Академический Документы
Профессиональный Документы
Культура Документы
islands comprising the Philippine (1) The atmosphere over the country is
Archipelago are part of the Philippine free and not subject to the
territory regardless of their breadth, depth, jurisdiction of the subjacent state,
width or dimension. except for the protection of its
national security and public order.
On the fluvial jurisdiction there is presently a
departure from the accepted International Under this theory, if a crime is
Law Rule, because the Philippines adopted committed on board a foreign aircraft
the Archipelagic Rule. In the International at the atmosphere of a country, the
Law Rule, when a strait within a country has law of that country does not govern
a width of more than 6 miles, the center unless the crime affects the national
lane in excess of the 3 miles on both sides security.
is considered international waters.
(2) Relative Theory – The subjacent
state exercises jurisdiction over its
Question & Answer atmosphere only to the extent that it
can effectively exercise control
thereof. The Relative Theory
If a foreign merchant vessel is in the
center lane and a crime was committed Under this theory, if a crime was
there, under the International Law Rule, committed on an aircraft which is
what law will apply? already beyond the control of the
subjacent state, the criminal law of
The law of the country where that that state will not govern anymore.
vessel is registered will apply, because the But if the crime is committed in an
crime is deemed to have been committed in aircraft within the atmosphere over a
the high seas. subjacent state which exercises
control, then its criminal law will
govern.
Under the Archipelagic Rule as declared in
Article 1, of the Constitution, all waters in (3) Absolute Theory – The subjacent
the archipelago regardless of breadth width, state has complete jurisdiction over
or dimension are part of our national the atmosphere above it subject only
territory. Under this Rule, there is no more to innocent passage by aircraft of
center lane, all these waters, regardless of foreign country.
their dimension or width are part of
Philippine territory. Under this theory, if the crime is
committed in an aircraft, no matter
So if a foreign merchant vessel is in the how high, as long as it can establish
center lane and a crime was committed, the that it is within the Philippine
crime will be prosecuted before Philippine atmosphere, Philippine criminal law
courts. will govern. This is the theory
adopted by the Philippines.
This is also called irretrospectivity. liable for either estafa or violation of BP22.”
Subsequently, the administrative
Acts or omissions will only be subject to a interpretation of was reversed in Circular
penal law if they are committed after a penal No. 12, issued on August 8, 1984, such that
law had already taken effect. Vice-versa, the claim that the check was issued as a
this act or omission which has been guarantee or part of an arrangement to
committed before the effectivity of a penal secure an obligation or to facilitate
law could not be penalized by such penal collection, is no longer a valid defense for
law because penal laws operate only the prosecution of BP22. Hence, it was
prospectively. ruled in Que v. People that a check issued
merely to guarantee the performance of an
In some textbooks, an exemption is said to obligation is, nevertheless, covered by BP
exist when the penal law is favorable to the 22. But consistent with the principle of
offender, in which case it would have prospectivity, the new doctrine should not
retroactive application; provided that the apply to parties who had relied on the old
offender is not a habitual delinquent and doctrine and acted on the faith thereof. No
there is no provision in the law against its retrospective effect.
retroactive application.
The exception where a penal law may be Effect of repeal of penal law to liability of
given retroactive application is true only with offender
a repealing law. If it is an original penal law,
that exception can never operate. What is In some commentaries, there are
contemplated by the exception is that there references as to whether the repeal is
is an original law and there is a repealing express or implied. What affects the
law repealing the original law. It is the criminal liability of an offender is not
repealing law that may be given retroactive whether a penal law is expressly or
application to those who violated the original impliedly repealed; it is whether it is
law, if the repealing penal law is more absolutely or totally repealed, or relatively or
favorable to the offender who violated the partially repealed.
original law. If there is only one penal law, it
can never be given retroactive effect. Total or absolute, or partial or relative
repeal. -- As to the effect of repeal of penal
law to the liability of offender, qualify your
Rule of prospectivity also applies to answer by saying whether the repeal is
administrative rulings and circulars absolute or total or whether the repeal is
partial or relative only.
In Co v. CA, decided on October 28,
1993, it was held that the principle of A repeal is absolute or total when the crime
prospectivity of statutes also applies to punished under the repealed law has been
administrative rulings and circulars. In this decriminalized by the repeal. Because of
case, Circular No. 4 of the Ministry of the repeal, the act or omission which used
Justice, dated December 15, 1981, provides to be a crime is no longer a crime. An
that “where the check is issued as part of an example is Republic Act No. 7363, which
arrangement to guarantee or secure the decriminalized subversion.
payment of an obligation, whether pre-
existing or not, the drawer is not criminally
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 4
A repeal is partial or relative when the crime they are not supposed to step out
punished under the repealed law continues simply because their sentence has
to be a crime inspite of the repeal. This already been, or that the law under
means that the repeal merely modified the which they are sentenced has been
conditions affecting the crime under the declared null and void.
repealed law. The modification may be
prejudicial or beneficial to the offender. If they are not discharged from
Hence, the following rule: confinement, a petition for habeas
corpus should be filed to test the
legality of their continued
Consequences if repeal of penal law is total confinement in jail.
or absolute
If the convict, on the other hand, is a
(1) If a case is pending in court involving habitual delinquent, he will continue
the violation of the repealed law, the serving the sentence in spite of the
same shall be dismissed, even fact that the law under which he was
though the accused may be a convicted has already been
habitual delinquent. This is so absolutely repealed. This is so
because all persons accused of a because penal laws should be given
crime are presumed innocent until retroactive application to favor only
they are convicted by final judgment. those who are not habitual
Therefore, the accused shall be delinquents.
acquitted.
Actus non facit reum, nisi mens sit rea If you will be asked about the development
of criminal law in the Philippines, do not
The act cannot be criminal where the mind start with the Revised Penal Code. Under
is not criminal. This is true to a felony the Code of Kalantiao, there were penal
characterized by dolo, but not a felony provisions. Under this code, if a man would
resulting from culpa. This maxim is not an have a relation with a married woman, she
absolute one because it is not applied to is penalized. Adultery is a crime during
culpable felonies, or those that result from those days. Even offending religious things,
negligence. such as gods, are penalized. The Code of
Kalantiao has certain penal provisions. The
Filipinos have their own set of penology
Utilitarian Theory or Protective Theory also.
During the time of President Manuel Roxas, During Martial Law, there are many
a code commission was tasked to draft a Presidential Decrees issued aside from the
penal code that will be more in keeping with special laws passed by the Philippine
the custom, traditions, traits as well as Legislature Commission. All these special
beliefs of the Filipinos. During that time, the laws, which are penal in character, are part
code committee drafted the so-called Code of our Penal Code.
of Crimes. This too, slept in Congress. It
was never enacted into law. Among those
who participated in drafting the Code of
Crimes was Judge Guellermo Guevarra.
From this philosophy came the jury system, MALA IN SE AND MALA PROHIBITA
where the penalty is imposed on a case to
case basis after examination of the offender Violations of the Revised Penal Code are
by a panel of social scientists which do not referred to as malum in se, which literally
include lawyers as the panel would not want means, that the act is inherently evil or bad
the law to influence their consideration. or per se wrongful. On the other hand,
violations of special laws are generally
Crimes are regarded as social phenomena referred to as malum prohibitum.
which constrain a person to do wrong
although not of his own volition. A tendency
towards crime is the product of one’s Note, however, that not all violations of
environment. There is no such thing as a special laws are mala prohibita. While
natural born killer. intentional felonies are always mala in se, it
does not follow that prohibited acts done in
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 10
Likewise when the special laws requires In crimes punished under special
that the punished act be committed laws, good faith is not a defense
knowingly and willfully, criminal intent is
required to be proved before criminal liability 3. As to degree of accomplishment of
may arise. the crime
When the act penalized is not inherently In crimes punished under the
wrong, it is wrong only because a law Revised Penal Code, the degree of
punishes the same. accomplishment of the crime is
taken into account in punishing the
For example, Presidential Decree No. 532 offender; thus, there are attempted,
punishes piracy in Philippine waters and the frustrated, and consummated stages
special law punishing brigandage in the in the commission of the crime.
highways. These acts are inherently wrong
and although they are punished under In crimes punished under special
special law, the acts themselves are mala in laws, the act gives rise to a crime
se; thus, good faith or lack of criminal intent only when it is consummated; there
is a defense. are no attempted or frustrated
stages, unless the special law
expressly penalize the mere attempt
Distinction between crimes punished under or frustration of the crime.
the Revised Penal Code and crimes
punished under special laws 4. As to mitigating and aggravating
circumstances
1. As to moral trait of the offender
In crimes punished under the
In crimes punished under the Revised Penal Code, mitigating and
Revised Penal Code, the moral trait aggravating circumstances are taken
of the offender is considered. This is into account in imposing the penalty
why liability would only arise when since the moral trait of the offender
there is dolo or culpa in the is considered.
commission of the punishable act.
In crimes punished under special
In crimes punished under special laws, mitigating and aggravating
laws, the moral trait of the offender circumstances are not taken into
is not considered; it is enough that account in imposing the penalty.
the prohibited act was voluntarily
done. 5. As to degree of participation
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 11
(2) When the foreign country in whose A vessel is not registered in the
territorial waters the crime was Philippines. A crime is committed outside
committed adopts the French Rule, Philippine territorial waters. Then the vessel
which applies only to merchant entered our territory. Will the Revised Penal
vessels, except when the crime Code apply?
committed affects the national
security or public order of such Yes. Under the old Rules of
foreign country. Criminal Procedure, for our courts to take
cognizance of any crime committed on
board a vessel during its voyage, the vessel
The French Rule must be registered in the Philippines in
accordance with Philippine laws.
The French Rule provides that the Under the Revised Rules of Criminal
nationality of the vessel follows the flag Procedure, however, the requirement that
which the vessel flies, unless the crime the vessel must be licensed and registered
committed endangers the national security in accordance with Philippine laws has been
of a foreign country where the vessel is deleted from Section 25, paragraph c of
within jurisdiction in which case such foreign Rule 110 of the Rules of Court. The
country will never lose jurisdiction over such intention is to do away with that requirement
vessel. so that as long as the vessel is not
registered under the laws of any country,
our courts can take cognizance of the crime
The American or Anglo-Saxon Rule committed in such vessel.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 14
More than this, the revised provision added those, which are, under the law, to be
the phrase “in accordance with generally performed by the public officer in the
accepted principles of International Law”. Foreign Service of the Philippine
So the intention is clear to adopt generally government in a foreign country.
accepted principles of international law in
the matter of exercising jurisdiction over Exception: The Revised Penal Code
crimes committed in a vessel while in the governs if the crime was committed within
course of its voyage. Under international the Philippine Embassy or within the
law rule, a vessel which is not registered in embassy grounds in a foreign country. This
accordance with the laws of any country is is because embassy grounds are
considered a pirate vessel and piracy is a considered an extension of sovereignty.
crime against humanity in general, such that
wherever the pirates may go, they can be Illustration:
prosecuted.
A Philippine consulate official who is validly
Prior to the revision, the crime would not married here in the Philippines and who
have been prosecutable in our court. With marries again in a foreign country cannot be
the revision, registration is not anymore a prosecuted here for bigamy because this is
requirement and replaced with generally a crime not connected with his official
accepted principles of international law. duties. However, if the second marriage
Piracy is considered a crime against the law was celebrated within the Philippine
of nations. embassy, he may be prosecuted here, since
it is as if he contracted the marriage here in
In your answer, reference should be made the Philippines.
to the provision of paragraph c of Section15
of the Revised Rules of Criminal Procedure.
The crime may be regarded as an act of
piracy as long as it is done with “intent to Question & Answer
gain”.
Dolo or culpa
But although there is no intentional felony,
However, It does not mean that if an act or there could be a culpable felony. Culpa
omission is punished under the Revised requires the concurrence of three requisites:
Penal Code, a felony is already committed.
To be considered a felony, it must also be (1) criminal negligence on the part of
done with dolo or culpa. the offender , that is, the crime was
the result of negligence, reckless
Under Article 3, there is dolo when there is imprudence, lack of foresight or lack
deceit. This is no longer true. At the time of skill;
the Revised Penal Code was codified, the
term nearest to dolo was deceit. However, (2) freedom of action on the part of the
deceit means fraud, and this is not the offender, that is, he was not acting
meaning of dolo. under duress; and
Dolo is deliberate intent otherwise referred (3) Intelligence on the part of the
to as criminal intent, and must be coupled offender in performing the negligent
with freedom of action and intelligence on act.
the part of the offender as to the act done
by him. Between dolo and culpa, the distinction lies
on the criminal intent and criminal
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 17
negligence. If any of these requisites is accident, and the principle damnum absque
absent, there can be no dolo nor culpa. injuria is also honored.
When there is no dolo or culpa, a felony
cannot arise. Even culpable felonies require
voluntariness. It does not mean that if there
is no criminal intent, the offender is
Question & Answer absolved of criminal liability, because there
is culpa to consider.
Specific criminal intent is not presumed the former suitor. Even if the offender
because it is an ingredient or element of a states that he had no reason to kill the
crime, like intent to kill in the crimes of victim, this is not criminal intent. Criminal
attempted or frustrated intent is the means resorted to by him that
homicide/parricide/murder. The prosecution brought about the killing. If we equate intent
has the burden of proving the same. as a state of mind, many would escape
criminal liability.
Distinction between intent and discernment
In a case where mother and son were living
Intent is the determination to do a certain in the same house, and the son got angry
thing, an aim or purpose of the mind. It is and strangled his mother, the son, when
the design to resolve or determination by prosecuted for parricide, raised the defense
which a person acts. that he had no intent to kill his mother. It
was held that criminal intent applies on the
On the other hand, discernment is the strangulation of the vital part of the body.
mental capacity to tell right from wrong. It Criminal intent is on the basis of the act, not
relates to the moral significance that a on the basis if what the offender says.
person ascribes to his act and relates to the
intelligence as an element of dolo, distinct Look into motive to determine the proper
from intent. crime which can be imputed to the accused.
If a judge was killed, determine if the killing
Distinction between intent and motive has any relation to the official functions of
the judge in which case the crime would be
Intent is demonstrated by the use of a direct assault complexed with
particular means to bring about a desired murder/homicide, not the other way around.
result – it is not a state of mind or a reason If it has no relation, the crime is simply
for committing a crime. homicide or murder.
On the other hand, motive implies motion. It Omission is the inaction, the failure to
is the moving power which impels one to do perform a positive duty which he is bound to
an act. When there is motive in the do. There must be a law requiring the doing
commission of a crime, it always comes or performing of an act.
before the intent. But a crime may be
committed without motive. Distinction between negligence and
imprudence
If the crime is intentional, it cannot be
committed without intent. Intent is (1) In negligence, there is deficiency of
manifested by the instrument used by the action;
offender. The specific criminal intent
becomes material if the crime is to be (2) in imprudence, there is deficiency of
distinguished from the attempted or perception.
frustrated stage. For example, a husband
came home and found his wife in a pleasant Mens rea
conversation with a former suitor.
Thereupon, he got a knife. The moving The technical term mens rea is sometimes
force is jealousy. The intent is the resort to referred to in common parlance as the
the knife, so that means he is desirous to kill gravamen of the offense. To a layman, that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 19
is what you call the “bullseye” of the crime. Mistake of fact would be relevant only when
This term is used synonymously with the felony would have been intentional or
criminal or deliberate intent, but that is not through dolo, but not when the felony is a
exactly correct. result of culpa. When the felony is a
product of culpa, do not discuss mistake of
Mens rea of the crime depends upon the fact. When the felonious act is the product
elements of the crime. You can only detect of dolo and the accused claimed to have
the mens rea of a crime by knowing the acted out of mistake of fact, there should be
particular crime committed. Without no culpa in determining the real facts,
reference to a particular crime, this term is otherwise, he is still criminally liable,
meaningless. For example, in theft, the although he acted out of a mistake of fact.
mens rea is the taking of the property of Mistake of fact is only a defense in
another with intent to gain. In falsification, intentional felony but never in culpable
the mens rea is the effecting of the forgery felony.
with intent to pervert the truth. It is not
merely writing something that is not true; the
intent to pervert the truth must follow the Real concept of culpa
performance of the act.
Under Article 3, it is clear that culpa is just a
In criminal law, we sometimes have to modality by which a felony may be
consider the crime on the basis of intent. committed. A felony may be committed or
For example, attempted or frustrated incurred through dolo or culpa. Culpa is just
homicide is distinguished from physical a means by which a felony may result.
injuries only by the intent to kill. Attempted
rape is distinguished from acts of In Article 365, you have criminal negligence
lasciviousness by the intent to have sexual as an omission which the article definitely or
intercourse. In robbery, the mens rea is the specifically penalized. The concept of
taking of the property of another coupled criminal negligence is the inexcusable lack
with the employment of intimidation or of precaution on the part of the person
violence upon persons or things; remove performing or failing to perform an act. If
the employment of force or intimidation and the danger impending from that situation is
it is not robbery anymore. clearly manifest, you have a case of
reckless imprudence. But if the danger that
would result from such imprudence is not
Mistake of fact clear, not manifest nor immediate you have
only a case of simple negligence. Because
When an offender acted out of a of Article 365, one might think that criminal
misapprehension of fact, it cannot be said negligence is the one being punished. That
that he acted with criminal intent. Thus, in is why a question is created that criminal
criminal law, there is a “mistake of fact”. negligence is the crime in itself.
When the offender acted out of a mistake of
fact, criminal intent is negated, so do not In People v. Faller, it was stated indirectly
presume that the act was done with criminal that that criminal negligence or culpa is just
intent. This is absolutory if crime involved a mode of incurring criminal liability. In this
dolo. case, the accused was charged with
malicious mischief. Malicious mischief is an
intentional negligence under Article 327 of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 20
the Revised Penal Code. The provision and there would be no need for Article 365
expressly requires that there be a deliberate as a separate article for criminal negligence.
damaging of property of another, which Therefore, criminal negligence, according to
does not constitute destructive arson. You him, is not just a modality; it is a crime by
do not have malicious mischief through itself, but only a quasi-offense.
simple negligence or reckless imprudence
because it requires deliberateness. Faller However, in Samson v. CA, where a
was charged with malicious mischief, but person who has been charged with
was convicted of damage to property falsification as an intentional felony, was
through reckless imprudence. The found guilty of falsification through simple
Supreme Court pointed out that although negligence. This means that means that
the allegation in the information charged the culpa or criminal negligence is just a
accused with an intentional felony, yet the modality of committing a crime.
words feloniously and unlawfully, which are
standard languages in an information, In some decisions on a complex crime
covers not only dolo but also culpa because resulting from criminal negligence, the
culpa is just a mode of committing a felony. Supreme Court pointed out that when
crimes result from criminal negligence, they
In Quezon v. Justice of the Peace, Justice should not be made the subject of a
J.B.L. Reyes dissented and claimed that different information. For instance, the
criminal negligence is a quasi-offense, and offender was charged with simple
the correct designation should not be negligence resulting in slight physical
homicide through reckless imprudence, but injuries, and another charge for simple
reckless imprudence resulting in homicide. negligence resulting in damage to property.
The view of Justice Reyes is sound, but the The slight physical injuries which are the
problem is Article 3, which states that culpa result of criminal negligence are under the
is just a mode by which a felony may result. jurisdiction of the inferior court. But damage
to property, if the damage is more than
P2,000.00, would be under the jurisdiction
Question & Answer of the Regional Trial Court because the
imposable fine ranges up to three times the
value of the damage.
Is culpa or criminal negligence a
crime? In People v. Angeles, the prosecution filed
an information against the accused in an
First, point out Article 3. Under inferior court for slight physical injuries
Article 3, it is beyond question that culpa or through reckless imprudence and filed also
criminal negligence is just a mode by which damage to property in the Regional Trial
a felony may arise; a felony may be Court. The accused pleaded guilty to the
committed or incurred through dolo or culpa. charge of slight physical injuries. When he
was arraigned before the Regional Trial
However, Justice J.B.L. Reyes Court, he invoked double jeopardy. He was
pointed out that criminal negligence is a claiming that he could not be prosecuted
quasi–offense. His reason is that if criminal again for the same criminal negligence.
negligence is not a quasi-offense, and only The Supreme Court ruled that here is no
a modality, then it would have been double jeopardy because the crimes are two
absorbed in the commission of the felony
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 21
different crimes. Slight physical injuries and negligence. What makes paragraph 1 of
damage to property are two different crimes. Article 4 confusing is the addition of the
qualifier “although the wrongful act be
In so ruling that there is no double jeopardy, different from what he intended.”
the Supreme Court did not look into the
criminal negligence. The Supreme Court
looked into the physical injuries and the Questions & Answers
damage to property as the felonies and not
criminal negligence.
