: What are the classes of mitigating the importance of the requisites present or absent.
circumstances?
Q: How may incomplete justifying circumstance
A: (with respect justifying circumstances other than
1. Ordinary mitigating those mentioned above) or incomplete exempting
circumstance affect criminal liability of the
2. Privileged mitigating offender?

Q: What are the distinctions between ordinary A: If less than a majority of the requisites necessary
mitigating and privileged mitigating? to justify the act or exempt from criminal liability
are present, the offender shall only be entitled to
A: an ordinary mitigating circumstance.
ORDINARY MITIGATING PRIVILEGED MITIGATING
Can be offset by Can never be offset by If a majority of the requisites needed to justify the
aggravating any aggravating act or exempt from criminal liability are present,
circumstances circumstance. the offender shall be given the benefit of a
Ordinary mitigating privileged mitigating circumstance. The penalty
Privileged mitigating
circumstances, if not shall be lowered by one or two degrees. When
circumstances operate to
offset, will operate to there are only two conditions to justify the act or to
reduce the penalty by
reduce the penalty to the exempt from criminal liability, the presence of one
one to two degrees,
minimum period, shall be regarded as the majority.
depending upon what the
provided the penalty is a
law provides.
divisible one.
2. UNDER 18 OR OVER 70 YEARS OLD .

1. INCOMPLETE JUSTIFYING OR .EXEMPTING
Q: Who are covered under this mitigating
CIRCUMSTANCE .
circumstance?

Q: What is the concept of incomplete justifying or
A: Offenders who are:
exempting circumstance?

1. Over 15 but under 18 years old who acted
A: Incomplete justifying/exempting circumstance
with discernment
means that not all the requisites to justify the act

are present or not all the requisites to exempt from
2. Over 70 years old
criminal liability are present.

Note: It is the age of the accused at the time of the
Q: What condition is necessary before incomplete commission of the crime which should be determined.
self‐defense, defense of relative, or defense of His age at the time of the trial is immaterial.
stranger may be invoked?
Q: What are the legal effects of the various age
A: The offended party must be guilty of unlawful brackets of the offender with respect to his
aggression. Without unlawful aggression, there can criminal liability?
be no incomplete self‐defense, defense of relative,
or defense of stranger.

A: A: Yes. If the resulting felony could be expected
AGE from the means employed, this circumstance does
EFFECT ON CRIMINAL LIABILITY
BRACKET not avail.
15 and
Exempting circumstance
under Note: This circumstance is not applicable when
Exempting circumstance, provided he offender employed brute force.
Over 15 acted without discernment. Mitigating
under 18, circumstance, provided he acted with Q: Does it apply to felonies by negligence?
discernment
18 or over Full criminal responsibility A: No, it is not applicable because the offender acts
Mitigating circumstance; no imposition without intent. The intent in intentional felonies is
of death penalty; execution of death replaced by negligence or imprudence.
Over 70
sentence if already imposed is
suspended and commuted. There is no intent on the part of the offender,
which may be considered as diminished.
Note: The modifications/changes introduced by RA
9344 have been incorporated in the table above.
Q: What are the factors in order to ascertain the

intention?

2002 (R.A. 9165)
A:
1. The weapon used

2. The part of the body injured
2. Minor Offenders
3. The injury inflicted
3. Application / Non application of RPC provisions
4. The manner it is inflicted
(Sec. 98, R.A. 9165) cf. Art. 10, RPC

Note: This provision addresses the intention of the
Q: Is a minor offender entitled to a privilege offender at the particular moment when the offender
mitigating circumstance of minority under R.A. executes or commits the criminal act and not during
9165? planning stage.

A: Q: Is this mitigating circumstance applicable when
GR: No, because the law itself prohibits the the offender employed brute force?
application of RPC to R.A. 9165.
A: No. E.g. If the rapist choked the victim, the
XPN: If the offender is a minor and the penalty choking contradicts the claim that he had no
is life imprisonment to death, then the penalty intention to kill the girl.
shall be reclusion perpetua to death, adopting
therefore the nomenclature of the penalties Q: In crimes against persons, what if the victim
under the RPC. By adopting the nomenclature does not die?
of the penalties under the RPC, the RPC shall
apply, and a minor would now be entitled to a A: The absence of the intent to kill reduces the
privilege mitigating circumstance of minority. felony to mere physical injuries. It is not considered
(People v. Simon, G.R. No. 93026, July 29, 1994) as mitigating. It is only mitigating when the victim
dies.
3. NO INTENTION TO COMMIT SO GRAVE A
WRONG . 4. SUFFICIENT THREAT OR PROVOCATION .
(PRAETER INTENTIONEM) .
Q: What is the basis of this mitigating
Q: What is the basis of this mitigating circumstance?
circumstance?
A: The basis is loss of reasoning and self‐control,
A: The basis is diminution of intent. thereby diminishing the exercise of his will power.

Q: Should there be a notable and evident Q: What is provocation?
disproportion between the means employed by
the offender compared to that of the resulting A: Provocation is any unjust or improper conduct or
felony? act of the offended party, capable of exciting,
inciting or irritating anyone.

31

Q: What are the requisites of sufficient threat or that at the time the offender committed the
provocation as a mitigating circumstance? crime, he is still suffering from outrage of
the threat or provocation done to him, then,
A: he will still get the benefit of this mitigating
1. Provocation must be sufficient. circumstance.
2. It must originate from the offended party.
3. It must be immediate to the act. Q: Should threat be offensive and positively
strong?
Q: How is sufficient threat or provocation as a
mitigating circumstance distinguished from threat A: No. Threat should not be offensive and positively
or provocation as an element of self‐ defense? strong because if it was, the threat to inflict real
injury is an unlawful aggression which may give rise
A: As an element of self defense it pertains to its to self‐defense and thus, no longer a mitigating
absence on the part of the person defending circumstance.
himself while as a mitigating circumstance, it
pertains to its presence on the part of the offended 5. VINDICATION OF A GRAVE OFFENSE
party. (People v. CA, G.R No. 103613, Feb. 23, 2001)
Note: Sufficiency depends on: circumstance?
1. The act constituting the provocation
2. The social standing of the person provoked A: The basis is loss of reasoning and self‐control,
3. Time and place provocation took place thereby, diminishing the exercise of his will power.

Q: Tomas’ mother insulted Petra. Petra kills Tomas Note: This has reference to the honor of a person. It
because of the insults. Can Petra avail of the concerns the good names and reputation of the
mitigating circumstance? individual (People v. Anpar, 37 Phil. 201)

A: No. There is no mitigating circumstance because Q: What are the requisites of vindication of a
it was the mother who insulted her, not Thomas. grave offense as a mitigating circumstance?

Q: Why does the law require that “provocation A:
must be immediate to the act,” i.e., to the 1. Grave offense has been done to the one
commission of the crime by the person who is committing the felony, his spouse,
provoked? ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or
A: If there was an interval of time, the conduct of relatives by affinity within the same
the offended party could not have excited the degree.
accused to the commission of the crime, he having
had time to regain his reason and to exercise self‐ 2. Felony is committed in vindication of such
control. Moreover, the law presupposes that during grave offense.
that interval, whatever anger or diminished self‐
control may have emerged from the offender had Q: What is the meaning of the word offense in this
already vanished or diminished. particular mitigating circumstance?

Note: As long as the offender at the time he A: The word offense should not be construed as
committed the felony was still under the felony was equivalent to crime. It is enough that what was
still under the influence of the outrage caused by the done was wrong.
provocation or threat, he is acting under a diminished
self‐control. This is the reason why it is mitigating. Note: The vindication need not be done by the person
However, you have to look at two criteria: upon whom the grave offense was committed or who
was offended by the wrong done by the offended
1. If from the element of time, there is a party.
material lapse of time stated in the problem
and there is nothing stated in the problem Q: What factors should be considered in
that the effect of the threat or provocation determining whether the wrong is grave or not?
had prolonged and affected the offender at
the time he committed the crime, then, you A:
use the criterion based on time element.
2. However, if there is that time element and 1. Age
at the same time, facts are given indicating
2. Education
3. Social status Q: What are the elements of passion or
obfuscation as a mitigating circumstance?
Q: Is lapse of time allowed between the
vindication and the doing of the grave offense? A:
1. Accused acted upon an impulse
A: Yes. It is enough that: 2. Impulse must be so powerful that it
1. The offender committed the crime; naturally produced passion or obfuscation
2. The grave offense was done to him, his in him.
spouse, his ascendant or descendant or to
his brother or sister, whether natural, Note: The passion or obfuscation should arise from
adopted or legitimate lawful sentiments in order to be mitigating.
3. The grave offense is the proximate cause
of the commission of the crime. Q: What are the requisites of passion or
obfuscation?
Note: A mitigating circumstance only when the same
arose from lawful sentiments. A:
1. That there is an act, both unlawful and
Q: Compare the circumstances of sufficient threat sufficient to produce such a condition of
or provocation and vindication of a grave offense. mind.
2. That the said act which produced the
A: obfuscation was not far removed from
SUFFICIENT THREAT OR VINDICATION OF GRAVE the commission of the crime by a
PROVOCATION OFFENSE considerable length of time, during which
The grave offense may be the perpetrator might recover his natural
It is made directly only to
committed also against equanimity.
the person committing
the offender’s relatives
the felony.
mentioned in the law. Note: This particular mitigating circumstance stands on
The offended party must the premise that the offender is suffering from a
The cause that brought
have done a grave diminished self‐control because of the passion or
about the provocation
offense against the obfuscation.
need not be a grave
offender or his relatives
offense.
mentioned in the law. Q: What is the rule when the three mitigating
The vindication of the circumstances of sufficient threat or provocation
It is necessary that the grave offense may be (par. 4), vindication of a grave wrong (par. 5) and
provocation or threat proximate which admits passion or obfuscation (par. 6) are present?
immediately preceded of interval of time

the act. There must be no between the grave
A:
interval of time between offense committed by the
the provocation and the offended party and the
GR: If the offender is given the benefit of
commission of the crime. commission of the crime paragraph 4, he cannot be given the benefit of
of the accused. paragraph 5 or 6, or vice‐versa. Only one of the
three mitigating circumstances should be given
6. PASSION OR OBFUSCATION in favor of the offender.

Q: What is the basis of this mitigating XPN: If the mitigating circumstances under
circumstance? paragraphs 4, 5 and 6 arise from different sets
of facts, they may be appreciated together,
A: The basis is loss of reasoning and self‐control, although they may have arisen from one and
thereby diminishing the exercise of his will power. the same case.

Note: The passion must be legitimate. As a rule, it
Q: What is passion or obfuscation?
cannot be based on common law relationship because

common law relationships are illicit.
A: Passion and obfuscation refer to emotional

feeling which produces excitement so powerful as
Q: When is passion or obfuscation not a mitigating
to overcome reason and self‐control. It must come
circumstance?
from prior unjust or improper acts. The passion and

obfuscation must emanate from legitimate
A: If the act is committed in the spirit of:
sentiments.
1. Lawlessness
33

2. Revenge The criterion is whether or not the offender had
gone into hiding or had the opportunity to go into
Q: What are the distinctions between hiding and the law enforcers do not know of his
passion/obfuscation and provocation? whereabouts.

A: Note: If after committing the crime, the offender did
PASSION/OBFUSCATION PROVOCATION not flee and instead he went with the responding law
It is produced by an impulse The provocation enforcers meekly, voluntary surrender is not
which may cause comes from the applicable.
provocation injured party
The offense need not be If after committing the crime, the offender did not flee
immediate. It is only It must immediately and instead waited for the law enforcers to arrive, and
required that the influence precede the then he surrendered the weapon he used in killing the
thereof lasts until the commission of the victim, voluntary surrender is mitigating.
moment the crime is crime.
committed If the offender comes out from hiding because he is
seriously ill and he wants to get medical treatment, the
Q: What are the distinctions between surrender is not considered as indicative of remorse or
repentance. The surrender is not mitigating.
passion/obfuscation and irresistible force?

A: Q: What does “spontaneous” mean?
PASSION OBFUSCATION IRRESISTIBLE FORCE

Mitigating circumstance Exempting circumstance A: It emphasizes the idea of inner impulse acting
It cannot give rise to without external stimulus. The conduct of the
irresistible force because accused, not his intention alone, after the
It requires physical force. commission of the offense, determines the
passion or obfuscation
has no physical force. spontaneity of the surrender.
The passion or
It must come from a third E.g. If the accused surrendered after 5 years, not
obfuscation is in the
person. spontaneous anymore.
offender himself
It must arise from lawful
It is unlawful. If the accused surrendered after talking to town
sentiments.
councilor, no longer a voluntary surrender since there

is external stimulus.
7. VOLUNTARY SURRENDER AND CONFESSION OF

GUILT
Q: Does the law require that the accused

surrender prior to the order of arrest?

circumstance?
A: “The law does not require that the accused

surrender prior to the order of arrest” what matters
A: The basis is the lesser perversity of the offender.
is the spontaneous surrender of the accused upon

learning that a warrant of arrest had been issued
Q: What are the requisites of voluntary surrender
against him and that voluntary surrender is
as a mitigating circumstance?
obedience to the order of arrest issued against him

(People v. Cahilig, 68 Phil. 740)
A:

1. Offender had not been actually arrested.
Q: Why is voluntary surrender is mitigating?
2. Surrender was made to a person in

authority or the latter's agent.
A: If he would give up, his act of surrendering
3. Surrender was voluntary.
under such circumstance indicates that he is willing

to accept the consequences of the wrong he has
Q: When is surrender considered voluntary?
done which thereby saves the government the

effort, time and expenses to be incurred in
A: When it is spontaneous, demonstrating intent to
searching for him.
submit himself unconditionally to the person in

authority or his agent.
Q: Who is a person in authority?

Whether or not a warrant of arrest had been issued
A: He is one directly vested with jurisdiction,
against the offender is immaterial and irrelevant.
whether as an individual or as a member of some

court/government/corporation/board/commission.
Q: Upon learning that the police wanted him for

Note: Barrio captain/chairman included. the killing of Polistico, Jeprox decided to visit the
police station to make inquiries. On his way, he
Q: Who is an agent of person in authority? met a policeman who immediately served upon
him the warrant for his arrest. During the trial, in
A: He is a person who by direct provision of law, or the course of the presentation of the prosecution’s
by election, or by appointment by competent evidence, Jeprox withdrew his plea of not guilty.
authority is charged with the maintenance of public Can he invoke the mitigating circumstances of
order and the protection and security of life and voluntary surrender and plea of guilty? Explain.
property and any person who comes to the aid of
persons in authority. A: Jeprox is not entitled to the mitigating
circumstance of voluntary surrender as his going to
Q: If the accused escapes from the scene of the the police station was only for the purpose of
crime in order to seek advice from a lawyer, and verification of the news that he is wanted by the
the latter ordered him to surrender voluntarily to authorities. In order to be mitigating, surrender
the authorities, which the accused followed by must be spontaneous and that he acknowledges his
surrendering himself to the municipal mayor, will guilt.
his surrender be considered mitigating?
Neither is plea of guilty a mitigating circumstance
A: Yes, because he fled to the scene of a crime not because it was a qualified plea. Besides, Art. 13 (7)
to escape but to seek legal advice. provides that confession of guilt must be done
before the prosecution had started to present
Q: Supposing that after the accused met a evidence. (1992 Bar Question)
vehicular accident causing multiple homicide
because of reckless imprudence, he surrenders to 8. PHYSICAL DEFECT
the authorities immediately thereafter, will his
surrender mitigate his liability because of Art. 13? Q: What is the basis of this mitigating
circumstance?
A: No. In cases involving felonies committed by
means of culpa, the court is authorized under Art. A: The basis is the diminution of the element of
365 to impose a penalty upon offender without voluntariness.
regard to the rules on mitigating and aggravating
circumstances. Q: What is physical defect?

Q: What are the requisites of confession of guilt as A: A person's physical condition, such as being deaf
a mitigating circumstance? and dumb, blind, armless, cripple, or stutterer,
whereby his means of action, defense or
A: communication with others are restricted or
1. Offender voluntarily confessed his guilt. limited. The physical defect that a person may have
2. It was made in open court (that is before must have a relation to the commission of the
the competent court that is to try the crime.
case).
3. It was made prior to the presentation of Q: Suppose X is deaf and dumb and he has been
evidence for the prosecution. slandered, he cannot talk so what he did was, he
got a piece of wood and struck the fellow on the
Note: Plea of guilty is not applicable to special law. head. X was charged with physical injuries. Is X
entitled to a mitigating circumstance by reason of
If both plea of guilt and voluntary surrender are his physical defect?
present, they are considered as two independent
mitigating circumstances. A: Yes, the Supreme Court held that being a deaf
and dumb is mitigating because the only way is to
Q: Will a conditional plea of guilty be considered use his force because he cannot strike back.
as a mitigating circumstance?
Note: The law says that the offender is deaf and dumb,
A: To be mitigating, the plea of guilty must be meaning not only deaf but also dumb, or that he is
without conditions. But conditional plea of guilty blind, meaning in both eyes, but even if he is only deaf
may still be mitigating if the conditions imposed by and not dumb, or dumb but not deaf, or blind only in
the accused are found to be meritorious. eye, he is still entitled to a mitigating circumstance
under this article as long as his physical defects
35

restricts his means of communication, defense, 3. Defendant who is 60 years old with failing
communication with his fellowmen. eyesight is similar to a case of a person
over 70 years of age. (People v. Reantillo
The law does not make a distinction between and Ruiz, C.A. G.R. No. 301, July 27, 1938)
educated and uneducated deaf‐mute or blind persons.

