INTEGRATED LECTURE

The subject is – Criminal law. It is that branch of municipal law which defines
crimes, treats of their nature and provides for their punishments.

What are the sources of Criminal law? There is the Revised Penal Code, which is
Act No. 3815 as amended, approved on 8 December 1930 and which took effect on 1
January 1932 (Article 1). You also have the acts of the Philippine Legislature and such
other laws like Presidential Decrees punishing certain offenses.

Penal legislation is generally based on two (2) schools of thought or theories of

penology – (a) the classical or juristic theory [where the basis of criminal responsibility is
the existence of the offender’s free will and the penalty for his criminal act is by way of
retribution] , and (b) the positivist or realistic theory [where the basis of criminal liability
is the sum of social and economic phenomena to which the actor was exposed, hence, the
penalty imposed is for preventive or corrective purposes]. While the Revised Penal Code
clearly belongs to the classical school, some of its provisions draw from or are influenced
by the positivist theory of penology, like, Article 4 (2) on impossible crime and Article 62
(5) on habitual delinquency.

What you are studying is the Revised Penal Code, which is divided into 3 parts –
(1) Articles 1 to 20, which are the Principles affecting criminal liability; (2) Articles 21 to
113, which involve Penalties, including criminal and civil liability; and, (3) Articles 114
to 366, which are the Specific Felonies and their Penalties.

Now you have to know what a crime is. A crime is the commission or omission
by a person having capacity, of any act, which is either prohibited or compelled by law
and the commission or omission of which is punishable by a proceeding brought in the
name of the government whose law has been violated (Wharton’s Criminal Law, 1957,
Vol. 1, p. 11).

So that, if the crime is punished by the Revised Penal Code, it is called a felony; if
by a special law, it is called an offense; and, if by an ordinance, it is called an infraction
of an ordinance. Thus, in this lecture, if the word “crime” is used, we mean “felonies”.

Article 3 tells you that a felony is an act or omission punishable by law, i.e., the
Revised Penal Code. If what the offender committed is an act or omission punishable by
a special law, then you don’t apply the Revised Penal Code unless such act or omission is
punishable by both legislations. An example would be the issuance of a check without
sufficient funds under Article 315 (2-d), which is also punishable under Batas Pambansa
Bilang 22.

What are the elements of a felony? (1) It must be an act or omission; (2) It must
be punishable by the Revised Penal Code; and, (3) It must have been committed by either
dolo (i.e., with deliberate intent) or culpa (i.e., by negligence or imprudence).
 What are the elements of dolo? You have (1) freedom; (2) intelligence; and, (3)
intent. What are the elements of culpa? You have (1) freedom; (2) intelligence; and, (3)
negligence or imprudence.

Thus, when you are asked in the bar – what is the distinction between dolo and
culpa? The answer would be: while both are voluntary, dolo is intentional, whereas
culpa is not. Where there is intent, there can be no negligence (People vs. Guillen, 47
O.G. 3433, citing People vs. Nanquil, 43 Phil. 232). In other words, in culpable felonies,
intent is replaced by fault. In the case of People vs. Pugay, et al., G.R. No. 74824, 17
November 1988, Pugay doused the victim with gasoline during their merry-making. His
co-accused, Samson, arrived and set fire to the victim who died as a consequence. Pugay
was convicted of homicide through reckless imprudence as common sense should have
told him that the victim would be placed in danger by his act. Samson, who said that he
only wanted to burn the clothes of the victim, was convicted of intentional homicide as,
by virtue of Article 4, he is responsible for all the natural consequences of his acts.

Although not expressly stated in the law, the act or omission must be voluntary.
As you will learn later on, if the act is not voluntary, the actor is exempted from criminal
liability.

As to the element of “intent”, a general criminal intent, as a rule, is sufficient. In

certain felonies, however, a specific intent is required, like, intent to kill in homicide,
murder and parricide; intent to gain in theft and robbery; lewd designs in crimes against
chastity; and intent to betray in treason. Criminal intent is revealed by the overt acts of
the offender (People vs. Mabug-at, 51 Phil. 967) and is presumed from the commission of
an unlawful act (People vs. Sia Teb Ban, 54 Phil. 52 and related cases).

Distinguish intent from motive. Motive is the reason why the accused committed
the felony while criminal intent is his purpose for adopting the particular means to
achieve his objective. Unlike criminal intent, motive is not an element of the crime that
must be proved in order to convict an accused (People vs. Aposaga, G.R. No. L-32477,
30 October 1981). Proof of motive is relevant (remember this word when you take up the
Rules on Evidence; if your opponent will object to your presentation of evidence as to
motive, the objection will be denied) in the following:

(1) where the identity of the assailant is in question [U.S. vs. Mann, 4 Phil.
561);
(2) to determine the voluntariness of the criminal act [People vs. Taneo, 58
Phil. 255];
(3) to see whether an accused is sane or not [People vs. Bascos, 44 Phil.
204];
(4) to determine who started an aggression or from whom the unlawful
aggression commenced, specially where the accused invoked self-defense
[U.S. vs. Laurel, 22 Phil. 252];

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 (5) to determine whether or not a shooting was intentional or accidental
[People vs. Martinez-Godinez, 106 Phil. 597];
(6) to determine the specific nature of the crime [People vs. Geronimo,
100 Phil. 90 – in this case, it was necessary to see whether the murder
committed by the accused was in furtherance of the then rebellion. For, if
it was, then murder would be absorbed in rebellion; if it was not in
furtherance of the rebellion, then the accused can be held liable for two
separate crimes. You also have People vs. Cadag, et al., G.R. No. L-
13830, 31 May 1961 – in this case, injuries were inflicted upon a person in
authority who, at that time, was not in the actual performance of his duties.
The court had to determine whether the motive of the accused in hitting
the victim was “by reason of the previous performance of official duties”
by the latter. For, in that case, it would be direct assault; if not, the crime
would be just physical injuries].

Now, you have Article 4 which tells you how criminal liability is incurred. Like I
told you, however, determine first whether the offender would indeed be liable under the
Revised Penal Code.

Ask yourselves the following - (1) Who committed the felony? (2) Where was the
crime committed? (3) When was the crime committed? Proceed, therefore, to Article 2.

Criminal law has the following characteristics: (a) Generality, which means that
the law is binding on all persons who reside or sojourn in the Philippines regardless of
age, sex, color, creed, religion or personal circumstances; (b) Territoriality, which means
that the law is applicable to all crimes committed within the limits of Philippine territory,
including its atmosphere, interior waters and maritime zone; and, (3) Prospectivity or
Irretrospectivity, which means that the law does not have any retroactive effect except if
it favors the offender unless he is a habitual delinquent (Article 22) or if the law provides
otherwise.

As to Who committed the felony – the rule of general application of penal laws
does not apply to those cases so provided by public international law (Article 14 of the
New Civil Code), by treaty stipulations or by a law of preferential application (like the
Constitution).

Thus, sovereigns or heads of states, ambassadors, ministers plenipotentiary and

ministers-resident, charges d’affairs, and attaches are exempt from criminal prosecution.
Consuls and consular officials, however, are not covered (Scheckenburger vs. Moran, et
al., 63 Phil. 249).

As to Where the felony was committed – the rule is that the Revised Penal Code
has no application outside of Philippine jurisdiction. The exceptions are stated in Article
2. Thus –

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 (1) The Philippine ship or airship must be duly registered under Philippine laws.
It then becomes an extension of Philippine national territory. Now, if the Philippine ship
or airship is within the territory of a foreign country when a crime is committed, the laws
of that country will apply as a rule. If the foreign country does not prosecute the offender
who commits a crime on board a Philippine ship or airship, our courts are not forbidden
from taking cognizance of the same.

(2) The reason for the exceptions provided in paragraphs (b) [i.e., the forging or
counterfeiting of any Philippine coin, currency note, any obligation or security] and (c)
[i.e., the introduction into the country of the forged or counterfeit coins, notes, obligations
and securities] of Article 2 is to maintain and preserve the financial credit and stability of
the state.

(3) The offense committed by a public officer abroad must refer to the discharge
of his functions. Like, if a disbursement officer of the Philippine Embassy would commit
malversation, bribery or falsification, then he can be tried here.

Note, however, that the exception stated in paragraph (d) of Article 2 does not
apply to public officers of the Philippine government who, under public international law,
enjoy diplomatic immunity.

(4) The reason for the exception in paragraph (e) of Article 2 [i.e., the commission
of crimes against national security and the laws of nations] is to safeguard the existence
of the state. When you get to specific felonies, you will learn that piracy and mutiny are
crimes against the law of nations, while treason and espionage are crimes against the
national security of the state.

A bar favorite – What if a crime is committed on board a foreign vessel while in

Philippine waters? What are the rules to follow as regards jurisdiction? Like in our quiz,
distinguish between a warship and a merchant vessel –

a. If the foreign vessel is a warship, our courts have no jurisdiction for the reason
that the warship is an extension of the country to which it belongs and is not subject to
the laws of another state;

b. If the foreign vessel is a merchant vessel, there are two (2) rules –

(1) The French Rule: a crime committed on board a foreign

merchant vessel while on the waters of another country is not triable in
that country unless it affects the peace and security of that country or
endangers its safety.

(2) The English or Anglo-American Rule: a crime committed on

board a foreign merchant vessel while on the waters of another country is
triable in that country unless it affects merely the internal management of
such vessel.

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 Remember – when a crime is committed on board a foreign merchant vessel, such
must affect a breach of public order in order to be triable in the Philippines. So, if the
foreign merchant vessel is merely in transit in Philippine waters, apply the English Rule
if the crime involves a breach of public order (U.S. vs. Wong Cheng, 46 Phil. 729 –
smoking opium on board the vessel while in Manila Bay). If it does not involve a breach
of public order, then do not apply the English Rule, e.g., mere possession of opium on
board a vessel unless the drug is landed in the Philippines (U.S. vs. Look Chaw, 18 Phil.
573) or where the foreign vessel is not in transit and a Philippine port is its destination
(U.S. vs. Ah Sing, 36 Phil. 978). In both cases, Philippine courts have jurisdiction.

What about a continuing crime committed on board a foreign merchant vessel that
sailed from a foreign port and which enters Philippine territory? Apply U.S. vs. Bull, 15
Phil. 7 – if the crime is not punished in the foreign country where the vessel came from
but is punishable under our laws, our courts will have jurisdiction.

As to When the felony was committed – find out if (1) there is a law punishing
the act or omission. If there is none, then there is no crime under the principle – nullum
crimen, nulla poena sine lege; (2) the law punishing the act or omission has been totally
and/or expressly repealed. In such case, the crime is obliterated and will deprive a court
jurisdiction to try the same. If the perpetrator is already serving sentence, the total and/or
express repeal will favor him except under Article 22. What is the repeal is just an
implied one? The rule is that the accused can invoke the provisions of the repealing law
if it favors him; (3) criminal liability has already been extinguished by prescription (see
Article 89, par. 5).

At this point, if the person who committed the crime is subject to the provisions of
the Revised Penal Code, if the Philippine courts have jurisdiction over the offense, and if
the crime is still punishable under the Revised Penal Code, proceed to Articles 11 and 12
to see if the acts of the offender are in accord with law or if the offender is exempt from
criminal liability.

If the act of the offender is in accordance with law, there is no crime and, hence,
there is no criminal liability. There is also no civil liability, as a rule, because the crime
as the source of the obligation is not present (see Article ___ of the New Civil Code).

The justifying circumstances under Article 11, by subject, are as follows: (1) self-
defense; (2) defense of relatives; (3) defense of strangers; (4) state of necessity; (5) the
fulfillment of a duty; and, (6) the obedience to superior order.

Another bar favorite, simply because you can’t be a lawyer without knowing this
– the elements of self-defense: (a) unlawful aggression; (b) reasonable necessity of the
means employed to prevent or repel it; and, (c) lack of sufficient provocation on the part
of the person defending himself.

Unlawful aggression is of two kinds: (1) actual; and, (2) imminent.

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 Real aggression presupposes an act positively strong, showing the wrongful intent
of the aggressor, which is not merely a threatening or intimidating attitude but a material
attack (People vs. Yncierto, 44 O.G. 2774). Actual unlawful aggression means an attack
with physical force or with a weapon. An example of actual unlawful aggression is a slap
on the face (People vs. Sabio, 19 SCRA 901).

In your mid-term exam, remember the problem where the deceased hurled a piece
of wood at the accused? Does it constitute unlawful aggression? Of course (People vs.
Dolfo, 46 O.G. 1621). In the same problem, what about the insult that the accused hurled
at the deceased? Is it unlawful aggression? Remember this – a mere insult, without any
physical assault, is not unlawful aggression but a mere provocation, which if sufficient,
can be mitigating (U.S. vs. Carrero, 9 Phil. 544; People vs. Dolfo, ibid.; and, People vs.
Lopez, L-28583, 24 April 1974).

Imminent unlawful aggression means an attack that is impending or at the point of

happening. It must not consist in a mere threatening attitude. It must not be imaginary.
It must be something offensive and positively strong. Examples would be aiming a gun
at another with the intent to shoot him or folding a “balisong” and making a motion as if
to attack (People vs. Resurrection, [CA] G.R. No. 0048-R, 4 February 1962).

Unlawful aggression is the main and most important element of self-defense (U.S.
vs. Carrero, 9 Phil. 544; People vs. Perez, 56 SCRA 603). Without it, there can be no
self-defense, either complete or incomplete (People vs. Camilet, 142 SCRA 402; People
vs. Gamut, 118 SCRA 35).

But what if the unlawful aggression ceases? Then the first element is gone and no
self-defense may be invoked. Like, if the aggressor runs away after the attack (People vs.
Alconga, 78 Phil. 366) or after his weapon was snatched by the person attacked and the
aggressor manifests a refusal to fight (People vs. Alviar, 56 Phil. 98).

Now, if you are challenged by another to a fight and you accept it, you cannot
later on claim self-defense as, in such case, there is no unlawful aggression. Any attack
that will be made by your enemy is but an incident of the agreement to fight (People vs.
Quinto, 55 Phil. 416; People vs. Gondayao, et al., L-26240, 31 October 1969). However,
if your enemy attacks you in violation of the conditions which you agreed upon, then you
may claim self-defense (People vs. Astillo, [C.A.] G.R. No. 431-R, 29 April 1950; People
vs. More Almanon, [C.A.] G.R. No. 03692-C.R., 28 October 1965).

As to the second element of self-defense, determine first whether or not there is

reasonable necessity on the part of the person attacked to defend himself and, if so, see
whether or not the means employed by him is reasonable.

There is reasonable necessity on the part of the person attacked to defend himself
when there is unlawful aggression. If the unlawful aggression has already ceased, then
this element cannot be present for the reason that there is nothing more to be prevented or
repelled (People vs. Alconga, ibid.).

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 The question of whether the means employed by the person defending himself is
reasonable is a lot trickier. Be guided by the following – (1) if the aggressor employed
his fists and the attack is in the open, the person attacked must resist with the arms that
nature gave him or with other means at his disposal short of taking life (People vs.
Sumicad, 56 Phil. 643; People vs. Nicolas, [C.A.] 50 O.G. 2133); (2) the kind of weapon
of the aggressor, his physical condition, character, size and other circumstances, as well
as those of the person attacked, and the time and place of the attack must be considered
(People vs. Padua, [C.A.] 40 O.G. 998); (3) whether or not the means of defense is
proportionate to the means of attack does not depend upon the harm done but rests upon
the imminent danger of such injury (People vs. Pineda, [C.A.] 43 O.G. 3110); reasonable
necessity is met when the weapon used which caused the death of the deceased is of the
same or similar nature as the one employed by the latter in attacking him (People vs.
Perez [C.A.] G.R. No. 25698-R, 12 May 1961); the reasonableness of the means adopted
does not depend upon mathematical calculation but more upon the circumstances
surrounding the aggression, the state of mind of the accused as well as the nature of the
weapon or weapons at hand (People vs. Orencia, [C.A.] G.R. No. 01269-CR, 22 February
1962).

In summary, to determine the reasonableness of the means, the following must be

considered: (a) whether the means employed was the only one which the defender could
avail of under the circumstances; and, (b) that a person attacked does not use his rational
mind but acts according to his instinct of self-preservation.

Let’s go to the third element – lack of sufficient provocation on the part of the
person defending himself. Remember this: the provocation, even if sufficient, but not
immediately preceding the act is within the scope of the third element. For this element
to be absent, the provocation must be sufficient and immediately preceded the act (People
vs. Alconga, 78 Phil. 366). “Sufficient” means proportionate to the damage caused by the
act and adequate to stir one to its commission.