1. A man thought of committing
In several cases that followed, the suicide and went on top of a tall building.
Supreme Court ruled that where several He jumped, landing on somebody else, who
consequences result from reckless died instantly. Is he criminally liable?
imprudence or criminal negligence, the
accused should be charged only in the Yes. A felony may result not only
Regional Trial Court although the reckless from dolo but also from culpa. If that fellow
imprudence may result in slight physical who was committing suicide acted
injuries. The Supreme Court argued that negligently, he will be liable for criminal
since there was only one criminal negligence resulting in the death of another.
negligence, it would be an error to split the
same by prosecuting the accused in one 2. A had been courting X for the
court and prosecuting him again in another last five years. X told A, “Let us just be
for the same criminal negligence. This is friends. I want a lawyer for a husband and I
tantamount to splitting a cause of action in a have already found somebody whom I
civil case. For orderly procedure, the agreed to marry. Anyway there are still a lot
information should only be one. This of ladies around; you will still have your
however, also creates some doubts. As you chance with another lady." A, trying to
know, when the information charges the show that he is a sport, went down from the
accused for more than the crime, the house of X, went inside his car, and stepped
information is defective unless the crime on the accelerator to the limit, closed his
charged is a complex one or a special eyes, started the vehicle. The vehicle
complex crime. zoomed, running over all the pedestrians on
the street. At the end, the car stopped at the
fence. He was taken to the hospital, and he
survived. Can he be held criminally liable
CRIMINAL LIABILITY for all those innocent people that he ran
over, claiming that he was committing
suicide?
Since in Article 3, a felony is an act or
omission punishable by law, particularly the He will be criminally liable, not for an
Revised Penal Code, it follows that whoever intentional felony, but for culpable felony.
commits a felony incurs criminal liability. In This is so because, in paragraph 1 of Article
paragraph 1 of Article 4, the law uses the 4, the term used is “felony”, and that term
word “felony”, that whoever commits a covers both dolo and culpa.
felony incurs criminal liability. A felony may
arise not only when it is intended, but also 3. A pregnant woman thought
when it is the product of criminal of killing herself by climbing up a tall
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 22
building and jumped down below. Instead unbroken by any efficient supervening
of falling in the pavement, she fell on the cause produces a felony without which such
owner of the building. An abortion resulted. felony could not have resulted. He who is
Is she liable for an unintentional abortion? If the cause of the cause is the evil of the
not, what possible crime may be cause. As a general rule, the offender is
committed? criminally liable for all the consequences of
his felonious act, although not intended, if
The relevant matter is whether the the felonious act is the proximate cause of
pregnant woman could commit unintentional the felony or resulting felony. A proximate
abortion upon herself. The answer is no cause is not necessarily the immediate
because the way the law defines cause. This may be a cause which is far
unintentional abortion, it requires physical and remote from the consequence which
violence coming from a third party. When a sets into motion other causes which
pregnant woman does an act that would resulted in the felony.
bring about abortion, it is always intentional.
Unintentional abortion can only result when Illustrations:
a third person employs physical violence
upon a pregnant woman resulting to an A, B, C, D and E were driving their vehicles
unintended abortion. along Ortigas Aveue. A's car was ahead,
followed by those of B, C, D, and E. When
A's car reached the intersection of EDSA
In one case, a pregnant woman and man and Ortigas Avenue, the traffic light turned
quarreled. The man could no longer bear red so A immediately stepped on his break,
the shouting of the woman, so he got his followed by B, C, D. However, E was not
firearm and poked it into the mouth of the aware that the traffic light had turned to red,
woman. The woman became hysterical, so so he bumped the car of D, then D hit the
she ran as fast as she could, which resulted car of C, then C hit the car of B, then, finally,
in an abortion. The man was prosecuted for B hit the car of A. In this case, the
unintentional abortion. It was held that an immediate cause to the damage of the car
unintentional abortion was not committed. of A is the car of B, but that is not the
However, drawing a weapon in the height of proximate cause. The proximate cause is
a quarrel is a crime of other light threats the car of E because it was the car of E
under Article 285. An unintentional abortion which sets into motion the cars to bump into
can only be committed out of physical each other.
violence, not from mere threat.
In one case, A and B, who are brothers-in-
law, had a quarrel. At the height of their
Proximate cause quarrel, A shot B with an airgun. B was hit
at the stomach, which bled profusely. When
Article 4, paragraph 1 presupposes that the A saw this, he put B on the bed and told him
act done is the proximate cause of the not to leave the bed because he will call a
resulting felony. It must be the direct, doctor. While A was away, B rose from the
natural, and logical consequence of the bed, went into the kitchen and got a kitchen
felonious act. knife and cut his throat. The doctor arrived
and said that the wound in the stomach is
Proximate cause is that cause which sets only superficial; only that it is a bleeder, but
into motion other causes and which the doctor could no longer save him
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 23
because B’s throat was already cut. grave threats since he did not even stab the
Eventually, B died. A was prosecuted for victim, that the victim died of drowning, and
manslaughter. The Supreme Court this can be considered as a supervening
rationalized that what made B cut his throat, cause. It was held that the deceased, in
in the absence of evidence that he wanted throwing himself into the river, acted solely
to commit suicide, is the belief that sooner in obedience to the instinct of self-
or later, he would die out of the wound preservation, and was in no sense legally
inflicted by A. Because of that belief, he responsible for his own death. As to him, it
decided to shorten the agony by cutting his was but the exercise of a choice between
throat. That belief would not be engendered two evils, and any reasonable person under
in his mind were it not because of the the same circumstance might have done the
profuse bleeding from his wound. Now, that same. The accused must, therefore, be
profusely bleeding would not have been considered as the author of the death of the
there, were it not for the wound inflicted by victim.
A. As a result, A was convicted for
manslaughter. This case illustrates that proximate cause
does not require that the offender needs to
In criminal law, as long as the act of the actually touch the body of the offended
accused contributed to the death of the party. It is enough that the offender
victim, even if the victim is about to die, he generated in the mind of the offended party
will still be liable for the felonious act of the belief that made him risk himself.
putting to death that victim. In one decision,
the Supreme Court held that the most If a person shouted fire, and because of that
precious moment in a man’s life is that of a moviegoer jumped into the fire escape
losing seconds when he is about to die. So and died, the person who shouted fire when
when you robbed him of that, you should be there is no fire is criminally liable for the
liable for his death. Even if a person is death of that person.
already dying, if one suffocates him to end
up his agony, one will be liable for murder, In a case where a wife had to go out to the
when you put him to death, in a situation cold to escape a brutal husband and
where he is utterly defenseless. because of that she was exposed to the
element and caught pneumonia, the
In US v. Valdez, the deceased is a member husband was made criminally liable for the
of the crew of a vessel. Accused is in death of the wife.
charge of the crewmembers engaged in the
loading of cargo in the vessel. Because the Even though the attending physician may
offended party was slow in his work, the have been negligent and the negligence
accused shouted at him. The offended party brought about the death of the offending
replied that they would be better if he would party – in other words, if the treatment was
not insult them. The accused resented this, not negligent, the offended party would
and rising in rage, he moved towards the have survived – is no defense at all,
victim, with a big knife in hand threatening because without the wound inflicted by the
to kill him. The victim believing himself to be offender, there would have been no
in immediate peril, threw himself into the occasion for a medical treatment.
water. The victim died of drowning. The
accused was prosecuted for homicide. His Even if the wound was called slight but
contention that his liability should be only for because of the careless treatment, it was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 24
aggravated, the offender is liable for the signed a forgiveness in favor of A and on
death of the victim not only of the slight that condition, he withdrew the complaint
physical injuries. Reason – without the that he filed against A. After so many weeks
injury being inflicted, there would have been of treatment in a clinic, the doctor
no need for any medical treatment. That the pronounced the wound already healed.
medical treatment proved to be careless or Thereafter, B went back to his farm. Two
negligent, is not enough to relieve the months later, B came home and he was
offender of the liability for the inflicting chilling. Before midnight, he died out of
injuries. tetanus poisoning. The heirs of B filed a
case of homicide against A. The Supreme
When a person inflicted wound upon Court held that A is not liable. It took into
another, and his victim upon coming home account the incubation period of tetanus
got some leaves, pounded them and put toxic. Medical evidence were presented
lime there, and applying this to the wound, that tetanus toxic is good only for two
developed locked jaw and eventually he weeks. That if, indeed, the victim had
died, it was held that the one who inflicted incurred tetanus poisoning out of the wound
the wound is liable for his death. inflicted by A, he would not have lasted two
months. What brought about tetanus to
In another instance, during a quarrel, the infect the body of B was his working in his
victim was wounded. The wound was farm using his bare hands. Because of this,
superficial, but just the same the doctor put the Supreme Court said that the act of B of
inside some packing. When the victim went working in his farm where the soil is filthy,
home, he could not stand the pain, so he using his own hands, is an efficient
pulled out the packing. That resulted into supervening cause which relieves A of any
profuse bleeding and he died because of liability for the death of B. A, if at all, is only
loss of blood. The offender who caused the liable for physical injuries inflicted upon B.
wound, although the wound caused was
only slight, was held answerable for the If you are confronted with this facts of the
death of the victim, even if the victim would Urbano case, where the offended party died
not have died were it not for the fact that he because of tetanus poisoning, reason out
pulled out that packing. The principle is that according to that reasoning laid down by the
without the wound, the act of the physician Supreme Court, meaning to say, the
or the act of the offended party would not incubation period of the tetanus poisoning
have anything to do with the wound, and was considered. Since tetanus toxic would
since the wound was inflicted by the affect the victim for no longer than two
offender, whatever happens on that wound, weeks,, the fact that the victim died two
he should be made punishable for that. months later shows that it is no longer
tetanus brought about by the act of the
In Urbano v. IAC, A and B had a quarrel accused. The tetanus was gathered by his
and started hacking each other. B was working in the farm and that is already an
wounded at the back. Cooler heads efficient intervening cause.
intervened and they were separated.
Somehow, their differences were patched The one who caused the proximate cause is
up. A agreed to shoulder all the expenses the one liable. The one who caused the
for the treatment of the wound of B, and to immediate cause is also liable, but merely
pay him also whatever lost of income B may contributory or sometimes totally not liable.
have failed to receive. B, on the other hand,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 25
felony the result of dolo or culpa? What prosecuted for the crime committed not for
crime was committed? the crime intended.
were convicted for robbery with homicide For example, if A gave B a karate blow in
because there was a resulting death, the throat, there is no praeter intentionem
although their intention was only to rob. because the blow to the throat can result in
They were given the benefit of paragraph 3 death.
of Article 13, “that they did not intend to
commit so grave a wrong as that So also, if A tried to intimidate B by poking a
committed”. There was really no intention gun at the latter’s back, and B died of a
to bring about the killing, because it was the cardiac arrest, A will be prosecuted for
pan de sal they put into the mouth. Had it homicide but will be given the mitigating
been a piece of rag, it would be different. In circumstance praeter intentionem.
that case, the Supreme Court gave the
offenders the benefit of praeter intentionem
as a mitigating circumstance. The means Impossible crime
employed is not capable of producing death
if only the woman chewed the pan de sal. An impossible crime is an act which would
be an offense against person or property
A man raped a young girl. The young girl were it not for the inherent impossibility of
was shouting so the man placed his hand its accomplishment or on account of the
on the mouth and nose of the victim. He employment of inadequate or ineffectual
found out later that the victim was dead means.
already; she died of suffocation. The
offender begged that he had no intention of
killing the girl and that his only intention was Question & Answer
to prevent her from shouting. The Supreme
Court rejected the plea saying that one can
always expect that a person who is 1. Accused was a houseboy in
suffocated may eventually die. So the a house where only a spinster resides. It is
offender was prosecuted for the serious customary for the spinster to sleep nude
crime of rape with homicide and he was not because her room was warm. It was also
given the benefit of paragraph 3, Article 13. the habit of the houseboy that whenever
she enters her room, the houseboy would
Differentiating this first case with the case of follow and peek into the keyhole. Finally,
the Chinamana nd his wife, it would seem when the houseboy could no longer resist
that the difference lies in the means the urge, he climbed into the ceiling, went
employed by the offender. inside the room of his master, placed
himself on top of her and abused her, not
In praeter intentionem, it is essential that knowing that she was already dead five
there is a notable disparity between the minutes earlier. Is an impossible crime
means employed or the act of the offender committed?
and the felony which resulted. This means
that the resulting felony cannot be foreseen Yes. Before, the act performed by
from the acts of the offender. If the resulting the offender could not have been a crime
felony can be foreseen or anticipated from against person or property. The act
the means employed, the circumstance of performed would have been constituted a
praeter intentionem does not apply. crime against chastity. An impossible crime
is true only if the act done by the offender
constitutes a crime against person or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 29
property. However, with the new rape law When we say inherent impossibility, this
amending the Revised Penal Code and means that under any and all
classifying rape as a crime against persons, circumstances, the crime could not have
it is now possible that an impossible crime materialized. If the crime could have
was committed. Note, however, that the materialized under a different set of facts,
crime might also fall under the Revised employing the same mean or the same act,
Administrative Code – desecrating the it is not an impossible crime; it would be an
dead. attempted felony.
arsenic poison into the breakfast of the wife. the door knob and plugged the other end to
The wife consumed all the food prepared by an electric outlet. The idea was that, when
her husband including the poison but Scott comes home to open the door knob,
nothing happened to the wife. Because of he would be electrocuted. Unknown to
the volume of the household chores that the Charles, Scott is working in an electronic
wife had to attend to daily, she developed a shop where he received a daily dosage of
physical condition that rendered her so electric shock. When Scott opened the
strong and resistance to any kind of doorknob, nothing happened to him. He
poisoning, so the amount of poison applied was just surprised to find out that there was
to her breakfast has no effect to her. Is an electric cord plugged to the outlet and
there an impossible crime? the other hand to the door knob. Whether
an impossible crime was committed or not?
No impossible crime is committed
because the fact itself stated that what It is not an impossible crime. The
prevented the poison from taking effect is means employed is not inherently
the physical condition of the woman. So it impossible to bring about the consequence
implies that if the woman was not of such of his felonious act. What prevented the
physical condition, the poison would have consummation of the crime was because of
taken effect. Hence, it is not inherently some cause independent of the will of the
impossible to realize the killing. The crime perpetrator.
committed is frustrated parricide.
6. A and B are enemies. A,
If it were a case of poisoning , an upon seeing B, got the revolver of his father,
impossible crime would be constituted if a shot B, but the revolver did not discharge
person who was thinking that it was a because the bullets were old, none of them
poison that he was putting into the food of discharged. Was an impossible crime
the intended victim but actually it was vetsin committed?
or sugar or soda. Under any and all
circumstances, the crime could not have No. It was purely accidental that the
been realized. But if due to the quantity of firearm did not discharge because the
vetsin or sugar or soda, the intended victim bullets were old. If they were new, it would
developed LBM and was hospitalized, then have fired. That is a cause other than the
it would not be a case of impossible crime spontaneous desistance of the offender,
anymore. It would be a case of physical and therefore, an attempted homicide.
injuries, if the act done does not amount to
some other crime under the Revised Penal But if let us say, when he started squeezing
Code. the trigger, he did not realize that the
firearm was empty. There was no bullet at
Do not confuse an impossible crime with the all. There is an impossible crime, because
attempted or frustrated stage. under any and all circumstances, an
unloaded firearm will never fire.
5. Scott and Charles are
roommate in a boarding house. Everyday, Whenever you are confronted with a
Scott leaves for work but before leaving he problem where the facts suggest that an
would lock the food cabinet where he kept impossible crime was committed, be careful
his food. Charles resented this. One day, about the question asked. If the question
he got an electric cord tied the one end to asked is: “Is an impossible crime
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 31
committed?”, then you judge that question other crime constituted by his act, then that
on the basis of the facts. If really the facts will be the proper way. If you want to play
constitute an impossible crime, then you safe, you state there that although an
suggest than an impossible crime is impossible crime is constituted, yet it is a
committed, then you state the reason for the principle of criminal law that he will only be
inherent impossibility. penalized for an impossible crime if he
cannot be punished under some other
If the question asked is “Is he liable for an provision of the Revised Penal Code.
impossible crime?”, this is a catching
question. Even though the facts constitute If the question is “Is an impossible crime is
an impossible crime, if the act done by the committed?”, the answer is yes, because
offender constitutes some other crimes on the basis of the facts stated, an
under the Revised Penal Code, he will not impossible crime is committed. But to play
be liable for an impossible crime. He will be safe, add another paragraph: However, the
prosecuted for the crime constituted so far offender will not be prosecuted for an
by the act done by him. The reason is an impossible crime but for _____ [state the
offender is punished for an impossible crime crime]. Because it is a principle in criminal
just to teach him a lesson because of his law that the offender can only be
criminal perversity. Although objectively, no prosecuted for an impossible crime if his
crime is committed, but subjectively, he is a acts do not constitute some other crimes
criminal. That purpose of the law will also punishable under the Revised Penal Code.
be served if he is prosecuted for some other An impossible crime is a crime of last resort.
crime constituted by his acts which are also
punishable under the RPC.
Modified concept of impossible crime:
7. A and B are neighbors. They
are jealous of each other’s social status. A In a way, the concept of impossible crime
thought of killing B so A climbed the house has been modified by the decision of the
of B through the window and stabbed B on Supreme Court in the case of Intod v. CA,
the heart, not knowing that B died a few et al., 215 SCRA 52. In this case, four
minutes ago of bangungot. Is A liable for an culprits, all armed with firearms and with
impossible crime? intent to kill, went to the intended victim’s
house and after having pinpointed the
No. A shall be liable for qualified latter’s bedroom, all four fired at and riddled
trespass to dwelling. Although the act done said room with bullets, thinking that the
by A against B constitutes an impossible intended victim was already there as it was
crime, it is the principle of criminal law that about 10:00 in the evening. It so happened
the offender shall be punished for an that the intended victim did not come home
impossible crime only when his act cannot on the evening and so was not in her
be punished under some other provisions in bedroom at that time. Eventually the
the Revised Penal Code. culprits were prosecuted and convicted by
the trial court for attempted murder. The
In other words, this idea of an impossible Court of Appeals affirmed the judgment but
crime is a one of last resort, just to teach the the Supreme Court modified the same and
offender a lesson because of his criminal held the petitioner liable only for the so-
perversity. If he could be taught of the called impossible crime. As a result,
same lesson by charging him with some petitioner-accused was sentenced to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 32
But whether we agree or not, the Supreme equitable punishment. The penalties are
Court has spoken, we have to respect its graduated according to their degree of
ruling. severity. The stages may not apply to all
kinds of felonies. There are felonies which
do not admit of division.
NO CRIME UNLESS THERE IS A LAW
PUNISHING IT
Formal crimes
When a person is charged in court, and the
court finds that there is no law applicable, Formal crimes are crimes which are
the court will acquit the accused and the consummated in one instance. For
judge will give his opinion that the said act example, in oral defamation, there is no
should be punished. attempted oral defamation or frustrated oral
defamation; it is always in the consummated
Article 5 covers two situations: stage.