4. Impulse of jealous feeling, similar to
The physical defect that a person may have must have
passion and obfuscation.
a relation to the commission of the crime. Not any
physical defect will affect the crime. It will only do so if
it has some relation to the crime committed. This 5. Voluntary restitution of property, similar
circumstance must also have a bearing on the crime to voluntary surrender.
committed and must depend on how the crime was
committed. 6. Outraged feeling of the owner of animal
taken for ransom is analogous to
9. ILLNESS OF THE OFFENDER vindication of grave offense

Q: What is the basis of this mitigating 7. Esprit de corps is similar to passion and
circumstance? obfuscation

A: The basis is diminution of intelligence and intent. Q: What are the circumstances which are neither
exempting nor mitigating?
Q: What are the requisites of illness of the
offender as a mitigating circumstance? A:
1. Mistake in the blow or aberratio ictus
A: 2. Mistake in the identity
1. Illness of the offender must diminish the 3. Entrapment
exercise of will power. 4. Accused is over 18 years of age
5. Performance of righteous action
2. Such illness should not deprive the
offender the consciousness of his acts. Q: Give circumstances which are considered as
specific mitigating circumstances?
Note: Illness of the mind, not amounting to insanity,
may be mitigating.
A:

1. Illegal detention (voluntary release within
If the illness not only diminishes the exercise of the
offender’s will power but deprives him of the
3 days; without attaining purpose; before
consciousness of his acts, it becomes an exempting criminal action)
circumstance to be classified as insanity or imbecility. 2. Adultery (abandonment of spouse)
3. Infanticide/abortion (intent to conceal
10. SIMILAR AND ANALOGOUS CIRCUMSTANCES dishonor of mother)

Q: What are the examples of analogous AGGRAVATING CIRCUMSTANCES (Art. 14)
circumstances?
Q: What are aggravating circumstances?
A:
1. The act of the offender of leading the law A: Those which, if attendant in the commission of
enforcers to the place where he buried the crime:
the instrument of the crime has been 1. Serve to have the penalty imposed in its
considered as equivalent to voluntary maximum period provided by law for the
surrender. offense; or

2. Stealing by a person who is driven to do 2. Change the nature of the crime.
so out of extreme poverty is considered
as analogous to incomplete state of Q: What is the basis of aggravating circumstances?
necessity. (People v. Macbul, 74 Phil. 436)
Unless he became impoverished because A: The basis is the greater perversity of the
of his own way of living his life, i.e. he had offender manifested in the commission of the
so many vices. felony as shown by:
1. Motivating power itself

2. Place of commission 18. Unlawful entry

19. Breaking wall
3. Means and ways employed 20. Aid of minor or by means of motor vehicle
or other similar means
4. Time 21. Cruelty

5. Personal circumstances of offender or Note: Nos.1‐6, 9‐10, 14, 18, 19 are generic aggravating
offended party circumstances

Q: What are the kinds of aggravating Nos. 3, 7, 8, 11, 12, 15‐17, 20, 21 are specific
circumstances? aggravating circumstances
No. 16 is a case of qualified aggravating circumstance
A:
Nos. 1, 13, 17, 19 are inherent aggravating
1. Generic or those that can generally apply
circumstances
to all crime

Q: What are the distinctions between generic
2. Specific or those that apply only to a
particular crime aggravating and qualifying circumstances?

3. Qualifying or those that change the A:
nature of the crime QUALIFYING
GENERIC AGGRAVATING
AGGRAVATING
CIRCUMSTANCES
CIRCUMSTANCES
4. Inherent or those that must of necessity
Can be offset by an
accompany the commission of the crime Cannot be offset by any
ordinary mitigating
mitigating circumstances.
circumstance.
5. Special or those which arise under special
The circumstance is
conditions to increase the penalty of the actually an ingredient of
offense and cannot be offset by It is not an ingredient of a
the crime. The
mitigating circumstances crime. It only affects the
circumstance affects the
penalty to be imposed
nature of the crime itself
Note: The aggravating circumstances must be but the crime remains the
such that the offender
established with moral certainty, with the same degree same.
shall be liable for a more
of proof required to establish the crime itself. serious crime.
To be appreciated as such
Q: What are those circumstances which aggravate must be specifically
criminal liability? alleged in the complaint
No need to allege this or information.
A: circumstance in the
1. Advantage taken of public position information, as long as it If not alleged but proven
2. Contempt or insult to public authorities is proven during trial. during the trial, it will be
3. Disregard of age, sex, or dwelling of the considered only as
offended party If it is proved during trial, generic aggravating
4. Abuse of confidence and obvious the same is considered in circumstance. If this
ungratefulness imposing the penalty. happens, they are
5. Palace and places of commission of susceptible of being
offset by an ordinary
offense
mitigating circumstance.
6. Nighttime, uninhabited place or band

7. On occasion of calamity or misfortune
Note: When there is more than one qualifying
8. Aid of armed men, etc.
aggravating circumstance present, one of them will be
9. Recidivist appreciated as qualifying aggravating while the others
10. Reiteracion or habituality will be considered as generic aggravating.
11. Price, reward, or promise
12. By means of inundation, fire, etc. Q: Is generic aggravating circumstance necessary
13. Evident premeditation to be alleged in the information?
14. Craft, fraud or disguise
15. Superior strength or means to weaken
the defense A: Under sec. 8 and 9 of Rule 110 of the ROC, even
16. Treachery generic aggravating circumstances should be
17. Ignominy alleged in the information.
37

Section 8. Designation of the offense. — The
complaint or information shall state the designation Q: If the crime charged is qualified trespass to
of the offense given by the statute, aver the acts or dwelling, is dwelling aggravating?
omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is A: No. This is because aggravating circumstances
no designation of the offense, reference shall be which in themselves constitute a crime specially
made to the section or subsection of the statute punishable by law or which in themselves are
punishing it. included by law in defining a crime and prescribing
a penalty therefor shall not be taken into account
Section 9. Cause of the accusation. — The acts or for the purpose of increasing the penalty (Art. 62,
omissions complained of as constituting the offense par. 1). Since dwelling is an element of the crime of
and the qualifying and aggravating circumstances qualified trespass to dwelling, it should not be
must be stated in ordinary and concise language taken into account in increasing the penalty.
and not necessarily in the language used in the
statute but in terms sufficient to enable a person of Q: What are personal aggravating circumstances?
common understanding to know what offense is
being charged as well as its qualifying and A: Aggravating circumstances, which are personal,
aggravating circumstances and for the court to such as those which arise from:
pronounce judgment.
1. The moral attributes of the offender
2. His private relations with the offended
Q: The accused was charged with murder. Three of
party
these circumstances: treachery, evident
3. Any personal cause
premeditation and the act was done in

consideration of a price, reward or promise, were
Q: How are personal aggravating circumstances
alleged as aggravating. May the three
appreciated?
circumstances be appreciated as qualifying?

A: It shall only serve to aggravate the liability of
A: No, only one of these is qualifying. If any one of
those persons as to whom such circumstances are
the three circumstances was proven, the crime
attendant. (Art. 62, par. 3)
already constitutes murder. If the other two are

also proven, even if they are alleged in the
Q: What is the rule regarding the appreciation of
information or complaint, they are only to be taken
an aggravating circumstance if there are several
as generic. If there is any mitigating circumstance in
accused?
favor of the offender, the two other circumstances

which are otherwise qualifying could be offset by
A:
the ordinary mitigating circumstances.
GR: The circumstances which consist in the:

1. Material execution of the act; or
Q: Suppose in a crime of murder, the qualifying
2. Means employed to accomplish it,
circumstance alleged in the information was
will only aggravate the criminal liability of those
treachery. During the trial, what was proven was
persons who employed or who had knowledge
the price, reward or promise as a consideration for
of them at the time of the execution of the act
killing. May the accused be convicted of murder?
or their cooperation therein.

A: No, the accused cannot be convicted of murder
XPN: When there is proof of conspiracy, in
because the circumstance proven was not the one
which case the act of one is deemed to be the
alleged in the information, hence, it is not qualifying
act of all, regardless of lack of knowledge of the
but merely generic.
facts constituting the circumstance. (Art. 62,

par. 4)
If any of these qualifying circumstances is not

alleged in the information, it cannot be considered
1. TAKING ADVANTAGE OF PUBLIC POSITION
qualifying because a qualifying circumstance is an

ingredient of the crime and it cannot be taken as
Q: When is it applicable?
such without having been alleged in the

information.
A: Only when the offender is a public officer. The

offender must have abused his public position or at
This is because it will violate the right of the
least, use of the same facilitated the commission of
accused to be informed of the nature of the
the offense.
accusation against him.
Note: Teachers, professors, supervisors of public and

Note: Public officer must have used the influence, duly recognized private schools, colleges and
prestige or ascendancy of his office as the means by universities, as well as lawyers are persons in authority
which he realizes his purpose. only for purposes of direct assault and simple
resistance, but not for purposes of aggravating
Q: What is the basis for this aggravating circumstances in par. 2, Art. 14.
circumstance?
Q: Who are agents of a person in authority?
A: Greater perversity of the offender as shown by
the means: A: Agents of a person in authority are any person,
1. Of personal circumstance of the offender who, by direct provision of law or any election or
2. Used to secure the commission of the appointment by competent authority, are charged
crime with the maintenance of public order and the
protection and security of life and property such as
Note: To be applicable, the public officer must use his: barrio councilman, barrio policeman and barangay
a. influence leader, and any person who comes to the aid of
b. prestige persons in authority. (Art. 152, RPC)
c. ascendancy
Note: Par. 2 of Art. 14 does not apply when the crime
Q: When is it not applicable? is committed in the presence of an agent only.

A: It is not applicable in offenses where taking Q: Is it necessary that the offender has knowledge
advantage of official position is made by law an that a public authority is present?
integral element of the crime. e.g. malversation or
falsification of a document committed by public A: Knowledge that a public authority is present is
officers. essential. Lack of such knowledge indicates lack of
intention to insult the public authority.
Note: Taking advantage of a public position is also
inherent in the case of accessories under Art. 19, par. 3 Note: If crime committed is against the public
(harboring, concealing, or assisting in the escape of the authority while in the performance of his duty, the
principal of the crime), and in crimes committed by offender commits direct assault without this
public officers (Arts. 204‐245). aggravating circumstance.

2. CONTEMPT OR INSULT TO PUBLIC 3. DISREGARD OF RANK, AGE, SEX OR DWELLING
AUTHORITIES OF OFFENDED PARTY

Q: What are the requisites of contempt or insult of Q: What are the requisites of "disregard of rank,
public authorities as an aggravating circumstance? age, sex or dwelling" as an aggravating
circumstance?
A:
1. Public authority is engaged in the exercise A: The act be committed:
of his functions.
1. With insult or in disregard of the respect
2. Such public authority is not the person due to the offended party on account of
against whom the crime is committed. his:
a. Rank
3. Offender knows him to be a public b. Age
authority. c. Sex

4. His presence has not prevented the 2. That it be committed in the dwelling of
offender from committing the crime. the offended party, if the latter has not
given sufficient provocation.
Q: Who is a public authority?
Note: Applies only to crimes against persons or honor,
A: A public authority, also called a person in and not against property like Robbery with homicide.
authority, is a public officer who has the power to
govern and execute the laws. e.g. municipal mayor, The four circumstances enumerated should be
barangay captain, chief of police. considered as one aggravating circumstance only.

39

Q: What does “with insult or in disregard” mean? 2. When the offender and the offended
party are occupants of the same house.
A: It means that in the commission of the crime, the
offender deliberately intended to offend or insult 3. In the crime of robbery by use of force
the rank, sex or age of the offended party. upon things.

Q: To what does rank refer? 4. In the crime of trespass to dwelling.

A: It refers to official, civil or social position or 5. The victim is not a dweller of the house.
standing. The designation or title of distinction used
to fix the relative position of the offended party in 6. When both the offender and the offended
reference to others. party are occupants of the same house
except in case of adultery in the conjugal
There must be a difference in the social condition of dwelling, the same is aggravating,
the offender and the offended party. however, if the paramour also dwells in
the conjugal dwelling, the applicable
Q: When is age considered as an aggravating aggravating circumstance is abuse of
circumstance? confidence.

A: Age applies in cases where the victim is of tender Q: What if one half of the house is used as a store
age or is of old age. and the other half is used for dwelling but there is
only one entrance?
Q: What does sex refer?
A: If the dwelling portion is attacked, dwelling is not
A: Sex refers to the female sex, not to male sex. aggravating because whenever a store is open for
business, it is a public place and as such, is not
Q: What is dwelling? capable of being the subject of trespass.

A: Dwelling is a building or structure exclusively Note: Where the dwelling portion is attacked and even
used for rest or comfort. It includes temporary if the store is open, there is another separate entrance
dwelling, dependencies, foot of the staircase, and to the portion used for dwelling, the circumstance is
enclosure of the house. aggravating.

Q: Should the dwelling be owned by the offended If the wife commits the crime of adultery the
party? aggravating circumstance of dwelling can still be
appreciated.

A: No. It is enough that he used the place for his
If the wife killed her husband in the conjugal house the
peace of mind, rest, comfort and privacy.
aggravating circumstance of dwelling cannot be
appreciated.
Note: Dwelling does not mean the permanent
residence or domicile of the offended party or that he If the employer raped their maid the aggravating
must be the owner thereof. He must, however, be circumstance of dwelling cannot be appreciated.
actually living or dwelling therein even for a temporary

duration or purpose.
Q: What is the meaning of provocation in the

It is not necessary that the accused should have
aggravating circumstance of dwelling?
actually entered the dwelling of the victim to commit
the offense. It is enough that the victim was attacked A: The provocation must be:
inside his own house, although the assailant may have 1. Given by the owner of the dwelling
devised means to perpetrate the assault. i.e.
triggerman fired the shot from outside the house, his 2. Sufficient
victim was inside.
3. Immediate to the commission of the
Q: When is dwelling not aggravating? crime

A: Note: If all these conditions are present, the offended
1. When owner of the dwelling gave party is deemed to have given the provocation, and
sufficient and immediate provocation. the fact that the crime is committed in the dwelling of
the offended party is not an aggravating circumstance.
A:
Q: When is the aggravating circumstance of 1. The offended party had trusted the
disregard of rank, age, sex not considered for the offender.
purpose of increasing the penalty? 2. The offender abused such trust by
committing a crime against the offended
A: party.
1. When the offender acted with passion or 3. The act be committed with obvious
obfuscation. (All three circumstances) ungratefulness.

2. When there exists a relationship between Note: The ungratefulness must be such clear and
the offended party and the offender. manifest ingratitude on the part of the accused.
(circumstance of sex only), e.g. parricide,
rape, abduction and seduction. Abuse of confidence and obvious ungratefulness are
treated as separate aggravating circumstances.
3. When the condition of being a woman is
indispensable in the commission of the 5. PALACE AND PLACES OF .COMMISSION
crime. OFFENSE

4. ABUSE OF CONFIDENCE OR OBVIOUS Q: What are the requisites of palace and places of
UNGRATEFULNESS commission of offense as an aggravating
circumstance?
Q: What are the requisites of abuse of confidence
as an aggravating circumstance? A: The crime be committed:
1. In the palace of the Chief Executive; or
A: 2. In his presence; or
1. Offended party had trusted the offender. 3. Where public authorities are engaged in
the discharge of their duties; or
2. Offender abused such trust by committing 4. In a place dedicated to religious worship.
a crime against offended party.
Q: If the crime is in the Malacaňang palace or
3. Abuse of confidence facilitated the church, is it always aggravating?
commission of the crime.
A: Yes. Regardless of whether or not official duties
Note: This is aggravating only when the very offended or religious functions are being conducted. Chief
party is the one who reposed the confidence. Executive's presence alone in any place where the
crime is committed is enough to constitute the
Q: Must the confidence between the parties be aggravating circumstance.
immediate and personal?
Note: The President or Chief Executive need not be in
A: Yes, as would give the accused the advantage or the Palace to aggravate the liability of the offender.
make it easier for him to commit the crime. The
confidence must be a means of facilitating the As regards other places where public authorities are
engaged in the discharge of their duties, there must be
commission of a crime.
some performance of public functions.

Q: In what crimes is abuse of confidence inherent?
Q: Supposing, a crime was committed in the

presidential mansion. Can the aggravating
A:
circumstance of palace of the Chief Executive be
1. Malversation
appreciated?
2. Qualified theft

3. Estafa by conversion or misappropriation
A: No. The mansion is not the palace.
4. Qualified seduction

Q: Are cemeteries considered as places dedicated
Note: Abuse of confidence is not considered for the
purpose of increasing the penalty.
to worship of God?

Q: What are the requisites of obvious A: No. Cemeteries, however respectable they may
ungratefulness as an aggravating circumstance? be, are not considered as place dedicated to the
worship of God.

41

Note: The place must be dedicated to public religious Note: Took advantage means that the
worship. Private chapels not included. accused availed himself thereof for the
successful consummation of his plans.
The offender must have the intention to commit a
crime when he entered the place. Q: What is nighttime?

Q: Is a polling precinct a public place? A: Nighttime or nocturnity is the period of time
after sunset to sunrise, from dusk to dawn.
A: A polling precinct is a public place during election
day. It is necessary that the commission of the crime
was commenced and completed at nighttime.
Q: What are the distinctions between paragraph 5
and paragraph 2? Q: What makes this circumstance aggravating?

A: A: Darkness of the night. Hence when the place of
WHERE PUBLIC the crime is illuminated by light, nighttime is not
CONTEMPT OR
AUTHORITIES ARE ENGAGED aggravating.
INSULT TO PUBLIC
IN THE DISCHARGE OF THEIR
AUTHORITIES (PAR. 2)
DUTIES (PAR. 5) Note: It must be shown that the offender deliberately
Place where public duty is performed sought the cover of darkness and the offender
In their office. Outside of their office purposely took advantage of nighttime to facilitate the
The offended party commission of the offense.
Public authority
May or may not be the public
should not be the Q: Supposing, the crime was committed inside a
authority
offended party. dark movie house at around 4 p.m. Can the
aggravating circumstance of nighttime be
Note: In both, public authorities are in the appreciated?
performance of their duties.
A: No, because what should be especially sought for
6. NIGHTTIME, UNINHABITED PLACE OR BAND is the darkness of night, not the darkness of the
movie house when the lights were only off because
Q: What are the requisites? it was only 4 in the afternoon.

A: The crime be committed: Q: Supposing, the crime was committed inside a
1. In the nighttime; or movie house when the lights were still open and
2. In an uninhabited place; or the time then was 9 p.m. Can the aggravating
3. By a band. circumstance of nighttime be appreciated?

Q: When is it aggravating? A: No, because even if it was nighttime, the place of
the commission was well‐lighted when the crime
A: When: was committed.
1. It facilitated the commission of the crime
Q: What is the rule in the appreciation of
2. It especially sought for by the offender to nighttime and treachery if present in the
ensure the commission of the crime or for commission of a crime?
the purpose of impunity
A:
Note: “Especially sought” means that the GR: Nighttime is absorbed in treachery.
offender sought it in order to realize the

crime with more ease
XPN: Where both the treacherous mode of

attack and nocturnity were deliberately decided
“Impunity” means to prevent his (accused)
being recognized or to secure himself
upon, they can be considered separately if such
against detection and punishment. circumstances have different factual bases.

3. The offender took advantage thereof for Q: What is an uninhabited place (despoblado)?
the purpose of impunity
A: It is where there are no houses at all, a place at a
considerable distance from town, or where the
houses are scattered at a great distance from each Note: Offender must take advantage of the calamity.
other.
Q: To what does other calamity or misfortune
Note: It is determined not by the distance of the refer to?
nearest house to the scene of the crime but whether
or not in the place of the commission of the offense, A: It refers to other conditions of distress similar to
there was a reasonable possibility of the victim the preceding enumeration.
receiving some help.
8. AID OF ARMED MEN
Q: When is uninhabited place aggravating?
Q: What are the elements?
A: To be aggravating, it is necessary that the
offender took advantage of the place and purposely A: The crime be committed with the aid of:
availed of it as to make it easier to commit the
crime. 1. Armed men, or

Q: What is a band? 2. Persons who insure or afford impunity

A: It means that there are at least four malefactors Q: What are the requisites of aid of armed men as
acting together in the commission of the offense. an aggravating circumstance?