What is the reason why self-defense is recognized under the Revised Penal Code?
Under the Classical School – the State cannot always come to the aid of a person who is
unlawfully attacked and, therefore, he has to defend himself by following the instinct of
self-preservation. Under the Positivist School – self-defense is an exercise of a right and
anything done to repel an unlawful attack is an act of social justice.

Note that the principle of self-defense was applied in libel and on an attack made
on one’s property. In People vs. Chua Hong, [C.A] 51 O.G. 1932, it was ruled that, when
a person is libeled, then he may hit back with another libel, which, if adequate, will be
justified. In physical assault, retaliation is unlawful after the attack has ceased but not in
a case when it is aimed at a person’s good name. Once aspersion is cast, its sting clings
and the one defamed may avail himself of all necessary means to shake it off. In People
vs. Apolinar, 38 O.G. 2879, it was ruled that it is necessary that there be an attack on the
property coupled with an attack on the person entrusted with said property.

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 What are the elements of defense of relatives? They are: (a) unlawful aggression;
(b) reasonable necessity of the means employed to prevent or repel it; and, (c) in case
provocation was given by the person attacked, the person making the defense had no part
in it.

The only relatives entitled to this defense are – spouses, ascendants, descendants,
legitimate, natural or adopted brothers and sisters, relatives by affinity in the same degree
and those by consanguinity within the fourth civil degree.

Let’s say that your “brother-in-law” agreed to a fight and, at the very moment that
his opponent was going to stab him, you arrived and killed the opponent of your brother-
in-law. Can you invoke defense of a relative? Yes. The phrase “same degree” refers to
relatives already mentioned as brothers and sisters and, thus, a brother-in-law is a relative
in the same degree. Defense of relative is present as long as there is an honest belief that
the relative being defended was a victim of an unlawful aggression by another and the
relative defending had no knowledge of the agreement to fight whatsoever (U.S. vs.
Esmedia, 17 Phil. 280).

What are the elements of defense of strangers? They are: (a) unlawful aggression;
(b) reasonable necessity of the means employed to prevent or repel it; and, (c) the person
defending be not induced by revenge, resentment or other evil motives.

So, let’s say that the brother-in-law of your wife agreed to a fight and, at the very
moment that his opponent was going to stab him, you arrived and killed the opponent of
the brother-in-law of your wife. Can you invoke defense of a relative? No, because the
brother-in-law of your wife is not a relative. It is defense of stranger that you can invoke.

Let’s go to state of necessity. This is the only justifying circumstance where there
is civil liability but by the person or persons benefited thereby (Article 101, par.1).

What are the elements of state of necessity? They are: (a) the evil sought to be
avoided actually exists; (b) the injury feared be greater than that done to avoid it; and (c)
there is no other practical and less harmful means of preventing it.

I suggest you read the case of People vs. Norma Hernandez, [C.A.] 55 O.G. 8465.
In that case, the accused was acquitted of the crime of slander by deed, when she eloped
with another man after all wedding preparations with the offended party were made, since
there was a necessity on the part of the accused to avoid a loveless marriage with the said
offended party.

What are the elements of fulfillment of duty or exercise of a right or office? They
are (a) the offender acted in the performance of a duty or the lawful exercise of a right or
office; and, (b) the injury caused or the offense committed is the necessary consequence
of the due performance of such right or office (People vs. Oanis, 74 Phil. 257).

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 So, if a prisoner escapes, disregards the warning shots of the guard, and there is
no other remedy except to fire at him to prevent him from escaping, then the guard is not
criminally liable (U.S. vs. Magno, et al., 8 Phil. 314). Note that the guard must only try
to prevent his escape and not kill him.

Now let’s say that a prisoner escapes; is chased by his policeman escort; and then
ordered by the latter to surrender. Instead of surrendering, however, the prisoner attacks
the policeman who shoots but does not hit him. The prisoner then runs away and is again
shot by the policeman, this time, killing him. Is the policeman criminally liable? No, as
the killing was done in the performance of a duty (People vs. Delima, 46 Phil. 768).

Distinguish Delima from People vs. Tengyao, L-14675, 29 November 1961. In

the Tengyao case, the prisoner who escaped was fired upon by the guard who hit the
prisoner on the thigh at a distance of four meters. The guard then shot the prisoner again,
killing him. The court ruled that the guard is criminally liable as there was no absolute
necessity for the guard to fire again as the prisoner could easily be captured.

The last justifying circumstance is obedience to superior order. Its elements are:
(a) an order has been issued by a superior; (b) the order is for a legal purpose; and, (c) the
means used to carry out the order is lawful.

What if a subordinate obeys an order (that is illegal) in good faith, without being
aware of its illegality, and without fault negligence on his part, can he be held criminally
liable? No, because this would be a case of mistake of fact (People vs. Nassif, 78 Phil. 67
and People vs. Beronilla, 51 O.G. 137). However, if the order is patently unlawful, like
when a subordinate is asked to torture a prisoner, no amount of good faith can exonerate
the accused (People vs. Marquez, 47 O.G. 5109).

We go to exempting circumstances. Aside from the 7 exempting circumstances in

Article 12, instigation and absolutory causes also exempt one from criminal liability.

The rule is: there is civil liability in an exempting circumstance because a crime,
which is the source of the obligation, is present. However, in accident and insuperable
cause, there is no civil liability because the act was lawfully committed and also because
the law does not so provide.

The exempting circumstances in Article 12 are the following: (a) imbecility and
insanity; (b) minority; (c) accident; (d) compulsion of irresistible force; (e) impulse of an
uncontrollable fear; and, (f) insuperable or lawful cause.

Imbecility is exempting in all cases, while insanity is not if the actor committed
the crime during a lucid interval. Remember this – the test of imbecility or insanity is
complete deprivation of intelligence in the commission of the act, i.e., the accused acted
without the least discernment (People vs. Cruz, G.R. Nos. L-13219-20, 31 August 1960).

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 Insanity must refer to the time preceding the act constituting the crime or at the
very moment of its commission (U.S. vs. Guevarra, 27 Phil. 547). Now, what if the actor
is not an imbecile or an insane person but is completely deprived of the consciousness of
his acts when he committed the crime? Then, he shall be entitled to exemption for a
cause “analogous” to imbecility or insanity under paragraph 7. Examples of analogous
causes are the commission of a crime (1) during one’s sleep [People vs. Taneo, 58 Phil.
255]; (2) during a state of somnambulism [People vs. Gimena, 55 Phil. 604]; (3) while
suffering a high fever due to malignant malaria [People vs. Lacena, 69 Phil. 350]; and, (4)
during an epileptic attack, provided it is shown that the offender was suffering from such
attack before, during and immediately after the aggression [People vs. Manacao, 49 Phil.
887; and, People vs. Ramos, (C.A.) G.R. No. 05052-CR, 31 July 1965].

With the passage of R.A. No. 9344, a minor is exempt from criminal liability. So,
the provision of the Revised Penal Code on mitigating circumstances (Article 13) is also
accordingly amended. There is a move to amend R.A. No. 9344 but, until then, we stick
to its spirit and that is to give a free pass to all minor offenders regardless of whether they
acted with discernment or not.

What are the elements of accident? They are: (a) performance of a lawful act; (b)
with due care; (c) causes injury to another by mere accident; and, (d) without any fault or
intention of causing it.

An accident is any happening beyond the control of a person, the consequences of

which are not foreseeable. If it is foreseeable, then there is fault or culpa. You have that
case of People vs. Nocum, 77 Phil. 1018 where the accused fired his gun on the ground to
make two combatants stop fighting. What happened was, the bullet ricocheted and hit a
bystander. The accused was not exempted from criminal liability. The moron here fired
his gun on the pavement where a lot of people where. Such is pure negligence.

In compulsion of an irresistible force – the force must be physical and must come
from a third person. In this case, the accused acted both without a will and against his
will. Read U.S. vs. Caballeros, 4 Phil. 850 where the accused was not held liable as an
accessory for burying someone third persons killed because he did it while he was struck
with the butts of the guns of said third persons.

In impulse of an uncontrollable fear – the threat producing the fear must be grave,
actual, serious and of such kind that the majority of men would have succumbed to such
moral compulsion (U.S. vs. Elicanal, 35 Phil. 209).

Take note of the case of People vs. Magpantay, [C.A.], 46 O.G. 1652 – where the
accused was awakened by a shot and, fearing that it was another raid of armed men, fired
at a walking figure in the dark thus, killing him. It turned out that the deceased was just
on his way to fish. Here, the accused was held liable. Why? The accused had time in
order to ascertain the identity of the victim. If he had not been too hasty, he would have
known that there was no imminent danger on his person.

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 Distinguish Magpantay from the case of U.S. vs. Achong, 15 Phil. 488, where the
accused was exempted because of “mistake of fact”. In this case of Achong, there was no
time for the accused to verify the identity of the deceased.

The exempting circumstance of insuperable or lawful cause applies to felonies

that are committed by omission. Here, the law imposes a duty on the part of the offender
to perform an act. Now, if he fails to do the act enjoined by law, he is liable criminally.
If the failure of the accused, however, is due to a lawful or insuperable cause, then he is
exempt.

Read U.S. vs. Vicentillo, 19 Phil. 118, where the accused, a policeman, who was
enjoined to deliver a prisoner lawfully arrested to the judicial authorities within the time
prescribed by law failed to do so because it was virtually impossible or impractical under
the circumstances because the arrest was effected in a distant place.

As already stated, there are other causes which will exempt an actor from criminal
liability. Now, let’s talk about instigation – this takes place when a peace officer induces
a person to commit a crime. Without the inducement, the crime would not be committed.
Thus, the actor is exempt by reason of public policy and only the public officer will be
held liable as a principal by inducement (People vs. Lua Chu, et al., 56 Phil. 44). If the
person instigating is a private person, the rules do not apply. The person so induced must
cite another cause in order to be exempt. Distinguish instigation from entrapment. The
latter is not a bar to the prosecution and conviction of the accused since he had already
decided to embark on his felonious design on his own initiative and the entrapment was
only devised (by police officers) through the adoption of ways and means by which he
would be apprehended while in the commission of his premeditated crime (People vs.
Yutuc, G.R. No. 82590, 26 July 1990).

Let’s go absolutory causes. These are circumstances that are present prior to or
simultaneous with the crime by reason of which an accused who acts with criminal intent,
freedom and intelligence will not incur criminal liability. In the Revised Penal Code, the
absolutory causes are the following:

(1) Spontaneous desistance in an attempted felony (Article 6, par. 3);

(2) Accessories in light felonies (Article 6);
(3) Accessories who are exempt from liability because of relationship
(Article 20);
(4) A spouse or parent who inflicts slight or less serious physical injuries
under “exceptional” circumstances (Article 247); and,
(5) Persons who are not criminally liable for theft, estafa or malicious
mischief by reason of relationship to the victim (Article 332).

Lastly, we deal with mistake of fact which we have already mentioned earlier. In
order for the rule on mistake of fact to apply, the following requisites must be present –

11
 (a) the act done would have been lawful had the facts been as the
accused believed them to be; and,
(b) the mistake of fact was not due to the negligence, bad faith or
unlawful intent of the accused.

You already know the case of U.S. vs. Achong. In one of your quizzes, we dealt
with the case of People vs. Bayambao, 52 Phil. 309 where, while the wife of the accused
was cooking, someone pelted their house with stones. The accused, armed with a gun,
then went out of his house and, when he heard a noise and saw a black figure with hands
raised, believing that the person was an outlaw, shot and killed him. The court ruled that
the accused was exempted from criminal liability by reason of mistake of fact and, also,
because he acted under the impulse of uncontrollable fear. Again, note that, in this case,
the accused had no sufficient time to make inquiry as to the identity of the deceased.

So, if you have reached this point and you determine that the act of the accused is
not justified or that he is not exempt or absolved from criminal liability (in other words,
wala na siyang depensa maski ano), then go back to Article 4. Thereafter, determine his
participation in the crime, whether conspiracy exists, the stage reached and the attending
aggravating or mitigating circumstances in order for you to apply the rules on penalties.

Criminal liability shall be incurred – (1) by any person committing a felony even
if the wrongful act done be different from that which he intended; and, (2) by any person
performing an act which would be an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.

In the first instance, the elements are: (a) the person is committing a felony; and,
(b) the injury caused is the direct, natural and logical consequence of his act. In other
words, the felony committed and intended by the accused must be the “proximate cause”
of the resulting injury. What is meant by proximate cause? It is that cause, which in the
natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury and without which the result could not have occurred (see Bataclan, et al. vs.
Medina, 102 Phil. 181).

Let’s take the following situations – (1) if the death of the victim is considered as
the natural consequence of the act of the accused even if the victim contributed to his
death, or was caused by an infection, or by the victim’s refusal to submit to treatment, the
accused would be criminally liable; (2) if the victim actively brought about his death by
fault or carelessness, the accused will not be liable for such death (U.S. vs. Monasterial,
14 Phil. 391); (3) if the death of the victim resulted from a distinct act or fact absolutely
foreign to the criminal act of the accused, the latter will not be liable for such death
(People vs. Rellin, 77 Phil. 1038); and, (4) where the felonious acts or assault committed
by the accused on the victim created in the latter’s mind a sense of danger which he then
sought to avoid by fleeing from the scene and, in so doing, the victim sustained injuries
or died as a consequence, the accused is liable for such unintended results (People vs.
Toling, L-27097, 17 January 1975).

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 Does it mean in situations 2 and 3 that the accused will not be liable at all? No. It
just means that the accused will not be liable for the death of the victim, which is not an
intended act.

What does the first instance include? You have error in personae (mistake in the
identity of the victim; see Article 49), aberratio ictus (mistake in the blow thereby hitting
a different and/or another victim and both are grave or less grave felonies, in which case,
Article 48 will apply; otherwise, the offenses shall be separately punished, People vs.
Guillen, 85 Phil. 307), and praeter intentionem (i.e., a more serious unintended befell the
victim, which is a mitigating circumstance under Article 13 [3]).

The second instance deals with impossible crimes. Remember: impossible crimes
relate only to acts which would have constituted felonies against persons or property. So,
there is no such thing as an attempted or frustrated impossible crime. Article 4 follows
the Positivist School which holds that the offender must be punished because he has, by
committing an impossible crime, exhibited his dreadfulness and his criminal tendencies.

This is interesting. Look at Article 266, which provides for the penalty for slight
physical injuries inflicted on a living person, i.e., arresto menor. Now, if you commit the
impossible crime of slight physical injuries on a dead person, you will be punished with
arresto mayor under Article 59. The better view, therefore, is to impose the penalty under
Article 59 only when the intended felony is grave or less grave.

Another point to remember – if the acts performed, which would have resulted in
an impossible crime, will also constitute an offense under the Revised Penal Code or will
subject the accused to criminal liability although for a different category, the penalty to be
imposed should be that for the latter and not that for an impossible crime.

Who are criminally liable under the Revised Penal Code? Principals, accomplices
and accessories are criminally liable for grave and less grave felonies; and, principals and
accomplices are criminally liable for light felonies (Article 16).

Article 9 tells you what are grave, less grave and light felonies. Grave felonies
are those to which the law attaches the capital punishment or penalties which in any of
their periods are afflictive, in accordance with Article 25. Less grave felonies are those
which the law punishes with penalties which in their maximum period are correctional, in
accordance with Article 25. Lastly, light felonies are those infractions of law for the
commission of which the penalty of arresto menor or a fine not exceeding 200 pesos or
both is provided.

Go next to Article 7 which tells you that light felonies are punishable only when
they have been consummated, with the exception of those committed against persons
(such as slight physical injuries under Article 266) or property such as malicious mischief
under Article 328 [3]).

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 Now, remember this: the classification of offenders under Article 16 as principals,
accomplices and accessories, as well as the classification of principals as those by direct
participation, by inducement and by indispensable cooperation, are not applicable if there
is a conspiracy among the accused. The rule then would be – “the act of one, is the act of
all”. Article 16 applies only when the offenders are to be judged by their individual acts.

Go, therefore, to Article 8 which deals with conspiracy and proposal to commit a
felony. Conspiracy and proposal to commit a felony are punishable only in the cases in
which the law specially provides a penalty therefor. There is a conspiracy when two or
more persons come to an agreement concerning the commission of a felony and decide to
commit it. On the other hand, there is a proposal when the person who has decided to
commit a felony proposes its execution to some other person or persons.

What are the cases in which the law specially provides a penalty for conspiracy
and proposal to commit a felony? They are: (a) Conspiracy to commit – [1] treason, see
Article 115; [2] coup d’etat and/or rebellion, see Article 136 [4] sedition, see Article 141;
[4] illegal association, see Article 147; [5] highway robbery, see Presidential Decree No.
532; and, [6] espionage, see C.A. No. 616, Section 3; (b) Proposal to commit – [1]
treason, see Article 115; [2] coup d’etat and/or rebellion, see Article 136; [3] inducement
not to answer summons, appear or be sworn in Congress, etc., see Article 150.