(1) The court cannot convict the So also, in illegal exaction under Article 213
accused because the acts do not is a crime committed when a public officer
constitute a crime. The proper who is authorized to collect taxes, licenses
judgment is acquittal, but the court is or impose for the government, shall demand
mandated to report to the Chief an amount bigger than or different from
Executive that said act be made what the law authorizes him to collect.
subject of penal legislation and why. Under sub-paragraph a of Article 213 on
Illegal exaction, the law uses the word
(2) Where the court finds the penalty “demanding”. Mere demanding of an
prescribed for the crime too harsh amount different from what the law
considering the conditions authorizes him to collect will already
surrounding the commission of he consummate a crime, whether the taxpayer
crime, the judge should impose the pays the amount being demanded or not.
law. The most that he could do is to Payment of the amount being demanded is
recommend to the Chief Executive not essential to the consummation of the
to grant executive clemency. crime.
other than his own spontaneous desistance, may already be a crime or it may be just an
then you have an attempted felony. ingredient of another crime. The word
"directly’" emphasizes the requirement that
You will notice that the felony begins when the attempted felony is that which is directly
the offender performs an overt act. Not any linked to the overt act performed by the
act will mark the beginning of a felony, and offender, not the felony he has in his mind.
therefore, if the act so far being done does
not begin a felony, criminal liability In criminal law, you are not allowed to
correspondingly does not begin. In criminal speculate, not to imagine what crime is
law, there is such a thing as preparatory act. intended, but apply the provisions of the law
These acts do not give rise to criminal of the facts given.
liability.
When a person starts entering the dwelling
of another, that act is already trespassing.
Question & Answer But the act of entering is an ingredient of
robbery with force upon things. You could
only hold him liable for attempted robbery
A and B are husband and wife. A when he has already completed all acts
met C who was willing to marry him, but he performed by him directly leading to
is already married. A thought of eliminating robbery. The act of entering alone is not yet
B and to poison her. So, he went to the indicative of robbery although that may be
drugstore and bought arsenic poison. On what he may have planned to commit. In
the way out, he met D. D asked him who law, the attempted stage is only that overt
was sick in the family, A confided to D that act which is directly linked to the felony
he bought the poison to poison his wife in intended to be committed.
order to marry C. After that, they parted
ways. D went directly to the police and In US v. Namaja, the accused was arrested
reported that A is going to kill his wife. So while he was detaching some of the wood
the policemen went to A’s house and found panels of a store. He was already able to
A still unwrapping the arsenic poison. The detach two wood panels. To a layman, the
policemen asked A if he was planning to only conclusion that will come to your mind
poison B and A said yes. Police arrested is that this fellow started to enter the store to
him and charged him with attempted steal something. He would not be there just
parricide. Is the charge correct? to sleep there. But in criminal law, since the
act of removing the panel indicates only at
No. Overt act begins when the most the intention to enter. He can only be
husband mixed the poison with the food his prosecuted for trespass. The removal of the
wife is going to take. Before this, there is no panelling is just an attempt to trespass, not
attempted stage yet. an attempt to rob. Although, Namaja was
prosecuted for attempted robbery, the
An overt act is that act which if allowed to Supreme Court held it is only attempted
continue in its natural course would trespass because that is the crime that can
definitely result into a felony. be directly linked to his act of removing the
wood panel.
In the attempted stage, the definition uses There are some acts which are ingredients
the word “directly”. This is significant. In the of a certain crime, but which are, by
attempted stage, the acts so far performed themselves, already criminal offenses.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 35
The attempted felony is erased by The confusion arises from the fact that this
desistance because the offender crime requires two to commit -- the giver
spontaneously desisted from pursuing the and the receiver. The law called the crime of
acts of execution. It does not mean, the giver as corruption of public official and
however, that there is no more felony the receiver as bribery. Giving the idea that
committed. He may be liable for a these are independent crimes, but actually,
consummated felony constituted by his act they cannot arise without the other. Hence,
of trespassing. When A entered the house if only one side of the crime is present, only
through the window, which is not intended corruption, you cannot have a
for entrance, it is always presumed to be consummated corruption without the
against the will of the owner. If the offender corresponding consummated bribery. There
proceeded to abuse the woman, but the cannot be a consummated bribery without
latter screamed, and A went out of the the corresponding consummated corruption.
window again, he could not be prosecuted If you have bribery only, it is only possible in
for qualified trespass. Dwelling is taken as the attempted stage. If you have a
an aggravating circumstance so he will be corruption only, it is possible only in the
prosecuted for attempted rape aggravated attempted stage. A corruptor gives money
by dwelling. to a public officer for the latter not to
prosecute him. The public officer received
In deciding whether a felony is attempted or the money but just the same, arrested him.
frustrated or consummated, there are three He received the money to have evidence of
criteria involved: corruption. Do not think that because the
corruptor has already delivered the money,
(1) The manner of committing the he has already performed all the acts of
crime; execution, and, therefore, the corruption is
already beyond the attempted stage. That
(2) The elements of the crime; and thinking does away with the concept of the
crime that it requires two to commit. The
(3) The nature of the crime itself. manner of committing the crime requires the
meeting of the minds between the giver and
the receiver.
Manner of committing a crime
When the giver delivers the money to the
For example, let us take the crime of supposed receiver, but there is no meeting
bribery. Can the crime of frustrated bribery of the minds, the only act done by the giver
be committed? No. (Incidentally, the is an attempt. It is not possible for him to
common concept of bribery is that it is the perform all the acts of execution because in
act of one who corrupts a public officer. the first place, the receiver has no intention
Actually, bribery is the crime of the receiver of being corrupted.
not the giver. The crime of the giver is Similarly, when a public officer demands a
corruption of public official. Bribery is the consideration by official duty, the corruptor
crime of the public officer who in turns down the demand, there is no bribery.
consideration of an act having to do with his
official duties would receive something, or If the one to whom the demand was made
accept any promise or present in pretended to give, but he had reported the
consideration thereof.) matter to higher authorities, the money was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 37
marked and this was delivered to the public the acts of execution. An example of this is
officer. If the public officer was arrested, do the crime of rape. The essence of the crime
not think that because the public officer is carnal knowledge. No matter what the
already had the money in his possession, offender may do to accomplish a
the crime is already frustrated bribery, it is penetration, if there was no penetration yet,
only attempted bribery. This is because the it cannot be said that the offender has
supposed corruptor has no intention to performed all the acts of execution. We can
corrupt. In short, there is no meeting of the only say that the offender in rape has
minds. On the other hand, if there is a performed all the acts of execution when he
meeting of the minds, there is has effected a penetration. Once there is
consummated bribery or consummated penetration already, no matter how slight,
corruption. This leaves out the frustrated the offense is consummated. For this
stage because of the manner of committing reason, rape admits only of the attempted
the crime. and consummated stages, no frustrated
stage. This was the ruling in the case of
But indirect bribery is always consummated. People v. Orita.
This is because the manner of
consummating the crime does not admit of In rape, it requires the connection of the
attempt or frustration. offender and the offended party. No
penetration at all, there is only an attempted
You will notice that under the Revised Penal stage. Slightest penetration or slightest
Code, when it takes two to commit the connection, consummated. You will notice
crime, there could hardly be a frustrated this from the nature of the crime requiring
stage. For instance, the crime of adultery. two participants.
There is no frustrated adultery. Only
attempted or consummated. This is This is also true in the crime of arson. It
because it requires the link of two does not admit of the frustrated stage. In
participants. If that link is there, the crime is arson, the moment any particle of the
consummated; if such link is absent, there is premises intended to be burned is
only an attempted adultery. There is no blackened, that is already an indication that
middle ground when the link is there and the premises have begun to burn. It does
when the link is absent. not require that the entire premises be
burned to consummate arson. Because of
There are instances where an intended that, the frustrated stage of arson has been
felony could already result from the acts of eased out. The reasoning is that one
execution already done. Because of this, cannot say that the offender, in the crime of
there are felonies where the offender can arson, has already performed all the acts of
only be determined to have performed all execution which could produce the
the acts of execution when the resulting destruction of the premises through the use
felony is already accomplished. Without the of fire, unless a part of the premises has
resulting felony, there is no way of begun to burn. If it has not begun to burn,
determining whether the offender has that means that the offender has not yet
already performed all the acts or not. It is in performed all the acts of execution. On the
such felonies that the frustrated stage does other hand, the moment it begins to burn,
not exist because without the felony being the crime is consummated. Actually, the
accomplished, there is no way of stating frustrated stage is already standing on the
that the offender has already performed all consummated stage except that the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 38
outcome did not result. As far as the stage ensuing consequence, the crime has
is concerned, the frustrated stage overlaps already passed the subjective phase and,
the consummated stage. therefore, it is no longer attempted. The
moment the execution of the crime has
Because of this reasoning by the Court of already gone to that point where the felony
Appeals in People v. Garcia, the Supreme should follow as a consequence, it is either
Court followed the analysis that one cannot already frustrated or consummated. If the
say that the offender in the crime of arson felony does not follow as a consequence, it
has already performed all the acts of is already frustrated. If the felony follows as
execution which would produce the arson a consequence, it is consummated.
as a consequence, unless and until a part of
the premises had begun to burn. The trouble is that, in the jurisprudence
recognizing the objective phase and the
In US v. Valdez, the offender had tried to subjective phase, the Supreme Court
burn the premises by gathering jute sacks considered not only the acts of the offender,
laying these inside the room. He lighted but also his belief. That although the
these, and as soon as the jute sacks began offender may not have done the act to bring
to burn, he ran away. The occupants of the about the felony as a consequence, if he
room put out the fire. The court held that could have continued committing those acts
what was committed was frustrated arson. but he himself did not proceed because he
believed that he had done enough to
This case was much the way before the consummate the crime, Supreme Court said
decision in the case of People v. Garcia the subjective phase has passed. This was
was handed down and the Court of Appeals applied in the case of US v. Valdez, where
ruled that there is no frustrated arson. But the offender, having already put kerosene
even then, the analysis in the case of US v. on the jute sacks, lighted the same, he had
Valdez is correct. This is because, in no reason not to believe that the fire would
determining whether the felony is spread, so he ran away. That act
attempted, frustrated or consummated, the demonstrated that in his mind, he believed
court does not only consider the definition that he has performed all the acts of
under Article 6 of the Revised Penal Code, execution and that it is only a matter of time
or the stages of execution of the felony. that the premises will burn. The fact that
When the offender has already passed the the occupant of the other room came out
subjective stage of the felony, it is beyond and put out the fire is a cause independent
the attempted stage. It is already on the of the will of the perpetrator.
consummated or frustrated stage depending
on whether a felony resulted. If the felony The ruling in the case of US v. Valdez is still
did not result, frustrated. correct. But in the case of People v.
Garcia, the situation is different. Here, the
The attempted stage is said to be within the offender who put the torch over the house of
subjective phase of execution of a felony. the offended party, the house being a nipa
On the subjective phase, it is that point in hut, the torch which was lighted could easily
time when the offender begins the burn the roof of the nipa hut. But the torch
commission of an overt act until that point burned out.
where he loses control of the commission of
the crime already. If he has reached that In that case, you cannot say that the
point where he can no longer control the offender believed that he had performed all
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 39
the acts of execution. There was not even a in the frustrated stage when the offender
single burn of any instrument or agency of was able to throw the blow but somehow,
the crime. the offended party was able to sidestep
away from the blow. He reasoned out that
The analysis made by the Court of Appeals the crime would be frustrated because the
is still correct: that they could not offender was able to perform all the acts of
demonstrate a situation where the offender execution which would bring about the
has performed all the acts of execution to felony were it not for a cause independent
bring about the crime of arson and the of the will of the perpetrator.
situation where he has not yet performed all
the acts of execution. The weight of the The explanation is academic. You will
authority is that the crime of arson cannot notice that under the Revised Penal Code,
be committed in the frustrated stage. The the crime of physical injuries is penalized on
reason is because we can hardly determine the basis of the gravity of the injuries.
whether the offender has performed all the Actually, there is no simple crime of physical
acts of execution that would result in arson, injuries. You have to categorize because
as a consequence, unless a part of the there are specific articles that apply whether
premises has started to burn. On the other the physical injuries are serious, less
hand, the moment a particle or a molecule serious or slight. If you say physical
of the premises has blackened, in law, injuries, you do not know which article to
arson is consummated. This is because apply. This being so, you could not punish
consummated arson does not require that the attempted or frustrated stage because
the whole of the premises be burned. It is you do not know what crime of physical
enough that any part of the premises, no injuries was committed.
matter how small, has begun to burn.
There are also certain crimes that do not Questions & Answers
admit of the attempted or frustrated stage,
like physical injuries. One of the known
commentators in criminal law has advanced 1. Is there an attempted slight
the view that the crime of physical injuries physical injuries?
can be committed in the attempted as well
If there is no result, you do not know.
as the frustrated stage. He explained that
Criminal law cannot stand on any
by going through the definition of an
speculation or ambiguity; otherwise, the
attempted and a frustrated felony under presumption of innocence would be
Article 6, if a person who was about to give sacrificed. Therefore, the commentator’s
a fist blow to another raises his arms, but opinion cannot stand because you cannot
before he could throw the blow, somebody tell what particular physical injuries was
holds that arm, there would be attempted attempted or frustrated unless the
physical injuries. The reason for this is consequence is there. You cannot classify
because the offender was not able to the physical injuries.
perform all the acts of execution to bring
about physical injuries. 2. A threw muriatic acid on the
face of B. The injuries would have resulted
On the other hand, he also stated that the in deformity were it not for timely plastic
crime of physical injuries may be committed surgery. After the surgery, B became more
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 40
(3) The ugliness would not disappear If the personal property was received by the
through natural healing process. offender, this is where you have to decide
whether what was transferred to the
Along this concept of deformity in law, the offender is juridical possession or physical
plastic surgery applied to B is beside the possession only. If the offender did not
point. In law, what is considered is not the receive the personal property, but took the
artificial or the scientific treatment but the same from the possession of the owner
natural healing of the injury. So the fact without the latter’s consent, then there is no
that there was plastic surgery applied to B problem. That cannot be estafa; this is only
does not relieve the offender from the theft or none at all.
liability for the physical injuries inflicted.
In estafa, the offender receives the property;
The crime committed is serious physical
he does not take it. But in receiving the
injuries. It is consummated. In
property, the recipient may be committing
determining whether a felony is attempted, theft, not estafa, if what was transferred to
frustrated or consummated, you have to him was only the physical or material
consider the manner of committing the possession of the object. It can only be
felony, the element of the felony and the estafa if what was transferred to him is not
nature of the felony itself. There is no real only material or physical possession but
hard and fast rule. juridical possession as well.
Under American common law, the crime of not authorized at all and is interested only in
larceny which is equivalent to our crime of the wallet, not the table. The crime is not
theft here requires that the offender must be yet consummated. It is only frustrated
able to carry away or transport the thing because as far as the table is concern, it is
being stolen. Without that carrying away, the confines of this room that is the
the larceny cannot be consummated. container. As long as he has not taken this
table out of the four walls of this room, the
In our concept of theft, the offender need taking is not complete.
not move an inch from where he was. It is
not a matter of carrying away. It is a matter A man entered a room and found a chest on
of whether he has already acquired the table. He opened it found some
complete control of the personal property valuables inside. He took the valuables, put
involved. That complete control simply them in his pocket and was arrested. In this
means that the offender has already case, theft is consummated.
supplanted his will from the will of the
possessor or owner of the personal property But if he does not take the valuables but lifts
involved, such that he could exercise his the entire chest, and before he could leave
own control on the thing. the room, he was apprehended, there is
frustrated theft.
Illustration:
If the thing is stolen from a compound or
I placed a wallet on a table inside a room. A from a room, as long as the object has not
stranger comes inside the room, gets the been brought out of that room, or from the
wallet and puts it in his pocket. I suddenly perimeter of the compound, the crime is
started searching him and I found the wallet only frustrated. This is the confusion raised
inside his pocket. The crime of theft is in the case of US v. Diño compared with
already consummated because he already People v. Adio and People v. Espiritu.
acquired complete control of my wallet. This
is so true when he removed the wallet from In US v. Diño, the accused loaded boxes of
the confines of the table. He can exercise rifle on their truck. When they were on their
his will over the wallet already, he can drop way out of the South Harbor, they were
this on the floor, etc. checked at the checkpoint, so they were not
But as long as the wallet remains on the able to leave the compound. It was held
table, the theft is not yet consummated; that what was committed was frustrated
there can only be attempted or frustrated Theft.
theft. If he has started lifting the wallet, it is
frustrated. If he is in the act of trying to take In People v. Espiritu, the accused were on
the wallet or place it under, attempted. their way out of the supply house when they
were apprehended by military police who
“Taking” in the concept of theft, simply found them secreting some hospital linen. It
means exercising control over the thing. was held that what was committed was
consummated theft.
If instead of the wallet, the man who entered
the room pretended to carry the table out of The emphasis, which was erroneously laid
the room, and the wallet is there. While in some commentaries, is that, in both
taking the table out of the room, I cases, the offenders were not able to pass
apprehended him. It turned out that he is the checkpoint. But why is it that in one, it is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 42
Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 43
If the wound is not mortal, the crime is only itself. This is only true when the law
attempted. The reason is that the wound expressly punishes the mere conspiracy;
inflicted is not capable of bringing about the otherwise, the conspiracy does not bring
desired felony of parricide, murder or about the commission of the crime because
homicide as a consequence; it cannot be conspiracy is not an overt act but a mere
said that the offender has performed all the preparatory act. Treason, rebellion,
acts of execution which would produce sedition, and coup d’etat are the only crimes
parricide, homicide or murder as a result. where the conspiracy and proposal to
commit to them are punishable.
An exception to the general rule is the so-
called subjective phase. The Supreme
Court has decided cases which applied the Question & Answer
subjective standard that when the offender
himself believed that he had performed all
the acts of execution, even though no Union A proposed acts of sedition to
mortal wound was inflicted, the act is Union B. Is there a crime committed?
already in the frustrated stage. Assuming Union B accepts the proposal,
will your answer be different?
committed the overt act of rebellion, the from the acts of the offenders when such
crime of all is no longer conspiracy to acts disclose or show a common pursuit of
commit rebellion but rebellion itself. This the criminal objective. This was the ruling in
subsists even though the other co- People v. Pinto, 204 SCRA 9.
conspirator does not know that one of them
had already done the act of rebellion. Although conspiracy is defined as two or
more person coming to an agreement
This legal consequence is not true if the regarding the commission of a felony and
conspiracy is not a crime. If the conspiracy deciding to commit it, the word “person”
is only a basis of criminal liability, none of here should not be understood to require a
the co-conspirators would be liable, unless meeting of the co-conspirator regarding the
there is an overt act. So, for as long as commission of the felony. A conspiracy of
anyone shall desist before an overt act in the second kind can be inferred or deduced
furtherance of the crime was committed, even though they have not met as long as
such a desistance would negate criminal they acted in concert or simultaneously,
liability. indicative of a meeting of the minds toward
a common goal or objective.
Illustration:
Conspiracy is a matter of substance which
Three persons plan to rob a bank. For as must be alleged in the information,
long as none of the conspirators has otherwise, the court will not consider the
committed an overt act, there is no crime same.
yet. But when one of them commits any
overt act, all of them shall be held liable, In People v. Laurio, 200 SCRA 489, it was
unless a co-conspirator was absent from the held that it must be established by positive
scene of the crime or he showed up, but he and conclusive evidence, not by conjectures
tried to prevent the commission of the crime or speculations.