Note: Band is absorbed in the circumstance of abuse A:
of superior strength. 1. Armed men or persons took part in the
commission of the crime, directly or
Under Article 306, the mere forming of a band even indirectly.
without the commission of a crime is already a crime
2. Accused availed himself of their aid or
so that band is not aggravating in brigandage because
relied upon them when the crime was
the band itself is the way to commit brigandage.
However, where brigandage is actually committed,
committed.
band becomes aggravating.
Note: Arms is not limited to firearms, sticks and stones
This aggravating circumstance is not applicable in included
crimes against chastity.
Aid of armed men includes armed women. (People v.
Licop, G.R. No. L‐6061, Apr. 29, 1954)
Q: If one of the four armed malefactors was a

principal by inducement, would there be an
Q: When is the circumstance of aid of armed men
aggravating circumstance of a band?
not considered aggravating?

A: None. But the aggravating circumstance of
A:
having acted with the aid of armed men may be
1. Both the attacking party and the party
considered against the inducer if the other two
attacked were equally armed.
acted as his accomplice.

2. Accused as well as those who cooperated
7. ON OCCASION OF CALAMITY OR MISFORTUNE
with him in the commission of the crime

acted under the same plan and for the
Q: What is the reason for the aggravation?
same purpose.

A: The debased form of criminality met in one who,
3. When the others were only “casually
in the midst of a great calamity, instead of lending
present” and the offender did not avail
aid to the afflicted, adds to their suffering by taking
himself of any of their aid or when he did
advantage of their misfortune to despoil them.
not knowingly count upon their assistance

in the commission of the crime.
Q: Under what circumstances is the crime

committed under this paragraph?
Q: What aggravating circumstance will be

considered if there are four armed men?
A: The crime is committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic or
A: If there are four armed men, aid of armed men is
other calamity or misfortune.
absorbed in employment of a band.

43

If there are three armed men or less, aid of armed the same title, the implication is that he is
men may be the aggravating circumstance. specializing on such kind of crime and the law
wants to prevent any specialization.
Q: What are the distinctions between a crime
committed by a band under paragraph 6 and a Note: It is necessary to allege recidivism in the
crime committed with the aid of armed men under information, but if the defense does not object to the
paragraph 8? presentation of evidence during the trial and the same
was proven, the court shall consider such aggravating
A: circumstance because it is only generic.
WITH THE AID OF ARMED
BY A BAND Q. Is recidivism subject to prescription?
MEN
Requires more than
At least two A: No. No matter how long ago the offender was
three.
Requires that more than This circumstance is convicted, if he is subsequently convicted of a crime
three armed malefactors present even if one of the embraced in the same title of the Revised Penal
shall have acted together offenders merely relied Code, it is taken into account as aggravating in
in the commission of the on their aid is not imposing the penalty (People v. Colocar, 60 Phil.
offense necessary. 878).
Band members are all Armed men are mere
principals accomplices. Q: Does pardon erase recidivism?

FORMS OF REPETITION OR HABITUALITY OF THE A: No, because pardon only excuses the service of
OFFENDER the penalty, but not the conviction. (U.S. v. Sotelo,
28 Phil. 147)
Q: What are the different forms of repetition or
habituality of the offender? Q: Is it necessary that the conviction come in the
order in which they were committed?
A:
1. Recidivism A: Yes. Hence, there is no recidivism if the
2. Reiteracion subsequent conviction is for an offense committed
3. Habitual delinquency before the offense involved in the prior conviction.
4. Quasi‐recidivism
Note: If both offenses were committed on the same
9. RECIDIVISM date, they shall be considered as only one, hence, they
cannot be separately counted in order to constitute
Q: What are the requisites of recidivism? recidivism. Also, judgments of conviction handed down
on the same day shall be considered as only one
A: conviction.
1. Offender is on trial for one crime
2. He was previously convicted by final Q: In 1980, X committed robbery. While the case
judgment of another crime was being tried, he committed theft in 1983. He
3. Both the first and second offenses are was subsequently found guilty and was convicted
embraced in the same title of the RPC of theft also in 1983. The trial for his earlier crime
4. Offender is convicted of the new offense which was robbery ended in 1984 where he was
also convicted. Is the accused a recidivist?
Q: What is the meaning of “at the time of his trial
for one crime?” A: The accused is not a recidivist. The subsequent
conviction must refer to a felony committed later in
A: It is employed in its generic sense, including the order to constitute recidivism. The reason for this
rendering of the judgment. It is meant to include is, at the time the first crime was committed, there
everything that is done in the course of the trial, was no other crime of which he was convicted so he
from arraignment until after sentence is announced cannot be regarded as a repeater.
by the judge in open court.
Q: Supposing, the first offense was acts of
Q: What is the reason for considering recidivism as lasciviousness in 1980, then the second offense in
an aggravating circumstance? 2006 was attempted rape. Can the aggravating
circumstance of recidivism be appreciated?
A: The law considers this aggravating because when
a person has been committing felonies embraced in
A: No. Acts of lasciviousness and attempted rape offense offense.
are not embraced in the same title of the RPC; acts Previous and subsequent
Previous and subsequent
of lasciviousness is under crimes against chastity offense must not be
offense must be included
while attempted rape is under crimes against embraced in the same
in the same title of RPC
persons. title of RPC
Always taken into
Q: Supposing, the first offense in 1980 was Not always an consideration in fixing the
attempted rape, then, the second offense in 2006 aggravating circumstance penalty to be imposed
was acts of lasciviousness. Can the aggravating upon the accused
circumstance of recidivism be appreciated?
HABITUAL DELIQUENCY
A: Yes, because attempted rape then in 1980 was
embraced under crimes against chastity, hence, Q: What is habitual delinquency?
both crimes are embraced in the same title of the
RPC. A: A special aggravating circumstance which has the
effect of increasing the penalty and imposing an
additional penalty which escalates with the increase
Note: If recidivism and reiteracion are both present,
in the number of convictions.
only recidivism should be appreciated, recidivism

being easier to prove.
Q: What are the requisites of habitual
delinquency?
If the same set of facts constitutes recidivism and
reiteracion, the liability of the accused should be
A: A person is a habitual delinquent if:
aggravated by recidivism, which can easily be proven.
1. Within a period of 10 years from the date
of his release or last conviction;
10. REITERACION 2. Of the crimes of falsification, robbery,
estafa, theft, serious or less serious
Q: What are the requisites of reiteracion? physical injuries;
3. He is found guilty of said crimes a third
A: time or oftener.
1. Accused is on trial for an offense
2. He previously served sentence for Note: To be a habitual delinquent, the law requires a
a. Another offense to which the law 3rd conviction. The 2nd conviction must be committed
attaches an equal or greater penalty; within 10 years from the 1st conviction or release from
or prison, from the 2nd to the 3rd conviction, the period
b. Two or more crimes to which it must not be more than 10 years from the second
attaches a lighter penalty than that conviction and so on.
for the new offense.
3. He is convicted of the new offense. Habitual delinquency, being a special aggravating
circumstance cannot be appreciated unless alleged in
Q: If the penalty attached to the felony the information.
subsequently committed is not equal or higher
than the penalty already served, is there Q: Can an offender be a recidivist and a habitual
reiteracion? delinquent at the same time?

A: No. Hence, reiteracion is not always aggravating. A; Yes.
However, when there is a third conviction, even if
Illustration:
the penalty for the subsequent crimes committed

be lighter than the ones already served, the
If the 1st conviction is for serious physical injuries or
offender is already a repeater.
less serious physical injuries and the 2nd conviction is
for robbery, theft or estafa and the 3rd is for
Q: What are the distinctions between reiteracion falsification, then the moment the habitual delinquent
and recidivism? is on his fourth conviction, he is a habitual delinquent
and at the same time a recidivist because at least, the
A: fourth time will have to fall under any of the three
REITERACION RECIDIVISM categories.
It is necessary that It is enough that the final
offender has served out judgment has been Note: When the offender is a recidivist and at the
his sentence for the 1st rendered for the 1st same time a habitual delinquent, the penalty for the
45

crime for which he will be convicted will be increased 2. He committed a new felony before
to the maximum period, unless offset by a mitigating beginning to serve such sentence or while
circumstance. After determining the correct penalty serving the same
for the last crime committed, an added penalty will be
imposed in accordance with Article 62. Note: The offender must be serving sentence by virtue
of final judgment to trigger the application of Art. 160.
Q: What are the distinctions between habitual
delinquency and recidivism? Q: When is Art. 160 applicable?

A: A: Art. 160 applies although the next offense is
HABITUAL DELINQUENCY RECIDIVISM different in character from the former offense for
At least three convictions Two convictions are which the defendant is serving sentence. It makes
are required enough no difference whether the crime for which an
The crimes are specified accused is serving sentence at the time of the
and limited to: (a) serious The crimes are not commission of the offense charged, falls under the
physical injuries (b) less specified. It is enough RPC or under a special law.
serious physical injuries that they may be

(c)robbery (d) theft, (e) embraced under the
Note: First crime for which the offender is serving
estafa or swindling and (f) same title of the RPC
sentence need not be a crime under the RPC but the
falsification
second crime must be one under the RPC. So that if a
There is no time limit prisoner is serving sentence for homicide and later on
between the 1st found guilty of violation of the Anti‐Dangerous Drugs
There is a time limit of
conviction and the Law or Illegal Possession of Firearms, this provision is
not more than 10 years
subsequent conviction. not violated. The reverse however, that is where he is
between every conviction
Recidivism is serving sentence for Illegal Possession of Firearms (or
imprescriptible any crime for that matter) and then committed
It is a generic aggravating homicide which is a violation of the RPC, makes this
circumstance which can article applicable.
Habitual delinquency is a be offset by an ordinary
special aggravating mitigating circumstance.
Q: What is the justification for imposing a severe
circumstance, hence it If not offset, it would only
penalty for quasi‐recidivists?
cannot be offset by any increase the penalty
mitigating circumstance. prescribed by law for the

crime committed to its A: The severe penalty is justified because of his
maximum period. perversity and incorrigibility.
The circumstance must
be alleged in the Q: What is the difference between quasi‐
The circumstance need recidivism and recidivism proper, insofar as
information, otherwise
not be alleged in the offsetting of mitigating circumstance is concerned?
the court cannot acquire
information.
jurisdiction to impose the
penalty. A:
QUASI‐RECIDIVISM RECIDIVISM PROPER
QUASI‐RECIDIVISM Does not require that the
It requires that both the
offense for which the
first and the second
Q: What is quasi‐recidivism? convict is serving and the
offenses must embraced
new felony committed
in the same title of the
A: Quasi‐recidivism is a special aggravating are embraced in the same
Code.
circumstance where a person, after having been title of the Code.
convicted by final judgment, shall commit a new The aggravating The aggravating
circumstances of circumstances of
felony before beginning to serve such sentence, or
recidivism may not be recidivism may be offset
while serving the same.
offset by any ordinary by any ordinary

mitigating circumstance mitigating circumstance
Note: To be appreciated, quasi‐recidivism must be
present in the present in the
specifically alleged in the information.
commission of the crime. commission of the crime.

Q: What are the elements of quasi‐recidivism?
Note: It does not require that the two offenses are
embraced in the same title in the RPC.
A:
1. Offender was already convicted by final Q: When can a quasi‐recidivist be pardoned?
judgment of one offense
A: the principal by direct participation before the

GR: commission of the offense.
1. When he has reached the age of 70 and
has already served out his original To consider this circumstance, the price, reward, or
sentence, or promise must be the primary reason or the primordial
2. When he shall complete it after reaching motive for the commission of the crime. Thus, if A
said age approached B and told the latter what he thought of X,
and B answered “he is a bad man” to which A retorted,

“you see I am going to kill him this afternoon”. And so,
XPN: Unless by reason of his conduct or other
B told him, “if you do that I’ll give you P5,000.00” and
circumstances, he shall not be worthy of such after killing X, A again approached B, told him he had
clemency. already killed X, and B in compliance with his promise,
delivered the P5,000.00. In this case, the aggravating
Note: Quasi‐recidivism may be offset by special circumstance is not present.
privileged mitigating circumstances not by ordinary
mitigating circumstances. 12. BY MEANS OF INUNDATION, FIRE, ETC .

If both recidivism and quasi‐recidivism are present,
Q: What are the aggravating circumstances under
quasi‐recidivism should be appreciated in as much as it
indicates greater penalty on the part of the accused
this paragraph?
and is a special aggravating circumstance.
A: If the crime is committed by means of:
11. IN CONSIDERATION OF A PRICE 1. Inundation
REWARD OR PROMISE 2. Fire
3. Explosion
Q: What are the requisites under this paragraph? 4. Stranding of the vessel or intentional
damage thereto
A: 5. Derailment of locomotive; or
1. There are at least two principals 6. By use of any other artifice involving great
a. Principal by inducement waste and ruin.
b. Principal by direct participation
Note: Any of these circumstances cannot be
2. The price, reward, or promise should be considered to increase the penalty or to change the
nature of the offense, unless used by the offender as
previous to and in consideration of the
means to accomplish a criminal purpose.
commission of the criminal act.

When used as a means to kill a person, it qualifies the
Note: If without previous promise, it was given
crime to murder.
voluntarily after the crime had been committed, it

should not be taken into consideration for the purpose
Not aggravating when the law in defining the crime
of increasing the penalty.
includes them. E.g. Fire is not aggravating in the crime
of arson.
Q: Does this aggravating circumstance affect the
criminal liability of the one giving the offer? Q: What are the rules as to the use of fire?

A: Yes. This aggravating circumstance affects or A:
aggravates not only the criminal liability of the 1. Intent was only to burn but somebody
receiver of the price, reward or promise but also died – simple arson but with specific
the criminal liability of the one giving the offer. penalty.
2. If fire was used as a means to kill –
Ratio: When there is a promise, reward or price
murder.
offered or given as a consideration for the commission
3. If fire was used to conceal the killing ‐
of the crime, the person making the offer is an inducer,
separate crimes of arson and
a principal by inducement; while the person receiving
the price, reward or promise who would execute the murder/homicide.
crime is a principal by direct participation. They are
both principals hence, their penalties are the same. 13. EVIDENT PREMEDITATION

Note: The price, reward or promise need not consist of Q: What are the requisites of evident
or refer to material things or that the same were premeditation?
actually delivered, it being sufficient that the offer
made by the principal by inducement be accepted by
47

A:
1. Time when offender determined to Note: According to Justice Regalado, the fine
commit the crime; distinctions between craft and fraud would not really
2. Act manifestly indicating that he has clung be called for as these terms in Art 14 are variants of
to its determination; means employed to deceive the victim and if all are
3. Sufficient lapse of time between the present in the same case, they shall be applied as a
determination and execution, to allow single aggravating circumstance.
him to reflect upon the consequences of
his act and to allow his conscience to Q: What is craft?
overcome the resolution of his will.
A: Craft involves intellectual trickery and cunning
Note: Premeditation must be clear. It must be based on the part of the accused in order not to arouse
upon external acts and not presumed from mere lapse the suspicion of the victim.
of time. It must appear that the offender clung to his
determination to commit the crime. E.g.:
1. A person who pretended to be a customer,
In People v. Mojica, 10 SCRA 515, the lapse of one hour then, robbed the place
and forty‐five minutes (4:15 p.m. to 6 p.m.) was 2. A person who pretended to be a Meralco
considered by the Supreme Court as sufficient. In official, then committed a crime
People v. Cabodoc, 263 SCRA 187, where at 1:00 p.m.,
the accused opened his balisong and uttered “I will kill Q: What is fraud?
him,” and at 4:30 p.m. of the said date, the accused
stabbed the victim, it was held that the lapse of three A: Fraud are deceitful words or machinations used
and a half hours (3 ½ hours) from the inception of the to induce the victim to act in a manner which
plan to the execution of the crime satisfied the last enables the offender to carry out his design.
requisite of evident premeditation.
Q: What is the distinction between fraud and
Q: What is the essence of premeditation? craft?

A: The execution of the criminal act must be A:
preceded by cool thought and reflection upon the FRAUD CRAFT
resolution to carry out the criminal intent during Where there is a direct The act of the accused
the space of time sufficient to arrive at a calm inducement by insidious done in order not to
judgment. words or machinations, arouse suspicion of the
fraud is present. victim constitute craft.
Q: Can there be evident premeditation when the
killing is accidental? Note: Craft and fraud may be absorbed in treachery if
they have been deliberately adopted as means,
A: No. In evident premeditation, there must be a methods or forms for the treacherous strategy, or they
clear reflection on the part of the offender. If the may co‐exist independently where they are adopted
killing was accidental, there was no evident for a different purpose in the commission of the crime.
premeditation.
Q: What is disguise?
Q: What if the victim is different from that
intended? A: Disguise means resorting to any device to
conceal identity.
A: When the victim is different from that intended,
premeditation is not aggravating although it is not Note:
necessary that there is a plan to kill a particular 1. The test of disguise is whether the device or
person for premeditation to exist. contrivance resorted to by the offender was
intended to make identification more

difficult
14. CRAFT, FRAUD OR DISGUISE
2. The use of an assumed name in the

publication of a libel constitutes disguise
Q: What must be attendant in order for this

circumstance to be appreciated?
Q: Is it necessary that the accused be able to hide

his identity all throughout the commission of the
A: To be appreciated, these circumstances must
crime?
have facilitated or be taken advantage of by the

offender in the commission of a crime.
A: No. The accused must be able to hide his identity A: It means to deliberately use excessive force that
during the initial stage if not all throughout the is out of proportion to the means for self‐defense
commission of the crime and his identity must have available to the person attacked. (People v.
been discovered only later on to consider this Lobrigas)
aggravating circumstance.
Q: When does means employed to weaken
Q: What is the test in order to determine if defense exist?
disguise exist? A: It exists when the offended party's resisting
power is materially weakened.
A: Whether the device or contrivance resorted to
by the offender was intended to or did make Q: What are the requisites of means to weaken
identification more difficult, such as the use of a defense?
mask or false hair or beard. If in spite of the
disguise, the offender was recognized, disguise A:
cannot be aggravating. 1. Means were purposely sought to weaken
the defense of the victim to resist the
Q: What is the distinction among Craft, Fraud, and assault
Disguise 2. The means used must not totally
eliminate possible defense of the victim,
CRAFT FRAUD DISGUISE otherwise, it will fall under treachery.
Involves the use
of intellectual Involves the use Q: In what cases is it applicable?
Involves the
trickery and of direct
use of devise
cunning not to inducement by A: It is applicable only to crimes against persons,
to conceal
arouse the insidious words and sometimes to crimes against property, such as
identity
suspicion of the or machinations robbery with homicide.
victim
Note: Means to weaken the defense is absorbed in
15. ABUSE OF SUPERIOR STRENGTH OR MEANS treachery.
TO WEAKEN DEFENSE
16. TREACHERY
Q: What is abuse of superior strength?
Q: What is treachery?
A: To use purposely excessive force out of
proportion with the means of defense available to A: Treachery (aleviosa) refers to the employment of
the person attacked. means, method, or form in the commission of the
crime which tend directly and specially to insure its
There must be evidence of notorious inequality of execution without risk to himself arising from the
forces between the offender and the offended defense which the offended party might make.
party in their age, size and strength, and that the
offender took advantage of such superior strength Note:
in committing the crime.
Rules regarding treachery:
Note: Abuse of superior strength is inherent in the
crime of parricide where the husband kills the wife. It 1. Applicable only to crimes against persons.
is generally accepted that the husband is physically 2. Means, methods, or forms need not insure
stronger than the wife. accomplishment of crime
3. Mode of attack must be thought of by the
Q: Is the mere fact that there were two persons offender, and must not spring from the
who attacked the victim enough to constitute unexpected turn of events.
abuse of superior strength?
Treachery cannot co‐exist with passion or obfuscation
A: No. It must be shown that the offenders have (People v. Pansensoy, G.R. No. 140634, Sept. 12, 2002)
taken advantage of their collective strength to
overpower their relatively weaker victim or victims. Q: What is the test of treachery?