So, the general rules may be stated as follows: (1) if there exists no conspiracy,
the accused will be liable only for the consequences of their individual acts (People vs.
Cajandab, G.R. No. L-29598, 26 July 1973); (2) if conspiracy exists and the law gives a
penalty therefor, the mere act of being a conspirator is itself punishable even if the crime
intended has not yet been committed (Article 8); and, (c) where the conspiracy has for its
object the commission of some other crime, the conspirator does not become liable unless
the intended crime shall have been committed. If the crime is actually committed and the
accused participated therein, he will incur criminal liability. In such case, the conspiracy
is the basis or modality for his incurring criminal liability for some other resultant crime.

Illustrations: (a) if the accused only conspired to rob, rape of one of the victims by
one of the conspirators is not a foreseeable consequence and, thus, the other conspirators
will not be liable for the rape but only for the robbery (People vs. Castillo, et al., G.R.
No. L-11793, 16 May 1961, People vs. Carandang, et al., G.R. No. L-31012, 15 August
1973); (b) if the accused conspired to rob and homicide is likewise committed, all the
accused will be liable for robbery with homicide whether or not they participated in the
killing (People vs. Puno, G.R. No. L-31594, 20 April 1974, People vs. Laguardia, G.R.
No. L-63243, 27 February 1987). What is the distinction between the first and the second
situation? Well, homicide and/or physical injuries that are committed during a robbery
are foreseeable because robbery presupposes the use of force or violence.

Look, however, at Article 296 (2). This is an exception to the foregoing rules on
conspiracy. Thus, a member of a band in a robbery en cuadrilla is liable for all assaults,
inclusive of rape and/or homicide, where he was present when these other crimes were
being committed but he did not attempt to prevent the same.

14
 Who are principals? They are: (1) those who take a direct part in the execution of
the act; (2) those who directly force or induce others to commit it; and, (3) those who
cooperate in the commission of the offense by another act without which it would not
have been committed (Article 17).

In order that a person can be considered as a principal by direct participation, it is

necessary that he or she (a) participated in the criminal resolution as shown by his or her
prior or simultaneous acts; (b) carried out the plan and personally participated or took
part in its execution; and, (c) performed acts tending directly to the same end. So, if he or
she was not present at the crime scene, he or she cannot be deemed a principal by direct
participation (People vs. Ong Chiat Lay, 60 Phil. 788).

To be considered as a principal by inducement, it must be shown that the offender

is determined to commit the felony; he must have persistently clung to his determination;
he offers the strongest of temptations sufficient to induce the commission of the crime or
exercises ascendancy to compel obedience; and the inducement must be the determining
cause for the commission of the crime (People vs. Indanan, 24 Phil. 203; and, People vs.
Omeni, 61 Phil. 609). So, if the inducer only made thoughtless remarks or gave an order
to kill the victim after the fatal blow had already been struck, he cannot be considered as
a principal by inducement (People vs. Castillo, G.R. No. L-19238, 26 July 1966).

To be considered as a principal by indispensable cooperation, the offender must

be shown to have concurred in the criminal resolution and cooperated by the performance
of another act without which the crime could not have been committed. So, if the act of
cooperation is not indispensable, the person will only be liable as an accomplice (People
vs. Tatlonghari, 27 SCRA 726; and, People vs. Manansala, Jr., 31 SCRA 401. Note that,
in case there is doubt as to the liability of a person, i.e., whether or not he is a principal by
indispensable cooperation or an accomplice, the lesser or milder form of liability shall be
that imposed (People vs. Bongo, et al., 55 SCRA 547).

Alright, let’s go to Article 18. To be considered an accomplice, the offender must

have known of the criminal design of the principal (by direct participation) and concurs
therein; he cooperates in the execution of the offense by previous or simultaneous acts by
supplying material or moral aid (which are not indispensable); there is a relation between
the acts done by the principal and those of the accomplice (People vs. Tamayo, 44 Phil.
38).

So, if X gave Y a gun to be used in the killing of Z, but then Y also used the gun
to kill A, X cannot be held as an accomplice for the killing of A as his agreement with Y
referred only to Z (People vs. de la Cerna, G.R. No. L-20911, 30 October 1967).

Article 19 deals with accessories. Accessories are those who, having knowledge
of the commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the following
manners:

15
 1. By profiting themselves or assisting the offender to profit by the effects of the
crime;
2. By concealing or destroying the body of the crime, or the effects or instruments
thereof, in order to prevent its discovery; and,
3. By harboring, concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public functions or whenever the
author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of
the Chief Executive, or he is known to be habitually guilty of some other crime.

In the three foregoing paragraphs, the crime of the principal must not be a light
felony since in that case, an accessory is not punished as such (Article 16). Can there be
a conviction of accessories even without the prosecution or conviction of the principal?
In People vs. Barlam, CA, 59 O.G. 2472, it was clarified that conviction of accessories
even without the prosecution or conviction of the principal can be had only in paragraphs
1 and 2 but not those referred to in paragraph 3. The reason is that, under paragraph 3,
which speaks of accessories who harbor or assist in the escape of the principal, the crime
committed and the identity of the principal must be established in a trial. In this case, one
principal had already died and the other two were acquitted. So, the accessory, who was
charged under paragraph 3, had to be acquitted.

The first type of accessory is one who profits himself or assists the principal to
profit by the effects of the crime. Note: This is the only instance wherein the accessory,
although related to the principal within the degrees of relationship provided in Article 20,
is nevertheless not exempt from liability unlike the other classes of accessories. For the
obvious reason, of course, that these accessories are not acting under the natural instinct
to protect a relative but just for profit.

The second kind of accessory is one who conceals or destroys the body of the
crime to prevent its discovery. What is determinative here is the accessory’s objective.
Like, where the accused misled the authorities by giving them false information, such act
is equivalent to concealment and he was held as an accessory (U.S. vs. Romulo, 15 Phil.
408). Where he accused assisted in carrying the cadaver of the victim to a place where it
was buried to prevent its discovery, he was also held liable as an accessory (People vs.
Galleto, 78 Phil. 820).

In the third kind of accessory, a distinction is made between a public officer and a
private individual who harbors, conceals or assists in the escape of the principal. In the
case of a public officer, as long as he acts with abuse of his public functions, the principal
may have committed any felony, except a light felony. With regard to a private person, it
is required that the principal must have been guilty of specific crimes - treason, parricide,
murder, or an attempt against the life of the Chief Executive, or who is known to be
habitually guilty of some other crime.

After determining the participation of the offender, determine next the stage of
execution of the felony (Article 6). Consummated felonies, as well as those which are
frustrated and attempted, are punishable.

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 A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the perpetrator. There is an
attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous desistance.

Some cases to guide you – (a) Arson: If a part of a building has started to burn or
has been charred, the crime is consummated (People vs. Hernandez, 54 Phil. 122). If the
rags were lighted in order to burn the building but no part thereof got burned, the crime is
frustrated (U.S. vs. Valdes, 39 Phil. 240). If the contents of the building were burned but
not the building itself, the crime is consummated arson of the contents (U.S. vs. Goo Foo
Suy, et al., 25 Phil. 187). If rags inside a building were soaked with gasoline but no fire
was started due to the timely discovery of the acts of the accused, the crime is attempted
arson (People vs. Go Kay, CA, 54 O.G. 2225).

(b) Theft: see People vs. Sobrevilla, 53 Phil. 226 where it was held that – what is
determinative of the consummation of the crime of theft is whether or not the accused
was in a position or had the capacity to freely dispose of the stolen property even if his
possession thereof was more or less momentary. So, in U.S. vs. Adiao, 38 Phil. 754, the
customs inspector who abstracted a belt from the luggage of a passenger which was later
discovered in his desk drawer was held liable for consummated theft. In People vs. Dino,
CA, 45 O.G. 3446, the accused who was caught with 30 rifles stacked in 3 boxes at the
camp checkpoint was held liable for frustrated theft. In People vs. Espiritu, CA-G.R. No.
3107, 31 May 1949, the accused who was caught with 9 hospital linens as he was going
out of the camp checkpoint was held liable for consummated theft. Does the Dino case
conflict with the Espiritu case? No. In the Dino case, considering the bulk and weight of
the rifles, the accused had to get out of the camp before he could enjoy the same. In the
Espiritu case, the accused need not get out of camp in order to enjoy the hospital linens.

(c) Homicide and murder: I don’t know why some people, even the courts, get so
confused with the application of Article 6 as regards these crimes. Let’s start where it’s
easy – if the victim dies because of the wounds, blows or strikes, intentionally inflicted
by the accused, then the accused would be liable for consummated homicide or murder
(assuming the presence of a qualifying circumstance). If the wounds, blows or strikes
intentionally inflicted by the accused would have produced death but the same is not so
produced by reason of some cause or causes independent of the will of the accused, then
the latter would be liable for frustrated homicide or murder (again, assuming the presence
of a qualifying circumstance). Forget about what the accused believes as laid down in the
case of People vs. Borinaga, 55 Phil. 433, where the accused took a stab at his victim but
hit the back of the chair. Look for a mortal wound. If there is no mortal wound, accused
would be liable for attempted homicide or murder (of course, if attended by a qualifying
circumstance) only.

17
 (d) Bribery: Go to Articles 210 (Direct bribery), 211 (Indirect bribery) and 211-A
(Qualified bribery). There you will learn that these are the felonies that the public officer
commits when receives a bribe. On the other hand, the giver of the bribe will he held
liable under Article 212 (i.e., Corruption of a public official), which is consummated if
the bribe is accepted and attempted if the bribe is rejected by the public official. So, if
you are asked: “Is there such a thing as frustrated bribery?” Your answer would be: “Go
back to the stinking school that you studied in.”

(e) Rape: With the enactment of Republic Act No. 8353, legally and medically,
rape can only be consummated or attempted (People vs. Jalosjos, G.R. Nos. 132876-79,
16 November 2001).

We now go to mitigating, aggravating and alternative circumstances. What are

the kinds of mitigating circumstances? You have (a) the ordinary; and, (b) the privileged.
Remember the distinctions between ordinary and privileged mitigating circumstances.
You will encounter them again when you get to penalties. Thus, – (1) an ordinary
mitigating circumstance can be offset by a generic aggravating circumstance, whereas
privileged mitigating cannot be offset by any aggravating circumstance; (2) an ordinary
mitigating circumstance, if not offset, has the effect of imposing the lesser penalty,
whereas a privileged mitigating circumstance has the effect of imposing the penalty by
one or two degrees lower than that provided by law. But if there are two or more
ordinary mitigating without any aggravating circumstance, the same partake of the nature
of a privileged mitigating as the penalty to be imposed is one degree lower than that
provided by law. The latter rule applies only if the imposable penalty is divisible.
(Article 64, [5]). To prevent confusion, refer to the situation in Article 64 (5) as “special”
privileged mitigating circumstance.

Paragraph 1 and the first part of paragraph 2 of Article 13, in relation to Article
69, are privileged mitigating circumstances, while the rest are ordinary mitigating. If the
majority of the conditions in order to justify or exempt the act is nor present, then the
circumstance will not be privileged but ordinary mitigating only. When you get to Book
II, you will learn that there are other privileged mitigating circumstances applicable to
particular felonies only – (a) concealment of dishonor of the mother in infanticide
(Article 255); (b) the voluntary release of a person detained within 3 days without the
accused attaining his purpose and before the institution of the criminal action (Article
268); (c) unjustified abandonment of the spouse in the crime of adultery (Article 333).
Since a mitigating circumstance is a matter of defense to lessen the penalty by law, the
accused must prove it with concrete evidence to the satisfaction of the Court (People vs.
Malunay, [CA], 66 O.G. 2095).

The rule is that – one single fact cannot be made the basis of several mitigating
circumstances. So, if A insulted B, and B, because of the insult inflicted serious physical
injuries upon A, in the crime committed, although passion, vindication of a grave offense
or provocation may be invoked, they will be considered as one mitigating circumstance
only because all are based upon the same fact, that is, the insult (People vs. Yaon, [CA], 4
O.G. 4142).

18
 But, if there is another fact, though closely related with the fact upon which one
circumstance is based, the other circumstance may be invoked as based on the other fact.
So, when the deceased who eloped with the daughter of the accused ran away when he
saw the accused coming, causing the accused to ran after him and stabbed him when he
was overtaken, two circumstances may by appreciated, namely: (a) vindication of a grave
offense based on the fact of the elopement; and, (b) passion based upon the fact that the
deceased instead of asking the forgiveness of the accused ran away. (People vs. Diokno,
63 Phil. 601).

Again, in self-defense, defense of relatives or defense of strangers, it is essential

that unlawful aggression be present, otherwise, there can be no such defense, whether
complete or incomplete. (People vs. Rosal, G. R. No. L-5355, 31 August 1953).

In the exempting circumstances of accident, if the requisites of due care and

without fault in causing the injury are absent, the result will be negligence and the case
will be covered by Article 67, which provides the same penalty as that provided in Article
365 (1). The effect is the same as that of a privileged mitigating as the penalty is one
degree lower than that provided for in an intentional felony. If the requisites of lawful act
and without intention of causing the injury are absent, an intentional act results, and there
can be no mitigating circumstance.

Let's discuss lack of intention to commit so grave a wrong. This is the effect of
praeter intentionem (Article 4 [1]) and is mitigating in nature. Remember that the injury
must befall upon the same person, not upon another.

Intent as a mental process is shown by the external acts of the offender and is
judged by the facts showing notable disproportion between the means employed and its
consequences and the attendant circumstances, like the nature and kind of the weapon
employed, the location of the wounded inflicted, the number of wounds, and the conduct
of the accused at the time of its commission (U.S. vs. Reyes, 26 Phil. 791). Intent as a
general rule can be gathered from and determined only by the conduct and of the acts
themselves. The brute force employed in choking a girl completely contradicts the claim
of no intention to kill the victim. (People vs. Yu, L-13780 28 January 1961). Firing at the
decreased and killing him (U.S vs. Fitzgerald, 2 Phil. 419); inflicting a serious and fatal
wound with a bolo in the abdomen of the decreased (U.S. vs. Mandac, Phil. 240); striking
the decreased with a hammer on the right forehead (People vs. Banlos, No. L-3412, 26
December 1957) clearly shows the intention to the offender to kill the victim. Remember
this mitigating circumstance is applicable only to felonies resulting in material or
physical injuries. So, it does not apply to slander (People vs. Bautista , 40 O.G. 23) or to
felonies committed thru negligence (People vs. Medina, 40 O.G. 4196) or to those made
without intent, like unintentional abortion (People vs. Cristobal, C.A., G.R No. 8739, 31
October 1942). In People vs. Flameno, CA, 58 O.G. 4060, the intention of the accused
was to maltreat the offended party, who was pregnant, by pulling her hair and, as a result
of her fall, she aborted. Lack of intent to commit so grave a wrong was appreciated.

19
 What are the requisites of provocation: (a) it must be sufficient; (b) it must be
immediate to the commission of the crime; and, (c) it must come from the offended party.
Sufficient means adequate to excite a person to commit the crime and must accordingly
be proportionate to its gravity. Ill-treating and abusing the offender by kicking and
cursing him (U.S. vs. Firmor, 37 Phil. 133) is sufficient provocation. However, a request
for an explanation to the accused regarding his derogatory remarks against certain ladies
(People vs. Laude, 58 Phil. 933) or the act of the decreased in intentionally asking for
more wine however unreasonable or annoying it might have been (People vs. Sayson,
430 O.G. 3219) is not sufficient provocation. Immediate means that there is no interval
of time between the provocation and the commission of the crime. Provocation occurring
more than one hour before stabbing incident is not immediate (People vs. Co [CA], 67
O.G. 7451). In one case, however, where the accused, who was charged by the offended
party of stealing jackfruits went home and returned fully armed and killed the decreased,
provocation was considered mitigating (People vs. De Guia, G.R No. L-3731, 20 April
1951).

In vindication of a grave offense, the offense mentioned need not be a felony or

an act punished by law. The act of eloping with the daughter of the accused was held to
be a grave offense to her family (People vs. Diokno, 63 Phil. 601). A remark to the
accused, an old man 70 years of age, in the presence of guests that the victim would make
a roast pig out of the accused was also a grave offense considering the latter’s age (U.S.
vs. Ampar, 37 Phil. 310). In determining the gravity of the offense, the age of the
accused, his social standing, the time and place when the offense was committed and
other attendant circumstances are to be considered. The relatives against whom the grave
offense may be committed are the same relatives mentioned in defense of relatives except
that relatives by consanguinity within the fourth civil degree are excluded. Immediate
means proximate and, hence, an interval of time may lapse from the commission of the
grave offense to the commission of the crime in vindication thereof (People vs. Parana,
64 Phil. 331), but if the considerable period of time lapsed which is sufficient to enable
the accused to recover his serenity, this mitigating circumstance is not present. (People
vs. Benito L-32042, 17 December 1976; and People vs. Lumayag, 13 SCRA 502).