As a general rule, if there has been a In Taer v. CA, 186 SCRA 5980, it was held
conspiracy to commit a crime in a particular that mere knowledge, acquiescence to, or
place, anyone who did not appear shall be approval of the act, without cooperation or
presumed to have desisted. The exception at least, agreement to cooperate, is not
to this is if such person who did not appear enough to constitute a conspiracy. There
was the mastermind. must be an intentional participation in the
crime with a view to further the common
We have to observe the distinction between felonious objective.
the two because conspiracy as a crime,
must have a clear and convincing evidence When several persons who do not know
of its existence. Every crime must be each other simultaneously attack the victim,
proved beyond reasonable doubt. the act of one is the act of all, regardless of
the degree of injury inflicted by any one of
When the conspiracy is just a basis of them. All will be liable for the
incurring criminal liability, however, the consequences. A conspiracy is possible
same may be deduced or inferred from the even when participants are not known to
acts of several offenders in carrying out the each other. Do not think that participants
commission of the crime. The existence of are always known to each other.
a conspiracy may be reasonably inferred
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 45
Illustrations:
The Supreme Court has ruled that one who
A thought of having her husband killed desisted is not criminally liable. “When a
because the latter was maltreating her. She person has set foot to the path of
hired some persons to kill him and pointed wickedness and brings back his foot to the
at her husband. The goons got hold of her path of righteousness, the law shall reward
husband and started mauling him. The wife him for doing so.”
took pity and shouted for them to stop but
the goons continued. The wife ran away. Where there are several persons who
The wife was prosecuted for parricide. But participated, like in a killing, and they
the Supreme Court said that there was attacked the victim simultaneously, so much
desistance so she is not criminally liable. so that it cannot be known what
participation each one had, all these
A law student resented the fact that his participants shall be considered as having
brother was killed by A. He hired B to kill A acted in conspiracy and they will be held
and offered him P50,000.00. He disclosed collectively responsible.
to B that A was being arraigned in the City Do not search for an agreement among the
Hall of Manila and told him to execute the participants. If they acted simultaneously to
plan on the following day. In the evening of bring about their common intention,
that same day, the law student changed his conspiracy exists. And when conspiracy
mind so he immediately went to the police exists, do not consider the degree of
and told them to dispatch police officers to participation of each conspirator because
prevent B from committing the crime. the act of one is the act of all. As a general
Unfortunately, the police were caught in rule, they have equal criminal responsibility.
traffic causing their delay, so that when they
reached the place, B had already killed A.
In this case, there was no proposal but a Question & Answer
conspiracy. They have conspired to
execute a crime but the crime involved here
is murder and a conspiracy to commit There are several offenders who
murder is not a crime in itself but merely a acted simultaneously. When they fled, a
basis for incurring criminal liability. This is victim was found dead. Who should be
just a preparatory act, and his desistance liable for the killing if who actually killed the
negates criminal liability. victim is not known?
pursuance of the crime agreed upon are even though the co-conspirator performed
acts which constitute a single crime. different acts bringing about the composite
crime, all will be liable for such crime. They
Illustrations: can only evade responsibility for any other
crime outside of that agreed upon if it is
A, B, and C decided to commit robbery in proved that the particular conspirator had
the house of D. Pursuant to their tried to prevent the commission of such
agreement, A would ransack the second other act.
floor, B was to wait outside, and C would
stay on the first floor. Unknown to B and C, The rule would be different if the crime
A raped the girl upstairs. All of them will be committed was not a composite crime.
liable for robbery with rape. The crime
committed is robbery with rape, which is not Illustration:
a complex crime, but an indivisible felony
under the Article 294 of the Revised Penal A, B and C agreed to kill D. When they saw
Code. Even if B and C did not know that the opportunity, A, B and C killed D and
rape was being committed and they agreed after that, A and B ran into different
only and conspired to rob, yet rape was part directions. C inspected the pocket of the
of robbery. Rape can not be separated victim and found that the victim was wearing
from robbery. a ring – a diamond ring – and he took it.
The crimes committed are homicide and
A, B and C agreed to rob the house of D. It theft. As far as the homicide is concerned,
was agreed that A would go the second A, B and C are liable because that was
floor, B would stay in the first floor, and C agreed upon and theft was not an integral
stands guard outside. All went to their part of homicide. This is a distinct crime so
designated areas in pursuit of the plan. the rule will not apply because it was not the
While A was ransacking the second floor, crime agreed upon. Insofar as the crime of
the owner was awakened. A killed him. A, theft is concerned, C will be the only one
B and C will be liable for robbery with liable. So C will be liable for homicide and
homicide. This is because, it is well settled theft.
that any killing taking place while robbery is
being committed shall be treated as a single
indivisible offense. CLASSIFICATION OF FELONIES
As a general rule, when there is conspiracy, This question was asked in the bar
the rule is that the act of one is the act of all. examination: How do you classify felonies
This principle applies only to the crime or how are felonies classified?
agreed upon.
What the examiner had in mind was Articles
The exception is if any of the co-conspirator 3, 6 and 9. Do not write the classification of
would commit a crime not agreed upon. felonies under Book 2 of the Revised Penal
This happens when the crime agreed upon Code. That was not what the examiner had
and the crime committed by one of the co- in mind because the question does not
conspirators are distinct crimes. require the candidate to classify but also to
define. Therefore, the examiner was after
Exception to the exception: In acts the classifications under Articles 3, 6 and 9.
constituting a single indivisible offense,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 48
offender escapes while in detention after he be caused to the private offended party, if
has been loose, if there was already he would not be indemnified for the
judgment that was passed, it can be damages or injuries sustained by him.
promulgated even if absent under the New
Rules on Criminal Procedure. If the crime is In People v. Rodriguez, it was held that the
correctional, it prescribes in ten years, use of arms is an element of rebellion, so a
except arresto mayor, which prescribes in rebel cannot be further prosecuted for
five years. possession of firearms. A violation of a
special law can never absorb a crime
punishable under the Revised Penal Code,
SUPPLETORY APPLICATION OF THE because violations of the Revised Penal
REVISED PENAL CODE Code are more serious than a violation of a
special law. But a crime in the Revised
Article 10 is the consequence of the legal Penal Code can absorb a crime punishable
requirement that you have to distinguish by a special law if it is a necessary
those punished under special laws and ingredient of the crime in the Revised Penal
those under the Revised Penal Code. With Code.
regard to Article 10, observe the distinction. In the crime of sedition, the use of firearms
is not an ingredient of the crime. Hence,
In Article 10, there is a reservation two prosecutions can be had: (1) sedition;
“provision of the Revised Penal Code may and (2) illegal possession of firearms.
be applied suppletorily to special laws”.
You will only apply the provisions of the But do not think that when a crime is
Revised Penal Code as a supplement to the punished outside of the Revised Penal
special law, or simply correlate the violated Code, it is already a special law. For
special law, if needed to avoid an injustice. example, the crime of cattle-rustling is not a
If no justice would result, do not give mala prohibitum but a modification of the
suppletorily application of the Revised Penal crime theft of large cattle. So Presidential
Code to that of special law. Decree No. 533, punishing cattle-rustling, is
not a special law. It can absorb the crime of
For example, a special law punishes a murder. If in the course of cattle rustling,
certain act as a crime. The special law is murder was committed, the offender cannot
silent as to the civil liability of one who be prosecuted for murder. Murder would be
violates the same. Here is a person who a qualifying circumstance in the crime of
violated the special law and he was qualified cattle rustling. Thias was the ruling
prosecuted. His violation caused damage in People v. Martinada.
or injury to a private party. May the court
pronounce that he is civilly liable to the The amendments of Presidential Decree
offended party, considering that the special No. 6425 (The Dangerous Drugs Act of
law is silent on this point? Yes, because 1972) by Republic Act No. 7659, which
Article 100 of the Revised Penal Code may adopted the scale of penalties in the
be given suppletory application to prevent Revised Penal Code, means that mitigating
an injustice from being done to the offended and aggravating circumstances can now be
party. Article 100 states that every person considered in imposing penalties.
criminally liable for a felony is also civilly Presidential Decree No. 6425 does not
liable. That article shall be applied expressly prohibit the suppletory application
suppletory to avoid an injustice that would of the Revised Penal Code. The stages of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 50
the commission of felonies will also apply The effect of this is to absolve the offender
since suppletory application is now allowed. from criminal liability, although not from civil
liability. It has the same effect as an
exempting circumstance, but you do not call
Circumstances affecting criminal liability it as such in order not to confuse it with the
circumstances under Article 12.
There are five circumstances affecting
criminal liability: Article 20 provides that the penalties
prescribed for accessories shall not be
(1) Justifying circumstances; imposed upon those who are such with
respect to their spouses, ascendants,
(2) Exempting circumstances; descendants, legitimate, natural and
adopted brothers and sisters, or relatives by
(3) Mitigating circumstances; affinity within the same degrees with the
exception of accessories who profited
(4) Aggravating circumstances; and themselves or assisting the offender to profit
by the effects of the crime.
(5) Alternative circumstances.
Then, Article 89 provides how criminal
There are two others which are found liability is extinguished:
elsewhere in the provisions of the Revised
Penal Code: Death of the convict as to the personal
penalties, and as to pecuniary penalties,
(1) Absolutory cause; and liability therefor is extinguished if death
occurs before final judgment;
(2) Extenuating circumstances. Service of the sentence;
Under Article 344, in cases of seduction, An agent of the narcotics command had
abduction, acts of lasciviousness, and rape, been tipped off that a certain house is being
the marriage of the offended party shall used as an opium den by prominent
extinguish the criminal action. members of the society. The law enforcers
cannot themselves penetrate the house
because they do not belong to that circle so
Absolutory cause has the effect of an what they did was to convince a prominent
exempting circumstance and they are member of society to visit such house to
predicated on lack of voluntariness like find out what is really happening inside and
instigation. Instigation is associated with that so many cars were congregating there.
criminal intent. Do not consider culpa in The law enforcers told the undercover man
connection with instigation. If the crime is that if he is offered a cigarette, then he
culpable, do not talk of instigation. In should try it to find out whether it is loaded
instigation, the crime is committed with dolo. with dangerous drugs or not. This fellow
It is confused with entrapment. went to the place and mingled there. The
Entrapment is not an absolutory cause. time came when he was offered a stick of
Entrapment does not exempt the offender or cigarette and he tried it to see if the
mitigate his criminal liability. But instigation cigarette would affect him. Unfortunately,
absolves the offender from criminal liability the raid was conducted and he was among
because in instigation, the offender simply those prosecuted for violation of the
acts as a tool of the law enforcers and, Dangerous Drugs Act. Is he criminally
therefore, he is acting without criminal intent liable? No. He was only there upon
because without the instigation, he would instigation of the law enforcers. On his own,
not have done the criminal act which he did he would not be there. The reason he is
upon instigation of the law enforcers. there is because he cooperated with the law
enforcers. There is absence of criminal
Difference between instigation and intent.
entrapment
If the law enforcer were able to enter the
In instigation, the criminal plan or design house and mingle there, nobody would offer
exists in the mind of the law enforcer with him a cigarette because he is unknown.
whom the person instigated cooperated so it When he saw somebody, he pleaded to
is said that the person instigated is acting spare him a smoke so this fellow handed to
him the cigarette he was smoking and found
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 52
incompatible with each other because in mitigating because this is not found in
entrapment, the person entrapped is Article 13.
actually committing a crime. The officer
who entrapped him only lays down ways Illustrations:
and means to have evidence of the
commission of the crime, but even without An unwed mother killed her child in order to
those ways and means, the person conceal a dishonor. The concealment of
entrapped is actually engaged in a violation dishonor is an extenuating circumstance
of the law. insofar as the unwed mother or the maternal
grandparents is concerned, but not insofar
Instigation absolves the person instigated as the father of the child is concerned.
from criminal liability. This is based on the Mother killing her new born child to conceal
rule that a person cannot be a criminal if his her dishonor, penalty is lowered by two
mind is not criminal. On the other hand, degrees. Since there is a material lowering
entrapment is not an absolutory cause. It is of the penalty or mitigating the penalty, this
not even mitigating. is an extenuating circumstance.
In case of somnambulism or one who acts The concealment of honor by mother in the
while sleeping, the person involved is crime of infanticide is an extenuating
definitely acting without freedom and circumstance but not in the case of parricide
without sufficient intelligence, because he is when the age of the victim is three days old
asleep. He is moving like a robot, unaware and above.
of what he is doing. So the element of
voluntariness which is necessary in dolo In the crime of adultery on the part of a
and culpa is not present. Somnambulism is married woman abandoned by her husband,
an absolutory cause. If element of at the time she was abandoned by her
voluntariness is absent, there is no criminal husband, is it necessary for her to seek the
liability, although there is civil liability, and if company of another man. Abandonment by
the circumstance is not among those the husband does not justify the act of the
enumerated in Article 12, refer to the woman. It only extenuates or reduces
circumstance as an absolutory cause. criminal liability. When the effect of the
circumstance is to lower the penalty there is
Mistake of fact is not absolutory cause. The an extenuating circumstance.
offender is acting without criminal intent. So
in mistake of fact, it is necessary that had A kleptomaniac is one who cannot resist the
the facts been true as the accused believed temptation of stealing things which appeal
them to be, this act is justified. If not, there to his desire. This is not exempting. One
is criminal liability, because there is no who is a kleptomaniac and who would steal
mistake of fact anymore. The offender must objects of his desire is criminally liable. But
believe he is performing a lawful act. he would be given the benefit of a mitigating
circumstance analogous to paragraph 9 of
Extenuating circumstances Article 13, that of suffering from an illness
which diminishes the exercise of his will
The effect of this is to mitigate the criminal power without, however, depriving him of
liability of the offender. In other words, this the consciousness of his act. So this is an
has the same effect as mitigating extenuating circumstance. The effect is to
circumstances, only you do not call it mitigate the criminal liability.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 54
pouring gasoline around the house. The already a stranger in the eyes of the law.
woman who was pouring gasoline had a On the other hand, if the relative defended
bolo, so she started hacking the other is still within the coverage of defense of
woman with it. They grappled with the bolo. relative, even though he acted out of some
At that moment, the one who jumped out of evil motive, it would still apply. It is enough
the house was able to wrest the bolo away that there was unlawful aggression against
and started hacking the other woman. It the relative defended, and that the person
was held that the hacking was not justified. defending did not contribute to the unlawful
Actually, when she killed the supposed aggression.
unlawful aggressor, her life and limb were
no longer in imminent danger. That is the
focal point. Question & Answer
At the time the accused killed the supposed
unlawful aggressor, was her life in danger? The person being defended was a
If the answer is no, there is no self-defense. relative – a first cousin. But the fellow who
But while there may be no justifying killed the aggressor had some score to
circumstance, do not forget the incomplete settle with the aggressor. Is he entitled to a
self-defense. This is a mitigating justifying circumstance?
circumstance under paragraph 1 of Article
13. This mitigating circumstance is either Yes. In law, the condition that a
privileged or ordinary. If ordinary, it has the person making the defense did not act out
effect of reducing the imposable penalty to of revenge, resentment or evil motive is not
the minimum period. But if it is privileged, it a requirement in defense of relative. This is
has the effect of lowering the penalty by one only required in defense of strangers.
to two degrees, depending on how the court
will regard the absence or presence of
conditions to justify the act. Incomplete self-defense or incomplete
justifying circumstance or incomplete
exempting circumstances
Defense of property rights
When you say incomplete justifying
This can only be invoked if the life and limb circumstance, it means that not all the
of the person making the defense is also the requisites to justify the act are present or
subject of unlawful aggression. Life cannot not the requisites to exempt from criminal
be equal to property. liability are present.
aggression. Without this, there can be no only two conditions to justify the act or to
incomplete self-defense, defense of relative, exempt from criminal liability, the presence
or defense of stranger. of one shall be regarded as the majority.
destroyed. The author of the act is C, but C there, they saw a certain person who
is not civilly liable because he did not resembled Balagtas in all his bodily
receive benefits. It was B who was appearance sleeping on a bamboo bed but
benefited, although he was not the actor. facing the other direction. The accused,
He cannot claim that it was fortuitous event. without going around the house, started
B will answer only to the extent of the firing at the man. They found out later on
benefit derived by him. If C who drove all that the man was not really Balagtas. They
the goats is accused of malicious mischief, tried to invoke the justifying circumstance of
his defense would be that he acted out of a having acted in fulfillment of a duty.
state of necessity. He will not be civilly
liable. The second requisite is absent because
Fulfillment of duty they acted with negligence. There was
nothing that prevented them from looking
In the justifying circumstance of a person around the house and looking at the face of
having acted out of fulfillment of a duty and the fellow who was sleeping. There could
the lawful exercise of a right or office, there not be any danger on their life and limb.
are only two conditions: Hence, they were held guilty of the crime of
murder because the fellow was killed when
(1) The felony was committed while the he was sleeping and totally defenseless.
offender was in the fulfillment of a However, the Supreme Court granted them
duty or in the lawful exercise of a the benefit of incomplete justification of
right or office; and fulfillment of duty and the penalty was
reduced by one or two degrees.
(2) The resulting felony is the
unavoidable consequence of the due Do not confuse fulfillment of a duty with self-
fulfillment of the duty or the lawful defense.
exercise of the right or office.
Illustration:
Invariably, when you are given a problem on
this premise, and the first condition is A, a policeman, while waiting for his wife to
present, but the second is not because the go home, was suddenly stabbed at the back
offender acted with culpa, the offender will by B, a hoodlum, who mistook him for
be entitled to a privelege mitigating someone else. When A saw B, he drew his
circumstance. This is what you call revolver and went after B. After firing a shot
incomplete justification of fulfillment of duty in the air, B did not stop so A shot B who
or incomplete justification of exercise of a was hit at a vital part of the body. B died. Is
right. In that case, the penalty would be the act of A justified?
reduced by one or two degrees.
Yes. The justifying circumstance of self-
In People v. Oanis and Callanta, the defense cannot be invoked because the
accused Chief of Police and the unlawful aggression had already ceased by
constabulary soldier were sent out to arrest the time A shot B. When the unlawful
a certain Balagtas, supposedly a notorious aggressor started fleeing, the unlawful
bandit. There was an order to kill Balagtas aggression ceased. If the person attacked
if he would resist. The accused arrived at runs after him, in the eyes of the law, he
the house of a dancer who was supposedly becomes the unlawful aggressor. Self-
the girlfriend of Balagtas. When they were defense cannot be invoked. You apply
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 59
How does the minority of the offender affect Suspension of sentence is not automatic. If
his criminal liability? the youthful offender has filed an application
therefor.
(1) If the offender is within the bracket of
nine years old exactly or less, he is (3) If at the time the judgment is to be
exempt from criminal liability but not promulgated he is already above 18,
from civil liability. This type of he cannot avail of a suspended
offenders are absolutely exempt. sentence. The reason is because if
Even if the offender nine years or the sentence were to be suspended,
below acted with discernment, this he would be committed in a
should not be taken against him reformatory. Since he cannot be
because in this age bracket, the committed to a reformatory anymore
exemption is absolute. because he is not less than 18 years
old, he would have to be committed
(2) If over nine but below 15, a to a penitentiary. That means
distinction has to be made whether promulgation of the sentence shall
the offender acted with or without not be suspended. If the sentence
discernment. The burden is upon should not be suspended, although
the prosecution to prove that the the minor may be qualified, the court
offender acted with discernment. It will promulgate the sentence but the
is not for the minor to prove that he minor shall be entitled to the
acted without discernment. All that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 61
reduction of the penalty by at least the head. The pedestrian suffered profuse
two degrees. bleeding. What is the liability of the driver?
When the offender is over nine but There is no civil liability under paragraph 4
below 15, the penalty to be imposed of Article 12. Although, this is just an
is discretionary on the court, but exempting circumstance, where generally
lowered by at least two degrees. It there is civil liability, yet, in paragraph 4 of
may be lowered by three or four Article 12, there is no civil liability as well as
degrees, depending upon whether criminal liability. The driver is not under
the court deems best for the interest obligation to defray the medical expenses.
of the offender. The limitation that it
should be lowered by at least two However, correlate paragraph 4 of Article 12
degrees is just a limitation on the with the second paragraph of Article 275.
power of the court to reduce the Article 275 gives you the crime of
penalty. It cannot be less than two abandoning the victim of one’s own
degrees. accident. It is a crime. Here, the accident
referred to in paragraph 2 of Article 275 is in
(4) If the offender is 15 years old and the concept of paragraph 4 of Article 12.
above but below 18, there is no This means that the offender must be
exemption anymore but he is also performing a lawful act, that he was doing it
given the benefit of a suspended with due care but somehow, injury resulted
sentence under the conditions stated by mere accident without fault or intention of
earlier and if at the time the causing it.
sentence is promulgated, he is not
18 years old or over yet. If the If at the very beginning, the offender was
sentence is promulgated, the court negligent, you do not apply Article 275,
will impose a penalty one degree paragraph 2. Instead, it will be Article 365
lower. This time it is fixed. It is to be on criminal negligence. Notice that in the
imposed one degree lower and in last paragraph of Article 365, in the case of
the proper periods subject to the the so-called hit and run drivers who have
rules in Article 64. injured somebody and would abandon the
victim of the accident, the penalty is
qualified to a higher degree. Here, under
Damnum absque injuria paragraph 4 of Article 12, the infliction of the
injury by mere accident does not give rise to
Under Article 12, paragraph 4, the offender a criminal or civil liability, but the person
is exempt not only from criminal but also who caused the injury is duty bound to
from civil liability. This paragraph embodies attend to the person who was injured. If he
the Latin maxim “damnum absque injuria”. would abandon him, it is in that
abandonment that the crime arises which is
Illustration: punished under the second paragraph of
Article 275.