Q: What is the meaning of “advantage be taken”? A: The test of treachery is not only the relative
position of the parties but more specifically
whether or not the victim was forewarned or
49

afforded the opportunity to make a defense or to Note: Alevosia should be considered even if:
ward off the attack.
1. The victim was not predetermined but there
Q: What are the requisites of treachery? was generic intent to treacherously kill any
first two persons belonging to a class.
A: 2. There was aberratio ictus and the bullet hit
1. At the time of the attack, victim was not a person different from that intended.
3. There was error in personae, hence, the
in the position to defend himself
victim was not the one intended by the

accused.
2. Offender consciously adopted the

particular means, method or form of
Q: Supposing, the victim hid behind a drum where
attack employed by him.
he could not be seen by the offender. The

offender, knowing that the victim was hiding
Note: The location of the wounds does not give rise to
behind the drum shot at the drum. The bullet
the presumption of the presence of treachery.

penetrated the drum and hit the victim which
Q: What is the essence of treachery? caused his death. Can the aggravating
circumstance of treachery be appreciated?
A: The essence of treachery is that by virtue of the
means, method or form employed by the offender, A: Yes. The victim was not in a position to defend
the offended party was not able to put up any himself.
defense.
Q: What is the distinction among Treachery, Abuse
Q: When is treachery absent? of Superior Strength, Means Employed to Weaken
Defense
A: Treachery is out when the attack was merely
MEANS
incidental or accidental because in the definition of ABUSE OF
EMPLOYED
treachery, the implication is that the offender had TREACHERY SUPERIOR
TO WEAKEN
consciously and deliberately adopted the method, STRENGTH
DEFENSE
means and form used or employed by him.
Means, methods
Offender does Means are
or forms are
Note: Suddenness of the attack does not by itself not employ employed but
employed by the
constitute treachery in the absence of evidence that means, methods it materially
offender to make
the manner of the attack was consciously adopted by or forms of weakens the
it impossible or
the offender to render the offended party defenseless attack, he only resisting
hard for the
except if the victims are children of tender years. takes advantage power of the
offended party to
of his superior offended
put any sort of
Q: What are those instances that may be absorbed strength party
resistance
by treachery?
17. IGNOMINY
A:
1. Abuse of superior strength Q: To what does ignominy pertain to?
2. Aid of armed men
3. By a band A: It pertains to the moral order, which adds
4. Means to weaken the defense disgrace to the material injury caused by the crime.
5. Craft Ignominy adds insult to injury or adds shame to the
6. Nighttime natural effects of the crime. Ignominy shocks the
moral conscience of man.
Q: Must treachery be present at the beginning of
the assault? E.g.
1. A married woman being raped before the
A: It depends. eyes of her husband.
1. When the aggression is continuous‐ 2. Raping a woman from behind
treachery must be present at the 3. After having been killed, the body was
beginning of the assault. thrown into pile or garbage.
2. When the assault was not continuous‐ it is 4. Accused embraced and kissed the
sufficient that treachery was present offended party not out of lust but out of
when the fatal blow was given. anger in front of many people
5. Victim was raped successively by five men.
greater audacity and hence the law punishes him

Q: What are the requisites for ignominy? with more severity.
A:
1. Crime must be against Q: Supposing, the owners of the house commonly
a. Chastity use the window as their ordinary means to enter
b. less serious physical injuries the house, then the accused entered the door. Can
c. light or grave coercion the aggravating circumstance of unlawful entry be
d. murder appreciated?

2. The circumstance made the crime more A: Yes. The aggravating circumstance of unlawful
humiliating and shameful for the victim. entry may still be appreciated.

Note: Ignominy is not present where the victim 19. BREAKING WALL
was already dead when such acts were
committed against his body or person Q: What are the requisites for breaking a wall?

Q: To what crimes is ignominy inherent? A:
1. A wall, roof, window, or door was broken
A: 2. They were broken to effect entrance
1. Libel
2. Acts of lasciviousness Q: Give instances where breaking is lawful.

Q: What is the distinction between ignominy and A:
cruelty? 1. An officer in order to make an arrest may
break open door or window of any
A: building in which the person to be
IGNOMINY CRUELTY arrested is or is reasonably believed to be
Ignominy refers to the (Sec. 11, Rule 133 of Rules of Court);
Cruelty pertains to
moral effect of a crime 2. An officer if refused admittance may
physical suffering of the
and it pertains to the break open any door or window to
victim so the victim has
moral order, whether or execute the search warrant or liberate
to be alive.
not the victim is dead or
himself (Sec. 7, Rule 126 of Rules of
alive.
Court);

3. Replevin (Sec.4, Rule 60 of Rules of Court)
Note: Ignominy and cruelty are circumstances brought

about which are not necessary in the commission of
Q: What is the distinction between breaking wall
the crime.
and unlawful entry?

18. UNLAWFUL ENTRY
A:

BREAKING WALL UNLAWFUL ENTRY
Q: When is an entry considered unlawful?
Presupposes that there is

It involves the breaking of no such breaking as by
A: When an entry is effected by a way not intended
the enumerated parts of entry through the
for that purpose. the house. window.

The use of unauthorized entrance must not be for
the purpose of escape. 20. AID OF MINORS OR USE OF MOTOR VEHICLES
OR THER SIMILAR MEANS
Note: This circumstance is inherent in the crimes of

trespass to dwelling and robbery with force upon
AID OF MINORS
things. But it is aggravating in the crime of robbery
with violence against or intimidation of persons.

Q: Why is this considered an aggravating
Q: Why is unlawful entry aggravating? circumstance?

A: One who acts, not respecting the walls erected A: To repress professional criminals to avail
by men to guard their property and provided for themselves of minors, taking advantage of their
their personal safety, shows greater perversity, a irresponsibility and to counteract the great facilities
found by modern criminals to commit the crime
and abscond once the same is committed.
51

A: No. In order for it to be appreciated, there must
The use of a minor in the commission of the crime be positive proof that the wounds found on the
shows the greater perversity of the offender body of the victim were inflicted while he was still
because he is educating the innocent minor in alive to unnecessarily prolong physical suffering.
committing a crime.
Note: If the victim was already dead when the acts of
USE OF MOTOR VEHICLES mutilation were being performed, this would also
qualify the killing to murder due to outraging of his
Q: Why is this considered as an aggravating corpse.
circumstance?
E.g. Cruelty is aggravating in rape where the offender
A: The use of motor vehicles in the commission of a tied the victim to a bed and burnt her face with a
lighted cigarette while raping her laughing all the way.
crime poses difficulties to the authorities in

apprehending the offenders.
Q: What are the other aggravating circumstances?

This circumstance is aggravating only when used to
A:
facilitate the commission of the offense.
1. Organized or syndicated crime group

2. Under influence of dangerous drugs
Note: If motor vehicle is used only in the escape of the
offender, motor vehicle is not aggravating. (People v.
3. Use of unlicensed firearm
Espejo, L‐27708, Dec. 19, 1970)
Q: What does the phrase “other similar means” 2002 (R.A. 9165)
mean?

4. As a qualifying aggravating circumstance
A: It means should be understood as referring to

motorized vehicles or other efficient means of
Note: Notwithstanding the provisions of any law to the
transportation similar to automobile or airplane.
contrary, a positive finding for the use of dangerous
drugs shall be a qualifying aggravating circumstance in
Q: Supposing, the accused robbed a house then the commission of a crime by an offender, and the
found a car in front of the house which he used for application of the penalty provided for in the Revised
his escape, can the aggravating circumstance of Penal Code shall be applicable. (Sec. 25)
use of motor vehicle ne appreciated?
D. Decree Codifying the Laws on Illegal/Unlawful
A: No. The crime has already been accomplished. Possession, Manufacture, Dealing in, Acquisition
or Disposition, of Firearms, Ammunition or
Note: Even if the motor vehicle used is a public vehicle, Explosives (P.D. 1866, as amended by R.A. 8294)
the circumstance may still be appreciated.
Q: What changes were brought about by R.A. 8294
21. CRUELTY on P.D. 1866?

Q: When does cruelty exist? A:

A: When the culprit enjoys and delights in making
1. The use of an unlicensed firearm to
his victim suffer slowly and gradually, causing him
commit murder or homicide is an
unnecessary and prolonged physical pain in the
aggravating circumstance. Hence, illegal
consummation of the crime.
possession or use of unlicensed firearm is

no longer punished as a separate offense.
Q: What are the requisites of cruelty as an

aggravating circumstance?
2. If the illegal possession or use of

unlicensed firearm or explosives is in
A:
furtherance of, or incident to, or in
1. The injury caused be deliberately
connection with the crimes of rebellion,
increased by causing other wrong.
insurrection, or subversion shall be
2. The other wrong be unnecessary for the
absorbed as an element of such crimes.
execution of the purpose of the offender.

3. Penalty for mere possession of an
Q: Is cruelty inherent in crimes against persons?
unlicensed firearm is based on whether

the firearm is low‐powered or high‐ ALTERNATIVE CIRCUMSTANCES

powered. (Art.15)

4. Unlicensed firearm shall include: firearms Q: What is the basis of alternative circumstances?
with expired license; or unauthorized use
of licensed firearm in the commission of A: The basis is the nature and effects of the crime
the crime. and the other conditions attending its commission.

Q: When is the use of unlicensed firearm Q: What are alternative circumstances?
considered absorbed as an element of the crime of
rebellion, or insurrection, sedition or attempted A: Those which must be taken into consideration as
coup d’ etat ? aggravating or mitigating according to the nature
and effects of the crime and the other conditions
A: If the unlicensed firearm is used in furtherance of attending its commission.
or incident to, or in connection with the crime of
rebellion, or insurrection, sedition, or attempted Q: What are the four alternative circumstances?

coup d’ etat. (Sec.1)
A:
1. Relationship
Q: When is the use of unlicensed firearm
2. Intoxication
considered an aggravating circumstance? 3. Degree of instruction
4. Education of the offender
A: In the crimes of homicide and murder (Sec.1)
1. RELATIONSHIP
Q: When is the use of explosives considered an
aggravating circumstance? Q: When is relationship taken into consideration?

A: When a person commits any of the crimes A: When the offended party is the:
defined in the Revised Penal Code or special laws 1. Spouse
with the use of the aforementioned explosives, 2. Ascendant
detonation agents or incendiary devices, which 3. Descendant
results in the death of any person or persons, the 4. Legitimate, natural, or adopted brother or
use of such explosives, detonation agents or sister;
incendiary devices shall be considered as an 5. Relative by affinity in the same degree of
aggravating circumstance. (Sec. 2, RA 8294) the offender
6. Other relatives included by analogy to
E. Anti‐Torture Act of 2009 (RA 9745) ascendants and descendants. e.g.
Stepparents – It is their duty to bestow
Note: The provisions of the RPC insofar as they are upon their stepchildren a mother/father’s
applicable shall be suppletory to this Act. Moreover, if affection, care and protection.
the commission of any crime punishable under Title
Eight (Crimes Against Persons) and Title Nine (Crimes Note: The relationship of uncle and niece is not
covered by any of the relationship mentioned
Against Personal Liberty and Security) of the Revised

Penal Code is attended by any of the acts constituting
Q: When is relationship exempting?
torture and other cruel, inhuman and degrading
treatment or punishment as defined herein, the A:
penalty to be imposed shall be in its maximum 1. In the case of an accessory who is related
period.(Sec. 22, RA 9745) to the principal within the relationship
prescribed in Article 20.
F. Anti‐Violence Against Women and Their
Children Act of 2004 (RA 9262) 2. In Art. 247, a spouse will not incur
criminal liability for a crime of less serious
Note: Being under the influence of alcohol, any illicit physical injuries or serious physical
drug, or any other mind‐altering substance shall not be injuries if this was inflicted after having
a defense under this Act. (Sec. 27, RA 9262) surprised the offended spouse or
paramour or mistress committing actual

sexual intercourse.

53

3. Under Art. 332, in the crime of theft, d. When the crime committed is
malicious mischief and swindling or homicide or murder, relationship is
estafa, there is no criminal liability if the aggravating even if the victim of the
offender is related to the offended party crime is a relative of a lower degree;
as spouse, ascendant, or descendant or if
the offender is a brother or sister or e. In rape, relationship is aggravating
brother‐in‐law or sister‐in‐law of the where a stepfather raped his
offended party and they are living stepdaughter (People v. De Leon, 50
together. Phil. 539) or in a case where a father
raped his own daughter (People v.
Q: When is relationship mitigating? Porras, 58 Phil. 578).

A: 2. In crimes against chastity.
1. In crimes against property, by analogy to
Art. 332 (persons exempt from criminal Q: When is relationship neither aggravating nor
liability). mitigating?

Thus, Relationship is mitigating in the A: Relationship is neither aggravating nor mitigating
crimes of robbery (Arts. 294‐302), when relationship is an element of the offense. e.g.
usurpation (Art. 312), fraudulent parricide, adultery and concubinage.
insolvency (Art. 314) and arson (Arts 321‐
322, 325‐326) Note: In the crime of qualified seduction, relationship
is a qualifying aggravating circumstance, where the
2. In crimes against persons when it comes offender is a brother or an ascendant of the offended
to physical injuries, it is mitigating when woman, whether or not the woman is a virgin or over
the offense committed is less serious 18 years of age.
physical injuries or slight physical injuries,
if the offended party is a relative of a 2. INTOXICATION
lower degree. (Reyes, p.473)
Q: When is intoxication mitigating?
Q: When is relationship aggravating?
A: If intoxication is:
A:
1. In crimes against persons in cases: 1. Not habitual; or

a. When the offended party is a relative 2. Not subsequent to the plan to commit a
of a higher degree than the offender; felony, or

b. When the offender and the offended 3. At the time of the commission of the
party are relatives of the same level, crime, the accused has taken such
as killing a brother; (People v. Alisub, quantity of alcoholic drinks as to blur his
69 Phil. 362) reason and deprive him of certain degree
of control.
c. Where the crime is physical injuries:
i. Serious physical injuries – even if Note: To be mitigating, the state of intoxication of the
the offended party is a accused must be proved. Once intoxication is
established by satisfactory evidence, in the absence of
descendant of the offender;
proof to the contrary, it is presumed to be non‐

habitual or unintentional.
The serious physical injuries must

not be inflicted by a parent upon
Q: When is intoxication aggravating?
his child by excessive

chastisement
A: If intoxication is

ii. Less serious physical injuries or
1. Habitual; or
slight physical injuries – if the

offended party is a relative of a
2. Intentional (subsequent to the plan to
higher degree of the offender;
commit a felony).

Note: The moment intoxication is shown to be habitual Note: It is not illiteracy alone but the lack of
or intentional to the commission of the crime, the intelligence of the offender that is considered.
same will immediately aggravate, regardless of the
crime committed. Low degree of education is never aggravating in the
manner that high degree is never mitigating.
Q: Who is a “habitual drunkard?”
Q: Supposing, the crime was done not in a civilized
A: He is one given to intoxication by excessive use society, can the alternative circumstance of low
of intoxicating drinks. degree of instruction be a mitigating
circumstance?
Q: What determines whether intoxication is
mitigating or not? A: Yes. It is still considered as a mitigating
circumstance.
A: The basis is the effect of the alcohol upon the
offender, not the quantity of the alcoholic drink he
had taken in.

3. DEGREE OF INSTRUCTION OR EDUCATION OF
THE OFFENDER

Q: Is degree of instruction or education mitigating?

A:
GR: Lack or low degree of instruction is
mitigating in all crimes.

XPN: Not mitigating in:

1. Crimes against property (e.g. arson,
estafa, threat)

2. Crimes against chastity

3. Murder or homicide

4. Rape

5. Treason – because love of country should
be a natural feeling of every citizen,
however unlettered or uncultured he may
be. (People v. Lansanas, 82 Phil. 193)

Illustration:

If the offender is a lawyer who committed rape, the
fact that he has knowledge of the law will not
aggravate his liability.

But if a lawyer committed falsification, that will
aggravate his criminal liability because he used his
special knowledge as a lawyer. He took advantage of
his learning in committing the crime.

Q: Is the degree of instruction and education two
distinct circumstances?

A: Yes. One may not have any degree of instruction
but is nevertheless educated.
55

IV. PERSONS CRIMINALLY LIABLE PRINCIPALS
(Art. 17)
Q: Who are criminally liable?
Q: What are the different classifications of criminal
A: The following are criminally liable for grave and responsibility?
less grave felonies:
1. Principals A:
2. Accomplices 1. Individual criminal responsibility – When
3. Accessories there is no conspiracy, each of the
offenders is liable only for the act
Note: This classification is true only under the RPC and performed by him.
is not used under special law, because the penalties
under special laws are not graduated. However, if a 2. Quasi ‐ collective criminal responsibility –
special law provides for the same graduated penalties Some offenders in the crime are
as those provided under the RPC, the classification principals and the others are accomplices.
under the RPC may be adopted.
3. Collective criminal responsibility – Where
This article applies only when the offenders are to be there is conspiracy, the act of one is the
judged by their individual, and not collective, liability.
act of all. All conspirators are liable as co‐

principals regardless of the extent and
Q: Who can be the parties in the commission of a
character of their participation.
crime?

Q: What are the kinds of principals?
A:

1. Active subject (the criminal)
A:
2. Passive subject (the injured party)
1. Principal by direct participation

2. Principal by induction/inducement
Q: Who can be active subjects of a crime?
3. Principal by indispensable cooperation

A: Only natural person can be the active subject of
1. PRINCIPAL BY DIRECT PARTICIPATION
crime because of the highly personal nature of the

criminal responsibility.
Q: What are the requisites for principals by direct

participation?
Note: Under the RPC, natural persons act with

personal malice or negligence, artificial persons cannot
act with malice or negligence.
A:
1. They participated in the criminal
Q: Who can be passive subjects of a crime? resolution.
2. They carried out the plan and personally
A: A corporation and partnership can be passive took part in its execution by acts, which
subjects of a crime. directly tended to the same end.