What are the distinctions between provocation and vindication of a grave offense?
In provocation, the same is directed against the person committing the felony; whereas, in
vindication of a grave offense, it may be committed not only against the offender but also
against the relatives of the offender who are mentioned in the law. Provocation must be
immediate to the commission of the crime; whereas, vindication may be proximate.

Let’s go to passion or obfuscation. To be considered as mitigating, it is necessary

to establish the existence of an act both unlawful or unjust and sufficient to produce such
a condition of mind and said act which produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal-equanimity (People vs. Alangguilang, 52 Phil. 663;
People vs. Ulita, et al., No. L-25177, 31 October 1969; People vs. Mojica 70 SCRA 502).
So, if more than 24 hours had elapsed from the insult and the commission of the felony,
passion is not mitigating (U.S. vs. Sarikala, 37 Phil. 486).

20
 Also, the act of the common law wife in refusing to go back home with the
accused, although provocative, was insufficient to produce the passion that the law
contemplates as the common law wife was acting within her rights. (People vs. Quinano,
[CA] 50 O.G. 3819).

Passion or obfuscation is mitigating only when it arose from lawful sentiments.

Killing the deceased with whom the offender lived for several years because she left him
to live with another man, is not the passion that is mitigating because it did not originate
from legitimate feelings (see U.S. vs. Hicks, 14 Phil. 217). If the accused injured the
offended party who made incident propositions to a woman with whom the accused had
illicit relations, the obfuscations of the accused is not mitigating because his relationship
with the woman was illegitimate (People vs. Olgado, G.R. No. L-4406, 31 March 1952).
But killing the common law wife surprised in flagranti in carnal intercourse with a friend
is passion that is mitigating because the offender acted under an impulse caused by the
sudden discovery that the woman proved untrue to him (U.S vs. De la Cruz, 22 Phil.
429). Also, the killing by the accused of her common law husband with whom she lived
for 15 years but who married another woman, produced passion that is mitigating because
it arose from the natural feeling of despair in a woman who saw her life broken and found
herself abandoned by the very man for whom she made so many sacrifices (People vs.
Engay, [CA] 47 O.G. 4306; People vs. Yuman, 61 Phil. 786).

Acting in a spirit lawlessness (like, running amok; People vs. Salazar, 56 O.G.
6334) or revenge is not passion or obfuscation that is mitigating. Examples: (1) raping a
woman whom the offender saw in a secluded place almost naked (People vs. Sanica,
[CA] 45 O.G. 98), (2) the killing by the accused of the child of her master because she
was scolded when she was surprised sleeping with a man in the marital bed (People vs.
Caliso, 58 Phil. 283). Also, passion which arose from the exercise of a right by the
offended party is not mitigating, as when the deceased said he would take a carabao of
the accused that was destroying his field to the barrio lieutenant and who was killed when
he started to do so (People vs. Noynay, 58 Phil. 393).

Passion may also arise from causes existing in the honest belief of the offender
that the deceased caused his dismissal from office (U.S. vs. Ferrer, 1 Phil. 56), or that the
deceased cast a spell of witchcraft which caused the illness of his mother (U.S. vs.
Macalintal, 2 Phil. 448) as such is sufficient to confuse the reason of the offender and
impel him to commit the crime.

Voluntary surrender and voluntary plea of guilty are two mitigating circumstances
independent of each other and, if present in the commission of the crime, are both
appreciated in favor of the offender. These are the only mitigating circumstances based
on the perversity of the offender and appreciated after and not at the time of the
commission of the crime. Voluntary surrender must be made to a person in authority or
his agent. It may be present if made after the issuance of a warrant of arrest but before
actual arrest is made (People vs. Pecla, 68 Phil. 740; People vs. Conwi, 71 Phil. 595; and,
People vs. Turalba L-29118 Feb. 28, 1974). If arrested, such is not mitigating (People vs.
Rubinal, L-12275, 29 November 1960).

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 Surrender is not voluntary when forced by circumstances. To be voluntary,
surrender must be spontaneous, i.e., there must be an intent to submit oneself to the
authorities, either because he acknowledges his guilt or because he wishes to save them
from the trouble and expense to be necessarily incurred in his search and capture (People
vs. Sakam, 61 Phil. 27; People vs. Gasingas, 3 CAR 289). Thus, the surrender is not
voluntary if the offender was merely forced by circumstances because he could not live
any longer in hostility as the agents of the law did not give peace for a moment (People
vs. Sakam supra) or gave up, as escape was impossible and his life was already in danger
(People vs. Floresca, G.P. Nos. L-8614 and 8615, 31 May 1956), or because the accused
did not resist arrest or struggle to free himself after he was taken into custody by the
authorities. ( People vs. Siojo, 61 Phil, 307: People vs. Yuman, 61, Phil. 786 cited in
People vs. Dimdiman No. L-12622, 28 October 1959). The offender must surrender
himself and not the weapon which he used in committing the crime (People vs. Ramon,
[CA] G.R. No. 15010-R, 26 April 1956).

What are the elements of voluntary surrender? They are: (a) the offender has not
been actually arrested; (b) the offender surrendered himself to a person on authority or an
agent to a person in authority; (c) the surrender must be voluntary (People vs. Honasan,
L-25989, 30 September 1969). If after the commission of the offense, the accused could
have escaped but did not, and instead waited for the agent of the authorities and gave
himself up, such is considered as voluntary surrender (People vs. Bustos, CA-G.R. No.
04-625-CR, 18 October 1965, citing People vs. Parana, 64 Phil. 331).

Voluntary plea of guilty is mitigating because it is an act of repentance and respect

for the law; it indicates a moral disposition in the accused favorable to his reform (People
vs. De la Cruz, 63 Phil 874). But if the accused pleaded not guilty upon arraignment on 4
May 1965 and it was only on 11 August 1967 that he felt contrite and changed his former
plea of not guilty to that of guilty, such was not spontaneous as it was apparently done not
because of his sincere desire to repent but because of his fear of eventual conviction
(People vs. Quesada, No. L-15372, 29 April 1960).

The plea of guilty must be made prior to the presentation by the fiscal of the
evidence. It must also be made in the court of original jurisdiction. So, if the plea of
guilty was made by the offender in the Court of First Instance in a case that he brought on
appeal from a sentence of conviction by the Municipal Court, it is not mitigating because
it is not made at the first opportunity since the Court of First Instance is exercising its
appellate and not original jurisdiction. Moreover, such plea it is not spontaneous (People
vs. Herminio, 64 Phil. 403). But if he entered a plea of not guilty before the Municipal
Court at its preliminary investigation of an offense cognizable by the Court of First
Instance and the case is elevated to the Court of First Instance where he entered a plea of
guilty, such is mitigating because the plea of guilty in the Municipal Court is no plea at
all, since the Court of First Instance is the Court of competent jurisdiction. (People vs.
Oandasan, L-29532, 28 September 1968). You will learn all of these when you study or
get to Criminal Procedure.

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 The plea of guilty must also be unconditional and cannot consist in a mere offer
and, hence, the offer to enter a plea of guilty to a lesser offense than that charged in the
information is not mitigating (People vs. Noble, 77 Phil. 93; and, People vs. Saturnino, L-
69-72, 29 April 1955). But if the offer is accepted and the information amended to which
the accused entered a plea of guilty, such is mitigating even though the prosecution has
already presented its evidence during the trial of the origin charge (People vs. Intal, G.R.
No. L-10585, 29 April 1957; People vs. Moncera, L-13290, 20 June 1960; and, People
vs. Ortiz de Leon, L-19585, 29 November 1965). An accused charged with rebellion
with murder who offers a plea of guilty to the crime of rebellion but was refused, if
convicted, must be entitled to this mitigating circumstance (People vs. Santos, et al., 56
O.G. 3546). The reason is that there is no complex crime of rebellion with murder.

Let’s go to the 8th mitigating circumstance. The physical defect contemplated in

this provision must affect the means of action, defense or communication of the offender
with his fellow beings. The nature of the offense is, therefore, to be considered as to
whether such physical defect is mitigating. The commission by a blind person of the
crime of estafa by misappropriating a sum of money entrusted by a friend to him for
safekeeping will not entitle him to this mitigating circumstance. On the other hand, a
blind person or one who is crippled or lame is entitled to this mitigating circumstance if
he commits the physical injuries. In the crime robbery, it was held that the accused who
is deaf and dumb is entitled to this mitigating circumstance and whether he is educated or
not is immaterial, as the law does not so distinguish (People vs. Nazario, G.R. No. L-
7628, 29 September 1955).

In regard to illness as a mitigating circumstance, its nature must affect the will of
the person but must not deprive him of the consciousness of his acts. Otherwise, such
will be exempting. Examples: (1) a mother who killed her child after delivery as she was
suffering under the influence of a puerperal fever (Decision, Supreme Court of Spain, 28
September 1897); (2) a mild behavioral disorder as a consequence of an illness in the
early life of the offender (People vs. Amit, 82 Phil. 820); (3) acute neurosis that made the
offender ill-tempered and easily angered (People vs. Carpenter, [CA] G.R. No. 4168, 12
April 1944); (4) feeblemindedness (People vs. Formigones, 48 O.G. 1772, 87 Phil. 658).

Other circumstances may be considered mitigating but they must be “analogous”

or similar to those mentioned in Article 13. Examples: (a) Over 60 years old and with
failing sight – analogous to one over 70 years (People vs. Reantillo, [CA] G.R. No. 301,
27 May 1938); (b) Jealousy – similar to passion or obfuscation (People vs. Uberngen,
[CA], 36 O.G. 763); (c) Mass psychology and appeal to esprit de corps – similar to
passion or obfuscation (People vs. Villamara, 47, O.G. 6180); (d) Voluntary restitution of
property – similar to voluntary surrender (Decision, Supreme Court of Spain, 14
November 1887). In malversation, the restitution of the shortage must be promptly made
to be analogous to voluntary surrender (People vs. Kuntao, CA 50 O.G. 682; People vs.
Amante CA, 65 O.G 5628); (e) Extreme poverty – similar to incomplete justifying
circumstance of state of necessity (People vs. Macbul, 74 Phil. 436).

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 However, that if the accused impoverished himself and lost gainful occupation by
committing crimes, extreme poverty is not mitigating, since he was not driven to the
commission of crimes due to want and poverty (People vs. Pajinio, L-21690, 29 April
1969); (f) Killing of deceased by accused after the latter was boxed during a dance two
weeks previous is analogous to sufficient provocation or passion because the wrong
committed by the deceased produced rancor in his person who must have felt deeply
insulted and thus committed the crime to vindicate himself and appease his self-respect
(People vs. Libria, G.R. No. L-6586, 16 July 1954); (g) The re-enactment by the accused
of the crimes as well as the execution of an extrajudicial confession by the accused is
analogous to voluntary plea of guilty (People vs. Ong [1975] 62 SCRA 174); (h)
Testifying for the prosecution is analogous to voluntary plea of guilty (People vs.
Navosca [1977] 76 SCRA 70).

What are the kinds of aggravating circumstances? They are: (1) Generic – that
which generally applies to all crimes like recidivism; (2) Specific – that which applies to
a particular felony like cruelty in crimes against persons; (3) Qualifying – that which
changes the nature of the felony, as treachery in murder; and, (4) Inherent – that which is
part of the felony committed, as unlawful entry in robbery with force upon things.

Give the distinctions between generic and qualifying aggravating circumstances

– (a) A generic aggravating can be offset by an ordinary mitigating which is not so in a
qualifying aggravating; (b) Generic aggravating circumstances not offset have the effect
of increasing the penalty to the maximum but not beyond that provided by law. A
qualifying aggravating circumstance changes not only the nature but also the name of the
offense and the offender becomes liable for the new offense which is more serious in
nature. The 21 aggravating circumstances in Article 14 are generic in nature although
some, like treachery or evident premeditation, are qualifying in some crimes, like murder.
Hence, if treachery is not alleged in an information for homicide, such fact can be proved
not as qualifying (People vs. Alcantara [CA], 46 O.G. 3451).

Taking advantage of official position – the offender is a public officer who availed
of the influence or reputation inherent in his position for the purpose of committing the
crime. The offender must avail himself of the prestige, influence or ascendancy which
goes with his position as a means of securing the execution of the crime. In other words,
the position must in any way facilitate its commission (People vs. Yturriaga, 86 Phil.
534). The essence of the matter is presented in the inquiry: “Did the accused abuse his
office in order to commit the crime? “If the accused could have killed the victim without
having occupied his position of confidential agent, then there is no abuse of public
position (People vs. Ordiales, G.R. L-30956, 23 November 1971).

If the accused as councilor ordered that deaths of large cattle be reported to him
and their owners to pay him certain fees which they did in the belief that it was required
by an ordinance but which was not true, and the accused spent the money he received, the
circumstance is present in the estafa committed, because the accused could not have done
it if he was not a councilor (U.S. vs. Torrida, 23 Phil. 189).

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 But if the accused, although a councilor, received some money from the offended
parties who requested that he purchase for them cedula, but instead of doing so, he spent
the amount, this circumstance is not present, because the crime committed is independent
of his official functions and also, because the acts are not connected with the duties of his
office (U.S. vs. Dacuycuy, 9 Phil. 84).

If the abuse of the officer is an integral element of the felony as in falsification of

a public document (see People vs. Teves, 44 Phil. 275), bribery or malversation, then the
circumstance is not considered. This means that this circumstance is inherent in the
crime, that is, it cannot be committed except by a public officer.

Crime committed in contempt of or with insult to public authorities – requisites:

(a) the public authority is engaged in the discharge of his duties: and, (b) he is not the
person against whom the crime is committed (U.S. vs. Rodriguez, 19 Phil. 150).

Note here that it is also essential that the offender knows the identity of the public
authority. A public authority is a person in authority. (Article152). If the crime is
committed against the public authority, the crime committed is direct assault and this
aggravating circumstance will be considered absorbed. (Article 148).

Act committed with insult or lack of regard due to offended party by reason of
age, sex or rank or the crime is committed in the dwelling of the offended Party, if the
latter has not given provocation – there are four (4) aggravating circumstances in this
paragraph, which, if present in the commission of the crime, are considered as one
aggravating circumstance only.

With insult or in disregard – means the specific fact of insult or disregard of the
sex, age or rank of offended party who is a woman, older or of a higher rank than the
accused (People vs. Valencia, 43 O.G. 3740). There must be proof that the accused
deliberately intended to offend or insult the age or sex of the offended party (People vs.
Mangsanto, 65 Phil. 548; People vs. Diaz, et al., L-24002, 21 January 1974, 70 O.G.
4173). Thus, these circumstances were not considered when the offender assaulted the
victim due to passion or obfuscation because the offender who has lost his reason would
not have deliberately and consciously known that the act was done with disrespect to the
offender party (People vs. Ibanez, [CA] G.R. No. 1137-R, 20 March 1958) or the accused
was drunk at the time of the commission of the offense (People vs. Wigan, 49 O.G.
5439), or there exists a relationship between the offender and the offended party as in the
case of the offender who assaulted his wife whom he was divorced, the relationship
having some direct bearing upon their child (People vs. Valencia, supra) or the offender
was the master of the offended party, despite the fact that the latter was an octogenarian.
(People vs. Akanatsu, 51 Phil. 968). These aggravating circumstances of age, sex and
rank are considered in crimes against persons, security or honor. It is not considered in
crimes against property. Robbery with homicide is a crime against property and not
against persons. (People vs. Pedro Pagal, et al., L-32040, 25 October 1977).

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 Dwelling – includes dependencies, staircase, and enclosures under the house
(People vs. Alcala, 40 Phil. 739). A combination house and store is not a dwelling
(People vs. Magnaye, L-3510, 30 May 1951) nor a gambling house or a house of
prostitution (U.S. vs. Balmori, 18 Phil. 578). It must belong to the offended party
(People vs. Guhitin, 88 Phil. 672), although in People vs. Basa, 83 Phil. 622, it was held
that dwelling was aggravating although the house where they were killed did not belong
to them. Dwelling is aggravating even if the accused did not enter the house but he shot
the victim from under the house (People vs. Bautista, G.R. No. L-440, 29 November
1947; People vs. Albar, 86 Phil. 36; People vs. Ompad, et al., 26 SCRA 750) or even if
the offender did not penetrate the house but fired the shot from outside (People vs.
Ambis, 68 Phil. 635; People vs. Brioso, et al., L-28482, 30 January 1971), or if the
deceased who was attacked inside his house which caused him to jump out through the
window, after which he was hacked by one of the culprits stationed below for that
purpose (People vs. Lagoy, No. L-21944-R, 30 June 1952).