A person who is driving his car within the
speed limit, while considering the condition
of the traffic and the pedestrians at that Compulsion of irresistible force and
time, tripped on a stone with one of his car under the impulse of an uncontrollable
tires. The stone flew hitting a pedestrian on fear
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 62
Illustration:
A was walking in front of the house
of B. B at that time was with his brother C. C The accused went to a barrio dance. In that
told B that sometime in the past, A boxed gathering, there was a bully and he told the
him, and because he was small, he did not accused that he is not allowed to go inside.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 65
The accused tried to reason out but the he committed the crime, then you
bully slapped him several times in front of use the criterion based on the time
so many people, some of whom were ladies element.
who were being courted by the accused, so
he was humiliated and embarrassed. (2) However, if there is that time
However, he cannot fight the bully at that element and at the same time, facts
time because the latter was much bigger are given indicating that at the time
and heavier. Accused had no choice but to the offender committed the crime, he
go home. When he saw the bully again, this is still suffering from outrage of the
time, he was armed with a knife and he threat or provocation done to him,
stabbed the bully to death. The evidence then he will still get the benefit of this
for the accused showed that when he went mitigating circumstance.
home, he was not able to sleep throughout
the night, thinking of the humiliation and In People v. Diokno, a Chinaman eloped
outrage done to him, despite the lapse of with a woman. Actually, it was almost three
about 22 hours. The Supreme Court gave days before accused was able to locate the
him the benefit of this mitigating house where the Chinaman brought the
circumstance. The reason stated by the woman. Here, sufficient provocation was
Supreme Court for allowing the accused to one of the mitigating circumstances
be benefited by this mitigating circumstance considered by the Supreme Court in favor of
is that the effect of the humiliation and the accused.
outrage emitted by the offended party as a
provocation upon the accused was still
present when he committed the crime and, Vindication of a grave offense
therefore, the reason for paragraph 4 still
applies. The accused was still acting under The word “offense” should not be taken as a
a diminished self control because he was crime. It is enough if what was imputed or
thinking of the humiliation he suffered in the what was done was wrong. In considering
hands of the offended party. The outrage whether the wrong is a grave one upon the
was so serious unless vindicated. person who committed the crime, his age,
education and social status will be
This is the correct interpretation of considered.
paragraph 4, Article 13. As long as the
offender at the time he committed the felony Here, in vindication of a grave offense, the
was still under the influence of the outrage vindication need not be done by the person
caused by the provocation or threat, he is upon whom the grave offense was
acting under a diminished self control. This committed. So, unlike in sufficient threat or
is the reason why it is mitigating. provocation where the crime should be
inflicted upon the very person who made the
You have to look at two criteria: threat or provocation, here, it need not be
the same person who committed the grave
(1) If from the element of time, there is a offense or who was offended by the wrong
material lapse of time stated in the done by the offended party.
problem and there is nothing stated
in the problem that the effect of the The word “immediate” here does not carry
threat or provocation had prolonged the same meaning as that under paragraph
and affected the offender at the time 4. The word “immediate” here is an
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 66
However, in one case, one of the mitigating When a married person surprised his better
circumstances under paragraphs 4, 5 and 6 half in the act of sexual intercourse with
stands or arises from a set of facts, and another, he gets the benefit of Article 247.
another mitigating circumstance arises from However, that requisite which in the first
another set of facts. Since they are place, the offender must have surprised
predicated on different set of facts, they his/her spouse actually committing sexual
may be appreciated together, although they intercourse should be present. If the
arose from one and the same case. Hence, surprising was done not in the actual act of
the prohibition against considering all these sexual intercourse but before or after it, then
mitigating circumstances together and not Article 247 does not apply.
as one applies only if they would be taken
on the basis of the same set of facts. Although this is the ruling, still, the accused
will be given the benefit of sufficient
If the case involves a series of facts, then provocation if the intercourse was done in
you can predicate any one of these his dwelling. If this act was done
circumstances on one fact and the other on somewhere else and the accused kills the
another fact and so on. paramour or the spouse, this may be
considered as mitigation of a grave offense
The passion must be legitimate. As a rule, to him or otherwise as a situation sufficient
it cannot be based on common law to create passion or obfuscation. Therefore,
relationship because common law when a married man upon coming home,
relationships are illicit. However, consider surprises his wife who was nude and lying
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 67
with another man who was also nude, the offender would come out in the open
Article 247 does not apply. If he kills them, and he gives himself up, his act of doing so
vindication of a grave offense will be will be considered as indicative of
mitigating in favor of the offender. repentance and he also saves the
government the time and the expense of
Illustrations: looking for him.
is willing to accept the consequences of the head. The crime committed was physical
wrong he has done and also thereby saves injuries. The Supreme Court held that being
the government the effort, the time and the a deaf and dumb is mitigating because the
expenses to be incurred in looking for him. only way is to use his force because he
cannot strike back.
Where the offender went to the municipal
building not to own responsibility for the If the offender is blind in one eye, as long as
killing, such fact is not tantamount to his means of action, defense or
voluntary surrender as a mitigating communication with others are not
circumstance. Although he admitted his restricted, such circumstance is not
participation in the killing, he tried to avoid mitigating. This circumstance must also
responsibility by claiming self-defense which have a bearing on the crime committed and
however he was not able to prove. People must depend on how the crime was
v. Mindac, decided December 14, 1992. committed.
Not any physical defect will affect the crime. Aggravating circumstances
It will only do so if it has some relation to the
crime committed. If a person is deaf and Kinds of aggravating circumstances:
dumb and he has been slandered, he
cannot talk so what he did was, he got a (1) Generic or those that can generally
piece of wood and struck the fellow on the apply to all crime;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 69
was done in consideration of a price, reward the accused to be informed of the nature of
or promise were alleged as aggravating. the accusation against him.
Only one of these is qualifying. If any one
of the three circumstances was proven, the Correlate Article 14 with Article 62. Article
crime was already murder. If the other two 62 gives you the different rules regarding
are also proven, even if they are alleged in aggravating circumstances. Aggravating
the information or complaint, they are only circumstances will not be considered when
to be taken as generic. If there is any it is the crime itself. If the crime charged is
mitigating circumstance in favor of the qualified trespass to dwelling, dwelling is no
offender, the two other circumstances which longer aggravating. When the aggravating
are otherwise qualifying could be offset by circumstance refers to the material
the mitigating, provided the mitigating execution of the crime, like treachery, it will
circumstance is not a privileged mitigating only aggravate the criminal liability of those
circumstance. Therefore, if there are three who employed the same.
of the qualifying circumstances alleged in
the complaint or information, only one will Illustration:
qualify the crime. The others will merely be
considered as generic. Thus, if there is any A person induced another to kill somebody.
ordinary mitigating circumstance in favor of That fellow killed the other guy and
the accused, such will be wiped out by employed treachery. As far as the killing is
these circumstances, although initially they concerned, the treachery will qualify only
are considered as qualifying. Do not the criminal liability of the actual
hesitate to offset on the principle that a executioner. The fellow who induced him
qualifying circumstance cannot be offset by becomes a co-principal and therefore, he is
an ordinary mitigating circumstance liable for the same crime committed.
because only one is necessary. However, let us say, the fellow was hired to
kill the parent of the one who hired him. He
Even if any of the qualifying circumstances killed a stranger and not the parent. What
under Article 248 on murder was proven, if was committed is different from what was
that is not the circumstance alleged in the agreed upon. The fellow who hired him will
information, it cannot qualify the crime. Let not be liable for the crime he had done
us say, what was alleged in the information because that was not the crime he was
was treachery. During the trial, what was hired to commit.
proven was the price, reward or promise as
a consideration for killing. The treachery
was not proved. Just the same, the Taking advantage of public position
accused cannot be convicted of murder
because the circumstance proven is not Article 62 was also amended by the
qualifying but merely generic. It is generic Republic Act No. 7659. The legal import of
because it is not alleged in the information this amendment is that the subject
at all. If any of these qualifying circumstance has been made a qualifying or
circumstances is not alleged in the special aggravating that shall not be offset
information, it cannot be considered or compensated by a mitigating
qualifying because a qualifying is an circumstance. If not alleged in the
ingredient of the crime and it cannot be information, however, but proven during the
taken as such without having alleged in the trial, it is only appreciated as a generic
information because it will violate the right of aggravating circumstance.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 71
accommodated the wife in the formers The crime of adultery was committed.
home. The husband went to the house of Dwelling was considered aggravating on the
the sister-in-law and tried to persuade the part of the paramour. The paramour is not a
wife to come back to the conjugal home but resident of the same dwelling. However, if
the wife refused because she is more at the paramour was also residing on the
peace in her sister's house than in the same dwelling, dwelling is not considered
conjugal abode. Due to the wife's refusal to aggravating.
go back to the conjugal home and live with
the husband, the husband pulled out a knife The term “dwelling” includes all the
and stabbed the wife which caused her dependencies necessary for a house or for
death. It was held that dwelling was rest or for comfort or a place of privacy. If
aggravating although it is not owned by the the place used is on the second floor, the
offended party because the offended party stairs which are used to reach the second
is considered as a member of the family floor is considered a dwelling because the
who owns the dwelling and that dwelling is second floor cannot be enjoyed without the
where she enjoyed privacy. Peace of mind stairs. If the offended party was assaulted
and comfort. while on the stairs, dwelling is already
aggravating. For this reason, considering
Even a room in a hotel if rented as a that any dependency necessary for the
dwelling, like what the salesmen do when enjoyment of a place of abode is considered
they are assigned in the provinces and they a dwelling.
rent rooms, is considered a dwelling. A
room in a hotel or motel will be considered Illustrations:
dwelling if it is used with a certain degree of
permanence, where the offended party A and B are living in one house. A occupies
seeks privacy, rest, peace of mind and the ground floor while B the upper floor. The
comfort. stairs here would form part only of B's
dwelling, the same being necessary and an
If a young man brought a woman in a motel integral part of his house or dwelling.
for a short time and there he was killed, Hence, when an attack is made while A is
dwelling is not aggravating. on the stairs, the aggravating circumstance
of dwelling is not present. If the attack is
A man was killed in the house of his made while B was on the stairs, then the
common law wife. Dwelling is aggravating in aggravating circumstance of dwelling is
this case because the house was provided present.
by the man.
Whenever one is in his dwelling, the law is
Dwelling should not be understood in the presuming that he is not intending to commit
concept of a domicile. A person has more a wrong so one who attacks him while in the
than one dwelling. So, if a man has so many tranquility of his home shows a degree of
wives and he gave them a places of their perversity in him. Hence, this aggravating
own, each one is his own dwelling. If he is circumstance.
killed there, dwelling will be aggravating,
provided that he also stays there once in a Dwelling is not limited to the house proper.
while. When he is only a visitor there, All the appurtenances necessary for the
dwelling is not aggravating. peace and comfort, rest and peace of mind
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 73
in the abode of the offended party is such is not capable of being the subject of
considered a dwelling. trespass. If the dwelling portion is attacked
where even if the store is open, there is
Illustrations: another separate entrance to the portion
used for dwelling, the circumstance is
A man was fixing something on the roof of aggravating. However, in case the store is
his house when he was shot. It was held closed, dwelling is aggravating since here,
that dwelling is aggravating. Roof still part of the store is not a public place as in the first
the house. case.
In the provinces where the comfort rooms Balcony is part of the dwelling because it is
are usually far from the house proper, if the appurtenant to the house
offended party while answering the call of
nature is killed, then dwelling is aggravating Dwelling is aggravating in robbery with
because the comfort room is a necessary homicide because the crime can be
dependency of the house proper. committed without necessarily transgressing
the sanctity of the home (People v. De Los
A person while in the room of his house, Reyes, decided October 22, 1992).
maintaining the room, was shot. Dwelling is
aggravating. Dwelling is aggravating where the place is,
even for a brief moment, a “home”, although
If the offender entered the house and the he is not the owner thereof as when victim
offended party jumped out of the house, was shot in the house of his parents.
even if the offender caught up with him
already out of the house, dwelling is still
aggravating. The reason is because he Band
could not have left his dwelling were it not
for the fact that the attacker entered the In band, there should at least be four
house. persons. All of them should be armed. Even
if there are four, but only three or less are
If the offended party was inside the house armed, it is not a band. Whenever you talk
and the offender was outside and the latter of band, always have in mind four at least.
shot the former inside the house while he Do not say three or more because it is four
was still outside. Dwelling is still aggravating or more. The way the law defines a band is
even if the offender did not enter the house. somewhat confusing because it refers
simply to more than 3, when actually it
A garage is part of the dwelling when should be 4 or more.
connected with an interior passage to the
house proper. If not connected, it is not Correlate this with Article 306 - Brigandage.
considered part of the dwelling. The crime is the band itself. The mere
forming of a band even without the
One-half of the house is used as a store commission of a crime is already a crime so
and the other half is used for dwelling but that band is not aggravating in brigandage
there is only one entrance. If the dwelling because the band itself is the way to commit
portion is attacked, dwelling is not brigandage.
aggravating because whenever a store is
open for business, it is a public place and as
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 74
It is determined not by the distance of the One evening, a crime was committed near
nearest house to the scene of the crime but the lamp post. The Supreme Court held
whether or not in the place of the that there is no aggravating circumstance of
commission of the offense , there was a nighttime. Even if the crime was committed
reasonable possibility of the victim receiving at night, but there was light, hence,
some help. darkness was not present, no aggravating
circumstance just by the fact of nighttime
Illustration: alone.
A is on board a banca, not so far away. B Even if there was darkness but the
and C also are on board on their respective nighttime was only an incident of a chance
bancas. Suddenly, D showed up from meeting, there is no aggravating
underwater and stabbed B. Is there an circumstance here. It must be shown that
aggravating circumstance of uninhabited the offender deliberately sought the cover of
place here? Yes, considering the fact that A darkness and the offender purposely took
and C before being able to give assistance advantage of nighttime to facilitate the
still have to jump into the water and swim commission of the offense.
towards B and the time it would take them
to do that, the chances of B receiving some Nocturnity is the period of time after sunset
help was very little, despite the fact that to sunrise, from dusk to dawn.
there were other persons not so far from the
scene.
Different forms of repetition or
Evidence tending to prove that the offender habituality of the offender
took advantage of the place and purposely
availed of it is to make it easier to commit (1) Recidivism under Article 14 (9) –
the crime, shall be necessary. The offender at the time of his trial
for one crime shall have been
previously convicted by final
Nighttime judgment of another embraced in the
same title of the Revised Penal
What if the crime started during the daytime Code.
and continued all the way to nighttime?
This is not aggravating. (2) Repetition or reiteracion under
Article 14 (10) – The offender has
As a rule, the crime must begin and end been previously punished for an
during the nighttime. Crime began at day offense which the law attaches an
and ended at night, as well as crime began equal or greater penalty or for two or
at night and ended at day is not aggravated more crimes to which it attaches a
by the circumstance of nighttime. lighter penalty.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 75
specializing on such kind of crime and the pardon, the pardon shall erase the
law wants to prevent any specialization. conviction including recidivism because
Hence, ordinarily, when a person commits a there is no more penalty so it shall be
crime under different titles, no aggravating understood as referring to the conviction or
circumstance is present. It is important that the effects of the crime.
the conviction which came earlier must refer
to the crime committed earlier than the Recidivism may be considered even though
subsequent conviction. not alleged in the information because this
is only a generic aggravating circumstance.
Illustration:
It is necessary to allege recidivism in the
In 1980, A committed robbery. While the information, but if the defense does not
case was being tried, he committed theft in object to the presentation of evidence
1983. He was found guilty and was during the trial and the same was proven,
convicted of theft also in 1983. The the court shall consider such aggravating
conviction became final because he did not circumstance because it is only generic.
appeal anymore and the trial for his earlier
crime which was robbery ended in 1984 In recidivism, although the law defines it as
where he was also convicted. He also did a circumstance where a person having been
not appeal this decision. Is the accused a convicted by final judgement was previously
recidivist? The subsequent conviction must convicted also by final judgement for a
refer to a felony committed later in order to crime embraced in the same title in the
constitute recidivism. The reason for this is Revised Penal Code, it is necessary that the
as the time the first crime was committed, conviction must come in the order in which
there was no other crime of which he was they are committed.
convicted so he cannot be regarded as a
repeater.
Question & Answer
In recidivism, the crimes committed should
be felonies. Recidivism cannot be had if the
crime committed is a violation of a special In 1975, the offender committed
law. robbery. While the same was being tried in
1978, he committed theft. In 1980, he was
Recidivism does not prescribe. No matter convicted of theft and he did not appeal this
how long ago the offender was convicted, if decision. The trial for robbery ended in
he is subsequently convicted of a crime 1981. May the judge in imposing the
embraced in the same title of the Revised penalty for robbery consider the accused a
Penal Code, it is taken into account as recidivist considering that he was already
aggravating in imposing the penalty. convicted in 1980 for the crime of theft
which is under the same title of the Revised
Pardon does not erase recidivism, even if it Penal Code as that of robbery?
is absolute because only excuses the
service of the penalty, but not the No, because the robbery which was
conviction. committed earlier would be decided later. It
must be the other way around. This is
If the offender has already served his because in 1975 when he committed the
sentence and he was extended an absolute robbery, there was no crime committed yet.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 77
Thus, even though in imposing the penalty in the information and in the course of the
for the robbery, there was already a trial, the prosecution tried to prove that the
previous conviction, if that conviction is offender is a habitual delinquent over the
subsequent to the commission of the objection of the accused, the court has no
robbery, he is not a recidivist. If you will jurisdiction to consider the offender a
interpret the definition of recidivism, this habitual delinquent. Even if the accused is
would seem to be covered but that is not so. in fact a habitual delinquent but it is not
alleged in the information, the prosecution
when introducing evidence was objected to,
Habitual delinquency the court cannot admit the evidence
presented to prove habitual delinquency
We have to consider the crimes in it and over the objection of the accused.
take note of the titles of crimes in the
Revised Penal Code. On the other hand, recidivism is a generic
aggravating circumstance. It need not be
If the offender had committed and was alleged in the information. Thus, even if
convicted of each of the crimes under each recidivism is not alleged in the information, if
category so that no two crimes fall under the proven during trial, the court can appreciate
same title of the Revised Penal Code, you the same. If the prosecution tried to prove
have a situation where the offender is a recidivism and the defense objected, the
habitual delinquent but not a recidivist objection should be overruled. The reason
because no two crimes fall under the same is recidivism is a generic aggravating
title of the Code. circumstance only. As such, it does not
have to be alleged in the information
If the first conviction is for serious physical because even if not alleged, if proven during
injuries or less serious physical injuries and trial, the trial court can appreciate it.
the second conviction is for robbery, theft or
estafa and the third is for falsification, then Right now, the present rule is that it can be
the moment the habitual delinquent is on his appreciated even if not alleged in the
fourth conviction already, you cannot avoid information. This is the correct view
that he is a habitual delinquent and at the because recidivism is a generic aggravating
same time a recidivist because at least, the circumstance. The reason why habitual
fourth time will have to fall under any of the delinquency cannot be appreciated unless
three categories. alleged in the information is because
recidivism has nothing to do with the crime
When the offender is a recidivist and at the committed. Habitual delinquency refers to
same time a habitual delinquent, the penalty prior conviction and therefore this must be
for the crime for which he will be convicted brought in the information before the court
will be increased to the maximum period can acquire jurisdiction over this matter.
unless offset by a mitigating circumstance.