Note: Principals by direct participation are those who
Note: A juridical person like a corporation cannot
materially execute the crime. They appear at the crime
commit a crime that requires willful purpose or
scene and perform acts necessary in the commission
malicious intent.
of the crime.

Q: May corpses or animals be passive subjects of a
crime? Q: What is the effect if the second element is
missing?
A:
GR: Corpses and animals cannot be passive A: If the second element is missing, those who did
subjects because they have no rights that may not participate in the commission of the acts of
be impaired. execution cannot be held criminally liable because
there is no conspiracy, unless the crime agreed
XPN: Under Art. 253, the crime of defamation upon to be committed is treason, sedition, coup d’
may be committed if the imputation tends to etat or rebellion.
blacken the memory of one who is dead.
This is because the conspiracy contemplated here is
a manner of committing a crime which is not
punishable as a rule unless it is a conspiracy to
BOOK 1: Persons Criminally Liable
commit treason, sedition, coup d’ etat or rebellion

which is expressly punishable as a crime by the RPC. A: The inducement contemplated is one strong
enough that the person induced could hardly resist.
Q: What does personally took part in the Inducement is tantamount to an irresistible force
commission of the crime mean? compelling the person induced to carry out the
execution of the crime.
A: It means that:
1. The principal by direct participation must Q: Who is a principal by inducement?
be at the scene of the commission of the
crime, personally taking part in its A: To be a principal by inducement, the inducer’s
execution. utterances must be such nature and made in such
2. Under conspiracy, although he was not manner as to become the determining cause of the
present in the scene of the crime, he is crime.
equally liable as a principal by direct
participation. Note: Principals by inducement are liable even if they
do not appear at the scene of the crime.
E.g. One serving as guard pursuant to the conspiracy is
a principal by direct participation. Q: What are the two ways of directly inducing
another to commit a crime?
Q: What is the rule in determining criminal liability
in case of conspiracy? A:
1. By directly forcing another to commit a
A: crime by:
GR: If there is conspiracy, the criminal liability of
all the participants will be the same, because a. Using irresistible force – such
the act of one is the act of all. physical force as would produce an
effect upon the individual that in
XPN: If the participation of one is so spite of all resistance, it reduces him
insignificant, such that even without his to a mere instrument
cooperation, the crime would be committed
just as well, then notwithstanding the existence b. Causing uncontrollable fear –
of a conspiracy, such offender will be regarded compulsion by means of intimidation
only as an accomplice. or threat that promise an evil of such
gravity and eminence that the
Ratio: The law favors milder form of criminal liability if ordinary man would have
the act of the participant does not demonstrate a clear succumbed to it.
perversity.
Note: In these cases, there is no conspiracy. Only
Q: What is the effect of conspiracy if not all the the one using force or causing fear is criminally
elements of the crime is present as regards the co‐ liable. The material executor is not criminally liable
conspirator? because of exempting circumstances of irresistible
force and uncontrollable fear.
A:
GR: When there is conspiracy, the fact that the 2. By directly inducing another to commit a
element of the offense is not present as regards crime by:
one of the conspirators is immaterial.
a. Giving price, or offering reward or
XPN: promise
1. In parricide – the element of relationship
must be present as regards the offenders. Requisites:
2. In murder – where treachery is an i. Inducement must be made
element of the crime, all offenders must directly with the intention of
have knowledge of the employment of procuring the commission of the
the treachery at the time of the execution crime;
of the act. ii. Such inducement be the
determining cause of the
2. PRINCIPALS BY INDUCTION/ INDUCEMENT commission of the crime by the
material executor.
Q: What is meant by inducement?
57

Note: The one giving the price or offering 2. One cannot be held guilty of having
the reward or promise is a principal by instigated the commission of a crime
inducement while the one committing the without first being shown that the crime
crime in consideration thereof is a principal has been actually committed by another.
by direct participation. There is collective
criminal responsibility. Note: If the one charged as principal by direct
participation is acquitted because he acted without
b. Using word or command. criminal intent or malice, his acquittal is not a ground
for the acquittal of the principal by inducement.
Requisites:
i. The one uttering the words of Q: What are the distinctions between a principal
command must have the by inducement and an offender who made a
intention of procuring the proposal to commit a felony?
commission of the crime;
ii. He must have an ascendancy or A:
influence over the person who OFFENDER WHO MADE
acted; PRINCIPAL BY
PROPOSAL TO COMMIT
iii. Words used must be so direct, so INDUCEMENT
A FELONY
efficacious, and powerful as to In both, there is inducement to commit a crime
amount to physical or moral The mere proposal to
coercion; commit a felony is
iv. Words of command must be punishable is not
uttered prior to the commission punishable except in
of the crime; Becomes liable only when proposal to commit
v. Material executor of the crime the crime is committed treason or rebellion.
has no personal reason to by the principal by direct However, the person to
commit the crime. participation whom the proposal is
made should not commit
Note: The one who used the words of the crime; otherwise, the
command is a principal by inducement while proponent becomes a
the one committing the crime because of principal by inducement.
the words of command is a principal by
direct participation. There is collective The proposal to be
criminal responsibility. Involves any crime punishable must involve
only treason or rebellion
Words uttered in the heat of anger and in
the nature of command that had to be
obeyed do not make one an inductor. Q: A asked B to kill C because of grave injustice
done to A by C. A promised B a reward. B was
Mere imprudent advice is not inducement. willing to kill C, not so much because of the reward
promised to him but because he also had his own
If the person who actually committed the long‐standing grudge against C, who had wronged
crime had his own reason to commit it, it
him in the past. If C is killed by B, would A be liable
cannot be said that the inducement was
as a principal by inducement?
influential in producing the criminal act.

A: No, A would not be liable as principal by
Q: When will the criminal liability of the principal
inducement because the reward he promised B is
by inducement arise?
not the sole impelling reason which made B to kill

C.
A: A principal by inducement becomes liable only

when the crime is committed by the principal by
To bring about criminal liability of a co‐principal,
direct participation.
the inducement made by the inducer must be the

sole consideration which caused the person
Q: What is the effect of the acquittal of the
induced to commit the crime and without which the
principal by direct participation on the liability of
crime would not have been committed. The facts of
the principal by inducement?
the case indicate that B, the killer supposedly

induced by A, had his own reason to kill C out of a
A:
long standing grudge. (2002 Bar Question)
1. Conspiracy is negated by the acquittal of

co‐defendant.
3. PRINCIPALS BY INDISPENSABLE COOPERATION A: He becomes a principal by direct participation.

Q: Who is a principal by indispensable Q: Distinguish an accomplice from a principal by
cooperation? indispensable cooperation?

A: Those who: A:
1. Participated directly in the criminal PRINCIPAL BY
resolution; or ACCOMPLICE
INDISPENSABLE

COOPERATION
2. Cooperated in the commission of the If the cooperation merely
crime by performing an act, without If the crime could hardly
facilitated or hastened
which it would not have been be committed without
the consummation of the
accomplished. such cooperation, then
crime, this would make
such cooperation would
the cooperator merely an
bring about a principal.
Q: What does cooperation in the commission of accomplice.
the offense mean?
Note: In determining whether the offender is a
A: To desire or wish a common thing. But that principal or accomplice, the basis is the importance of
common will or purpose does not necessarily mean the cooperation to the consummation of the crime.
previous understanding, for it can be explained or
inferred from the circumstances of each case. Q: What are the distinctions between accomplice
and conspirator?
Note: A principal by indispensable cooperation may be
a co‐conspirator under the doctrine of implied A:
conspiracy. He becomes a co‐conspirator by ACCOMPLICE CONSPIRATOR
indispensable cooperation, although the common In both, they agree with the criminal design
design or purpose was not previously agreed upon. They come to know
about it after the They come to know the
If the cooperation is not indispensable, the offender is principals have reached criminal intention
only an accomplice. the decision, and only because they themselves
then do they agree to have decided upon such
ACCOMPLICES cooperate in its course of action.
(Art. 18) execution.
They are merely
Q: Who is an accomplice? instruments who perform
They are the authors of
acts not essential to the
the crime.
A: An accomplice is one who: perpetration of the
1. Concurs with the criminal design of the offense.
principals by direct participation;
ACCESSORIES
2. Cooperates in the execution of the (Art. 19)
offense by previous or simultaneous acts,
with the intention of supplying material Q: Who are accessories?
or moral aid in the execution of the crime
in an efficacious way; A: Those who do not participate in the criminal
design, nor cooperate in the commission of the
Note: Cooperation of an accomplice is only necessary, felony, but with knowledge of the commission of
not indispensable. the crime, he subsequently takes part in three ways
by:
Before there can be an accomplice, there must be a 1. Profiting or assisting the offender to profit
principal by direct participation. by the effects of the crime;

In case of doubt, the participation of the offender will 2. Concealing or destroying the body of the
be considered that of an accomplice rather than that crime to prevent its discovery;
of a principal.
Note: Where the accused misleads the
Q: What is the effect if he the person charged as authorities by giving them false information,
an accomplice inflicts a mortal wound? such act is equivalent to concealment and
he should be held as an accessory.
59

A: The corpus delicti is the body of the crime, not
3. Harboring, concealing or assisting in the necessarily the corpse.
escape of the principal of the crime.
It is a compound fact made up of two things:
Note: One cannot be an accessory unless he knew of
the commission of the crime. 1. The proof of the occurrence of certain
events
An accessory must not have participated in the 2. Some person’s criminal responsibility
commission of the crime.
Thus, even if the corpse is not recovered, as long as
The accessory comes into the picture when the crime that killing is established beyond reasonable doubt,
is already consummated, not before the
criminal liability will arise and if there is someone
consummation of the crime.
who destroys the corpus delicti to prevent

discovery, he becomes an accessory. (Inovero v.
Q: What if the offender has already involved
Coronel, CA, 65 O.G. 3160)
himself as a principal or accomplice?

3. HARBORING OR CONCEALING AN OFFENDER
A: He cannot be an accessory any further even

though he performs acts pertaining to an accessory.
Q: Who may be guilty as an accessory by

harboring, concealing or assisting in the escape of
Q: In what situations are accessories not criminally
the principal of the crime?
liable?

A:
A:
1. Public officers
1. When the felony committed is a light

felony.
Requisites:

a. Accessory is a public officer
2. When the accessory is related to the

principal as spouse, or as an ascendant, or
b. He harbors, conceals, or assists in
descendant or as brother or sister
the escape of the principal
whether legitimate, natural or adopted or

where the accessory is a relative by
c. He acts with abuse of his public
affinity within the same degree, unless
functions
the accessory himself profited from the

effects or proceeds of the crime or
d. The crime committed by the
assisted the offender to profit therefrom.
principal is any crime, provided it is

not a light felony.
1. PROFITING OR ASSISTING THE OFFENDER TO

PROFIT BY THE EFFECTS OF THE CRIME
Note: In the case of a public officer, the crime
committed by the principal is immaterial. Such
Illustration: officer becomes an accessory by the mere fact
that he helped the principal escape by harboring,
If a person having participated as principal or concealing, making use of his public function and
accomplice in robbery or theft but knowing that the
thus abusing the same.
property being offered to him is the proceeds or

subject matter of the said crime, bought or purchased
2. Private person
or dealt in any manner with which such property,

obtaining benefit from said transaction or helping the
thief or robber to profit there from.
Requisites:
a. Accessory is a private person
Note: The accessory must receive the property from
the principal. He should not take it without the b. He harbors, conceals or assists in the
consent of the principal. If he took it without the escape of the author of the crime
consent of the principal, he is not an accessory but a
principal in the crime of theft. c. The crime committed by the
principal is either:
2. DESTROYING THE CORPUS DELICTI
i. Treason
Q: What is a corpus delicti? ii. Parricide
iii. Murder
iv. Attempt against the life of the Public officer contemplated under par.3 of Art. 19 is
President exempt by reason of relationship to the principal, even
v. That the principal is known to be if such public officer acted with abuse of his public
habitually guilty of some other functions.
crime.
The benefits of the exception in Art. 20 do not apply to
Q: Can an accessory be held criminally liable P.D. 1829 (Obstruction of Justice).
without the principal being found guilty?
A. Decree Penalizing Obstruction of Apprehension
A: and Prosecution of Criminal Offenders
GR: The accessory cannot be held criminally (P.D. 1829)
liable without the principal being found guilty of
any such crime. 1. Punishable acts

XPN: When the principal was not held liable Q: What are the acts punished under P.D. 1829?
because of an exempting circumstance under
Art. 12. A: Any person, who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of
Ratio: A person does not become criminally liable suspects and the investigation and prosecution of
by merely harboring or assisting in the escape of criminal cases by committing any of the following
an innocent man. acts:

Note: Correlate this Article with the provisions of the 1. Preventing witnesses from testifying in
Anti‐Fencing Law (P.D. 1612) and Obstruction of any criminal proceeding or from reporting
Justice (P.D. 1829). Both laws will be discussed under the commission of any offense or the
Special Penal Laws. identity of any offender/s by means of
bribery, misrepresentation, deceit,
ACCESSORIES EXEMPT FROM CRIMINAL LIABILITY intimidation, force or threats
(Art. 20)
2. Altering, destroying, suppressing or
Q: What is the criminal liability of an accessory? concealing any paper, record, document,
or object, with intent to impair its verity,
A: authenticity, legibility, availability, or
GR: An accessory is exempt from criminal admissibility as evidence in any
liability, when the principal is his: investigation of or official proceedings in,
1. Spouse criminal cases, or to be used in the
2. Ascendant investigation of, or official proceedings in,
3. Descendant criminal cases
4. Legitimate, natural, or adopted
brother, sister or relative by affinity 3. Harboring or concealing, or facilitating the
within the same degree. escape of, any person he knows, or has
reasonable ground to believe or suspect,
XPN: Not so exempt even if the principal is has committed any offense under existing
related to him, if such accessory: penal laws in order to prevent his arrest,
1. Profited by the effects of the crime; or prosecution and conviction
2. Assisted the offender to profit from the
effects of the crime. 4. Publicly using a fictitious name for the
purpose of concealing a crime, evading
Ratio: Such acts are prompted not by affection prosecution or the execution of a
but by greed. judgment, or concealing his true name
and other personal circumstances for the
Note: The exemption provided for in this article is same purpose or purposes
based on the ties of blood and the preservation of
one’s name, which compels on to conceal the crimes 5. Delaying the prosecution of criminal cases
committed by relatives so near as those mentioned in
by obstructing the service of process or
this article.
court orders or disturbing proceedings in

Nephew and niece are not included.
the fiscal's offices, in Tanodbayan, or in
the courts

61

6. Making, presenting or using any record,
document, paper or object with
knowledge of its falsity and with intent to
affect the course or outcome of the
investigation of, or official proceedings in,
criminal cases

7. Soliciting, accepting, or agreeing to accept
any benefit in consideration of abstaining
from, discounting, or impeding the
prosecution of a criminal offender

8. 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 such 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

9. 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 investigating authorities for
purposes of background information and
not for publication and publishing or
disseminating the same to mislead the
investigator or the court. (Sec. 1)

2. Compare with Article 20, RPC (accessories
exempt from criminal liability)

Note: Article 20, RPC is applicable with PD 1829
because it is beneficial to the accused. It is to be
interpreted in favor of the accused because in an
absolutory cause, the offender is not criminally liable
by reason of public policy. Because the reason is public
policy, it should apply to both the RPC and special
laws.

BOOK 1: Penalties
V. PENALTIES
Offended party cannot
A. GENERAL PRINCIPLES pardon the offender so It can be waived by the
as to relieve him of the offended party.
(Arts. 21‐24)
penalty.

Q: What are penalties?
Q: What are the measures of prevention that are
A: Penalties are the punishment imposed by lawful not considered as penalty?
authority upon a person who commits a deliberate
or negligent act which is against the law. A:
1. The arrest and temporary detention of
Q: What are the judicial conditions of penalty? accused persons (preventive
imprisonment) as well as their detention
A: by reason of insanity or imbecility or
1. Productive of suffering, without illness requiring their confinement in a
however affecting the integrity of human hospital.
personality.
2. Commensurate with the offense. 2. The commitment of a minor to a
3. Personal – no one should be reformatory institution.
punished with the crime of another.
4. Legal – it is a consequence of a judgment 3. Suspension from the employment or
according to law. public office during the trial or in order to
5. Certain – no one may escape its effects. institute proceedings.
6. Equal to all.
7. Correctional. 4. Fines and other corrective measures
which, in the exercise of their
Q: What are the penalties that may be imposed? administrative disciplinary powers,
superior officials may impose upon their
A: A felony shall be punishable only by the penalty subordinates.
prescribed by law at the time of its commission.
5. Deprivation of rights and reparations
It is a guaranty to the citizen of this country that no which the civil law may establish in penal
act of his will be considered criminal until the form. (Art. 24) E.g. Parents who are
government has made it so by law and has provided deprived of their parental authority if
a penalty found guilty of the crime of corruption of
their minor children, in accordance with
Ratio: A law cannot be rationally obeyed unless it is Art. 342 of the Civil Code.
first shown and a man cannot be expected to obey an
order that has not been given.
Q: Why are the measures above‐mentioned not

considered as penalties?
Q: What are the classes of injuries caused by a

crime?
A:

1. They are not imposed as a result of
A:
judicial proceedings. Those mentioned in
SOCIAL INJURY PERSONAL INJURY
par. 1, 3 and 4 are merely preventive
Caused to the victim of
Produced by the measures before conviction of offenders.
the crime who suffered
disturbance and alarm
damage either to his
which are the outcome of 2. The offender is not subjected to or made
person, property, honor
the offense. to suffer these measures in expiation of
or chastity.
Repaired though the or as punishment for a crime.
Repaired through
imposition of the
indemnity. Note:
corresponding penalty.
The State has an interest The State has no reason 1. Par. 1 refers to accused persons who are
in this class or injury. to insist in its payment. detained “by reason of insanity or
imbecility. It does not refer to the
confinement of an insane or imbecile who
has not been arrested for a crime.

63

2. Pars. 3 and 4 refer to administrative
suspension and administrative fines and not 2. Divisible penalties – those that have fixed
to suspension or fine as penalties for duration and are divisible into three
violations of the RPC. Fines in par. 4 do not periods. e.g. reclusion temporal down to
constitute as penalties because they are not arresto menor.
imposed by the court.
Q: What are the penalties, according to their
3. Where a minor offender was committed to a
gravity?
reformatory pursuant to Art. 80 (now P.D.