Cases where dwelling is not aggravating – (a) if the offended party has given
provocation; (b) if both the offender and the offended party are occupants of the same
house (U.S. vs. Rodriguez, 9 Phil. 136); and, (c) although in robbery with force upon
things, it is inherent it may be present if the robbery is committed with violence (People
vs. Valdez, 84 Phil. 860).

Dwelling is aggravating in robbery with violence or intimidating because this

class of robbery can be committed without the necessity of transgressing the sanctity of
the house. Dwelling is inherent only in crimes which could be committed in no other
place than in the house of another like trespass or robbery in an inhibited place or house
(People vs. Mangado, 28 SCRA 642). The rationale for appreciating this aggravating
circumstance is the offender’s deliberate invasion of the tranquility of one’s domicile,
which, therefore shows greater perversity (People vs. vs. Roncal, et al., L-26857-58, 21
October 1977, 74 O.G. 1352).

Requisites of abuse of confidence or obvious ungratefulness: (a) the offender

party had trusted the offender; (b) the offender abused such trust; and, (c) that such abuse
of confidence facilitated commission of the crime (People vs. Luchico, 49 Phil. 689).

This circumstance is present in the killing by the accused of his sweetheart whom
he invited to a ride after he had determined to kill her and who went with him not
knowing of his plan (People vs. Marasigan, IX L.J., 12); but not in the case where the
offended party fled when kissed by his master and who subsequently raped her, because
at the time of the commission of the rape, she had already lost the confidence she reposed
on him from the moment he kissed her (People vs. Luchico, supra). Where the accused
hired the deceased as a trusted houseboy for four years prior to the commission of the
crime; that in the discharge of his duties he was allowed to enter and clean her room and
to close the flower shop and, therefore, had access also to the private room of her victim
where he killed her, abuse of confidence is present. (People vs. Villas, 27 SCRA 947).

26
 If the accused raped a girl who was entrusted to his care by the parents, there is a
betrayal of confidence reposed upon him by the parents but not an abuse of the
confidence of the offended party. (People vs. Crumb, [CA] 46 O.G. No. 6162), but if the
offender was the servant of the family and sometimes took care of the child, whom she
later killed, there is present grave abuse of confidence (People vs. Caliso, 58 Phil. 283).

Robbery or theft committed by a visitor in the house of the offended party is

aggravated by obvious ungratefulness (U.S. vs. Bardicho, 13 Phil. 616), or if the accused
in the crime of murder was an employee of the victim living with him in the same
dwelling (People vs. Develos, L-18866, 31 January 1966) or when the victim was
suddenly attacked while in the act of giving the assailant their bread and coffee for
breakfast instead of being grateful to the victim, at least by doing him no harm (People
vs. Bautista et al., L-38624, 25 July 1974, 72 O.G. 2117).

Let‘s go to crimes committed in the (a) Palace of the Chief Executive; (b) in His
Presence; (c) Where public authorities are engaged in the discharge of their duties; or (d)
In a place dedicated to religious worship. Performance of any functions is not necessary
if the crime is committed in the palace of the Chief Executive or in his presence or in a
place dedicated to religious worship. There must be some performance of public
functions as regards the place where public authorities are engaged in the discharge of
their duties. So, when the assault was committed inside a courtroom after the court had
adjourned, this aggravating circumstance is not present (U.S. vs. Punzalan, 3 Phil. 260).
The aggravating circumstance of having committed the crime in a place where public
authorities are in the discharge of their duties is absorbed in the crime of direct assault
against a person in authority while engaged in the performance of judicial duties (People
vs. Perez, [CA], 57 O.G. 1056). It is necessary to show that the offender sought any of
the above places for the commission of the crime (People vs. Jaurigue, 76 Phil. 174). So,
if the crime was casually committed therein, it is not aggravating.

Nighttime, Uninhabited Place or Band – If all these aggravating circumstances

concur in the commission of the crime, all will constitute one aggravating circumstance
only, as a general rule. However, these can be considered separately if their elements are
distinctly perceived and can subsist independently (People vs. Santos, L-4189, 31 May
1952). To be aggravating it is essential that the same facilitated the commission of the
crime or the offender took advantage of it or it was purposely sought for the purpose of
impunity (People vs. Pardo, 79 Phil. 566; People vs. Matbagon, 60 Phil. 887; reiterated in
People vs. Severino Corpus, et al., 1 SCRA 33; People vs. Soriano, 35 SCRA 633); or to
prevent from being recognized or to insure unmolested escape (People vs. Apduhan, Jr.
[1968] 24 SCRA 798, 816).

In crimes where nighttime is incidental or has no influence in the perpetration

thereof, like bribery or bigamy, is not aggravating. Nighttime is that period of darkness
beginning at the end of dusk and ending at dawn. To be aggravating, the crime must be
committed exclusively at nighttime. If the commission of the crime was commenced at
daytime and it was consummated at nighttime, such is not aggravating (U.S. vs. Dowdell,
11 Phil. 4).

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 If nighttime forms a part of the treacherous means and manner adopted to insure
the execution of the crime, it will be absorbed in treachery (People vs. Pardo, supra).
Otherwise, it may be considered independently from treachery (People vs. San Luis, et
al., 86 Phil. 485). So, if treachery consisted in the fact that the victim’s hands were tied at
the time of the stabbing, nighttime is not absorbed in treachery, since it can be perceived
distinctly therefrom as treachery rests upon an independent factual basis. Nighttime here
facilitated the commission of the crime and was taken advantage of by the accused
(People vs. Ong, L-34497, 30 January 1975). By or of itself, nighttime is not an
aggravating circumstance. It becomes so only when it is especially sought by the accused
and taken advantage of by him to facilitate the commission of the crime to insure
immunity from capture. (People vs. Boyles, et al., No. L-17212, 23 May 1964).

Uninhabited place is determined not by the distance of the nearest house to the
scene of the crime but whether or not in the place of the commission of the offense there
was a reasonable possibility of the victim receiving some help (People vs. Bangug, 52
Phil. 87). So, the place is not uninhabited if where the crime was committed, it could be
seen and the voice of the deceased could be heard from a nearby house (People vs. Laoto,
52 Phil. 401). But if the crime was committed in a banca at sea not so far away, the place
is uninhabited as it was difficult for the victim to receive any help and it was easy for the
accused to escape punishment (People vs. Rubia, 52 Phil. 172) or where were the crime
was committed 500 meters from the toll gate in a solitary place off the road and escape of
the accused is easy (People vs. Atitim, CA, 66 O.G. 4040). The place may be purposely
chosen by the accused as an aid either to an easy and uninterrupted accomplishment of
his criminal design or to a surer concealment of the offense (People vs. Luneta, et al., 45
O.G. 2832, citing U.S. vs. Vitug, 17 Phil. 1; People vs. De Guia, 88 Phil. 520).

Band consists of at least four armed malefactors organized with the intention of
carrying out any unlawful design. Even if there are 20 members but only three are armed
there is no band (U.S. vs. Mendigoren, 1 Phil. 658). Band is inherent in brigandage but
not in robbery committed by a band. It is not considered in the crime of rape (People vs.
Corpus, [CA] 43 O.G. 2249). It has been applied in treason (People vs. Manayao, 44
O.G. 5868) and in robbery with homicide (People vs. Uday, L-1979, 16 February 1960).
It is equally applicable to crimes against persons, such as murder (People vs. Alcaraz, 103
Phil. 533).

Crimes committed on the occasion of a calamity – the phrase “other calamity or

misfortune” includes conflagration, shipwreck, earthquake or epidemic (see People vs.
Corpus, [CA] 43 O.G. 2249). Therefore, the development of engine trouble at sea is a
misfortune, but it does not come within the meaning of “other calamity or misfortune”
People vs. Arpa, et al., L-26789, April 25, 1969, 27 SCRA 1037). Where the accused set
fire to his establishment as the fire which broke earlier in the neighborhood spread out
towards his place and while the people were going about in confusion as a result of the
fire, the circumstance of “taking advantage of the confusion occasioned by another fire”
was held aggravating in arson (People vs. Lao Wan Sing, 18 SCRA 1076).

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 This aggravating circumstance is distinguished from that provided in paragraph
12, for in this aggravating circumstance the crime is committed on the occasion of or
during any of those calamities mentioned, whereas in paragraph 12, the fire, inundation
or explosion is used as a means in the commission of the crime.

Aid of Armed Men Who Insure or Afford Impunity – Casual presence is not
aggravating if the offender did not avail himself of any of their aid nor did he knowingly
count upon their assistance in the commission of the crime (U.S. vs. Abaigar, 2 Phil.
417). The armed men present must take part, either directly or indirectly, in the
commission of the crime by the offender but it must not appear that the offender as well
as those armed men acted under the same plan and for the same purpose as there will be
conspiracy (People vs. Piring, 63 Phil. 546). Aid of armed men is present even if the
principal offender merely relied on their aid as actual aid is not essential.

Recidivism involves at least two convictions and, hence, it is a form of plurality

of crimes like reiteration, habitual delinquency and quasi-recidivism. The first conviction
must be by final judgment and must take place prior to the second conviction. The
subsequent conviction should be for an offense committed before the commission of the
offense in the prior conviction (People vs. Baldera, 86 Phil.189). Also, the offender
should have been convicted by final judgment at the time of the rendition of the judgment
for the second offense (U.S. vs. Tiong Pay, 42 Phil. 212). Final judgment is meant 15
days had elapsed from its promulgation (U.S. vs. Torrida, 23 Phil. 189; and, Atelin vs.
Ocampo, CA-G.R. No. 17494-R, 14 January 1958). Recidivism is imprescriptible and,
hence, is taken into account no matter how many years have elapsed between the first and
second felonies (People vs. Calocar, 60 Phil. 878) and is likewise considered even if the
offender has been given absolute pardon after the first conviction, since pardon merely
extinguishes the penalty (U.S. vs. Sotelo, 28 Phil. 147) but not in the case of amnesty as
such extinguishes all the effects in law of the crime committed. (U.S. vs. Francisco, 10
Phil. 185).

In reiteracion, it is essential that the offender be previously punished, that is, he

has served the sentence for an offense in which the law attaches, or provides for an equal
or greater penalty than that attached by law to the second offense, or for two or more
offenses, in which the law attaches a lighter penalty. Reiteracion requires that the
offender shall have served out his sentence for the prior offense (People vs. Layson, et al.,
L-25177, 31 October 1969).

So, how is recidivism distinguished from reiteracion? (a) In reiteracion, the

offender is previously punished; in recidivism, it is enough that there be a previous
conviction by final judgment; (b) In reiteracion, the offenses are not embraced in the
same title of the Code; in recidivism, these offenses must be embraced in the same title of
the Code; and, (c) Reiteracion is not always aggravating as its appreciation rests upon the
discretion of the court, whereas, recidivism, if present, is always considered aggravating.

29
 Commission of the crime in consideration of a price, promise or reward – When
this aggravating circumstance is present, it affects not only the person who gave the price
or reward but also the person who received it (U.S. vs. Parre, 31 Phil. 923, 1 Viada 262).
Look, however, at the case of People vs. Talledo, et al., 85 Phil. 533, where it was held
that this aggravating circumstance is to be considered not against the offender who gave
the price or reward but against the other because the latter committed the crime in
consideration of the said price or reward. In People vs. Alincastre, 40 SCRA 391, the
Supreme Court reversed the doctrine in People vs. Talledo and held that “as a price and
reward were offered to the other accused, this circumstance makes the crime as murder.
As all the accused contributed towards the attendance of this circumstance, it should
affect each and all of them. If the money was given, without any previous promise, after
the commission of the crime as an expression of sympathy, this circumstance cannot be
present (U.S. vs. Flores, 28 Phil. 29).

Let’s proceed to commission of a crime by means of inundation, fire, poison,

explosion, stranding of a vessel or intentional damage thereto, derailment of locomotive
or the use of any other artifice involving great waste and ruin. This is the only
aggravating circumstance that may constitute a crime in itself. If a building is set on fire
to burn it, the crime committed is arson. If a building is burned as a means to kill the
occupant, the crime will be murder, not murder with arson (People vs. Villarega, 54 O.G.
3482). If a hand grenade was thrown into a house and as a result of the explosion, the
house was damaged but no one was injured, the crime committed is the crime involving
destruction (People vs. Camporedondo, 47 O.G. 779). If the explosion was used as a
means to kill the occupant, who died as consequence, the crime will be murder.

What are the elements of evident premeditation? (a) the time when the accused
determined to commit the crime; (b) an act manifestly indicating that the accused has
clung to his determination; and, (c) a sufficient lapse of time between such determination
and execution, to allow him to reflect upon the consequences of his acts (People vs.
Leano, [CA] 86 O.G. 1120; People vs. Tingson et al., G.R. L-31228 24 October 1972;
and, People vs. Lim [1976] 71 SCRA 249). The premeditation must be based upon
external acts (U.S. vs. Ricafort, 1 Phil. 173) and must be evident not merely suspected
(People vs. Yturriaga, 88 Phil. 534) indicating deliberate planning (U.S. vs. Cornejo, 28
Phil, 457). When the determination to commit the crime was immediately followed by
the execution, premeditation cannot be present (People vs. Gonzales, et al., 42 O.G.
3195). Evident premeditation cannot be considered to quality murder where it is not
shown when the plan to kill was hatched, or what time elapse before it was carried out
(People vs. Corpus, 57 O.G. 2904).

Conspiracy does not necessarily imply premeditation (People vs. Leano, supra),
although premeditation can co-exist with price or reward (U.S. vs. Nabor, 7 Phil. 267).
Such is absorbed in price or reward against the inductor only because even if the other
executed the act in consideration of the reward, it does not necessarily mean that he had
sufficient time to reflect upon the consequences of his act (U.S. vs. Manalindo, 14 Phil.
77).

30
 Unlike in evident premeditation where a sufficient period of time must elapse for
the perpetrator to reflect on the consequences of his act, conspiracy arises at the very
instant the conspirators agree to commit the felony and decide to commit it (People vs.
Peralta, 25 SCRA 759).

The mere fact that the appellant was in an irate mood when he went to the place
where the victim was and demanded an explanation from the latter cannot suffice to
establish evident premeditation in the absence of proof that the accused meditated and
persisted on his intention between the time it was conceived and the time the crime was
actually perpetuated (People vs. Macatangay, G.R. No. 3464-CR, 6 September 1965), but
when the accused for sometime before the incident, had been waiting for the victim to
appear, and that as soon as the latter appeared the former met him and held him by the
neck, there is sufficient evidence of premeditation (People vs. Pajenada, 31 SCRA 812).

Remember this for Book II – Evident premeditation is inherent in crimes against

property (People vs. Daos, 60 Phil 13) but it may be considered in robbery with homicide
(People vs. Valeriano, L-1259, 19 September 1955), if there is evident premeditation to
kill besides to steal (People vs. Nabua, et al., L-27758, 14 July 1969; People vs. Pagal et
al., L-32040, 25 October 25, 1977).

There is no evident premeditation in the killing of a person different from that

intended (People vs. Guillen, 47 O.G. 3433). However, if the accused determined to kill,
not only the intended party, but any person who may help him, then it will be considered
(People vs. Timbol, L-47473, 3 August 1944). So, when the accused threatened to kill
the first two persons he would meet on the street, the deceased being included within the
term “persons” evident premeditation is present (U.S. vs. Zalsos, 40 Phil. 103).

Craft, fraud or disguise – Craft is cunning or trickery. There is craft when the
accused assumed position of authority to gain entrance in the house to enable him to be
alone with the offended party to commit acts of lasciviousness upon her (People vs.
Timbol, 47 O.G. 1859), or in the crime of robbery when one of the accused shouted from
the outside that they wanted to buy cigarettes which induced the offended party to open
the kitchen for them and that one of them said they wanted to drink some water also
paved the way for their intrusion into the house of the offended party (People vs. Napili,
55 Phil. 581), or where the accused convicted of robbery with homicide pretended to be
constabulary to gain entry into the place of the victim (People vs. Saguing, et al., L-
27903, 26 December 1969). If the craft is used to insure the commission of the crime
without risk to the accused, it is absorbed by treachery (People vs. Malig, et al., 46 O.G.
Sup. 11, 255).

Fraud, which constitutes deceit and manifested by insidious words or machinery,

is illustrated in the case of the stepfather of the offended party, who taking advantage of
the absence of her mother, took the young girl away and told her she was to be taken to
the house of her godmother but instead she was taken to another house where she was
raped (People vs. De Leon, 50 Phil. 593).