After determining the correct penalty for the Generally, the procedure you know that
last crime committed, an added penalty will when the prosecutor alleges habitual
be imposed in accordance with Article 62. delinquency, it must specify the crimes
committed, the dates when they were
Habitual delinquency, being a special or committed, the court which tried the case,
specific aggravating circumstance must be the date when the accused was convicted
alleged in the information. If it is not alleged
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 78
or discharged. If these are not alleged, the crime, he committed a lesser one. If he
information is defective. committed another lesser one, then he
becomes a repeater.
However, in a relatively recent ruling of the
Supreme Court, it was held that even So, in reiteracion, the penalty attached to
though the details of habitual delinquency the crime subsequently committed should
was not set forth in the information, as long be higher or at least equal to the penalty
as there is an allegation there that the that he has already served. If that is the
accused is a habitual delinquent, that is situation, that means that the offender was
enough to confer jurisdiction upon the court never reformed by the fact that he already
to consider habitual delinquency. In the served the penalty imposed on him on the
absence of the details set forth in the first conviction. However, if he commits a
information, the accused has the right to felony carrying a lighter penalty;
avail of the so-called bill of particulars. Even subsequently, the law considers that
in a criminal case, the accused may file a somehow he has been reformed but if he,
motion for bill of particulars. If the accused again commits another felony which carries
fails to file such, he is deemed to have a lighter penalty, then he becomes a
waived the required particulars and so the repeater because that means he has not yet
court can admit evidence of the habitual reformed.
delinquency, even though over and above
the objection of the defense. You will only consider the penalty in
reiteracion if there is already a second
conviction. When there is a third conviction,
Reiteracion you disregard whatever penalty for the
subsequent crimes committed. Even if the
This has nothing to do with the classification penalty for the subsequent crimes
of the felonies. In reiteracion, the offender committed are lighter than the ones already
has already tasted the bitterness of the served, since there are already two of them
punishment. This is the philosophy on which subsequently, the offender is already a
the circumstance becomes aggravating. repeater.
If the victim is already dead and the house (2) An act manifestly indicating that the
is burned, the crime is arson. It is either accused has clung to his
arson or murder. determination;
If the intent is to destroy property, the crime (3) Sufficient lapse of time between
is arson even if someone dies as a such determination and execution, to
consequence. If the intent is to kill, there is allow him to reflect upon the
murder even if the house is burned in the consequences of his act.
process.
Illustration: Illustration:
suffered so many blows, he told B, "This When A saw B in the restaurant with so
week shall not pass, I will kill you." On many people, A did not dare fire at B for
Friday, A killed B. Is there evident fear that he might hit a stranger but instead,
premeditation in both cases? None in both A saw a knife and used it to stab B with all
cases. What condition is missing to bring suddenness. Evident premeditation was not
about evident premeditation? Evidence to absorbed in treachery because treachery
show that between Monday and Friday, the refers to the manner of committing the
offender clung to his determination to kill the crime. Evident premeditation is always
victim, acts indicative of his having clung to absorbed in treachery.
his determination to kill B.
This is one aggravating circumstance where
A and B had a quarrel. A boxed B. A told B, the offender who premeditated, the law says
"I will kill you this week." A bought firearms. evident. It is not enough that there is some
On Friday, he waited for B but killed C premeditation. Premeditation must be clear.
instead. Is there evident premeditation? It is required that there be evidence showing
There is aberratio ictus. So, qualify. Insofar meditation between the time when the
as B is concerned, the crime is attempted offender determined to commit the crime
murder because there is evident and the time when the offender executed
premeditation. However, that murder cannot the act. It must appear that the offender
be considered for C. Insofar as C is clung to his determination to commit the
concerned, the crime is homicide because crime. The fact that the offender
there was no evident premeditation. premeditated is not prima facie indicative of
evident premeditation as the meeting or
Evident premeditation shall not be encounter between the offender and the
considered when the crime refers to a offended party was only by chance or
different person other than the person accident.
premeditated against.
In order for evident premeditation to be
While it is true that evident premeditation considered, the very person/offended party
may be absorbed in treachery because the premeditated against must be the one who
means, method and form of attack may be is the victim of the crime. It is not necessary
premeditated and would be resorted to by that the victim is identified. It is enough that
the offender. Do not consider both the victim is determined so he or she
aggravating circumstances of treachery and belongs to a group or class who may be
evident premeditation against the offender. premeditated against. This is a
It is only treachery because the evident circumstance that will qualify a killing from
premeditation is the very conscious act of homicide to murder.
the offender to ensure the execution.
Illustration:
But there may be evident premeditation and
there is treachery also when the attack was A person who has been courting a lady for
so sudden. several years now has been jilted. Because
of this, he thought of killing somebody. He,
A and B are enemies. They fought on then bought a knife, sharpened it and
Monday and parted ways. A decided to stabbed the first man he met on the street.
seek revenge. He bought a firearm and It was held that evident premeditation is not
practiced shooting and then sought B. present. It is essential for this aggravating
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 82
A and B quarreled. However A had no In the same manner, if the offender avails of
chance to fight with B because A is much the services of men and in the commission
smaller than B. A thought of killing B but of the crime, they took advantage of
then he cannot just attack B because of the superior strength but somehow, the
latter's size. So, A thought of committing a offended party fought back, the crime is still
crime at nighttime with the cover of murder if the victim is killed. Although the
darkness. A positioned himself in the qualifying circumstance is abuse of superior
darkest part of the street where B passes on strength and not treachery, which is also a
his way home. One evening, A waited for B qualifying circumstance of murder under
and stabbed B. However, B pulled a knife Article 248.
as well and stabbed A also. A was wounded
but not mortal so he managed to run away. Treachery is out when the attack was
B was able to walk a few steps before he merely incidental or accidental because in
fell and died. What crime was committed? the definition of treachery, the implication is
that the offender had consciously and
The crime is only homicide because the deliberately adopted the method, means
aggravating circumstance is only nocturnity and form used or employed by him. So, if A
and nocturnity is not a qualifying and B casually met and there and then A
circumstance. The reason why treachery stabbed B, although stabbing may be
cannot be considered as present here is sudden since A was not shown to have the
because the offended party was able to put intention of killing B, treachery cannot be
up a defense and that negates treachery. In considered present.
treachery, the offended party, due to the
means, method or form employed by the There must be evidenced on how the crime
offender, the offended party was denied the was committed. It is not enough to show
chance to defend himself. If because of the that the victim sustained treacherous
cover of darkness, B was not able to put up wound. Example: A had a gunshot wound
a defense and A was able to flee while B at the back of his head. The SC ruled this is
died, the crime is murder because there is only homicide because treachery must be
already treachery. In the first situation, the proven. It must be shown that the victim
crime was homicide only, the nighttime is was totally defenseless.
generic aggravating circumstance.
Suddenness of the attack does not by itself
In the example where A pretended to constitute treachery in the absence of
befriend B and invited him to celebrate their evidence that the manner of the attack was
friendship, if B despite intoxication was able consciously adopted by the offender to
to put up some fight against A but render the offended party defenseless
eventually, B died, then the attendant (People v. Ilagan, 191 SCRA 643).
circumstance is no longer treachery but
means employed to weaken the defense. But where children of tender years were
But in murder, this is also a qualifying killed, being one year old and 12 years old,
circumstance. The crime committed is the killing is murder even if the manner of
murder but then the correct circumstance is attack was not shown (People v. Gahon,
decided on April 30, 1991).
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 84
aggravating in the crime of robbery with With this provision, the circumstance of an
violence against or intimidation of persons. organized or syndicated crime group having
committed the crime has been added in the
Code as a special aggravating
Motor vehicle circumstance. The circumstance being
special or qualifying, it must be alleged in
The Supreme Court considers strictly the the information and proved during the trial.
use of the word “committed”, that the crime Otherwise, if not alleged in the information,
is committed with the use of a motor even though proven during the trial, the
vehicle, motorized means of transportation court cannot validly consider the
or motorized watercraft. There is a decision circumstances because it is not among
by the Court of Appeals that a motorized those enumerated under Article 14 of the
bicycle is a motor vehicle even if the Code as aggravating. It is noteworthy,
offender used only the foot pedal because however, that there is an organized or
he does not know how to operate the motor syndicated group even when only two
so if a bicycle is used in the commission of persons collaborated, confederated, or
the crime, motor vehicle becomes mutually helped one another in the
aggravating if the bicycle is motorized. commission of a crime, which acts are
inherent in a conspiracy. Where therefore,
This circumstance is aggravating only when conspiracy in the commission of the crime is
used in the commission of the offense. If alleged in the information, the allegation
motor vehicle is used only in the escape of may be considered as procedurally
the offender, motor vehicle is not sufficient to warrant receiving evidence on
aggravating. To be aggravating, it must the matter during trial and consequently, the
have been used to facilitate the commission said special aggravating circumstance can
of the crime. be appreciated if proven.
An organized or syndicated crime group Use only the term alternative circumstance
means a group of two or more persons for as long as the particular circumstance is
collaborating, confederating or mutually not involved in any case or problem. The
helping one another for purposes of gain in moment it is given in a problem, do not use
the commission of a crime. alternative circumstance, refer to it as
aggravating or mitigating depending on
whether the same is considered as such or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 86
Relationship
Intoxication
Relationship is not simply mitigating or
aggravating. There are specific This circumstance is ipso facto mitigating,
circumstances where relationship is so that if the prosecution wants to deny the
exempting. Among such circumstances offender the benefit of this mitigation, they
are: should prove that it is habitual and that it is
intentional. The moment it is shown to be
(1) In the case of an accessory who is habitual or intentional to the commission of
related to the principal within the the crime, the same will immediately
relationship prescribed in Article 20; aggravate, regardless of the crime
committed.
(2) Also in Article 247, a spouse does
not incur criminal liability for a crime Intoxication to be considered mitigating,
of less serious physical injuries or requires that the offender has reached that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 87
degree of intoxication where he has no upon the victim. There were 11 stab
control of himself anymore. The idea is the wounds and this, the Supreme Court said, is
offender, because of the intoxication is incompatible with the idea that the offender
already acting under diminished self control. is already suffering from diminished self
This is the rational why intoxication is control. On the contrary, the indication is
mitigating. So if this reason is not present, that the offender gained strength out of the
intoxication will not be considered drinks he had taken. It is not the quantity of
mitigating. So the mere fact that the drink that will determine whether the
offender has taken one or more cases of offender can legally invoke intoxication.
beer of itself does not warrant a conclusion The conduct of the offender, the manner of
that intoxication is mitigating. There must committing the crime, his behavior after
be indication that because of the alcoholic committing the crime must show the
intake of the offender, he is suffering from behavior of a man who has already lost
diminished self control. There is diminished control of himself. Otherwise intoxication
voluntariness insofar as his intelligence or cannot legally be considered.
freedom of action is concerned. It is not the
quantity of alcoholic drink. Rather it is the
effect of the alcohol upon the offender which Degree of instruction and education
shall be the basis of the mitigating
circumstance. These are two distinct circumstances. One
may not have any degree of instruction but
Illustration: is nevertheless educated. Example: A has
been living with professionals for sometime.
In a case, there were two laborers who were He may just be a maid in the house with no
the best of friends. Since it was payday, degree of instruction but he may still be
they decided to have some good time and educated.
ordered beer. When they drank two cases
of beer they became more talkative until It may happen also that the offender grew
they engaged in an argument. One pulled up in a family of professionals, only he is the
out a knife and stabbed the other. When black sheep because he did not want to go
arraigned he invoked intoxication as a to school. But it does not follow that he is
mitigating circumstance. Intoxication does bereft of education.
not simply mean that the offender has
partaken of so much alcoholic beverages. If the offender did not go higher than Grade
The intoxication in law requires that 3 and he was involved in a felony, he was
because of the quality of the alcoholic drink invoking lack of degree of education. The
taken, the offender had practically lost self Supreme Court held that although he did
control. So although the offender may have not receive schooling, yet it cannot be said
partaken of two cases of beer, but after that he lacks education because he came
stabbing the victim he hailed a tricycle and from a family where brothers are all
even instructed the driver to the place professionals. So he understands what is
where he is sleeping and the tricycle could right and wrong.
not reach his house and so he has to alight
and walk to his house, then there is no The fact that the offender did not have
diminished self control. The Supreme Court schooling and is illiterate does not mitigate
did not give the mitigating circumstance his liability if the crime committed is one
because of the number of wounds inflicted which he inherently understands as wrong
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 88
(1) principal; But where the felony is only light only the
principal and the accomplice are liable. The
(2) accomplice; or accessory is not.
While in the course of a quarrel, a person In People v. Madali, 188 SCRA 69, the son
shouted to A, “Kill him! Kill him.” A killed the was mauled. The family was not in good
other fellow. Is the person who shouted graces of the neighborhood. Father
criminally liable. Is that inducement? No. It challenged everybody and when neighbors
must be strong as irresistible force. approached, he went home to get a rifle.
The shouts of his wife “Here comes another,
There was a quarrel between two families. shoot him” cannot make the wife the
One of the sons of family A came out with a principal by inducement. It is not the
shotgun. His mother then shouted, determining cause of the crime in the
“Shoot!”. He shot and killed someone. Is absence of proof that the words had great
the mother liable? No. dominance and influence over the husband.
Neither is the wife’s act of beaming the
Examples of inducement: victim with a flashlight indispensable to the
commission of the killing. She assisted her
“I will give you a large amount of money.” husband in taking good aim, but such
assistance merely facilitated the felonious
“I will not marry you if you do not kill B”(let act of shooting. Considering that it was not
us say he really loves the inducer). so dark and the husband could have
accomplished the deed without his wife’s
They practically become co-conspirators. help, and considering further that doubts
Therefore you do not look into the degree of must be resolved in favor of the accused,
inducement anymore. the liability of the wife is only that of an
accomplice.
In People v. Balderrama, Ernesto shouted
to his younger brother Oscar, “Birahin mo
na, birahin mo na.” Oscar stabbed the Accessories
victim. It was held that there was no
conspiracy. Joint or simultaneous action Two situations where accessories are not
per se is not indicia of conspiracy without criminally liable:
showing of common design. Oscar has no
rancor with the victim for him to kill the (1) When the felony committed is a light
latter. Considering that Ernesto had great felony;
moral ascendancy and influence over Oscar
being much older, 35 years old, than the (2) When the accessory is related to the
latter, who was 18 yrs old, and it was principal as spouse, or as an
Ernesto who provided his allowance, ascendant, or descendant or as
clothing as well as food and shelter, Ernesto brother or sister whether legitimate,
is principal by inducement. natural or adopted or where the
accessory is a relative by affinity
In People v. Agapinay, 186 SCRA 812, the within the same degree, unless the
one who uttered “Kill him, we will bury him,” accessory himself profited from the
while the felonious aggression was taking effects or proceeds of the crime or
place cannot be held liable as principal by assisted the offender to profit
inducement. Utterance was said in the therefrom.
excitement of the hour, not a command to
be obeyed. One cannot be an accessory unless he
knew of the commission of the crime. One
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 91
Any person who, with intent to gain, In both laws, Presidential Decree No. 1612
acquires and/or sell, possesses, keeps or in and the Revised Penal Code, the same act
any manner deals with any article of value is the basis of liability and you cannot
which he knows or should be known to him punish a person twice for the same act as
to be the proceeds of robbery or theft is that would go against double jeopardy.
considered a “fence” and incurs criminal
liability for “fencing” under said decree. The
penalty is higher than that of a mere Acquiring the effects of piracy or brigandage
accessory to the crime of robbery or theft.
It is relevant to consider in connection with
Likewise, the participation of one who the criminal liability of accessories under the
conceals the effects of robbery or theft gives Revised Penal Code, the liability of persons
rise to criminal liability for “fencing”, not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 92
acquiring property subject of piracy or When the crime is robbery or theft, with
brigandage. respect to the second involvement of an
accessory, do not overlook the purpose
The act of knowingly acquiring or receiving which must be to prevent discovery of the
property which is the effect or the proceeds crime.
of a crime generally brings about criminal
liability of an accessory under Article 19, The corpus delicti is not the body of the
paragraph 1 of the Revised Penal Code. person who is killed, even if the corpse is
But if the crime was piracy of brigandage not recovered, as long as that killing is
under Presidential Decree No. 533 (Anti- established beyond reasonable doubt,
piracy and Anti-Highway Robbery Law of criminal liability will arise and if there is
1974), said act constitutes the crime of someone who destroys the corpus delicti to
abetting piracy or abetting brigandage as prevent discovery, he becomes an
the case may be, although the penalty is accessory.
that for an accomplice, not just an
accessory, to the piracy or brigandage. To
this end, Section 4 of Presidential Decree Harboring or concealing an offender
No. 532 provides that any person who
knowingly and in any manner… acquires or In the third form or manner of becoming an
receives property taken by such pirates or accessory, take note that the law
brigands or in any manner derives benefit distinguishes between a public officer
therefrom… shall be considered as an harboring, concealing or assisting the
accomplice of the principal offenders and be principal to escape and a private citizen or
punished in accordance with the Rules civilian harboring concealing or assisting the
prescribed by the Revised Penal Code. principal to escape.
It shall be presumed that any person who In the case of a public officer, the crime
does any of the acts provided in this Section committed by the principal is immaterial.
has performed them knowingly, unless the Such officer becomes an accessory by the
contrary is proven. mere fact that he helped the principal to
escape by harboring or concealing, making
Although Republic Act No. 7659, in use of his public function and thus abusing
amending Article 122 of the Revised Penal the same.
Code, incorporated therein the crime of
piracy in Philippine territorial waters and On the other hand, in case of a civilian, the
thus correspondingly superseding mere fact that he harbored concealed or
Presidential Decree No. 532, Section 4 of assisted the principal to escape does not
the Decree which punishes said acts as a ipso facto make him an accessory. The law
crime of abetting piracy or brigandage, still requires that the principal must have
stands as it has not been repealed nor committed the crime of treason, parricide,
modified, and is not inconsistent with any murder or attempt on the life of the Chief
provision of Republic Act No. 7659. Executive. If this is not the crime, the
civilian does not become an accessory
unless the principal is known to be
Destroying the corpus delicti habitually guilty of some other crime. Even
if the crime committed by the principal is
treason, or murder or parricide or attempt
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 93
on the life of the Chief Executive, the Decree penalizes under Section 1(c)
accessory cannot be held criminally liable thereof, the act, inter alia, of
without the principal being found guilty of “(c) Harboring or concealing, or facilitating
any such crime. Otherwise the effect would the escape of any person he knows or has
be that the accessory merely harbored or reasonable ground to believe or suspect,
assisted in the escape of an innocent man, has committed any offense under existing
if the principal is acquitted of the charges. penal laws in order to prevent his arrest,
prosecution and conviction.”
Illustration:
Here, there is no specification of the crime
Crime committed is kidnapping for ransom. to be committed by the offender for criminal
Principal was being chased by soldiers. His liability to be incurred for harboring,
aunt hid him in the ceiling of her house and concealing, or facilitating the escape of the
aunt denied to soldiers that her nephew had offender, and the offender need not be the
ever gone there. When the soldiers left, the principal – unlike paragraph 3, Article 19 of
aunt even gave money to her nephew to go the Code. The subject acts may not bring
to the province. Is aunt criminally liable? about criminal liability under the Code, but
No. Article 20 does not include an auntie. under this decree. Such an offender if
However, this is not the reason. The reason violating Presidential Decree No. 1829 is
is because one who is not a public officer no longer an accessory. He is simply an
and who assists an offender to escape or offender without regard to the crime
otherwise harbors, or conceals such committed by the person assisted to
offender, the crime committed by the escape. So in the problem, the standard of
principal must be either treason, parricide the Revised Penal Code, aunt is not
murder or attempt on the life of the Chief criminally liable because crime is
executive or the principal is known to be kidnapping, but under Presidential Decree
habitually guilty of some other crime. No. 1829, the aunt is criminally liable but not
as an accessory.
The crime committed by the principal is
determinative of the liability of the accessory Whether the accomplice and the accessory
who harbors, conceals knowing that the may be tried and convicted even before the
crime is committed. If the person is a public principal is found guilty.
officer, the nature of the crime is immaterial.