603), and while thus detained he commits a
crime therein, he cannot be considered a
A:
quasi‐recidivist since his detention was only 1. Capital
a preventive measure, whereas a quasi‐ 2. Afflictive
recidivism presupposes the commission of a 3. Correctional
crime during the service of the penalty for a 4. Light.
previous crime.
Q: How are fines imposed?
4. Commitment of a minor is not a penalty
because it is not imposed by the court in a A: Fines may be imposed as an alternative or single
judgment. The imposition of the sentence in penalty.
such a case is suspended.
Q: What are fines according to their gravity?
B. PURPOSES
A:
Q: What are the purposes for the imposition of 1. Afflictive – over P6,000
penalty under the RPC? 2. Correctional – P200 to P6,000
3. Light – less than P200
A:
1. Retribution or expiation – penalty is Q: E and M are convicted of a penal law that
commensurate with the gravity of the imposes a penalty of fine or imprisonment or both
offense. fine and imprisonment. The judge sentenced them
2. Correction or reformation – as shown to pay the fine, jointly and severally, with
by the rules which regulate the execution subsidiary imprisonment in case of insolvency.
of the penalties consisting in deprivation
of liberty. 1. Is the penalty proper? Explain.
3. Social defense – shown by its inflexible 2. May the judge impose an alternative
severity to recidivists and habitual penalty of fine or imprisonment?
delinquents. Explain.

C. CLASSIFICATION OF PENALTIES A:
(ARTS. 25‐26) 1. Imposing the penalty of fine jointly and
severally on the two convicted accused is
Q: What are the general classifications of not proper. The penalty should be
penalties? imposed individually on every person
accused of the crime. Any of the
A: convicted accused who is insolvent and
1. Principal penalties – those expressly unable to pay the fine, shall serve the
imposed by the court in the judgment of subsidiary imprisonment.
conviction.
2. Accessory penalties – those that are 2. The judge may not validly impose an
deemed included in the imposition of the alternative penalty. Although the law may
principal penalties. prescribe an alternative penalty for a
crime, It does not mean that the court
Q: What are the principal penalties, according to may impose the alternative penalties at
their divisibility? the same time. The sentence must be
definite, otherwise, the judgment cannot
A: attain finality (2005 Bar Question).
1. Indivisible penalties – those which have
no fixed duration, e.g. death and reclusion
perpetua
BOOK 1: Penalties
D. DURATION AND EFFECT OF PENALTIES A: Death penalty is imposed in the following

(Arts. 27 – 45) crimes:
1. Treason
Q: What is the duration of penalties? 2. Piracy
3. Qualified Piracy
A: 4. Qualified Bribery
PENALTY DURATION 5. Parricide
20 years and 1 day to 40 6. Murder
Reclusion perpetua
years 7. Infanticide
12 years and 1 day to 20 8. Kidnapping
Reclusion temporal
years 9. Robbery with Homicide
Prision mayor and 10. Destructive Arson
6 years and 1 day to 12
Temporary 11. Rape with Homicide
years
disqualification 12. Plunder
Prision correcional 13. Certain violations of the Dangerous
6 months and 1 day to 6
Suspension and Drugs Act
years
Destierro 14. Carnapping
1 month and 1 day to 6
Arresto mayor
months
Q: Is death penalty already abolished?
Arresto menor 1 day to 1 month

Discretionary on the
Bond to keep the peace A: No. There is still death penalty. What is
Court
prohibited under R.A. 9346 is only the imposition of

the penalty of death.
Q: What are the rules on computation of

penalties?
Note: However, the corresponding civil liability should
be the civil liability corresponding to death. (People vs.
A: Salome, G.R. No. 169077, Aug. 31, 2006)
1. Offender is in prison – duration of the
temporary penalties is from the day on In lieu of the death penalty, the following shall be
which the judgment of conviction imposed:
becomes final 1. The penalty of reclusion perpetua, when the
2. Offender not in prison – duration of law violated makes use of the nomenclature
penalty consisting in the deprivation of of the penalties of the RPC; or
liberty is from the day that the offender 2. The penalty of life imprisonment, when the
is placed at the enforcement of the law violated does not make use of the
penalty nomenclature of the penalties of the RPC.
3. Other penalties – duration is from the (Sec.2, R.A. 9346)
day on which the offender commences
to serve his sentence Q: When is death penalty not imposable?

Q: What are the distinctions between the penalty A:
of reclusion perpetua and life imprisonment? 1. Under age – offender is below 18 years
of age at the time of the commission of
A: the crime
RECLUSION PERPETUA LIFE IMPRISONMENT 2. Over age – offender is more than 70
Pertains to the penalty Pertains to the penalty years old
imposed for violation imposed for violation of 3. No court majority – when upon appeal
of the RPC special laws or automatic review of the case by the
It has fixed duration It has no fixed duration Supreme Court, the vote of eight
It carries with it It does not carry with it members is not obtained for the
accessory penalties accessory penalty imposition of death penalty

Note: Although reclusion perpetua has been given a Note: Automatic review is available only in cases
fixed duration, it has remained to be an indivisible where death penalty is imposed. (R.A. 7659)
penalty. Indivisible penalties have no durations.
Q: What is the nature of destierro?
Q: When is death penalty imposed?
A: Destierro is a principal penalty. It is a
punishment whereby a convict is banished to a
65

certain place and is prohibited from entering or 3. The right to manage his property; and
coming near that place designated in the 4. The right to dispose of such property by
sentence, not less than 25 kilometers but not to any act or any conveyance inter vivos.
extend beyond 250 kilometers
Q: What principal penalties is civil interdiction an
Note: If the convict should enter the prohibited accessory penalty?
places, he commits the crime of evasion of service of
sentence under Article 157. A: It is an accessory penalty in:
1. Death penalty if it is commuted to life
Q: In what crimes is the penalty of destierro imprisonment;
imposed? 2. Reclusion perpetua;
3. Reclusion temporal.
A:
1. In the crime of grave threat or light Q: What are the effects of penalties?
threat, when the offender is required to
put up a bond for good behavior but A:
failed or refused to do so under Article 1. Perpetual or temporary absolute
284, such convict shall be sentenced to disqualification from public office:
destierro so that he would not be able to a. Deprivation of public offices and
carry out his threat employment, even if by election;
2. In the crime of concubinage, the penalty
prescribed for the concubine is destierro b. Deprivation of the right to vote or
under Article 334 to be elected;

3. Where the penalty prescribed is arresto Note: A plebiscite is not mentioned or
Mayor, but the offender is entitled to contemplated in Art. 30, par 2
privileged mitigating circumstance and (deprivation of the right to vote),
lowering the prescribed penalty by one hence, the offender may vote in that
degree, the penalty one degree lower is exercise, subject to the provisions of
destierro. Thus, it shall be the one pertinent election laws at the time
imposed
c. Disqualification for the offices or
Q: What penalties are considered both principal public employments and for the
and accessory penalties? exercise of any rights mentioned;

A: d. Loss of right to retirement pay or
1. Perpetual or temporary absolute pension for any office formerly
disqualification held.

2. Perpetual or temporary special Note: Perpetual absolute disqualification lasts
Disqualification during the lifetime of the convict

3. Accessory penalties Temporary absolute disqualification lasts during
the term of the sentence, and is removed after
the service of the same
Note: Accessory penalties need not be stated in the

sentence. The accessory penalties follow the principal
penalty imposed for the crime as a matter of course; 2. Perpetual or temporary special
they are automatically imposed even though they are disqualification from public office,
not stated in the judgment profession or calling:
a. Deprivation of the office,
Q: What is civil interdiction? employment, profession or calling
affected;
A: Civil interdiction is an accessory penalty. Civil b. Disqualification for holding similar
Interdiction shall deprive the offender during the offices or employments perpetually
time of his sentence: during the term of the sentence.
1. The rights of parental authority, or
guardianship either as to the person or 3. Perpetual or temporary special
property of any ward; disqualification for the right of suffrage:
2. Marital authority;
BOOK 1: Penalties
a. Deprivation of the right to vote or person will not commit the violence sought to be
to be elected to any public office; prevented.
b. Cannot hold any public office during
the period of the disqualification. Q: What are the distinctions between bond to
keep peace and bond for good behavior?
Note: The purpose of which is to preserve
the purity of elections; one rendered
infamous by conviction of felony or other A:
base offenses indicative of moral turpitude BOND TO KEEP THE BOND FOR GOOD
is unfit to exercise such rights PEACE BEHAVIOR
Failure to post a bond to
4. Suspension from public office, profession keep the peace results to The legal effect of
or calling or the right of suffrage: imprisonment either for 6 failure to post a bond
a. Disqualification from holding such months or 30 days, for good behavior is
office or exercising such profession depending on whether the not imprisonment but
or calling or right of suffrage during felony committed is grave destierro under Article
the term of the sentence; or less grave on one hand, 284
b. If suspended from public office, he or it is light only
cannot hold another office having
similar functions during the period PENALTIES IN WHICH OTHER ACCESSORY
of suspension. PENALTIES ARE INHERENT
(Arts. 40 – 44)
5. Civil interdiction
a. Deprivation of the rights of parental Q: What are the inherent accessory penalties of
authority or guardianship of any principal penalties?
ward
b. Deprivation of marital authority A:
c. Deprivation of the right to manage 1. Death, when not executed by reason of
his property and of the right to commutation or pardon
dispose of such property by any act a. Perpetual absolute disqualification,
or any conveyance inter vivos and
b. Civil interdiction during 30 years, if
6. Bond to keep peace not expressly remitted in the
a. Offender must present two pardon
sufficient sureties who shall
undertake that the offender will 2. Reclusion perpetua and reclusion
not commit the offense sought to temporal
be prevented and in case such a. Civil interdiction for life or during
offense be committed, they will pay the sentence
the amount determined by the b. Perpetual absolute disqualification
court; or unless expressly remitted in the
b. Offender must deposit such amount pardon of the principal penalty
with the clerk of court to guarantee
said undertaking; or 3. Prision mayor
c. Offender may be detained if he a. Temporary absolute disqualification
cannot give the bond, for a period: b. Perpetual special disqualification
i. Not to exceed 6 months – for from suffrage, unless expressly
grave or less grave felony; or remitted in the pardon of the
ii. Not to exceed 30 days – for a principal penalty
light felony.
4. Prision correcional
Note: Bond to keep peace is different from bail bond a. Suspension from public office,
which is posted for the provisional release of a profession or calling, and
person arrested for or accused of a crime. b. Perpetual special disqualification
from suffrage, if the duration of
Under Sec. 23, RA 9262, the Court may order any imprisonment exceeds 18 months,
person against whom a protection order is issued to unless expressly remitted in the
give a bond to keep the peace, to present two pardon of the principal penalty
sufficient sureties who shall undertake that such
67

5. Arresto mayor – suspension of the right Q: What are the limitations of the pardoning
to hold office and the right of suffrage power of the President?
during the term of the sentence
A:
Note: The RPC does not provide for any accessory 1. Executive pardon can only be exercised
penalty for destierro. after conviction by final judgment
2. Executive pardon does not extend to
PREVENTIVE IMPRISONMENT cases of impeachment
(Art. 39)
Q: What is the effect of the grant of pardon on
Q: What is preventive imprisonment? the principal and accessory penalties imposed?

A: Period of detention undergone by an accused A:
where the crime with which he is charged is non‐ GR: Pardon granted in general terms
bailable or, even if bailable, he is unable to post extinguishes only the principal penalty and
the requisite bail does not include the accessory penalty

Q: When will preventive imprisonment apply? XPN:
1. When absolute pardon is granted after the
A: It will apply to all sentences regardless of the term of imprisonment has expired, it removes
duration thereof, including the so‐called perpetual all that is left of the consequences of the
penalties as long as they involve deprivation of conviction
liberty. It will also apply to destierro.
2. If pardon expressly provides, accessory
Q: When is the detention prisoner entitled to the penalty is extinguished.
full‐credit of his preventive imprisonment?

A: If the detention prisoner agrees voluntarily in Q: What are the distinctions between executive
writing to abide by the same disciplinary rules pardon and pardon by the offended party?
imposed upon convicted prisoners.
A:
In the case of youthful offender who has been
proceeded against under the Child and Youth PARDON BY THE
EXECUTIVE PARDON
Welfare Code, he shall be credited in the service of OFFENDED PARTY
his sentence with the full time of his actual Covers any crime,
detention, whether or not he agreed to abide by unless otherwise
the same disciplinary rules of the institution. Crimes against chastity
provided by the
under the RPC
Constitution or the
Q: When will he be credited only with four‐fifths laws
the time during which he has undergone Extinguishes criminal Does not extinguish
preventive imprisonment? liability criminal liability
Executive pardon does Civil liability can be
A: If the detention prisoner does not agree to not include civil liability waived
abide by the same disciplinary rules imposed upon Granted only after Should be given before
convicted prisoners conviction by final the institution of the
judgment criminal action
EFFECTS OF PARDON
(Art. 36) COSTS
(Art. 37)
Q: What is the effect of pardon by the President
on the political rights of the accused? Q: What is cost or cost of suit?

A: A: It is the expenses of litigation allowed by the
GR: Executive pardon does not restore the Rules of Court to be assessed against or to be
right to hold public office or the right to recovered by a party in litigation.
suffrage
Q: What do costs include?
XPN: When such rights are expressly restored

BOOK 1: Penalties
A: A:
1. Fees 1. When penalty imposed is higher than
2. Indemnities, in the course of judicial prision correctional.
proceedings 2. When the penalty imposed is fine and a
penalty not to be executed by
Q: To whom are costs chargeable? confinement in a penal institution and
which has no fixed period.
A: 3. For failure to pay the reparation of the
1. In case of conviction – chargeable to the damaged caused, indemnification of the
accused consequential damages, and costs of the
2. In case of acquittal – costs are de officio, proceedings.
each party bearing his own expenses
CONFISCATION AND FORFEITURES OF
Note: Payment of costs is discretionary to the courts THE PROCEEDS OR INSTRUMENTS OF
THE CRIME (Art. 45)
PECUNIARY LIABILITIES
(Art. 38) Q: What are the rules on confiscation and
forfeiture of the proceeds of the crime?
Q: What do pecuniary liabilities include?
A:
A: In the following order: 1. Every penalty imposed carries with it the
1. Reparation of the damage caused forfeiture of the proceeds of the crime
2. Indemnification of the consequential and the instruments or tools used in the
damages commission of the crime.
3. Fine 2. Confiscation and forfeiture are in favor
4. Costs of proceedings of the government
rd
3. Property of a 3 person not liable for the
Note: offense is not subject to confiscation and
1. The order of payment applies in case the forfeiture
property of the offender is not sufficient 4. Property not subject of lawful commerce
for the payment of his pecuniary liabilities. (whether it belongs to the accused or 3
rd
2. The order of payment is mandatory. person) shall be destroyed

SUBSIDIARY PENALTY Note: Confiscation and forfeiture are additional
penalties. Hence, once the sentence has become
Q: When is subsidiary penalty imposed? final, the court can no longer modify, alter, or change
it by ordering confiscation and forfeiture.
A:
1. When there is a principal penalty of Q: What are the cases when confiscation and
imprisonment or any other principal forfeiture cannot be effected?
penalty and it carries with it a fine; or
2. When penalty is only a fine. A:
1. The instruments belong to an innocent
Note: A subsidiary penalty is not an accessory third party.
penalty. 2. Such properties have not been placed
under the jurisdiction of the court.
It must be expressly stated in the sentence and 3. When it is legally or physically
convict must have been insolvent to pay the fine impossible.
and not mere refusal to pay it.
E. APPLICATION OF PENALTIES
The sentence will merely provide that in case of (Arts. 44‐77)
non‐payment of the fine, the convict shall be
required to save subsidiary penalty Q: How are penalties applied?

There shall be no subsidiary penalty for the non‐ A:
payment of damages to the offended party GR: Penalty prescribed by law in general terms
shall be imposed upon the principals for the
Q: When is subsidiary imprisonment not consummated felony
imposed?
69

XPN: When the law fixes the penalty for Interpretation:
frustrated or attempted felony
0 – represents the penalty prescribed by law,
Q: When is the graduated scale followed? which is to be imposed on the principal
in a consummated offense.
A: The graduated scale is followed when the law
prescribes a penalty lower or higher by one or more 1 – represents that penalty prescribed by law
degrees than another given penalty. must be lowered by one degree to meet
the different situations and so on with
Scale 1 numbers 2, 3, 4…
1. Death
2. Reclusion Perpetua Note: The rules in the diagram shall not apply to
3. Reclusion Temporal cases were the law prescribed the penalty for a
4. Prision mayor frustrated or attempted felony, or to be imposed
5. Prision Correccional upon accomplices or accessories.
6. Arresto Mayor
7. Destierro Q: What factors are considered in determining
8. Arresto Menor the extent of the penalty to be imposed under
9. Public censure RPC?
10. Fine
A:
Scale 2 1. Stage reached.
1. Perpetual or Temporary Absolute 2. Participations of the persons liable.
Disqualification 3. Aggravating or mitigating
2. Perpetual or Temporary Special circumstances attendant.
Disqualification
3. Suspension from public office, the right to Q: What are the rules in application of indivisible
vote and to be voted for, the profession penalties?
or calling
4. Public Censure A:
5. Fine 1. Single indivisible – it shall be applied
regardless of any mitigating or
Q: How is graduation of penalties done? aggravating circumstances

A: Graduation of penalties may be by: 2. Composed of two indivisible penalties
a. Only one aggravating circumstance
1. By Degrees: – greater penalty shall be imposed
a. Stages of execution (consummated, b. No mitigating and no aggravating
frustrated, or attempted); and circumstances – lesser penalty shall
b. Degree of criminal participation of be imposed
the offender (principal, accomplice c. Mitigating circumstance and no
or accessory). aggravating – lesser penalty shall
be imposed
2. By Periods (maximum, medium, and d. Both mitigating and aggravating
minimum) circumstances are present – court
shall offset each other
Q: What is the computation of penalties for
principals, accomplices and accessories? Note: Moral value, not numerical weight, should
prevail

A:
GR: When penalty is composed of two
CONSUMMATED FRUSTRATED ATTEMPTED
indivisible penalties, the penalty cannot be
Principal
lowered by one degree, no matter how
0 1 2 many mitigating circumstances are present
Accomplice
1 2 3 XPN: Privileged mitigating circumstances of
Accessory Arts. 68 (person under 18 years old) and 69
2 3 4 (incomplete justifying or exempting
circumstance)

BOOK 1: Penalties

Q: What are the rules in the application of A: Divide time included in the penalty into three
divisible penalties? equal portions and one portion will correspond to
one period.
A: Applies only when the penalty has three periods
1. No aggravating and no mitigating – Note: Penalties consisting in deprivation of liberty
medium period cannot be served simultaneously.