31
 The purpose of disguise is to conceal the identity. If in spite of the disguise, the
offender was recognized, such cannot be aggravating (People vs. Sonsona, G.R. L-8966,
May 25, 1955). The use of an assumed name in the publication of a libel (People vs.
Adamos, [CA] No. 43808, 20 August 1936), or covering the face with a handkerchief
(People vs. Piring, 63 Phil. 548), or blackening the face (U.S. vs. Confrandia, 4 Phil. 154)
constitute disguise. Disguise is not aggravating if it did not facilitate the commission of
the crime or taken advantage of the accused in the course of the assault. So, if at the
inception of the attack, the accused assumed their hostile intention by shouts, whatever
deception there might be the disguise is counteracted by the mode of attack (People vs.
Cunanan et al., L-30103, 20 January 1977).

Alright, let’s go to taking advantage of superior strength or employing means to

weaken the defense. Intentionally employing excessive force out of proportion to the
means of defense available is taking advantage of superior strength. There must be a
notorious inequality of forces between the victim and the aggressor and, to appreciate it,
it is necessary to evaluate the physical conditions of the protagonists and the arms
employed by each side (People vs. Cabiling [1976] 74 SCRA 285). Hence, although the
offender enjoyed superior strength over the offended party, if the assault was
characterized with passion or obfuscation or made during a quarrel, there is no abuse of
superior strength (U.S. vs. Balines, 4 Phil. 594).

The fact that there was but one person assaulted and two aggressors does not
necessarily constitute the aggravating circumstance of abuse of superior strength (People
vs. Amodia, CA-G.R. No. 02769-R, 6 April 1964). Superiority in number does not mean
superiority in strength. It is must be proven that the attackers cooperated in such a way as
to secure advantage from superiority of strength (People vs. Elizaga, et al., 86 Phil. 364).

If several persons, all armed, attacked the victim who was defenseless, this
circumstance is present (U.S. vs. Mangale, 24 Phil. 69) like four persons, armed with
bladed instruments while the victim was alone, unarmed and taken by surprise (People
vs. Casillar, et al., 30 SCRA 352; People vs. Manzano et al., L-33643-44 July 31, 1974)
or where the four accused confronted the victim in his house when he just woke up and
unarmed, indicating a show of force to overwhelm him and to forestall any resistance he
might have attempted to make. This cannot be treachery because the accused first
confronted the deceased and it cannot be said he was unprepared for the attack (People
vs. Saliling [1976] 69 SCRA 976).

Now, if some committed the crime as principals and the others as accomplices,
there is no abuse of superior strength because it would be inconsistent (People vs. Cortez,
35 Phil. 143). Also, if two men assaulted the deceased without using any arms but only
their hands, their superior strength cannot be so marked (People vs. Sonson, supra.). It
must be shown that the accused were physically stronger or the relative strength of the
parties must be proved (People vs. Bustos, 51 Phil. 385). So, if these accused attacked
the victim who was armed with a revolver, there is no abuse of superior strength since the
strength of the parties is almost balanced (People vs. Antonio et al., 73 Phil. 421).

32
 Attacking a woman, who was defenseless, the accused being armed, constitutes
abuse of superior strength (U.S. vs. Camiloy, 36 Phil. 767; People vs. De Guzman, No. L-
3340, April 30, 1960; and, People vs. Brana, 30 SCRA 307). Remember our quiz? The
killing of a child by an adult constitutes treachery and not abuse of superior strength
(U.S. vs. Oro, 19 Phil. 548). Abuse of superior strength is inherent in treachery if there is
allegation of treachery (People vs. Mobe, L-1292, 24 May 1948; People vs. Santiago,
Nos. L-12 860-61, Dec. 29, 1960) and by its nature also in treason (People vs. Adlansan,
83 Phil. 194).

Abuse of superior strength may be considered in coercion or forcible abduction

although said crimes presuppose employment of force, if the accused employed force that
is in excess of that required for the realization of the crime (People vs. Dayug, 89 Phil.
427) but it cannot be considered in illegal detention because if the agents of the law and
the authorities invested with power availed of force to make detentions, private persons
have more reason to use superior force to make illegal detentions (People vs. Montiveros,
CA-G.R. No. 2466-R, 46 O.G. 2160).

In case of rape, where the offended party was in a state of pregnancy when
attacked and there is no evidence that her condition made her really any weaker than she
already was by reason of her sex, abuse of superior strength can’t be considered. (People
vs. Lindo, [CA] G.R. No. 23315-R, Nov. 13, 1959;56 O.G. 3211). Intoxicating a victim
with intention to kill him is characterized by means employed to weaken the defense
(People vs. Ducusin, 53 Phil. 280). Means employed to weaken the defense is also
characterized by suddenly casting sand or dirt upon the eyes of the offended party and
then wounding him (People vs. Siaotong, L-9242, 29 March 1957).

This is always a bar favorite – Treachery. Treachery is applicable only in crimes

against persons. It is qualifying in murder (Article 248) or in serious physical injuries
(Article 263).

The means, methods or forms of execution of the crime must be consciously

adopted because the law requires that the same insure it execution (People vs. Tumaod,
46 O.G. Supp. II; People vs. Bongo, L-26909, 22 February 1974). So, if the attack is an
impulse of the accused, there is no treachery. (People vs. Macalisang 65 O.G. 13577).
Again, in your quiz – if the killing is due to passion, there can be no treachery, for while
in passion the offender loses his reason and self-control, in treachery the means employed
is consciously adopted (People vs. Wong, CA 70 O.G.4844).

Treachery and evident premeditation can co-exist, as when the accused quarreled
with deceased, threatened to kill him and on the following day did so, when he
surreptitiously entered the house of the deceased and without warning, fired at the
deceased who was shot unaware (People vs. Mutya, L-11255-56, 30 September 1959).

This is criminal procedure: treachery cannot quality the crime to murder if the
information did not allege it as a qualifying circumstance. The accused will be liable for
homicide only (People vs. Navarro, 12 SCRA 530).

33
 Treachery is present if the deceased was killed while bound in such a way as to
be deprived of any opportunity to repel the attack or escape with any possibility of
success (People vs. Madrid, 88 Phil. 1; People vs. Madrid, L-3023, 99 Phil; People vs.
Beskang, et al., 26 SCRA 840), or while asleep (People vs. Miranda, L-3248, 28
September 1957), or if the deceased was shot while answering a call of nature (People vs.
Gerardo, L-4181, May 28, 1952), or if the hands of the deceased were tied when attacked
(People vs. Vista, 86 Phil. 140), or when the accused stabbed the victim while the latter
was in a tight embrace of another, rendering the victim practically helpless and unable to
put up any defense (People vs. Manansala, Jr., et al., 31 SCRA 401), or where the victim
was shot while lying on the floor, face downward. (People vs. Corpus [1961] 1 SCRA
33).

If the attack is frontal, there is no treachery as the mode attack does not exclude
any risk to the offender from the defense which the party attack may make (People vs.
Matbagon, 60 Phil. 839). But there is treachery when the attack, although frontal, is
sudden and perpetrated in a manner tending, directly and especially to insure its
execution free from danger and without risk to oneself that the victim might to defend
himself (People vs. Macarubbo, CA-G.R. No. 04691-CR, 9 September 1965; People vs.
Tiongson, et al., Nos. 9866 and L-9867, 28 November 1964), or it the frontal attack is
sudden and unexpected and not even preceded by a dispute, to the point of incapacitating
the person attacked to repel or to escape from it (People vs. Noble, 47 Phil. 93; People vs.
Wigan, 86 Phil. 176; People vs. Resayaga, L-23234, 26 December 1973), or when that
attack although frontal was sudden and in the dark (People vs. Acabado, 26 SCRA 727).

It has been held, however, that mere suddenness of an attack is not enough to
constitute treachery when the means adopted does not positively tend to prove that the
assailant thereby knowingly intended to insure the accomplishment of his purpose
without risk to himself arising from the defense which his victim might make (Perez vs.
Court of Appeals, No. L-13719, Nov. 31965; People vs. Cabiling [1976], 74 SCRA 285)
or the act was made to eliminate any risk to the aggressor from the defense which the
person attacked may make (People vs. Cabanganan CA 65 O.G. No. 14, P 3409). A
sudden and unexpected attack would not constitute alevosia where the aggressor did not
consciously adopt a mode of attack intended to facilitate the perpetuation of homicide
without risk to himself (People vs. Satorre et al., [1976] 74 SCRA 106). Suddenness of
the attack is not sufficient to constitute treachery, if the victim had a chance to defend
himself or to ward off the attack (People vs. Ardisa L-29351, 23 January 1974).

An attack from behind or shooting at a fleeing victim is not necessarily treachery

unless it appear that the method of attack was adopted by the accused deliberately with a
special view to the accomplishment of the act without any risk to the assailant from any
defense that the party assaulted may make (People vs. Canete, 44 Phil. 478), or if the
accused stabbed the victim from behind, which was merely an incident of their struggle
which had begun with both contenders facing each other, each prepared for the fight that
ensued (People vs. Gondayao, supra).

34
 There is treachery even if the person killed is different from that intended
because it is impossible either fro the intended victim to defend himself against the
aggression (People vs. Andaya, [CA] 40 O.G. Sup. 12, 141). If the killing was preceded
by a quarrel and there had been an opportunity for the deceased to defend himself as he
was in fact armed, treachery is not present (People vs. Balanghed, [CA] G.R. No.
11711R, 11 July 1965; and, U.S. vs. Ferrer, 1 Phil. 56). Also, if the attack appears to have
been the result of a chance encounter and quarrel and the wounding of the victim while
lying prone on the ground was merely incidental to the ensuing pursuit, not intended to
insure the safety of the attackers themselves, treachery is not present (People vs.
Clemente, et al., L-23463, 28 September 1967; People vs. Delgado, 77 Phil. 11; and,
People vs. Verga, 46 O.G 1185).

What’s the point of all of these cases? Treachery is a question of fact.

Treachery is considered against all of the offenders when there is conspiracy

(People vs. Carandang, 55 Phil. 503; and, People vs. Pareja, 30 SCRA 693). Treachery is
inherent in murder by poisoning (People vs. Caliso, 58 Phil. 283).

Should treachery be present at the inception of the attack? The general rule is
that treachery should normally attend the inception of the attack. If the attack begun
without treachery but the same was continued, and consummated with treachery the
circumstance will be present to qualify the crime into murder provided there is a break or
interruption in the attack (U.S. vs. Baluyot, 40 Phil. 385), but if the attack is continuous,
treachery will not be considered, as treachery must be present at the inception of the
attack (U.S. vs. Balagtas, 19 Phil. 164; People vs., Canete, supra; Feria and Gregorio,
Vol. II, P.27). So, if the deceased was shot in the leg and when he ran away, he was shot
at the back, there is no treachery as the shots were fired in succession (People vs.
Tengyao, 3 SCRA 476). A continuous attack cannot be broken up into two or more parts
and made to constitute separate, distinct and independent attacks, so that the element of
treachery may be injected therein (People vs. Leal, G.R. L-28379, 31 August 1971; and,
People vs. Carino, L-33063, 12 February 1974).

Let’s go to Ignominy. This is an aggravating circumstance pertaining to the

moral order, which adds disgrace and obloquy to the material injury caused by the crime
(U.S. vs. Abaigar, 2 Phil. 417). It, therefore, produces moral suffering on account of its
humiliating effects. Ignominy is aggravating in the crime of less serious physical injuries
(Article 265, [2]). As a rule, it is applicable in crimes against chastity but it has been
applied in light coercion where the accused embraced a woman in the presence of so
many people (People vs. Cantong, [CA] 50 O.G. 5899).

There is ignominy (a) where the accused raped a woman in the presence of her
husband (U.S. vs. Iglesia, 21 Phil. 55); (b) winding cogon grass around the penis before
committing rape (People vs. Torrefiel, [CA], 45 O.G. 8803); (c) in compelling a woman
to confess to a theft of clothes, the accused took off her drawers (People vs. Fernando,
[CA] 43 O.G. 1717).

35
 There is no ignominy where the accused sliced and took the flesh from the thigh,
legs and shoulder of the victim after killing her with a knife (People vs. Balondon, 30
SCRA 155).

Unlawful entry exists when an entrance into a building is made by a way not
intended for the purpose. Entering through the window is unlawful entry. Breaking the
door to enter is not unlawful entry as this will be embraced in Article 14 (19).

The unlawful entrance must be made for the purpose of committing a crime like
rape or murder. It is inherent in the crime of trespass to dwelling (U.S. vs. Barberan, 17
Phil. 509) and in robbery with force upon things (Article 299, [2, subsection 1], and in
Article 802 [1]), although it may be considered in robbery with violence or intimidation
against persons. Unlawful entry to be aggravating must be for the purpose of entrance
and not for the purpose of escape (People vs. Sunga, 43 Phil. 205).

Go to – as a Means to commit a crime, a wall, roof, floor, door or window be

broken. This means is for the purpose of committing a crime. It is inherent in robbery
with force upon things.

Go to commission of a crime with the aid of a person under 15 years or by means

of motor vehicles, airships, motorized watercraft or similar means. There are two distinct
aggravating circumstances here. The first shows the greater perversity of the offender in
taking advantage of the youthfulness of those persons for criminal purposes. The second
is intended to meet the problem created by modern criminals in resorting to faster means
of conveyance to commit the crime.

The circumstances of motor vehicles is present in the case of a taxicab used in

committing robbery (People vs. Lacsamana, 70 Phil. 517), or even if the victims were not
compelled to ride in a jeep but were merely lured and as a matter of fact one of them even
drove the vehicle to the place where they were killed (People vs. De La Cruz, L-10533,
26 December 1956).

May this circumstance be present if the vehicle is used as a means for the escape
of the offender? I remember Mr. Zaragoza asking this question. In the crime of estafa
wherein a jeep was used in carting away the property, it was held that this circumstance
was not present because the estafa was not committed by means of said vehicle which is
what the law provides in appreciating the use of the vehicle as aggravating (People vs.
Bagtas, [CA], No. 10823-R, 12 September 1955). It will fall here – this circumstance
will be considered where there is a showing that the motor vehicle was purposely used to
facilitate the commission of the offense or where it is shown that without it the offense
charged could not have been committed or was intentionally sought to insure the success
of the nefarious enterprise (People vs. Tingson, et al., L-31228, 24 October 1972, 69 O.G.
607; People vs. Jaranilla [1974] 55 SCRA 563).

36
 The last aggravating circumstance is cruelty. There is cruelty when the culprit
enjoys and delights in making his victim suffer slowly and gradually causing unnecessary
moral and physical pain in the consummation of the criminal act which he intended to
commit (People vs. Dayug, 49 Phil. 423; People vs. Luna, L-28812, 21 July 1974; People
vs. Ong, L-34497, 30 January 1975).

Cruelty requires deliberate prolongation of the suffering of the victim (People vs.
Dayug, supra). Hence, inflicting various successive wounds in order to cause the death
of the victim, no appreciable time intervening between the infliction of one and that of
another, is not necessarily cruelty. And, there can be no cruelty if the cutting of the
extremities of the victim was done after he was dead (People vs. Bersabal, 48 Phil. 439).

We now go to alternative circumstances, which are defined as those which must

be taken into consideration as aggravating or mitigating according to the nature and
effects of the crime and other conditions attending its commission.

There are three alternative circumstances: (a) relationship; (b) intoxication; and,
(c) degree of instruction and education of the offender.

Relationship is taken into consideration when the offended party is the spouse,
ascendant, legitimate, natural or adopted bother or sister or relative by affinity in the
same degree. Relationship of stepfather or stepmother and stepson or stepdaughter is
included by analogy as similar to ascendant or descendant (People vs. Bersabal, 48 Phil.
439). The relationship between uncle and niece, however, is not included (U.S. vs.
Incierto, 15 Phil. 358). Relationship is mitigating in crimes against property by analogy
to the provision of Article 332. Relationship is aggravating in crimes against persons if
the offended party is a relative of higher degree or when the offended and the offended
party are relatives of the same level (People vs. Mercando, 51 Phil. 99). As a rule,
relationship is mitigating if the offended party is of a lower degree than that of the
offender. The exception is the crime of serious physical injuries if committed against the
offender’s child provided the same were not due to excessive chastisement if the offender
is the parent. (Article 263). If relationship is an element of the crime as in parricide, it is
neither aggravating nor mitigating.

Intoxication is mitigating if it is not habitual or it is not subsequent to the plan of

the commission of a felony. It is aggravating if it is habitual or intentional.