What is material is that he used his public There is an earlier Supreme Court ruling
function in assisting escape. that the accessory and accomplice must be
charged together with the principal and that
However, although under paragraph 3 of if the latter be acquitted, the accomplice and
Article 19 when it comes to a civilian, the the accessory shall not be criminally liable
law specifies the crimes that should be also, unless the acquittal is based on a
committed, yet there is a special law which defense which is personal only to the
punishes the same act and it does not principal. Although this ruling may be
specify a particular crime. Presidential correct if the facts charged do not make the
Decree No. 1829, which penalizes principal criminally liable at all, because
obstruction of apprehension and there is no crime committed.
prosecution of criminal offenders, effective
January 16, 1981, punishes acts commonly Yet it is not always true that the accomplice
referred to as “obstructions of justice”. This and accessory cannot be criminally liable
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 94
without the principal first being convicted. treason, parricide, murder, or attempt to
Under Rule 110 of the Revised Rules on take the life of the Chief Executive. If the
Criminal Procedure, it is required that all principal is acquitted, that means he is not
those involved in the commission of the guilty and therefore, the civilian who
crime must be included in the information harbored, concealed or assisted in the
that may be filed. And in filing an escape did not violate art. 19. That is as far
information against the person involved in as the Revised Penal Code is concerned.
the commission of the crime, the law does But not Presidential Decree No. 1829. This
not distinguish between principal, special law does not require that there be
accomplice and accessory. All will be prior conviction. It is a malum prohibitum,
accused and whether a certain accused will no need for guilt, or knowledge of the crime.
be principal or accomplice or accessory will In Taer v. CA, accused received from his
depend on what the evidence would show co-accused two stolen male carabaos.
as to his involvement in the crime. In other Conspiracy was not proven. Taer was held
words, the liability of the accused will liable as an accessory in the crime of cattle
depend on the quantum of evidence rustling under Presidential Decree No. 533.
adduced by the prosecution against the [Taer should have been liable for violation of
particular accused. But the prosecutor must the Anti-fencing law since cattle rustling is a
initiate proceedings versus the principal. form of theft or robbery of large cattle,
except that he was not charged with
Even if the principal is convicted, if the fencing.]
evidence presented against a supposed
accomplice or a supposed accessory does In Enrile v. Amin, a person charged with
not meet the required proof beyond rebellion should not be separately charged
reasonable doubt, then said accused will be under Presidential Decree No. 1829. The
acquitted. So the criminal liability of an theory of absorption must not confine itself
accomplice or accessory does not depend to common crimes but also to offenses
on the criminal liability of the principal but punished under special laws which are
depends on the quantum of evidence. But if perpetrated in furtherance of the political
the evidence shows that the act done does offense.
not constitute a crime and the principal is
acquitted, then the supposed accomplice
and accessory should also be acquitted. If PENALTIES
there is no crime, then there is no criminal
liability, whether principal, accomplice, or
accessory. Measures of prevention not considered
as penalty
Under paragraph 3, Article 19, take note in
the case of a civilian who harbors, conceals, The following are the measures of
or assists the escape of the principal, the prevention or safety which are not
law requires that the principal be found considered penalties under Article 24:
guilty of any of the specified crimes:
treason, parricide, etc. The paragraph uses (1) The arrest and temporary detention
the particular word “guilty”. So this means of accused persons as well as their
that before the civilian can be held liable as detention by reason of insanity or
an accessory, the principal must first be imbecility or illness requiring their
found guilty of the crime charged, either confinement in a hospital.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 95
(4) Fines and other corrective measures Although under Article 24, the detention of a
which, in the exercise of their person accused of a crime while the case
administrative disciplinary powers, against him is being tried does not amount
superior officials may impose upon to a penalty, yet the law considers this as
their subordinates. part of the imprisonment and generally
deductible from the sentence.
(5) Deprivation of rights and reparations
which the civil laws may establish in When will this credit apply? If the penalty
penal form. imposed consists of a deprivation of liberty.
Not all who have undergone preventive
Why does the Revised Penal Code specify imprisonment shall be given a credit
that such detention shall not be a penalty
but merely a preventive measure? Under Article 24, preventive imprisonment
of an accused who is not yet convicted, but
This article gives justification for detaining by express provision of Article24 is not a
the accused. Otherwise, the detention penalty. Yet Article 29, if ultimately the
would violate the constitutional provision accused is convicted and the penalty
that no person shall be deprived of life, imposed involves deprivation of liberty,
liberty and property without due process of provides that the period during which he
law. And also, the constitutional right of an had undergone preventive detention will be
accused to be presumed innocent until the deducted from the sentence, unless he is
contrary is proved. one of those disqualified under the law.
an undertaking to abide by the same rules credit is immaterial. The discharge of the
and regulations governing convicts, then it offender from preventive imprisonment or
means that while he is suffering from detention is predicated on the fact that even
preventive imprisonment, he is suffering like if he would be found guilty of the crime
a convict, that is why the credit is full. charged, he has practically served the
sentence already, because he has been
But if the offender did not sign an detained for a period already equal to if not
undertaking, then he will only be subjected greater than the maximum penalty that
to the rules and regulations governing would be possibly be imposed on him if
detention prisoners. As such, he will only found guilty.
be given 80% or 4/5 of the period of his
preventive detention. If the crime committed is punishable only by
destierro, the most the offender may be held
From this provision, one can see that the under preventive imprisonment is 30 days,
detention of the offender may subject him and whether the proceedings are terminated
only to the treatment applicable to a or not, such detention prisoner shall be
detention prisoner or to the treatment discharged.
applicable to convicts, but since he is not
convicted yet, while he is under preventive Understand the amendment made to Article
imprisonment, he cannot be subjected to 29. This amendment has been incorporated
the treatment applicable to convicts unless under Rule 114 precisely to do away with
he signs and agrees to be subjected to such arbitrary detention.
disciplinary measures applicable to
convicts. Proper petition for habeas corpus must be
filed to challenge the legality of the
Detention prisoner has more freedom within detention of the prisoner.
the detention institution rather than those
already convicted. The convicted prisoner
suffers more restraints and hardship than Questions & Answers
detention prisoners.
Under what circumstances may a detention If the offender has already been
prisoner be released, even though the released, what is the use of continuing the
proceedings against him are not yet proceedings?
terminated?
The proceedings will determine
Article 29 of the Revised Penal Code has whether the accused is liable or not. If he
been amended by a Batas Pambansa was criminally liable, it follows that he is
effective that tool effect on September 20, also civilly liable. The civil liability must be
1980. This amendment is found in the determined. That is why the trial must go
Rules of Court, under the rules on bail in on.
Rule 114 of the Rules on Criminal
Procedure, the same treatment exactly is
applied there. Duration of penalties
whether it made reclusion perpetua a was stated as 34 years, four months and
divisible penalty. one day. The issue of whether the
amendment of Article 27 made reclusion
As we know, when a penalty has a fixed perpetua a divisible penalty was raised, and
duration, it is said to be divisible and, in because the issue is one of first impression
accordance with the provisions of Articles and momentous importance, the First
65 and 76, should be divided into three Division referred the motion to the Court en
equal portions to form one period of each of banc.
the three portions. Otherwise, if the penalty
has no fixed duration, it is an indivisible In a resolution promulgated on January 9,
penalty. The nature of the penalty as 1995, the Supreme Court en banc held that
divisible or indivisible is decisive of the reclusion perpetua shall remain as an
proper penalty to be imposed under the indivisible penalty. To this end, the
Revised Penal Code inasmuch as it resolution states:
determines whether the rules in Article 63 or
the rules in Article 64 should be observed in After deliberating on the
fixing the penalty. motion and re-examining the
legislation history of RA
Thus, consistent with the rule mentioned, 7659, the Court concludes
the Supreme Court, by its First Division, that although Section 17 of
applied Article 65 of the Code in imposing RA 7659 has fixed the
the penalty for rape in People v. Conrado duration of Reclusion
Lucas, GR No. 108172-73, May 25, 1994. Perpetua from twenty years
It divided the time included in the penalty of (20) and one (1) to forty 40
reclusion perpetua into three equal portions, years, there was no clear
with each portion composing a period as legislative intent to alter its
follows: original classification as an
indivisible penalty. It shall
Minimum - 20 years and one day, to 26 then remain as an indivisible
years and eight months; penalty.
(1) Article 47 has been reworded to After undergoing subsidiary penalty and the
expressly include among the convict is already released from jail and his
instances where the death penalty financial circumstances improve, can he be
shall not be imposed, the case of an made to pay? Yes, for the full amount with
offender who is below 18 years old deduction.
at the time of the commission of the
offense. But even without this Article 39 deals with subsidiary penalty.
amendment, the death penalty may There are two situations there:
not be meted out on an offender who
was below 18 years of age at the (1) When there is a principal penalty of
time of the commission of the crime imprisonment or any other principal
because Article 68 the lowers the penalty and it carries with it a fine;
imposable penalty upon such and
offenders by at least one degree
than that prescribed for the crime. (2) When penalty is only a fine.
(2) In the matter of executing the death Therefore, there shall be no subsidiary
penalty, Article 81 has been penalty for the non-payment of damages to
amended and, thus, directs that the the offended party.
manner of putting the convict to
death by electrocution shall be This subsidiary penalty is one of important
changed to gas poisoning as soon matter under the title of penalty. A
as the facilities are provided, and the subsidiary penalty is not an accessory
sentence shall be carried out not penalty. Since it is not an accessory
later that one year after the finality of penalty, it must be expressly stated in the
judgment. sentence, but the sentence does not specify
the period of subsidiary penalty because it
(3) The original provision of Article 83, will only be known if the convict cannot pay
anent the suspension of the the fine. The sentence will merely provide
execution of the death penalty for that in case of non-payment of the fine, the
three years if the convict was a convict shall be required to save subsidiary
woman, has been deleted and penalty. It will then be the prison authority
instead, limits such suspension to who will compute this.
last while the woman was pregnant
and within one year after delivery. So even if subsidiary penalty is proper in a
case, if the judge failed to state in the
sentence that the convict shall be required
Subsidiary penalty to suffer subsidiary penalty in case of
insolvency to pay the fine, that convict
Is subsidiary penalty an accessory penalty? cannot be required to suffer the accessory
No. penalty. This particular legal point is a bar
problem. Therefore, the judgment of the
If the convict does not want to pay fine and court must state this. If the judgment is
has so many friends and wants to prolong silent, he cannot suffer any subsidiary
his stay in jail, can he stay there and not penalty.
pay fine? No.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 104
The subsidiary penalty is not an accessory thereafter, it tried to modify the sentence to
penalty that follows the principal penalty as include subsidiary penalty after period to
a matter of course. It is not within the appeal had already elapsed, the addition of
control of the convict to pay the fine or not subsidiary penalty will be null and void.
and once the sentence becomes final and This is tantamount to double jeopardy.
executory and a writ of execution is issued
to collect the fine, if convict has property to If the fine is prescribed with the penalty of
levy upon, the same shall answer for the imprisonment or any deprivation of liberty,
fine, whether he likes it or not. It must be such imprisonment should not be higher
that the convict is insolvent to pay the fine. than six years or prision correccional.
That means that the writ of execution issued Otherwise, there is no subsidiary penalty.
against the property of the convict, if any, is
returned unsatisfied.
When is subsidiary penalty applied
In People v. Subido, it was held that the
convict cannot choose not to serve, or not to (1) If the subsidiary penalty prescribed
pay the fine and instead serve the for the non-payment of fine which
subsidiary penalty. A subsidiary penalty will goes with the principal penalty, the
only be served if the sheriff should return maximum duration of the subsidiary
the execution for the fine on the property of penalty is one year, so there is no
the convict and he does not have the subsidiary penalty that goes beyond
properties to satisfy the writ. one year. But this will only be true if
the one year period is higher than
1/3 of the principal penalty, the
Questions & Answers convict cannot be made to undergo
subsidiary penalty more than 1/3 of
the duration of the principal penalty
The penalty imposed by the judge is and in no case will it be more than 1
fine only. The sheriff then tried to levy the year - get 1/3 of the principal penalty
property of the defendant after it has - whichever is lower.
become final and executory, but it was
returned unsatisfied. The court then issued (2) If the subsidiary penalty is to be
an order for said convict to suffer subsidiary imposed for non payment of fine and
penalty. The convict was detained, for the principal penalty imposed be fine
which reason he filed a petition for habeas only, which is a single penalty, that
corpus contending that his detention is means it does not go with another
illegal. Will the petition prosper? principal penalty, the most that the
convict will be required to undergo
Yes. The judgment became final subsidiary imprisonment is six
without statement as to subsidiary penalty, months, if the felony committed is
so that even if the convict has no money or grave or less grave, otherwise, if the
property to satisfy the fine, he cannot suffer felony committed is slight, the
subsidiary penalty because the latter is not maximum duration of the subsidiary
an accessory and so it must be expressly penalty is only 15 days.
stated. If the court overlooked to provide for
subsidiary penalty in the sentence and its There are some who use the term
attention was later called to that effect, subsidiary imprisonment. The term is wrong
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 105
because the penalty is not only served by but consider the totality or the duration of
imprisonment. The subsidiary penalty the imprisonment that the convict will be
follows the nature of the principal penalty. If required to serve under the Three-Fold
the principal penalty is destierro, this being Rule. If the totality of the imprisonment
a divisible penalty, and a penalty with a under this rule does not exceed six years,
fixed duration, the non-payment of the fine then, even if the totality of all the sentences
will bring about subsidiary penalty. This without applying the Three-Fold Rule will go
being a restriction of liberty with a fixed beyond six years, the convict shall be
duration under Article 39 for the required to undergo subsidiary penalty if he
nonpayment of fine that goes with the could not pay the fine.
destierro, the convict will be required to
undergo subsidiary penalty and it will also Illustration:
be in the form of destierro.
A collector of NAWASA collected from 50
Illustration: houses within a certain locality. When he
was collecting NAWASA bills, the charges
A convict was sentenced to suspension and of all these consumers was a minimum of
fine. This is a penalty where a public officer 10. The collector appropriated the amount
anticipates public duties, he entered into the collected and so was charged with estafa.
performance of public office even before he He was convicted. Penalty imposed was
has complied with the required formalities. arresto mayor and a fine of P200.00 in each
Suppose the convict cannot pay the fine, count. If you were the judge, what penalty
may he be required to undergo subsidiary would you impose? May the convict be
penalty? required to undergo subsidiary penalty in
case he is insolvent to pay the fine?
Yes, because the penalty of suspension
has a fixed duration. Under Article 27, The Three-Fold Rule should not applied by
suspension and destierro have the same the court. In this case of 50 counts of
duration as prision correccional. So the estafa, the penalty imposed was arresto
duration does not exceed six years. Since it mayor and a fine of P200.00. Arresto
is a penalty with a fixed duration under mayor + P200.00 x 50. Arresto Mayor is six
Article 39, when there is a subsidiary months x 50 = 25 years. P200.00 x 50 =
penalty, such shall be 1/3 of the period of P10,000.00. Thus, I would impose a
suspension which in no case beyond one penalty of arresto mayor and a fine of
year. But the subsidiary penalty will be P200.00 multiplied by 50 counts and state
served not by imprisonment but by further that “as a judge, I am not in the
continued suspension. position to apply the Three-Fold Rule
because the Three-Fold Rule is to be given
If the penalty is public censure and fine effect when the convict is already serving
even if the public censure is a light penalty, sentence in the penitentiiary. It is the prison
the convict cannot be required to pay the authority who will apply the Three-Fold
fine for subsidiary penalty for the non- Rule. As far as the court is concerned, that
payment of the fine because public censure will be the penalty to be imposed.”
is a penalty that has no fixed duration.
For the purposes of subsidiary penalty,
Do not consider the totality of the apply the Three-Fold Rule if the penalty is
imprisonment the convict is sentenced to arresto mayor and a fine of P200.00
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 106
multiplied by 3. This means one year and circumstance against the mitigating
six months only. So, applying the Three- circumstance and there still remains three
Fold Rule, the penalty does not go beyond mitigating circumstances. Because of that,
six years. Hence, for the non- payment of the judge lowered the penalty by one
the fine of P10,000.00, the convict shall be degree. Is the judge correct?
required to undergo subsidiary penalty.
This is because the imprisonment that will No. In such a case when there are
be served will not go beyond six years. It aggravating circumstances, no matter how
will only be one year and six months, since many mitigating circumstances there are,
in the service of the sentence, the Three- after offsetting, do not go down any degree
Fold Rule will apply. lower. The penalty prescribed by law will be
the penalty to be imposed, but in the
It is clearly provided under Article 39 that if minimum period. Cannot go below the
the means of the convict should improve, minimum period when there is an
even if he has already served subsidiary aggravating circumstance.
penalty, he shall still be required to pay the
fine and there is no deduction for that Go into the lowering of the penalty by one
amount which the convict has already degree if the penalty is divisible. So do not
served by way of subsidiary penalty. apply the rule in paragraph 5 of Article 64 to
a case where the penalty is divisible.
Articles 63 and 64
Article 66
If crime committed is parricide, penalty is
reclusion perpetua. The accused, after When there are mitigating circumstance and
committing parricide, voluntarily aggravating circumstance and the penalty is
surrendered and pleaded guilty of the crime only fine, when it is only ordinary mitigating
charged upon arraignment. It was also circumstance and aggravating
established that he was intoxicated, and no circumstance, apply Article 66. Because
aggravating circumstances were present. you determine the imposable fine on the
What penalty would you impose? basis of the financial resources or means of
the offender. But if the penalty would be
Reclusion perpetua, because it is an lowered by degree, there is a privileged
indivisible penalty. mitigating circumstance or the felony
committed is attempted or frustrated,
When there are two or more mitigating provided it is not a light felony against
circumstances and there is no aggravating persons or property, because if it is a light
circumstance, penalty to be imposed shall felony and punishable by fine, it is not a
be one degree lower to be imposed in the crime at all unless it is consummated. So, if
proper period. Do not apply this when there it is attempted or frustrated, do not go one
is one aggravating circumstance. degree lower because it is not punishable
unless it is a light felony against person or
Illustration: property where the imposable penalty will
be lowered by one degree or two degrees.
There are about four mitigating
circumstances and one aggravating Penalty prescribed to a crime is lowered by
circumstance. Court offsets the aggravating degrees in the following cases:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 107
Penalty is one degree lower in the In Article 27, with respect to the range of
case of an accomplice. each penalty, the range of arresto menor
follows arresto mayor, since arresto menor
Penalty is two degrees lower in the is one to 30 days or one month, while
case of an accessory. arresto mayor is one month and one day to
six months. On the other hand, the duration
This is so because the penalty of destierro is the same as prision
prescribed by law for a given crime correccional which is six months and one
refers to the consummated stage. day to six years. But be this as it is, under
Article 71, in the scale of penalties
(3) When there is a privilege mitigating graduated according to degrees, arresto
circumstance in favor of the mayor is higher than destierro.
offender, it will lower the penalty by
one or two degrees than that In homicide under Article 249, the penalty is
prescribed by law depending on reclusion temporal. One degree lower, if
what the particular provision of the homicide is frustrated, or there is an
Revised Penal Code states. accomplice participating in homicide, is
prision mayor, and two degrees lower is
(4) When the penalty prescribed for the prision correccional.
crime committed is a divisible
penalty and there are two or more This is true if the penalty prescribed by the
ordinary mitigating circumstances Revised Penal Code is a whole divisible
and no aggravating circumstances penalty -- one degree or 2 degrees lower
whatsoever, the penalty next lower will also be punished as a whole. But
in degree shall be the one imposed. generally, the penalties prescribed by the
Revised Penal Code are only in periods, like
(5) Whenever the provision of the prision correcional minimum, or prision
Revised Penal Code specifically correcional minimum to medium.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 108
If the penalty prescribed is a fine ranging Penalty for murder under the Revised Penal
from P200.00 to P500.00, but the felony is Code is reclusion temporal maximum to
frustrated so that the penalty should be death. So, the penalty would be reclusion
imposed one degree lower, 1/4 of P500.00 temporal maximum – reclusion perpetua –
shall be deducted therefrom. This is done death. This penalty made up of three
by deducting P125.00 from P500.00, periods.
leaving a difference of P375.00. The
penalty one degree lower is P375.00. To go
another degree lower, P125.00 shall again The Three-Fold Rule
be deducted from P375.00 and that would
leave a difference of P250.00. Hence, the Under this rule, when a convict is to serve
penalty another degree lower is a fine successive penalties, he will not actually
ranging from P200.00 to P250.00. If at all, serve the penalties imposed by law.
the fine has to be lowered further, it cannot Instead, the most severe of the penalties
go lower than P200.00. So, the fine will be imposed on him shall be multiplied by three
imposed at P200.00. This rule applies and the period will be the only term of the
when the fine has to be lowered by degree. penalty to be served by him. However, in
no case should the penalty exceed 40
years.