2. Only a mitigating – minimum Q: What is the three‐fold rule?

3. Only an aggravating – maximum A: The three‐fold rule provides that the maximum
duration of convict’s sentence shall not be more
4. When there are aggravating and than 3 times the length of the most severe of the
mitigating – court shall offset those of penalties imposed upon him but in no case to
one class against the other according to exceed 40 years.
their relative weight
The three‐fold rule applies only when the convict
5. Two or more mitigating and no has to serve at least 4 sentences successively.
aggravating – penalty next lower, in the
period applicable, according to the Subsidiary penalty forms part of the penalty.
number and nature of such
circumstances Subsidiary imprisonment: This shall be excluded in
computing for the maximum duration.
6. Two or more aggravating – Limitation:
No penalty greater than the maximum It applies although penalties were imposed for
period of the penalty prescribed by law different crimes at different times and under
shall shall be imposed separate information.

7. Court can determine the extent of the Note: The three‐fold rule must be addressed to the
penalty within the limits of each period, warden and not to the judge.
according to the number and nature of
the aggravating and mitigating Q: What are the penalties that may be served
circumstances and the greater or lesser simultaneously?
the extent of the evil produced by the
crime A:
1. Perpetual absolute disqualification
Note: In applying the rules for graduating penalties, 2. Perpetual special disqualification
mitigating and aggravating circumstances are 3. Temporary absolute disqualification
disregarded. Mitigating and/or aggravating 4. Temporary special disqualification
circumstances should be considered only after the 5. Suspension
penalty next lower in degree is already determined. 6. Destierro
7. Fine and bond to keep the peace
Q: What are the cases where mitigating and 8. Civil interdiction
aggravating circumstances are not considered in 9. Confiscation and payment of cost
the imposition of the penalty?
Note: The above penalties, except destierro, maybe
A: served simultaneously with imprisonment.
1. When penalty is single and indivisible
2. On felonies through negligence ADDITIONAL PENALTIES TO BE IMPOSED UPON
3. The penalty to be imposed upon a Moro CERTAIN ACCESSORIES
or other non‐Christian inhabitants. It lies (Art. 58)
in the discretion of the court
4. When penalty is only fine imposed by an Q: What are the additional penalties that could
ordinance be imposed to certain accessories?
5. When penalties are prescribed by special
laws A: Public officers who help the author of the crime
by misusing their office and duties shall suffer the
Q: What is the rule when the penalty is not additional penalties of:
composed of three periods?
71

1. Absolute perpetual disqualification‐ if A: It is a sentence with a minimum term and a
the principal offender is guilty of a grave maximum term which the court is mandated to
felony; impose for the benefit of a guilty person who is not
disqualified therefore, when the maximum
2. Absolute temporary disqualification‐ if imprisonment exceeds 1 year.
the principal offender is guilty of less
grave felony. Q: What is the purpose of the indeterminate
sentence law?
Q: What are the rules under Art. 49?
A: The purpose of the indeterminate sentence law
A: is to avoid prolonged imprisonment because it is
1. If penalty for felony committed is higher proven to be more destructive than constructive to
than that intended – Lower penalty in its offenders.
maximum period shall be imposed
Q: When does indeterminate sentence apply?
2. If penalty for felony committed is lower
than that intended – Lower penalty in its A: Indeterminate sentence applies mandatorily to
maximum period shall be imposed violations of both the RPC and special laws where
imprisonment would exceed one year, and where
3. If the act committed also constitutes an the penalty is divisible. (Sec.1)
attempt or frustration of another crime
and the law prescribes a higher penalty Q: How is the indeterminate sentence imposed?
for whether of the latter – Penalty for
the attempted or frustrated crime in its A: In imposing a prison sentence for an offense
maximum period shall be imposed. punished by the RPC or special penal laws, the
court shall sentence the accused to an
Note: Art. 49 applies in error in personae or when indeterminate sentence, which has a maximum and
there is mistake in the identity of the victim of the a minimum term based on the penalty actually
crime. imposed.

The penalty fro the intended crime and the actual RPC SPL
crime committed are compared and the lower Maximum
penalty is imposed in the maximum period. That which could be Anywhere within the
properly imposed under the range of penalty
PENALTY FOR IMPOSSIBLE CRIME RPC, considering the prescribed by the
(Art. 59) aggravating and mitigating special law, as long as
circumstances it will not exceed the
Q: What is the penalty to be imposed in case of limit of the penalty.
failure to commit a crime because the means Minimum
employed or the aims sought are impossible? Within the range of penalty Anywhere within the
one degree lower than that range of penalty
prescribed by the RPC for prescribed by the
A: The penalty for impossible crime is arresto
the felony committed, special law, as long as
mayor or fine ranging from P200‐P500.
without considering the it will not be less than
aggravating and mitigating the minimum limit of
Q: What is the basis for the imposition of penalty circumstances. the penalty under said
for impossible crime? law.

A: Note: The minimum and the maximum referred to in
1. The social danger it could cause the indeterminate sentence law are not periods.
2. Degree of criminality shown by the
offender. The term minimum refers to the duration of the
sentence which the convict shall serve as a minimum
1. Indeterminate Sentence Law to be eligible for parole.
(R.A. 4103, as amended)
The term maximum refers to the maximum limit of the
Q: What is an indeterminate sentence? duration that the convict may be held in jail.

For special laws, it is anything within the inclusive
range of prescribed penalty. Courts are given
BOOK 1: Penalties
discretion in the imposition of the indeterminate b. Reasonable probability that such
penalty. prisoner will live and remain at
liberty without violating the law;
Q: Who are disqualified from availing the benefits c. Release will not be incompatible
of the indeterminate sentence law? with the welfare of society.

A: The indeterminate sentence law shall not apply Q: When is a prisoner on parole entitled to final
to persons: release and discharge?
1. Convicted of:
a. An offense punishable with death A: If during the period of surveillance such paroled
penalty, reclusion perpetua or life prisoner shall:
imprisonment 1. Show himself to be a law abiding citizen
b. Treason, conspiracy or proposal to and;
commit treason 2. Not violate any law,
c. Misprision of treason, rebellion,
sedition, espionage The Board may issue a final certification in his favor,
d. Piracy for his final release and discharge. (Sec. 6)
2. Who are habitual delinquents
3. Who shall have escaped from Q: What are the sanctions for the violation of the
confinement or evaded sentence conditions of parole?
4. Granted conditional pardon by the Chief
Executive and shall have violated the term A: When the paroled prisoner shall violate any of
(condition) thereto the conditions of his parole, he may be:
5. Whose maximum term of imprisonment 1. Rearrested; and
does not exceed one year 2. Thereafter, he shall serve the remaining
6. Sentenced to the penalty of destierro or unexpired portion of the maximum
suspension only; Any person convicted of sentence for which he was originally
a crime but the penalty imposed upon committed to prison.
him does not involve imprisonment
7. Who are already serving final judgment Q: The penalty provided by law is 6 months to 3
upon the approval of the Indeterminate years. Decide if the following penalties are correct:
Sentence Law. (Sec. 2) 1. 2 years;
2. 1 year;
Note: Recidivists are entitled to an indeterminate 3. 10 months;
sentence. 4. 6 months to 10 months;
5. 6 months to 2 years.
Although the penalty prescribed for the felony
committed is death or reclusion perpetua, if after A:
considering the attendant circumstances, the
1. Incorrect, a straight penalty cannot be
imposable penalty is reclusion temporal or less, the
imposed under the ISLAW.
Indeterminate Sentence Law applies.

2. Correct, because if the range of the
An offender is not disqualified to avail of the benefits penalty is one year or less, you can
of the indeterminate sentence law even if the crime is impose a straight penalty of one year.
committed while he is on parole. Here ISLAW is not applicable.
3. Correct, same as (b).
Q: When is a prisoner qualified for release on 4. Incorrect, if the maximum penalty is one
parole? year or less, then it is not covered by
ISLAW. Hence, there is no need to provide
A: Whenever any prisoner shall: for maximum and minimum periods in
1. Have served the minimum penalty imposing a penalty.
imposed upon him 5. Correct, if the maximum period of the
penalty imposed is more than one year,
2. Appear to the board of indeterminate the ISLAW applies.
sentence, from the reports of the
prisoner’s work and conduct, and from F. EXECUTION AND SERVICE OF PENALTIES
the study and investigation made by the (Arts. 78‐88)
board itself that:
a. Fitted by his training for release; Q: What are the rules in case of insanity?
73

A:
A: 1. When the convict is a woman who is
1. When a convict becomes insane or pregnant or within 1 year after delivery.
imbecile after final sentence has been (Art. 83)
pronounced, the execution of such
sentence is suspended only as regards the 2. When a convict shall become insane or an
personal penalty. imbecile after final sentence has been
pronounced. (Art. 79)
2. If he recovers his reason, his sentence
shall be executed unless the penalty has Q: When is death penalty imposed but not carried
prescribed. out?

3. Even if while serving his sentence, the A:
convict becomes insane or imbecile, the 1. In case of commutation of sentence.
above provisions shall be observed.
2. If convict attains the age of 70 yrs. Old in
4. But the payment of his civil or pecuniary which case the penalty will be
liabilities shall not be suspended. automatically lowered to reclusion
perpetua.
Q: When is death penalty not imposed?
Note: Only a penalty by final judgment can be
A: executed. A judgment is final if the accused has not
1. When the convict is below 18 yrs old at appealed within 15 days or he has expressly waived in
the time of the commission of the crime. writing that he will not appeal.

2. When the convict is over 70 yrs old at the Q: In what cases is destierro imposed?
time of the commission of the crime.
A:
3. When upon appeal or automatic review 1. Death or serious physical injuries is
of the case by the Supreme Court, the caused or are inflicted under exceptional
required majority vote is not obtained for circumstances. (Art. 247)
imposition of the death penalty, in which
cases the penalty shall be reclusion 2. Failure to give bond for good behavior in
perpetua. (Art. 47) grave and light threats. (Art. 284)

Q: Is the death penalty already been abolished? 3. Penalty for the concubine in concubinage
(Art. 334)
A: No. What is prohibited under R.A. 9346 is only
the imposition of the penalty of death. 4. When, after reducing the penalty by one
or more degrees, destierro is the proper
In lieu of the death penalty, the following shall be penalty.
imposed:
1. The penalty of reclusion perpetua, when Q: How is destierro executed?
the law violated makes use of the
nomenclature of the penalties of the RPC; A:
or 1. Convict shall not be permitted to enter
the place designated in the sentence nor
2. The penalty of life imprisonment, when within the radius specified, which shall
the law violated does not make use of the not be more than 250 and not less than
nomenclature of the penalties of the RPC. 25 km from the place designated.
(Sec.2, R.A. 9346)
2. If the convict enters the prohibited area,
Note: However, the corresponding civil liability should he commits evasion of sentence.
be the civil liability corresponding to death. (People vs.
Salome, G.R. No. 169077, Aug. 31, 2006) Q: Where is the place of service of arresto menor?

Q: When is the execution of death penalty A:
suspended? 1. In the municipal jail;

BOOK 1: Penalties
2. In the house of the offender, but under

the surveillance of an officer of the law XPN: The court may, after it shall have convicted
whenever the court provides in the and sentenced a child in conflict with the law, and
decision due to the health of the upon application at any time, place the child on
offender. But the reason is not probation in lieu of service of his/her sentence
satisfactory just because the offender is a taking into account the best interest of the child.
respectable member of the community. For this purpose, Section 4 of PD 968, otherwise
(Art. 88) known as the "Probation Law of 1976", is hereby
amended accordingly. (Sec. 42, RA 9344)
1. Probation Law (P.D. 968, as amended)
Q: What is the effect of the filing for application
Q: What is probation? for probation?

A: It is a disposition under which a defendant, after A: A judgment of conviction becomes final when
conviction and sentence, is released subject to the accused files a petition for probation. However,
conditions imposed by the court and to the the judgment is not executory until the petition for
supervision of a probation officer. (Sec. 3 [a]) probation is resolved. The filing of the petition for
probation is a waiver by the accused of his right to
Note: Probation is only a privilege and its grant rests appeal the judgment of conviction.
solely upon the discretion of the court.
Ratio: When one applies for probation, he admits the
Q: What are the purposes of probation? correctness of the court’s decision. On the other hand,
if he appeals, he is not satisfied with the court’s
A: decision, thus he wants the appellate court to reverse
1. To promote the correction and or modify the decision of the lower court.
rehabilitation of an offender by providing
him with individualized treatment Q: What is the effect of probation on the civil
liability of the offender?
2. To provide an opportunity for the
reformation of a penitent offender which A: The probation law provides only for the
might be less probable if he were to serve suspension of the sentence imposed on the accused
a prison sentence by virtue of his application. It has absolutely no
bearing on civil liability. Although the execution of
3. To prevent the commission of offenses sentence is suspended by the grant of suspension,
4. To decongest our jails it does not follow that the civil liability of the
5. To save the government much needed offender, if any, is extinguished.
finance for maintaining convicts in jail.
Q: Where should the offender file his application
Q: When may probation be availed of? for probation?

A: Probation may be availed of before the convict A: An application for probation is exclusively within
begins serving sentence by final judgment provided the jurisdiction of the trial court that rendered the
that he/she did not appeal his/her conviction judgment. The courts are always required to
anymore. conduct a hearing whether a convict who is
otherwise disqualified for probation may be given
Note: The application for probation must be done the benefit of probation or not.
within 15 days from the promulgation of judgment.
Q: Who can apply for probation?
Q: If a person already perfected an appeal, can he
still avail of probation? A:
GR: Only those whose penalty does not exceed six
A: years of imprisonment are qualified for probation,
GR: No. Even if a person may be eligible for without regard to the nature of the crime. Hence, if
probation, the moment he perfects an appeal from the penalty is six years and one day, he is no longer
the judgment of conviction, he cannot avail of qualified for probation.
probation anymore. The benefit of probation must
be invoked at the earliest instance after XPN:
conviction.(Francisco v. CA, G.R. No. 108747 April 6, 1. First time minor offenders under Ra 9165
1995) 2. Violation of the omnibus election code
75

1. Sentenced to serve a maximum term of
Q: Suppose the offender was convicted of several imprisonment of more than six years;
offenses which were tried jointly and one decision 2. Convicted of subversion or any crime
was rendered where multiple sentences imposed against the national security or the public
several prison terms as penalty, each prison term order, such as alarms and scandals,
does not exceed six years although the totality of regardless of the penalty imposed;
the prison terms exceeded six years, is he qualified 3. Who have previously been convicted by
to apply for probation? final judgment of an offense punished by
imprisonment of not less than one month
A: Yes, the offender is still qualified for probation. and one day and/or a fine of not less than
The basis of determining whether the penalty two hundred pesos;
disqualifies the offender from probation or not is 4. Who have been once on probation under
the term of the individual imprisonment and not the provisions of PD 968; and
the totality of all the prison terms imposed in the 5. Who are already serving sentence at the
decision. time the substantive provisions of PD 968
became applicable pursuant to Section 33
Hence, even if the prison term would sum up to of PD 968. (Sec. 9)
more than six years, if none of the individual
penalty exceeds six years, the offender is not Note: In determining whether a convict is entitled to
disqualified from applying for probation. probation, consider not only the probationable crime,
but also the probationable penalty. If it were a non‐
Q: May a recidivist be given the benefit of probationable crime, then regardless of the penalty,
probation? the convict cannot avail of probation.

A: Q: When will the application for probation be
GR: No. denied?

XPN: If the earlier conviction refers to a crime, A: The court shall deny the application for
the penalty of which does not exceed 30 days of probation if it finds:
imprisonment or a fine of not more than P200,
such convict is not disqualified from the benefit 1. That the offender is in need of
of probation. Hence, even if he would be correctional treatment that can be
convicted subsequently of a crime embraced in provided most effectively by his
the same title of the RPC as that of the earlier commitment to an institution;
conviction, he is not disqualified from availing of 2. That there is an undue risk that during the
probation provided that the penalty of the period of probation the offender will
current crime committed does not go beyond six commit another crime; or
years and the nature of the crime committed by 3. Probation will depreciate the seriousness
him is not against public order, national security of the crime.
or subversion.
Q: What are the kinds of conditions imposed
Q: What are the criteria for placing an offender on under the probation law?
probation?
A:
A: In determining whether an offender may be 1. Mandatory conditions
placed on probation, the court shall consider: 2. Discretionary conditions

1. All information relative, to the character, Q: What are the mandatory conditions?
antecedents, environment, mental and
physical condition of the offender; and A: They are:
2. Available institutional and community 1. The convict must report to the Probation
resources. Officer (PO) designated in the court order
approving his application for probation
Q: Who are disqualified from availing the benefits within 72 hours from receipt of notice of
of the probation law? such order approving his application; and
2. The convict, as a probationer, must report
A: The benefits of the probation law shall not be to the PO at least once a month during
extended to those: the period of probation unless sooner.

BOOK 1: Penalties
Note: These conditions are mandatory, hence, the than one year shall not exceed 6 years

moment any of these is violated, the probation is The sentence imposes The period of probation
terminated. only a fine and the shall be twice the total
offender is made to serve number of days of
Q: What are the discretionary conditions? subsidiary imprisonment subsidiary imprisonment

A: The trial court which approved the application Q: What are the sanctions imposed if the
for probation may impose any condition which may probationer commits any serious violation of the
be constructive to the correction of the offender, conditions of probation?
provided the same would not violate the
constitutional rights of the offender and subject to A:
these two restrictions: 1. The court may issue a warrant for the
arrest of a probationer.
1. The conditions imposed should not be
unduly restrictive of the probationer; and 2. If violation is established, the court may:
2. Such condition should not be a. Revoke his probation; or
incompatible with the freedom of b. Continue his probation and modify
conscience of the probationer. the conditions thereof. This order is
not appealable.
Q: What are the rules on the grant of probation?
3. If probation is revoked, the probationer
A: shall serve the sentence originally
1. After having convicted and sentenced a imposed.
defendant, the trial court may suspend
the execution of the sentence, and place Q: When may probation be terminated?
the defendant on probation, upon
application by the defendant within the A: The court may order the final discharge of the
period for perfecting an appeal. probationer upon finding that, he has fulfilled the
terms and conditions of probation.
2. The filing of application for probation
operates as a waiver of the right to Q: What are the effects of the termination of
appeal. probation?