If one who had plotted to kill the victim, had drunk wine in order to embolden
him in carrying out with his evil plan, drunkenness is not mitigating (People vs.
Hernandez, No. L3391, 23 May 1952), but if one is somewhat drunk at the time of the
incident for having drunk tuba, drunkenness is mitigating (People vs. Calinawan, CA-
G.R. 21413-R, 21 July 1958). To be mitigating it must be shown: (1) that at the time of
the commission of the criminal act, the accused has taken such quality of alcoholic drinks
as to blur his reason and deprive him of a certain degree of control; and, (2) that such
intoxication is not habitual or subsequent to the plan to commit the felony (People vs.
Bocluso, L-0405-51, 30 September 1974).

37
 In the degree of instruction and education of the offender, the court considers not
only illiteracy but the lack of intelligence of the offender. A person able to write but
densely ignorant, of low intelligence that he does not realize the full consequences of his
acts may be entitled to this mitigating circumstance. If one is unable to write, but is
exceptionally intelligent or mentally alert that he easily realized the significance of his
act, then there is no mitigating circumstance (People vs. Orbista, R.G. No. L-6246, 26
May 1954; People vs. De la Cruz, 43 O.G. 3106; People vs. Sabueco, L-13372, 20 May
1960).

In People vs. Mutya, L-11255-56, 30 September 1959, the Supreme Court held
that such is not mitigating in murder because to kill is forbidden by natural law which
every natural being is endowed to know and feel. It is also not mitigating in crimes
against property like robbery or theft nor in crimes against chastity like rape (People vs.
Lopez, No. L-14347, 29 April 1960).

High degree of instruction is aggravating if the offender availed himself or took

advantage of it in committing a crime like a lawyer who commits falsification or a doctor
who kills his victim by means of poison.

Let’s move on to penalties, including criminal and civil liability. You have to use
the Revised Penal Code from hereon. I will point or direct you to the provisions.

Penalty is the suffering that is inflicted by the State for the transgression of a law.
If you want to be a good prosecutor and/or a judge, know the provisions of penalties by
heart. What are not considered penalties? Go to Article 24 and memorize everything
there. How are penalties computed? Go to Article 28. What do penalties include? Read
Article 45. What is deducted from the term of imprisonment? Read Article 29.

What are the penalties which may be imposed under the Code? Go to Article 25.
What about the duration of each of the different penalties? Memorize Article 27. What
are the effects of the penalties according to their respective nature? Read and memorize
Articles 30 to 35. When shall a fine, whether imposed as a single or as an alternative
penalty, be considered afflictive, correctional or light? Memorize Article 26. Authors
still discuss whether there is a conflict between Articles 9 and 26 if the fine prescribed by
law for the felony is exactly P200. There is none. What is in issue is the prescription of
the offense vis-à-vis the prescription of the penalty, the former being the right of the State
to prosecute the offender and the latter being the loss of its power to enforce judgment
against the convict. Thus, if the issue is prescription of an offense punishable by a fine of
P200, it is a light felony per Article 9 and the prescriptive period for prosecuting the same
is 2 months per Article 90. Where the issue is the prescription of the penalty of the same
fine imposed on the offender, it is a correctional penalty (Article 26) and the prescriptive
period for executing the same is 10 years (Article 92). What are included in costs? Read
Article 37.

38
 If the convict has no property with which to meet the fine under Article 38, then
Article 39 on Subsidiary penalty applies, provided that the penalty imposed by the court
is only (1) prision correccional; (2) arresto mayor; (3) arresto menor; (4) suspension; (5)
destierro; or (6) fine. What accessory penalties are inherent in principal penalties? Go
read Articles 40 to 44.

Let’s go to the application of penalties. Article 48 is always a bar favorite. So,

when a single act constitutes two or more grave or less grave felonies, or when an offense
is a necessary means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period. The first kind of
complex crime is what is known as “delito compuesto”; while the second kind is known
as “delito complejo”. The discussion made by Supreme Court Justice Florenz Regalado
on Article 48 is extensive and, as you were already introduced to the subject by the great
author Luis B. Reyes, you should have no trouble understanding this –

Article 48 governs and regulates one of the aspects of plurality of crimes, which
may be (a) formal or ideal; or (b) material or real. These are different from the so-called
“continuing or continued crimes”, which we shall deal later.

Formal plurality involves the same criminal intent resulting in two or more crimes
constituting a complex crime under Article 48 and for which there is only one criminal
liability. Examples: (a) in the case of People vs. Guillen, 85 Phil. 307, where a single act
of throwing a hand grenade to kill the President resulted in death and injuries to different
persons. This is delito compuesto; and, (b) in the case of People vs. Policher, 60 Phil.
770, where public documents were falsified in order to commit malversation. This is
delito complejo.

Material plurality, on the other hand, refers to different criminal intents resulting
in two or more crimes for each of which the accused incurs criminal liability. Examples
would be: (a) the killing of two or more victims by different shots (People vs. Buyco, 80
Phil. 58); and, (b) by falsification to conceal malversation (U.S. vs. Geta, 43 Phil. 1009).

Let’s go discuss continuing crimes (delito continuado) for a while. A continuing

crime arises from the same criminal intent or resolution carried out by a continuous series
of acts resulting in the repetition of the same crime although affecting the same or
different victims, and resulting in one criminal liability. Examples are: (a) theft by the
offender of several roosters belonging to different owners on one and the same occasion
(People vs. De Leon, 49 Phil. 437); and, (b) robbing several houses pursuant to one
general plan (U.S. vs. De la Cruz, et al., 4 Phil. 430). Now, what if several contracts were
entered into by the accused in order to defraud the laborers and, thereafter, refused to pay
them for their services? The court held that there are as many crimes of estafa as there
are offended parties (People vs. Mangampo, 99 Phil. 967). Was the court correct? Yes,
there is no conflict between the De Leon case and the Mangampo case. When you reach
Book 2, you will learn the elements of estafa, particularly, damage to the offended party.
In the Mangampo case, the damage was not incurred by the offended parties until they
were not given their wages.

39
 Continuing crimes are not found in the Revised Penal Code but have evolved thru
jurisprudence. Another principle that has found its way into you law books but has no
basis in law is the so-called “foreknowledge principle”. This deals with crimes which are
more or less identical and committed by the accused over a period of time. The basic rule
was that, where an accused falsified several postal money orders and encashed them for
his benefit, only 1 complex crime was committed (People vs. Cu Unjieng, et al., 61 Phil.
236 and People vs. Penas, 66 Phil. 682). Also, when misappropriations were committed
on different dates of various amounts which were to be accounted for on 1 occasion, there
was only 1 crime of estafa (Ricafort vs. Fernan, et al., 101 Phil. 575). The rule, however,
was qualified in People vs. Dichupa, G.R. Nos. L-16943-44, 28 October 1961 – in this
case, abstractions were made from palay deposited in a warehouse during the period
January to December 1955 and, again, during the period January to July 1956. The court
held that 2 crimes were committed as the accused could not have foreseen that, in 1956,
another deposit of palay would be made by the owner in the same warehouse.

Some principles – (1) There can be no complex crime if one offense is punished
by a special law since both offenses must be defined and punished by the same statute
(People vs. Araneta, 48 Phil. 650); (2) The accused can be convicted of a complex crime
only if the information charges and specifies the offense as a complex crime, otherwise,
he shall be convicted of the component offenses mentioned therein as separate crimes,
even if the evidence shows that legally they should be complexed (U.S. vs. Ginosolongo,
23 Phil. 171); and, (3) Even if the accused is charged with a complex crime, he can be
convicted only of a single crime where the other crime was not duly proved (U.S. vs.
Lahoylahoy, et al., 38 Phil. 330), or both offenses mentioned therein as separate crimes if
so proved (People vs. Ancheta, CA, 56 O.G. 4575). You may be asked: When are the
rules in Article 48 not applicable? (a) When the crimes are covered by the doctrine of
common elements. Thus, there can be no complex crime of estafa through the
falsification of a private document as both crimes require the element of damage, which
if used in one, renders the other incomplete [People vs. Reyes, 56 Phil. 286]; (b) When
the crimes involved are subject to the rule of absorption of one crime by the other. Thus,
there can be no complex crime of treason with murder since the latter is an ingredient of
the former [People vs. Adlawan, 83 Phil. 194]. There can be no complex crime of
rebellion with murder [People vs. Hernandez, 99 Phil. 515] as the latter crime is absorbed
in the former; (c) Where the two offenses resulting from a single act are specifically
punished as a single crime, such as less serious physical injuries with serious slander by
deed, since this is punished under Article 265 (2) as the single crime of less serious
physical injuries with ignominy [People vs. Lasala, G.R. No. L-12141, 30 January 1962];
(d) In special complex crimes where the law provides a specific penalty for the
commission thereof. Please see Article 266-B re rape with homicide, Article 267 re
kidnapping and serious illegal detention where the victim is killed, Articles 294 and 297
re robbery with homicide and attempted or frustrated robbery with homicide; lastly, (e)
Where the Revised Penal Code specifically provides that the penalty for a particular
felony shall be “in addition to” those imposed for those other felonies committed by the
accused. You will learn this when you get to Book 2. For the meantime, go see Articles
129, 210, 235, 275, 276 to 278 (in relation to 279) and 312.

40
 Read Article 49. The rules in paragraphs 1 and 2 apply only to cases of error in
personae (see Article 4 [1]) and not to aberration ictus or praeter intentionem. Don’t
forget that in aberration ictus, two felonies are committed; while in praeter intentionem,
the crime befalls the same victim. For Article 49 to apply – (a) only one crime must have
been committed; and, (b) the crime befell another person (People vs. Albuquerque, 59
Phil. 150 and People vs. Tomotorgo, G.R. No. L-47941, 30 April 1985). The classic or
perennial example given by professors re Article 49 is that wherein the accused, through
error in personae, committed parricide by killing his father, instead of homicide which he
intended to commit against a different person. Per Article 49, the lesser penalty, that is,
for the intended homicide will be the one imposed.

Let’s go first to Article 71. Read and memorize. The scales in this Article are to
be followed in graduating penalties by degrees in accordance with the rules in Article 61.
Note here that, being based on the severity of the penalties, the penalty of destierro comes
after arresto mayor and before arresto menor. Alright, go back to Articles 46, 50, 51, 52,
53, 54, 55, 56, 57 and 60. As a basic rule in reducing penalties by degrees, each penalty
in the graduated scales in Article 71 is equivalent to or constitutes a degree and, as stated
there, the lower or higher penalty shall be taken from the graduate scale in which is
comprised the given penalty.

Per Article 46, the starting point is the penalty prescribed by law which, absent a
contrary indication, is to be considered as the penalty imposed upon the principal in the
consummated felony. The rules stated in Articles 50 to 57 for the graduation of penalties
are based on the stage of execution of the felony, that is, consummated, frustrated and
attempted, and the participation of the accused, which may be as principal, accomplice or
accessory. Expressed in a diagram, with “0” being the penalty prescribed by law for the
principal in a consummated felony, the rules would be as follows:

Accused Consummated Frustrated Attempted

Principal 0 1 2
Accomplice 1 2 3
Accessory 2 3 4

Remember this: in making any reduction by one or two degrees, the basis is the
penalty prescribed, not as already reduced. Accordingly, the penalty for the attempted
crime is that for the consummated felony reduced by two degrees and not the penalty for
the frustrated felony reduced by one degree (People vs. De los Angeles, 103 Phil. 295).

Article 60 then tells you that the foregoing rules do not apply where the Revised
Penal Code expressly prescribes the penalty for a frustrated or attempted felony, or to be
imposed upon accomplices or accessories (See Articles 142, 268, 297 and 346). Also, in
parricide, murder and homicide, the penalty imposed by the Revised Penal Code may be
further reduced by one degree (Article 250).

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 Memorize Article 61 and relate it to Article 64 which talks of graduation of the
penalties by periods. Learn first the portions of a period (divided into maximum, medium
and minimum) of the divisible penalties before we proceed. So, go to Article 76.

Penalties Time included Time included

Time include in Time included
in the penalty in in its minimum
its medium in its maximum
its entirety period period period
Reclusion 12 years and 1 12 years and 1
14 years, 8 17 years, 4
temporal day to 20 years day to 14 years
months and 1 months and 1
and 8 months
day to 17 years day to 20 years
and 4 months
Prision mayor, 6 years and 1 6 years and 1 8 years and 1 10 years and 1
absolute day to 12 years day to 8 years day to 10 years day to 12 years
disqualification
and special
temporary
disqualification
Prision 6 months and 1 6 months and 1 2 years, 4 4 years, 2
correccional, day to 6 years day to 2 years months and 1 months and 1
suspension and and 4 months day to 4 years day to 6 years
destierro and 2 months
Arresto mayor 1 month and 1 1 to 2 months 2 months and 1 4 months and 1
day to 6 months day to 4 months day to 6 months
Arresto menor 1 to 30 days 1 to 10 days 11 to 20 days 21 to 30 days

Alright, let’s go back to Article 61. Article 61 gives the rules for graduation of
penalties by degrees, while Article 64 gives you the rules for graduation of penalties by
periods.

Now, you will understand why this whole lecture is presented this way. Thus, in
applying the rules in Article 61, determine – (1) first, the nature of the participation of the
accused and the stage of the execution of the felony (Articles 50 to 57); (2) second, see if
Articles 68 and 69 are applicable or present. Do not go to the rules for the application of
penalties where mitigating or aggravating circumstances are present, particularly, Article
64 (5), just yet. In other words, disregard the attending circumstances in the meantime.

After applying Articles 50 to 57 and determining whether Articles 68 and 69 are

applicable or present, see where the accused landed (i.e., whether the penalty imposable
is indivisible or divisible) and whether there are mitigating or aggravating circumstances.
If the penalty prescribed by law is indivisible or composed of two indivisible penalties,
then apply Article 63. On the other hand, if the penalty prescribed by law contains three
periods or where the penalty is not composed of three periods, you apply Articles 64 and
65.

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 Let’s take an example (People vs. Gonzales, 73 Phil. 549; People vs. Gutierrez, et
al., G.R. No. L-30134, 15 March 1982; and Nizurtado vs. Sandiganbayan, et al., G.R. No.
107838, 7 December 1994). Thus, in a complex crime of estafa through the falsification
of a commercial document, where 2 mitigating circumstances where present, the court
started with prision mayor in its full extent, which is the penalty for the graver offense of
falsification (Article 48). Applying Article 64 (5), the penalty went down by 1 degree to
prision correccional, still in its maximum period.

Alright, let’s go to Articles 62, 64 and 65 and relate the same to the Indeterminate
Sentence Law. Articles 62, 64 and 65 provide the rules for determining the period of the
penalty which may consist of (1) a single divisible penalty (see Article 249 providing a
penalty of reclusion temporal for homicide); (2) three different penalties, even if some are
indivisible penalties (see Article 114 providing the penalties of reclusion temporal to
death for treason by a resident alien); and, lastly, (3) divisible penalties not composed of
3 periods (see Article 148 providing the penalty of prision correccional in its medium and
maximum periods for direct assault).

Let’s take an example (People vs. Cesar, G.R. No. L-26185, 13 March 1968). In
this case, the accused enjoyed the privileged mitigating circumstance of minority and also
an ordinary mitigating circumstance, with no attending aggravating circumstance. The
problem was that the crime committed by the minor was the complex crime of estafa thru
the falsification of a commercial document. The court said: first, reduce the penalty by 1
degree because of the privileged mitigating circumstance; second, impose the reduced
penalty in the maximum period because the crime committed is a complex one; third, get
the lower one-third range of the maximum of the reduced penalty in order to apply the
ordinary mitigating circumstance. Thus, the penalty for the higher crime of falsification
is prision mayor. As there is a privileged mitigating circumstance (minority), bring it
down by one (1) degree – prision correccional. Apply the penalty of prision correccional
in its maximum period because the crime is a complex one. Now, get the lower one-third
range of the maximum of the reduced penalty in order to apply the ordinary mitigating
circumstance as follows: the entire duration of the prision correccional in its maximum is
– 4 years, 2 months and 1 day to 6 years. The difference between 6 years and 4 years and
2 months is 1 year and 10 months or 22 months (note – exclude that 1 day). Divide 22
months by 3 and you get 7 months and 10 days. Add 7 months and 10 days to 4 years
and 2 months so that you will get the lower one-third range of the maximum of prision
correccional. What is the range of the lower one-third range in this case? It is 4 years, 2
months and 1 day to 4 years, 9 months and 10 days. You will then start here when you
apply the Indeterminate Sentence Law. Memorize Sections 1 and 2 of the Indeterminate
Sentence Law.

The starting point of the Indeterminate Sentence Law is the penalty imposed by
the Code. If Articles 68 and 69 are available, then you start with the reduced penalty. If
Article 64 (5) applies, then you start with the further reduced penalty. This will then be
the maximum term of the indeterminate sentence. The degree next lower to the reduced
penalty shall be the basis of the minimum term of the indeterminate sentence.

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 Does the Indeterminate Sentence Law apply to offenses punished by special laws?
Only if the said special laws provide for their maximum and minimum penalties. Take
note, however, of that case of People vs. Nang Kay, 88 Phil. 515 where the court did not
apply the Indeterminate Sentence Law because it had the effect of extending the sentence
of the accused. In said case, the accused was sentenced to five years after having been
found guilty of illegal possession of firearms, which carries a penalty of five to ten years.
To give him an indeterminate penalty will be requiring him to serve a penalty longer than
five years. In a complex crime, if the penalty for the graver offense exceeds one year, the
law applies by taking the minimum from the penalty next below that penalty for the
graver offense. Therefore, in illegal discharge of firearms with less serious physical
injuries, the penalty for the more serious crime (illegal discharge of firearms) is prision
correctional in its minimum to medium periods. The penalty next lower is arresto mayor
in its medium to maximum periods. The range of the indeterminate sentence will be
arresto mayor in its medium period to prision correccional in its medium period (People
vs. Caburao, CA, 54 O.G. 8259).

The rule on habitual delinquency is outlined in Article 62. Habitual delinquency

is not a crime but a factual circumstance, the presence of which in a crime will warrant
the imposition of an additional penalty (People vs. Blanco, et al., 85 Phil. 296), which is
mandatory (People vs. Ortezuela, 51 Phil. 857). Habitual delinquency is distinguished
from recidivism as follows: (a) Habitual delinquency requires the conviction of the
accused a third time or oftener. Recidivism only requires a second conviction; (b) In
habitual delinquency, the crimes are specified. In recidivism, it is sufficient that the two
crimes are embraced in the same Title of the Revised Penal Code; (c) In habitual
delinquency, the accused must be found guilty of any of the specified crimes within ten
years from his last release or conviction for any of those crimes. In recidivism, the
intervening period of time between the former and last conviction is immaterial; (d) In
habitual delinquency, the succeeding offense must have been committed after the
offender’s conviction for the preceding offense. In recidivism, it is sufficient that the
succeeding crime was committed after the commission of the preceding crime, provided
that, at his trial for the succeeding crime, the accused had already been convicted of the
previous one; and, (e) Habitual delinquency results in the imposition of an additional
penalty upon the accused. In recidivism, as an aggravating circumstance, only serves to
determine the period of the penalty to be imposed, as a rule.

Some rulings on habitual delinquency – (1) Offenses committed at or about the

same time (People vs. Albuquerque, 69 Phil. 608) and convictions at or about the same
time (People vs. Kaw Liong, 59 Phil. 839) shall be considered as only one in reckoning
the required three convictions; (2) Where there are two different cases which are pending
against the same accused, his previous two convictions can be used in either cases, or in
both, for determining whether he is a habitual delinquent (People vs. De la Rama, 62
Phil. 972); (3) The three convictions of the accused shall be considered for purposes of
determining habitual delinquency regardless of the stage of the execution of the felony
(People vs. Abuyen, 52 Phil. 722) or the nature of the participation of the accused in the
felony (People vs. San Juan, 69 Phil. 347).

44
 Read Article 70. What is important here and which sometimes comes out in the
bar exams is the “threefold rule”. The rule provides that the convict shall not serve more
than three times the most severe of the penalties imposed on him. Hence, there must be
at least four sentences which he is supposed to serve. Also, the rule is applicable only to
principal penalties and applies to all penalties imposed in all proceedings or on different
dates (People vs. Geralde, 50 Phil. 823). Take note of the case of Bagtas vs. Director of
Prisons, 84 Phil. 692, where it was clarified that, since the threefold rule applies only to
principal penalties, the accused still has to serve subsidiary imprisonment even if the
equivalent of three times of the most severe principal penalty had already been served as
long as the principal penalty does not exceed 6 years. The court is correct here. Go back
to Article 39 [3] in case you forgot it and you will see how brilliant the ponente is.

Please read Articles 78 to 88. They’re easy enough. We are nearing the end of
this lecture. Article 89 tells you how criminal liability is totally extinguished.

The first ground is death of the convict before final judgment. So, if the accused
appeals his conviction and dies during the pendency of his appeal, his criminal liability is
totally extinguished. What about his civil liability? Distinguish – if the civil liability of
the accused arises from and is based solely on the offense committed, it is likewise totally
extinguished. If the civil liability of the accused is predicated upon a source of obligation
other than the crime (e.g., if it is based on a quasi-contract or quasi-delict), then the claim
survives and may be pursued in a suit against the representative of the accused or against
his estate, depending upon the source of the obligation (People vs. Bayotas, G.R. No.
102007, 2 September 1994 and People vs. Romero, G.R. No. 112985, 21 April 1999).

The second ground is by service of the sentence. In Martin vs. Eduardo, G.R. No.
62627, where he accused escaped four times from prison where he was serving sentence,
it was held that the periods during which the accused was at large shall be deducted in the
computation of his total service of the sentence. That’s common sense.

The third ground is amnesty and the fourth ground is absolute pardon. Know the
main distinctions between amnesty and pardon – (a) amnesty is a general pardon usually
granted in favor of a class of persons who have not yet been convicted or were already
convicted of political offenses, and is an official public act of the President with the
concurrence of Congress (Section 19, Article VII, Constitution). A pardon is usually
granted to an individual for any crime after he has been convicted and is a private act of
the President alone and the courts cannot take judicial notice of the same; (b) amnesty
obliterates the last vestiges and consequent effects of the penalty, hence the ex-convict is
cleansed of the circumstances of recidivism (U.S. vs. Francisco, 10 Phil. 185). In pardon,
the fact of conviction is not erased and, thus, he can still be considered for recidivism
(U.S. vs. Sotelo, 28 Phil. 147). Note: both amnesty and pardon do not extinguish civil
liability (see Article 36 in relation to Article 113). See People vs. Patriarca, Jr., G.R.No.
135457, 29 September 2000, which I am sure was discussed in your political law class.
In that case, the differences between pardon and amnesty were reiterated and more fully
summarized by the Supreme Court.

45
 What about pardon by the offended party? Well, Article 23 tells you that such
does not extinguish the criminal action except as provided in Article 344 of the Code; but
the civil liability with regard to the interest of the injured party is forever extinguished by
his express waiver. The marriage of the offended woman, as provided in Article 344 of
the Code, is the seventh ground under Article 89.

The fifth ground is prescription of the crime. Memorize Articles 90 and 91. The
prescriptive periods stated in Article 90 do not apply to offenses punished by special laws
which, generally, have their own prescriptive periods (People vs. Ramos, G.R. No. L-
25265, 9 May 1978). If the special does not provided for a prescriptive period for the
offense or offenses that it is punishing, the periods to be applied would be those provided
by Act No. 3326. With respect to the rules for computing the prescriptive periods that are
stated in Article 91, however, the same may be availed of if the particular issue thereon is
not supplied by the special law involved, pursuant to Article 10 (People vs. Tamayo, CA,
40 O.G. 2313).

Under Section 1 of Act No. 3326, violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe in accordance with the following rules: (a)
after a year for offenses punished only by a fine or by imprisonment for not more than 1
month, or both; (b) after 4 years for those punished by imprisonment for more than 1
month but less than 2 years; (c) after 8 years for those punished by imprisonment for 2
years or more but less than 6 years; and, (d) after 12 years for any other offense punished
by imprisonment for 6 years or more, except the crime of treason, which shall prescribe
after 20 years. All offenses against any law or part of law administered by the Bureau of
Internal Revenue shall prescribe after 5 years. Lastly, violations penalized by municipal
ordinances shall prescribe after 2 months.

In computing the period of prescription of felonies, Article 91 states that the same
shall commence to run from the day on which the crime is discovered by the offended
parties, the authorities, or their agents. Section 2 of Act No. 3326 states that, the period
of prescription shall begin to run from the day of the commission of the violation of law,
and if the same be not known at the time, from the discovery thereof.

Is there any difference in the foregoing? Not really. Both provisions just mean
that, if the commission of the crime is known, the prescriptive period shall commence to
run on the day it was committed.

Some cases on prescription – (1) In computing the number of days, months and
years, the provisions of Article 13 of the New Civil Code will govern (Quizon, et al. vs.
Salazar, et al., G.R. Nos. L-23779-80, 29 April 1977); (2) If the period should involve the
month of February of a leap year, February 29 will be counted separately and as an
additional day in determining whether or not the period has elapsed (People vs. Ramos,
G.R. No. L-25265, 9 May 1978); (3) If the prescriptive period falls on a Sunday or a
holiday, that day will be counted and the prosecutor can no longer file an information on
the following Monday or business day (Yapdiangco vs. Buencamino, G.R. No. L-28841,
24 June 1983).

46
 So, in prescription of offenses, what is taken into account is the penalty imposable
under the law. Under Article 91, it is the date when the offense, and not the offender, is
discovered by the offended parties (People vs. Ventura, G.R. No. L-15079, 31 January
1962), the authorities, or their agents that is the starting point (People vs. Joson, 46 Phil.
380; but, in computing, the law excludes the first day which is the day of the discovery of
the offense (People vs. del Rosario, 97 Phil. 67).

There are, however, exceptions: (1) In the case of continuing crimes (Arches vs.
Bellasillo, et al., 81 Phil. 190), where the computation generally starts from the date when
the accused desisted from committing the act; (2) In the crime of false testimony against
the accused (Article 180), since the penalty is dependent upon the acquittal or conviction
of the accused, the prescriptive period runs from the date of finality of judgment in the
main case (People vs. Maneja, 72 Phil. 256). In case of false testimony in favor of the
accused, on the other hand, the period is reckoned from the date when the false testimony
was given in court; (3) In the case of falsification of public documents involving realty
which are registered with the Office of the Register of Deeds, the prescriptive period is
counted from the date of registration, not the actual discovery thereof (People vs. Dinsay,
CA, 40 O.G. Supp. No. 12, page 50).

Take note of the following: the prescriptive period is tolled during the pendency
of a motion for reconsideration in court (People vs. de Peralta, et al., G.R. No. L-40837,
29 April 1977) and shall run again when the proceedings terminate without the acquittal
or conviction of the accused or was stopped for any reason not imputable to him. What if
the information was filed in the wrong venue? Still, the period of prescription is tolled
(People vs. Galano, et al., G.R. No. L-42925, 31 January 1977). What if the information
was filed in a court without jurisdiction? The prescriptive period is still tolled (Cruz, et
al., vs. Enrile, et al., G.R. No. 75983, 15 April 1988).

Where the information sufficiently alleges the elements of falsification of public

documents under Article 171, but the facts alleged constituted perjury under Section 129,
C.A. 141, in relation to Article 183, with such crime having a shorter prescriptive period,
the latter crime being more favorable to the accused should be the one to be considered
for purposes of prescription (People vs. Terrado, et al., G.R. No. L-23625, 25 November
1983).

In computing the period, the highest penalty which may be imposed for the crime
should be the basis, even if the accused was subsequently sentenced to a lower penalty
(People vs. Salazar, 98 Phil. 663). Where the penalty is a fine, the prescriptive period
depends on the amount of the fine (Article 26). The possible subsidiary penalty for non-
payment of the fine is not to be considered in determining the prescriptive period of the
crime (People vs. Basalo, 101 Phil. 57). In People vs. Crisostomo, G.R. No. L-16945, 31
August 1962, it was held that, when the penalty imposed is arresto mayor and a fine
which is afflictive, the fine should be the basis for determining the prescriptive period of
the offense, with the subsidiary penalty in case of non-payment of the fine to be
disregarded in the computation.

47
 Article 92 tells you when and how penalties prescribe, while Article 93 tells you
how the period of prescription of penalties shall commence to run. Memorize these two
Articles. The prescriptive periods in Article 92 are not applicable to offenses punished by
special laws (Luna vs. Warden of Batangas, 44 Phil. 565). Now, if the sentence is not yet
final, the period will not run as Article 93 refers to an accused who shall “evade the
service of his sentence”. Also, where despite his final conviction, the accused was never
arrested to serve his sentence, he has not evaded service of sentence, hence, there is no
prescriptive period to speak of (Tanega vs. Masakayan, et al., G.R. No. L-27191, 28
February 1967 and Del Castillo vs. Torrecampo, et al., G.R. No. 139033, 18 December
2002).

Memorize Articles 94, 95, 96, 97 and 98. A conditional pardon partakes of the
nature of a contract between the President and the convict subject to a condition which, if
complied with by the latter, could result in his final release but which, if violated, is
subject to the corresponding sanctions of the law. Now, in the case of Infante vs. Warden
of Negros Occidental, 92 Phil. 310, it was held that the condition in a pardon that the
convict “should not thereafter commit any other crime” but without a time limit therefor
is co-extensive with and effective only during the period of the sentence remitted by the
conditional pardon. Also, in Tesoro vs. Director of Prisons, 68 Phil. 154 and Torres vs.
Gonzalez, et al., G.R. No. 76872, 23 July 1987, the court ruled that the condition in a
pardon that the convict should not “commit” a crime is violated by his mere commission
of an offense, hence, conviction therefor is not necessary and he will be re-incarcerated.

Look at Article 98 in relation to Article 158. In order to be entitled to the special

allowance for loyalty, the convict must have actually escaped (Lozada vs. Acenas, etc. 78
Phil. 226). If he surrenders within 48 hours after the proclamation of the passing of a
calamity, he is entitled to a deduction of one-fifth of his original sentence. What is the
moral there? Well, if you are the convict, escape first and then come back. If you just sit
in your cell during the calamity, you will not get special allowance for loyalty.

Alright, Article 100 tells you that every person criminally liable for a felony is
also civilly liable. Now, there are crimes where no damages can be sustained by a private
party or the so-called “victimless crimes” i.e., espionage, violation of neutrality, flight to
an enemy country and crimes against popular representation (People vs. Orais, et al., 65
Phil. 744). Go to Article 101. As heretofore stated in this lecture, paragraph 4 (accident)
and paragraph 7 (non-performance of duty when prevented by a lawful or insuperable
cause) of Article 12 are not mentioned in the Rules because these are properly justifying
circumstances, hence, no civil liability is involved. Under Rule 1, the liability of the
parents, guardians or persons having the insane person, imbecile or minor under their
authority is primary and not subsidiary. It is only in case of default of the aforesaid
persons that the insane person, imbecile or minor will respond with their own property.
So, the parents, guardians or persons having the insane person, imbecile or minor under
their authority can invoke the defense of diligence as the Revised Penal Code will hold
them liable “unless it appears that there was no fault or negligence on their part”.

48
 Let’s go to Articles 102 and 103. Relate this to Article 110. Here we deal with
subsidiary liability. Hence, the following are subsidiarily liable for others: (a) persons
causing damages under the compulsion of an irresistible force or the impulse of an
uncontrollable fear (see Rule 3 of Article 101); (b) innkeepers, tavern keepers and
proprietors of establishments (see Article 102); (c) employers, teachers, persons and
corporations engaged in industry (see Article 103); and, (d) principals, accomplices and
accessories, for the unpaid civil liability of their co-accused (see Article 110).

What is included in civil liability? Article 104 says: (a) restitution; (b) reparation
of the damage caused; and, (c) indemnification for consequential damages. Read Article
105 on how restitution is made. Read Article 106 on how reparation is made. Then, read
Article 107 re what is included in indemnification. The rules for the enforcement of the
civil liability of the accused for restitution, reparation and indemnification arising from
the crime of which he has been found guilty are laid down in Articles 108 to 111.

Relate Article 112 to Articles 1174 and 1268 of the Civil Code. Thus, even if the
thing is lost due to a fortuitous event, the felon is still liable for indemnification and/or
reparation. Look at Article 113. Note the last phrase – “any other reason”. In Budlong,
et al. vs. Apalisok, et al., G.R. No. 60151, 24 June 1983, it was held that civil liability
arising from a crime is not extinguished by a grant of probation to the offender. Thus, if
the accused pleaded guilty and manifested that he is filing a petition for probation, that
fact does not prevent the trial court from setting the case for hearing on the civil liability
of the accused.

That’s it for Book 1. Good luck in the exams. Our understanding, of course, is
that this will just be a supplement to what you have already learned from the book of the
Honorable Justice Luis B. Reyes.

* Parts of this lecture were lifted from the lecture of Dean Antonio Gregorio who was my
professor at the Ateneo College of Law; from the notes of Supreme Court Justice Florenz
Regalado who was the law dean at my college alma mater (San Beda College); and, from
the book of Senator Ambrosio Padilla who was my former boss and mentor.

49