3. Probation may be granted whether the A:
sentence imposed a term of 1. Case is deemed terminated.
imprisonment or fine only. 2. Restoration of all civil rights lost or
suspended.
4. The application shall be filed with the trial 3. Fully discharges liability for any fine
court, and the order granting or denying imposed.
probation shall not be appealable.
Note: Any person convicted for drug trafficking or
5. Accessory penalties are deemed pushing under RA 9165, regardless of the penalty
suspended once probation is granted. imposed by the Court, cannot avail of the privilege
granted by the Probation Law or Presidential Decree
Q: What is the remedy of an offender if his or her No. 968, as amended.(Sec. 24, RA 9165)
application for probation is denied?
Note: Probation is not coterminous with its period.
A: An order denying probation is not appealable, The mere expiration of the period for probation does
hence, the remedy is certiorari. not, ipso facto, terminate the probation. There must
be an order issued by the court discharging the

probationer. If the accused violates the condition of
Q: What is the period of probation?
the probation before the issuance of said order or

court, the probation may be revoked by the Court.
A:

PENALTY
PERIOD OF PROBATION Q: Efren, a bus driver, was charged with reckless
IMPOSED
imprudence resulting in homicide for the death of
The period of probation
Imprisonment for not John. The trial court convicted Efren of the crime
shall not exceed two
more than one year charged. Efren applied for probation which was
years
Imprisonment of more The period of probation given due course by the trial court. Thereafter,
77

Efren filed an appeal regarding the award of Note: The exemption from criminal liability herein
damages. The trial court denied to give due course established does not include exemption from civil
to the notice of appeal because it has already liability, which shall be enforced in accordance with
granted probation and that such is deemed as a existing laws
waiver of the right of the accused to appeal. May
the accused file an appeal regarding the award of Q: What is juvenile justice and welfare system?
damages notwithstanding the grant of probation?
A: Juvenile Justice and Welfare System" refers to a
A: Yes, although the appeal in this case involved system dealing with children at risk and children in
only the civil aspect of the trial court’s judgment. It conflict with the law, which provides child‐
is significant to note that the civil liability of the appropriate proceedings, including programs and
accused is not part of the penalty for the crime services for prevention, diversion, rehabilitation, re‐
committed. It is personal to the victim. The integration and aftercare to ensure their normal
probation law provides only for the suspension of growth and development. (Sec. 4, RA 9344)
the sentence imposed on the accused by virtue of IMINAL LIABILIT
his application for probation. It has absolutely no EFFECTS OF THE ATTENDING MITIGATING
bearing on civil liability. Although the execution of AND/OR AGGRAVATING CIRCUMSTANCES AND
sentence is suspended by the grant of probation, it OF HABITUAL DELINQUENCY
does not follow that the civil liability of the (Art. 62)
offender, if any, is extinguished. (Salvan v. People,
G.R. No. 153845, Sept. 11, 2003) Q: Who shall be considered as a habitual
delinquent?
2. Juvenile Justice and Welfare Act of 2006
(R.A. 9344) A: For the purpose of this article, a person shall be
deemed to be habitual delinquent, if with in a
Q: What is the meaning of “a child in conflict with period of ten years from the date of his release or
the law”? last conviction of the crimes of serious or less
serious physical injuries, robbery, theft, estafa or
A: It refers to a child who is alleged as, accused of, falsification, he is found guilty of any said crimes a
or adjudged as, having committed an offense under third time or oftener.
Philippine laws.
Q: What are the effects of aggravating
Note: The child in conflict with the law shall enjoy the circumstance, mitigating circumstance and
presumption of minority. He/she shall enjoy all the habitual delinquency?
rights of a child in conflict with the law until he/she is
proven to be 18 years old or older. A:
1. Aggravating circumstances (generic and
Q: What is the minimum age of criminal specific) – increases the penalty, without
responsibility? however, exceeding the maximum
provided by law
A:
2. Mitigating circumstances – diminishes
the penalty
CRIMINAL
AGE BRACKET TREATMENT
LIABILITY
3. Habitual delinquency – increases the
The child shall be
penalty because of multiple convictions
15 years old or subjected to an
Exempt in certain specific crimes or recidivism,
below intervention
program which is generally implied in habitual
Above 15 but The child shall be delinquency and imposes an additional
below 18, who subjected to an penalty
Exempt
acted without intervention
discernment program Q: What are the rules on aggravating and
Such child shall be mitigating circumstances?
Above 15 but subjected to the
below 18, who Not appropriate A:
acted with exempt proceedings in 1. Aggravating circumstances that are not
discernment accordance with taken into account to increase the
R.A. 9344 penalty are those which:

BOOK 1: Penalties
a. In themselves constitute a crime

specially punished by law; or A:
b. Are included by the law in defining 1. Upon 3rd conviction – Prision correcional
a crime and prescribing the penalty in its medium and maximum periods
th
therefore; or 2. Upon 4 conviction – Prision mayor in its
c. Are inherent in the crime. medium and minimum periods
th
3. Upon 5 or additional conviction –
2. Aggravating or mitigating circumstances Prision mayor in its minimum period to
that serve to aggravate or mitigate the Reclusion temporal in its minimum
liability of the offenders to whom such period
circumstances are attendant are which
arise from: Note: Total penalties not to exceed 30 years.
a. The moral attributes of the
offender; or Total penalties refer to the penalties:
b. From his private relations with the 1. For the last crime of which he is found
offended party; or guilty;
c. From any other personal cause. 2. Additional penalty.

3. Circumstances that serve to aggravate or Q: What are the distinctions between habitual
mitigate the liability of those persons delinquency and recidivism?
only who had knowledge of them at the
time of the execution of the act or their A:
cooperation therein are those which
consist: HABITUAL DELIQUENCY RECIDIVISM
a. In the material execution of the act;
or As to the crimes committed
b. In the means employed to
accomplish it. Offender had been Sufficient that accused on
convicted of any of the the date of trial shall have
Q: What are the requisites of habitual crimes of: serious been previously convicted
delinquency? physical injuries, by final judgment of
robbery, theft, estafa, or another crime embraced
A: falsification. in the same title of RPC.
1. Offender had been convicted of any of
the crimes of: As to period of time the crimes are committed
a. Serious or less serious physical
injuries Offender found guilty of
No period of time
b. Robbery any of the crimes within
between the former
10 years from his last
c. Theft conviction and the last
release or last
d. Estafa conviction.
conviction.
e. Falsification
As to number of crimes committed
2. After that conviction or after serving his
sentence, he again committed, and, 3rd conviction or oftener. 2nd conviction is sufficient.
st
within 10 years from his release or 1
As to effects
conviction, he was again convicted of
If not offset by mitigating
any of the said crimes for the second
An additional penalty is circumstances, serves to
time. imposed increase the penalty only
to the maximum
3. After conviction of, or after serving
nd
sentence for, the 2 offense, he again Q: Juan de Castro already had three (3) previous
committed, and, within 10 years from convictions by final judgment for theft when he
his last release or last conviction, he was was found guilty of Robbery with Homicide. In
again convicted of any of said offenses, the last case, the trial judge considered against
rd
the 3 time or oftener. the accused both recidivism and habitual
delinquency. The accused appealed and
Q: What are the additional penalties for habitual contended that in this last conviction, the trial
delinquency? court cannot consider against him a finding of
79

recidivism and, again, of habitual delinquency. Is imprisonment by virtue of final judgment. (1991
the appeal meritorious? Explain. Bar Question)

A: No, the appeal is not meritorious. Recidivism
and habitual delinquency are correctly considered
in this case because the basis of recidivism is
different from habitual delinquency.

Juan is a recidivist because ha had been previously
convicted by final judgment for theft and again
found guilty for robbery with homicide, which are
both crimes against property, embraced under the
same Title (Title Ten, Book Two) of the Revised
Penal Code. The implication is that he is
specializing in the commission of crimes against
property, hence aggravating in the conviction for
robbery with homicide.

Habitual delinquency, which brings about an
additional penalty when an offender is convicted a
third time or more for specified crimes, is correctly
considered because Juan had already three (3)
previous convictions by final judgment for theft
and again convicted for robbery with homicide.
And the crimes specified as basis for habitual
delinquency includes, inter alia, theft and robbery.
(2001 Bar Question)

Q: A was charged with homicide. During the trial,
uncontradicted evidence consisting of medical
certificates were presented showing that the
accused had sustained injuries in ten (10)
previous occasions while engaged in fisticuffs
with different persons. He was also confined at
the National Mental Hospital for mental ailment
diagnosed as “homicidal and suicidal instincts”.
During his second confinement thereat, he
escaped. Upon conviction, the prosecutor
objected to the application of the Indeterminate
Sentence Law contending that the accused is a
habitual delinquent and an escapee from the
National Mental Hospital. If you are the Judge,
rule on the objection.

A: The objection should be overruled. A could not
be legally considered a habitual delinquent.
Habitual delinquency cannot be validly invoked
without being alleged in the information and
proven during trial. Besides there is no indication
that A was convicted within ten (10) years from
last conviction or release, three times, or oftener
of the crimes of robbery, theft, estafa, physical
injuries, or falsification. Being an escapee from a
mental hospital will not disqualify him from the
application of the ISL as Section 2 thereof
contemplates having escaped from confinement
or evaded sentence. Confinement presupposes
BOOK 1: Modification And Extinction of Criminal Liability
VI. MODIFICATION AND EXTINCTION OF CRIMINAL of civil liability exists as provided under

LIABILITY Art. 1157 Civil Code.

Q: How is criminal liability extinguished? Note: However, civil liability arising from sources other
than the crime committed survives and may be
A: Criminal liability may be extinguished either, pursued in a separate civil action. (People v. Bayotas,
totally or partially. G.R. no. 152007, Sept. 2, 1994)

Q: What are circumstances which totally
extinguish criminal liability? A. PRESCRIPTION OF CRIMES UNDER THE RPC
(Art. 90)
A:
1. Death of the convict as to personal Q. What is prescription of crimes?
penalties; and as to pecuniary penalties,
liability thereto is extinguished only when A: Prescription of crimes is the forfeiture or loss of
death of the offender occurs before final the right of the State to prosecute the offender
judgment after the lapse of certain time.

Note: Extinguishment of criminal liability is a GR: Prescription of the crime begins on the day
ground for motion to quash. the crime was committed.

The death of the offended party however XPN: When the crime was concealed,
does not extinguish criminal liability of the prescription would only commence from the
accused because it is a crime against the time the offended party or the government
State. learns of the commission.

2. Service of sentence CRIMES PRESCRIPTION
3. Amnesty which completely extinguished Crimes punishable by
the penalty and all its effects death, Reclusion
20 years
4. Absolute pardon perpetua, Reclusion
5. Prescription of the crime temporal
6. Prescription of the penalty Crimes punishable by
15 years
7. Marriage of the offended woman as in other afflictive penalties
the crimes of rape, abduction, seduction 10 years, except those
and acts of lasciviousness Crimes punishable by punishable by arresto
other correctional mayor wherein the
Q: What are circumstances which totally penalties prescriptive period is 5
extinguish criminal liability? years.
Libel or other similar
1 year
offenses
A:
Oral defamation and
1. Conditional pardon 6 months
slander by deed
2. Commutation of sentence
Light offenses 2 months
3. For good conduct allowances which the

culprit may earn while he is serving
Note: In computing the period, the first day is
sentence
excluded and the last day included. Period is subject to
4. Parole leap years.
5. Probation
Prescription does not take away the court’s jurisdiction
Q: What is the effect of offender’s death? but only absolves the defendant and acquits him.

A: When fine is imposed as an alternative penalty to
1. If before final judgment – his death imprisonment, and the fine constitutes a higher
extinguishes both his criminal and civil penalty than the penalty of imprisonment, the basis of
liabilities. the prescriptive period is the fine.

2. If while the case is on appeal – case on Q: What is the rule where the last day of
appeal will be dismissed. Offended party prescriptive period falls on a Sunday or legal
may file a separate civil action under the holiday?
Civil Code if any other basis for recovery
81

A: Where the last day of the prescriptive period for one month or both
filing an information falls on a Sunday or legal Violations of municipal ordinances 2 months
holiday, the information could no longer be filed on
the next day as the crime has already prescribed. Q: What are the rules in computation of
prescription of offenses?
Q: What will be the basis of computation if the
penalty is a compound one? A:
1. Period of prescription commences to run
A: The highest penalty is the basis of the application from the day the crime is discovered by
of the rules contained herein. the offended party, the authorities or
their agents.
Q: Suppose, in 1980, A commits a crime, then goes
into hiding, he resurfaces 20 years later, and the 2. It is interrupted by the filing of the
government finds a witness, can they institute a complaint or information.
case?
3. It runs again when such proceedings
A: No. However, if the accused left for the United terminate without the accused being
States, yes, he can be prosecuted still. convicted or acquitted or are unjustifiably
stopped for any reason not immutable to
The mere filing of a complaint with: 1. Chief of him.
Police; 2. office of the NBI; or 3. Office of the
Provincial Director of PNP does not interrupt the 4. It shall not run when offender is absent
prescriptive period. from the Philippines.

Ratio: They do not constitute the court. They are Note: If dismissal is final, accused can no longer be
neither part of the judiciary nor part of the courts of prosecuted even if still within the prescriptive period,
justice. on the ground of double jeopardy.

Q: What is the effect if the accused fails to move The filing of the complaint or information in court for
to quash before pleading? preliminary investigation interrupts the running of the
prescriptive period.
A: The accused is deemed to have waived all
objections, except if the grounds are: The term "proceedings" should now be understood
either executive or judicial in character: executive
1. Facts charged do not constitute an when it involves the investigation phase and judicial
offense when it refers to the trial and judgment stage. With
this clarification, any kind of investigative proceeding
2. Court has no jurisdiction instituted against the guilty person which may
ultimately lead to his prosecution should be sufficient

to toll prescription. (Panaguiton, Jr. v. DOJ, GR 167571,
3. Criminal action or liability has been
Nov. 25, 2008)
extinguished

4. The averments, if true, would constitute a
B. PRESCRIPTION OF PENALTIES
legal excuse or justification (Sec.9, Rule

117, Rules of Court)
Q: What is prescription of penalties?

A: Prescription of penalties is the loss or forfeiture
PRESCRIPTION OF OFFENSES PUNISHABLE UNDER
of the right of the government to execute the final
SPECIAL LAWS AND MUNICIPAL ORDINANCES
sentence after the lapse of certain time.

IMPOSABLE PENALTY PRESCRIPTION
Q: When will the prescriptive period commence to
Imprisonment of six (6) years or
12 years run?
more

Imprisonment of two years but less
8 years A: Prescriptive period of penalties will only
than six years
Offenses under the NIRC 5 years
commence to run from the moment the convict
Imprisonment of over one month evades the service of sentence. (Art. 91)
4 years
but less than two years
Fine or imprisonment of not over 1 year Q. When will such period be interrupted?
BOOK 1: Modification And Extinction of Criminal Liability
Starts counting upon Starts counting upon the
A: It is interrupted when the convict; discovery of the escape or evasion of
1. Gives himself up commission of the crime service of sentence
2. Is captured Absence from the
3. Goes to a foreign country with which the Mere absence from the Philippines interrupts the
Philippines has no extradition treaty; or Philippines interrupts the period only when he goes
4. Commits any crime before the expiration running of the to a foreign country
of the period of prescription prescription without extradition treaty
with us.

Commission of another
Q: What are the situations which do not follow Commission of another
crime before the
Art. 91? crime before expiration
expiration of the period
of the period interrupts
does not interrupt
A: the prescription.
prescription.
1. Continuing crimes – prescriptive period
will start to run only at the termination of Q: One fateful night in January 1990, while 5‐year
the intended result). old Albert was urinating at the back of their house,
he heard a strange noise coming from the kitchen
2. In crimes against false testimony – of their neighbor and playmate, Ara. When he
prescriptive period is reckoned from the peeped inside, he saw Mina, Ara’s stepmother,
day a final judgment is rendered and not very angry and strangling the 5‐year old Ara to
at the time when the false testimony was death. Albert saw Mina carry the dead body of
made). Ara, place it inside the trunk of the car and drive
away. The dead body of Ara was never found.
3. Election offense – Mina spread the news in the neighborhood that
a. If discovery of the offense is Ara went to live with her grandparents in Ormoc
incidental to judicial proceedings, City. For fear of his life, Albert did not tell anyone,
prescription begins when such even his parents and relatives, about what he
proceeding terminates; or witnessed. Twenty and a half (20 & ½) years after
b. From the date of commission of the the incident, and right after his graduation in
offense. Criminology, Albert reported the crime to NBI
authorities. The crime of homicide prescribes in 20
Q: What is the effect of filing an amended years. Can the state still prosecute Mina for the
complaint or information upon period of death of Ara despite the lapse of 20 and 1/2 years?
prescription? Explain.

A: If the amendment charges a different crime, the A: Yes, the State can still prosecute Mina for the
date of amended complaint or information should death of Ara despite the lapse of 20 and ½ years.
be considered. If it is merely a correction of a Under Article 91, RFC, the period of prescription
defect, the date of the original complaint or commences to run from the day on which the crime
information should be considered. is discovered by the offended party, the authorities
or their agents. In this case at bar, the commission
IMPOSABLE PENALTY PRESCRIPTION
of the crime was known only to Albert, who was not
Death,
the offended party nor an authority or an agent of
reclusion perpetua, 20 years
an authority. It was discovered by the NBI
reclusion temporal
authorities only when Albert revealed to them the
Other afflictive penalties 15 years
commission of the crime. Hence, the period of
Correctional penalties
10 years prescription of 20 years for homicide commenced
except arresto mayor
Light penalties 1 year
to run only from the time Albert revealed the same
to the NBI authorities. (2000 Bar Question)

Q: What are the distinctions between prescription

of crimes and prescription of penalties?
ALLOWANCE FOR GOOD CONDUCT

(Art. 97)
A:

PRESCRIPTION OF PRESCRIPTION OF
CRIMES PENALTIES IMPRISONMENT DEDUCTION
Loss of forfeiture of the 5 days for each month of
Loss or forfeiture of the First 2 years
State to enforce good behavior
State to prosecute. 3‐5 years 8 days for each month of
judgment
83

good behavior
10 days for each month of
6‐10 years
good behavior
15 days for each month of
11 and so on years
good behavior


What Is Good Legal Writing and Why Does It Matter

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

What Is Good Legal Writing and Why Does It Matter

Загружено:

Авторское право:

Доступные форматы

BOOK 1: FUNDAMENTAL PRINCIPLES

accredited foreign diplomatic

2. Freedom of action on the part of the 2. Specific criminal intent – Is not presumed

offenses are fixed or specified, that is, grave and distinctly punished under the Revised Penal

Note: In the determination of the state of mind of the A:

3. Under Sec 59 with regard to exemption Quasi offenses under Article 365 are committed by

A: 3. Such information and testimony can be

Q: Upon learning that the police wanted him for

2. Place of commission 18. Unlawful entry

Note: Teachers, professors, supervisors of public and

A: the principal by direct participation before the

greater audacity and hence the law punishes him

the firearm is low‐powered or high‐ ALTERNATIVE CIRCUMSTANCES

commit treason, sedition, coup d’ etat or rebellion

D. DURATION AND EFFECT OF PENALTIES A: Death penalty is imposed in the following

2. In the house of the offender, but under

Note: These conditions are mandatory, hence, the than one year shall not exceed 6 years

a. In themselves constitute a crime

VI. MODIFICATION AND EXTINCTION OF CRIMINAL of civil liability exists as provided under

Вам также может понравиться