Article 66
This rule is intended for the benefit of the
In so far as ordinary mitigating or convict and so, you will only apply this
aggravating circumstance would affect the provided the sum total of all the penalties
penalty which is in the form of a fine, Article imposed would be greater than the product
66 of the Revised Penal Code shall govern. of the most severe penalty multiplied by
Under this article, it is discretionary upon three but in no case will the penalties to be
the court to apply the fine taking into served by the convict be more than 40
consideration the financial means of the years.
offender to pay the same. In other words, it
is not only the mitigating and/or aggravating Although this rule is known as the Three-
circumstances that the court shall take into Fold rule, you cannot actually apply this if
consideration, but primarily, the financial the convict is to serve only three successive
capability of the offender to pay the fine. penalties. The Three-Fold Rule can only be
For the same crime, the penalty upon an applied if the convict is to serve four or more
accused who is poor may be less than the sentences successively. If the sentences
penalty upon an accused committing the would be served simultaneously, the Three-
same crime but who is wealthy Fold rule does not govern.
.
For instance, when there are two offenders The chronology of the penalties as provided
who are co-conspirators to a crime, and in Article 70 of the Revised Penal Code
their penalty consists of a fine only, and one shall be followed.
of them is wealthy while the other is a
pauper, the court may impose a higher It is in the service of the penalty, not in the
imposition of the penalty, that the Three-
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 110
Illustration:
Act No. 4013 (Indeterminate Sentence
Penalties imposed are – Law), as amended
It applies only when the penalty served is be based on the penalty as reduced by the
imprisonment. If not by imprisonment, then privilege mitigating circumstance within the
it does not apply. range of the penalty next lower in degree.
(4) If there are several mitigating and In one Supreme Court ruling, it was held
aggravating circumstances, they that for purposes of applying the
shall offset against each other. Indeterminate Sentence Law, the penalty
Whatever remains, apply the rules. prescribed by the Revised Penal Code and
not that which may be imposed by court.
(5) If there are two or more mitigating This ruling, however, is obviously
circumstance and no aggravating erroneous. This is so because such an
circumstance, penalty next lower in interpretation runs contrary to the rule of pro
degree shall be the one imposed. reo, which provides that the penal laws
should always be construed an applied in a
Rule under Art 64 shall apply in determining manner liberal or lenient to the offender.
the maximum but not in determining the Therefore, the rule is, in applying the
minimum. Indetermiante Sentence Law, it is that
penalty arrived at by the court after applying
In determining the applicable penalty the mitigating and aggravating
according to the Indeterminate Sentence circumstances that should be the basis.
Law, there is no need to mention the
number of years, months and days; it is Crimes punished under special law carry
enough that the name of the penalty is only one penalty; there are no degree or
mentioned while the Indeterminate periods. Moreover, crimes under special
Sentence Law is applied. To fix the law do not consider mitigating or
minimum and the maximum of the aggravating circumstance present in the
sentence, penalty under the Revised Penal commission of the crime. So in the case of
Code is not the penalty to be imposed by statutory offense, no mitigating and no
court because the court must apply the aggravating circumstances will be taken into
Indeterminate Sentence Law. The account. Just the same, courts are required
attendant mitigating and/or aggravating in imposing the penalty upon the offender to
circumstances in the commission of the fix a minimum that the convict should serve,
crime are taken into consideration only and to set a maximum as the limit of that
when the maximum of the penalty is to be sentence. Under the law, when the crime is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 113
punished under a special law, the court may Executive and shall have violated
fix any penalty as the maximum without the term thereto;
exceeding the penalty prescribed by special
law for the crime committed. In the same (8) Those whose maximum term of
manner, courts are given discretion to fix a imprisonment does not exceed one
minimum anywhere within the range of the year, but not to those already
penalty prescribed by special law, as long sentenced by final judgment at the
as it will not be lower than the penalty time of the approval of Indeterminate
prescribed. Sentence Law.
Disqualification may be divided into three, Although the penalty prescribed for the
according to – felony committed is death or reclusion
perpetua, if after considering the attendant
(1) The time committed; circumstances, the imposable penalty is
reclusion temporal or less, the
(2) The penalty imposed; and Indeterminate Sentence Law applies
(People v. Cempron, 187 SCRA 278).
(3) The offender involved.
(4) Persons convicted of piracy; Without regard to the nature of the crime,
only those whose penalty does not exceed
(5) Persons who are habitual six years of imprisonment are those
delinquents; qualified for probation. If the penalty is six
years plus one day, he is no longer qualified
(6) Persons who shall have escaped for probation.
from confinement or evaded
sentence; If the offender was convicted of several
offenses which were tried jointly and one
(7) Those who have been granted decision was rendered where multiple
conditional pardon by the Chief sentences imposed several prison terms as
penalty, the basis for determining whether
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 114
the penalty disqualifies the offender from benefit of probation must be invoked at the
probation or not is the term of the individual earliest instance after conviction. He should
imprisonment and not the totality of all the not wait up to the time when he interposes
prison terms imposed in the decision. So an appeal or the sentence has become final
even if the prison term would sum up to and executory. The idea is that probation
more than six years, if none of the individual has to be invoked at the earliest opportunity.
penalties exceeds six years, the offender is
not disqualified by such penalty from An application for probation is exclusively
applying for probation. within the jurisdiction of the trial court that
renders the judgment. For the offender to
On the other hand, without regard to the apply in such court, he should not appeal
penalty, those who are convicted of such judgment.
subversion or any crime against the public
order are not qualified for probation. So Once he appeals, regardless of the purpose
know the crimes under Title III, Book 2 of of the appeal, he will be disqualified from
the Revised Penal Code. Among these applying for Probation, even though he may
crimes is Alarms and Scandals, the penalty thereafter withdraw his appeal.
of which is only arresto menor or a fine.
Under the amendment to the Probation If the offender would appeal the conviction
Law, those convicted of a crime against of the trial court and the appellate court
public order regardless of the penalty are reduced the penalty to say, less than six
not qualified for probation. years, that convict can still file an
application for probation, because the
May a recidivist be given the benefit of earliest opportunity for him to avail of
Probation Law? probation came only after judgment by the
appellate court.
As a general rule, no.
Whether a convict who is otherwise
Exception: If the earlier conviction refers to qualified for probation may be give the
a crime the penalty of which does not benefit of probation or not, the courts are
exceed 30 days imprisonment or a fine of always required to conduct a hearing. If the
not more than P200.00, such convict is not court denied the application for probation
disqualified of the benefit of probation. So without the benefit of the hearing, where as
even if he would be convicted subsequently the applicant is not disqualified under the
of a crime embraced in the same title of the provision of the Probation Law, but only
Revised Penal Code as that of the earlier based on the report of the probation officer,
conviction, he is not disqualified from the denial is correctible by certiorari,
probation provided that the penalty of the because it is an act of the court in excess of
current crime committed does not go jurisdiction or without jurisdiction, the order
beyond six years and the nature of the denying the application therefore is null and
crime committed by him is not against public void.
order, national security or subversion.
Probation is intended to promote the
Although a person may be eligible for correction and rehabilitation of an offender
probation, the moment he perfects an by providing him with individualized
appeal from the judgment of conviction, he treatment; to provide an opportunity for the
cannot avail of probation anymore. So the reformation of a penitent offender which
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 115
might be less probable if he were to serve a once and this may be availed only where
prison sentence; to prevent the commission the convict starts serving sentence and
of offenses; to decongest our jails; and to provided he has not perfected an appeal. If
save the government much needed finance the convict perfected an appeal, he forfeits
for maintaining convicts in jail his right to apply for probation. As far as
offenders who are under preventive
Probation is only a privilege. So even if the imprisonment, that because a crime
offender may not be disqualified of committed is not bailable or the crime
probation, yet the court believes that committed, although bailable, they cannot
because of the crime committed it was not afford to put up a bail, upon promulgation of
advisable to give probation because it would the sentence, naturally he goes back to
depreciate the effect of the crime, the court detention, that does not mean that they
may refuse or deny an application for already start serving the sentence even
probation. after promulgation of the sentence,
sentence will only become final and
Generally, the courts do not grant an executory after the lapse of the 15-day
application for probation for violation of the period, unless the convict has waived
Dangerous Drugs Law, because of the expressly his right to appeal or otherwise,
prevalence of the crime. So it is not along he has partly started serving sentence and
the purpose of probation to grant the convict in that case, the penalty will already be final
the benefit thereof, just the individual and exeuctory, no right to probation can be
rehabilitation of the offender but also the applied for.
best interest of the society and the
community where the convict would be Probation shall be denied if the court finds:
staying, if he would be released on
probation. To allow him loose may bring (1) That the offender is in need of
about a lack of respect of the members of correctional treatment that can be
the community to the enforcement of penal provided most effectively by his
law. In such a case, the court even if the commitment to an institution;
crime is probationable may still deny the
benefit of probation. (2) That there is undue risk that during
the period of probation the offender
Consider not only the probationable crime, will commit another crime; or
but also the probationable penalty. If it were
the non-probationable crime, then (3) Probation will depreciate the
regardless of the penalty, the convict cannot seriousness of the crime.
avail of probation. Generally, the penalty
which is not probationable is any penalty The probation law imposes two kinds of
exceeding six years of imprisonment. conditions:
Offenses which are not probationable are
those against natural security, those against (1) Mandatory conditions; and
public order and those with reference to
subversion. (2) Discretionary conditions.
These conditions being mandatory, the (7) By the marriage of the offended
moment any of these is violate, the women as in the crimes of rape,
probation is cancelled. abduction, seduction and acts of
lasciviousness.
that the re-election to public office is not one shall be understood as intended to erase
of the grounds by which criminal liability is the effects of the conviction.
extinguished. This is only true to
administrative cases but not criminal cases. So if the convict has already served the
sentence and in spite of that he was given a
pardon that pardon will cover the effects of
Death of the offender the crime and therefore, if he will be
subsequently convicted for a felony
Where the offender dies before final embracing the same title as that crime, he
judgment, his death extinguishes both his cannot be considered a recidivist, because
criminal and civil liabilities. So while a case the pardon wipes out the effects of the
is on appeal, the offender dies, the case on crime.
appeal will be dismissed. The offended
party may file a separate civil action under But if he was serving sentence when he
the Civil Code if any other basis for recovery was pardoned, that pardon will not wipe out
of civil liability exists as provided under Art the effects of the crime, unless the language
1157 Civil Code. (People v. Bayotas, of the pardon absolutely relieve the offender
decided on September 2, 1994) of all the effects thereof. Considering that
recidivism does not prescribe, no matter
how long ago was the first conviction, he
Amnesty and pardon shall still be a recidivist.
In Monsanto v. Factoran, Jr., 170 SCRA recorded in the public registry. So in the
191, it was held that absolute pardon does case where a deed of sale of a parcel of
not ipso facto entitle the convict to land which was falsified was recorded in the
reinstatement to the public office forfeited by corresponding Registry of Property, the
reason of his conviction. Although pardon owner of the land came to know of the
restores his eligibility for appointment to that falsified transaction only after 10 years, so
office, the pardoned convict must reapply he brought the criminal action only then.
for the new appointment The Supreme Court ruled that the crime has
. already prescribed. From the moment the
Pardon becomes valid only when there is a falsified document is registered in the
final judgment. If given before this, it is Registry of Property, the prescriptive period
premature and hence void. There is no already commenced to run.
such thing as a premature amnesty,
because it does not require a final When a crime prescribes, the State loses
judgment; it may be given before final the right to prosecute the offender, hence,
judgment or after it. even though the offender may not have filed
a motion to quash on this ground the trial
court, but after conviction and during the
Prescription of crime and prescription of the appeal he learned that at the time the case
penalty was filed, the crime has already prescribed,
such accused can raise the question of
Prescription of the crime begins, as a prescription even for the first time on
general rule on the day the crime was appeal, and the appellate court shall have
committed, unless the crime was concealed, no jurisdiction to continue, if legally, the
not public, in which case, the prescription crime has indeed prescribed.
thereof would only commence from the time
the offended party or the government learns The prevailing rule now is, prescription of
of the commission of the crime. the crime is not waivable, the earlier
jurisprudence to the contrary had already
“Commission of the crime is public” -- This been abrogated or overruled. Moreover, for
does not mean alone that the crime was purposes of prescription, the period for filing
within public knowledge or committed in a complaint or information may not be
public. extended at all, even though the last day
such prescriptive period falls on a holiday or
Illustration: a Sunday.
the prescriptive period, but not the filing with such convict has been a fugitive from
the barangay. So the earlier rulings to the justice, the penalty imposed by the trial
contrary are already abrogated by express court will never prescribe because he has
provision of the Revised Rules on Criminal not yet commenced the service of his
Procedure. sentence. For the penalty to prescribe, he
must be brought to Muntinlupa, booked
The prescription of the crime is interrupted there, placed inside the cell and thereafter
or suspended – he escapes.
In the case of marriage, do not say that it is Partial extinction of criminal liability
applicable for the crimes under Article 344.
It is only true in the crimes of rape,
abduction, seduction and acts of Good conduct allowance
lasciviousness. Do not say that it is
applicable to private crimes because the This includes the allowance for loyalty under
term includes adultery and concubinage. Article 98, in relation to Article 158. A
Marriages in these cases may even convict who escapes the place of
compound the crime of adultery or confinement on the occasion of disorder
concubinage. It is only in the crimes of resulting from a conflagration, earthquake or
rape, abduction, seduction and acts of similar catastrophe or during a mutiny in
lasciviousness that the marriage by the which he has not participated and he
offender with the offended woman shall returned within 48 hours after the
extinguish civil liability, not only criminal proclamation that the calamity had already
liability of the principal who marries the passed, such convict shall be given credit of
offended woman, but also that of the 1/5 of the original sentence from that
accomplice and accessory, if there are any. allowance for his loyalty of coming back.
Those who did not leave the penitentiary
Co-principals who did not themselves under such circumstances do not get such
directly participate in the execution of the allowance for loyalty. Article 158 refers only
crime but who only cooperated, will also to those who leave and return.
benefit from such marriage, but not when
such co-principal himself took direct part in
the execution of the crime. Parole
The right of the offended party transcends The offender carnapped a bridal car while
to heirs upon death. The heirs of the the newly-weds were inside the church.
offended party step into the shoes of the Since the car was only rented,
latter to demand civil liability from the consequential damage not only to the
offender. newly-weds but also to the entity which
rented the car to them.
Reparation of the damage caused Most importantly, refer to the persons who
are civilly liable under Articles 102 and 103.
In case of human life, reparation of the This pertains to the owner, proprietor of
damage cause is basically P50,000.00 hotels, inns, taverns and similar
value of human life, exclusive of other forms establishments, an obligation to answer
of damages. This P50,000.00 may also civilly for the loss or property of their guests.
increase whether such life was lost through
intentional felony or criminal negligence, Under Articloe 102, two conditions must be
whether the result of dolo or culpa. Also in present before liability attaches to the
the crime of rape, the damages awarded to inkeepers, tavernkeepers and proprietors:
the offended woman is generally
P30,000.00 for the damage to her honor. In (1) The guest must have informed the
earlier rulings, the amount varied, whether management in advance of his
the offended woman is younger or a married having brought to the premises
woman. Supreme Court ruled that even if certain valuables aside from the
the offended woman does not adduce usual personal belongings of the
evidence or such damage, court can take guest; and
judicial notice of the fact that if a woman
was raped, she inevitably suffers damages. (2) The guest must have followed the
Under the Revised Rules on Criminal rules and regulations prescribed by
Procedure, a private prosecutor can recover the management of such inn, tavern,
all kinds of damages including attorney’s or similar establishment regarding
fee. The only limitation is that the amount the safekeeping of said valuables.
and the nature of the damages should be
specified. The present procedural law does The Supreme Court ruled that even though
not allow a blanket recovery of damages. the guest did not obey the rules and
Each kind of damages must be specified regulations prescribed by the management
and the amount duly proven. for safekeeping of the valuables, this does
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 123
not absolve management from the When these requisites concur, the employer
subsidiary civil liability. Non-compliance will be subsidiarily civilly liable for the full
with such rules and regulations but the amount that his employee was adjudged
guests will only be regarded as contributory civilly liable. It is already settled in
negligence, but it won’t absolve the jurisprudence that there is no need to file a
management from civil liability. civil action against the employer in order to
enforce the subsidiary civil liability for the
Liability specially attaches when the crime committed by his employee, it is
management is found to have violated any enough that the writ of execution is returned
law or ordinance, rule or regulation unsatisfied. There is no denial of due
governing such establishment. process of law because the liability of the
employer is subsidiary and not primary. He
Even if the crime is robbery with violence will only be liable if his employee does not
against or intimidation of persons or have the property to pay his civil liability,
committed by the inkeeper’s employees, since it is the law itself that provides that
management will be liable, otherwise, not such subsidiary liability exists and ignorance
liable because there is duress from the of the law is not an excuse.
offender, liable only for theft and force upon
things. Civil liability of the offender is extinguished
in the same manner as civil obligation is
Under Article 103, the subsidiary liability of extinguished but this is not absolutely true.
an employer or master for the crime Under civil law, a civil obligation is
committed by his employee or servant may extinguished upon loss of the thing due
attach only when the following requisites when the thing involved is specific. This is
concur: not a ground applicable to extinction of civil
liability in criminal case if the thing due is
(1) The employer must be engaged in lost, the offender shall repair the damages
business or in trade or industry while caused.
the accused was his employee;
When there are several offenders, the court
(2) At the time the crime was in the exercise of its discretion shall
committed, the employee-employerr determine what shall be the share of each
relationship must be existing offender depending upon the degree of
between the two; participation – as principal, accomplice or
accessory. If within each class of offender,
(3) The employee must have been there are more of them, such as more than
found guilty of the crime charged one principal or more than one accomplice
and accordingly held civilly liable; or accessory, the liability in each class of
offender shall be subsidiary. Anyone of the
(4) The writ of execution for the may be required to pay the civil liability
satisfaction of the civil liability was pertaining to such offender without prejudice
returned unsatisfied because the to recovery from those whose share have
accused-employee does not have been paid by another.
enough property to pay the civil
liability. If all the principals are insolvent, the
obligation shall devolve upon the
accomplice(s) or accessory(s). But
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 124
whoever pays shall have the right of Philosophy behind plural crimes: The
covering the share of the obligation from treatment of plural crimes as one is to be
those who did not pay but are civilly liable. lenient to the offender, who, instead of
being made to suffer distinct penalties for
To relate with Article 38, when there is an every resulting crime is made to suffer one
order or preference of pecuniary (monetary) penalty only, although it is the penalty for
liability, therefore, restitution is not included the most serious one and is in the maximum
here. period. Purpose is in the pursuance of the
rule of pro reo.
There is not subsidiary penalty for non-
payment of civil liability. If be complexing the crime, the penalty
would turn out to be higher, do not complex
Subsidiary civil liability is imposed in the anymore.
following:
Example: Murder and theft (killed with
(1) In case of a felony committed under treachery, then stole the right).
the compulsion of an irresistible Penalty: If complex – Reclusion temporal
force. The person who employed maximum to death.
the irresistible force is subsidiarily If treated individually – Reclusion temporal
liable; to Reclusion Perpetua.
(2) In case of a felony committed under Complex crime is not just a matter of
an impulse of an equal or greater penalty, but of substance under the Revised
injury. The person who generated Penal Code.
such an impulse is subsidiarily liable.
Plurality of crimes may be in the form of:
The owners of taverns, inns, motels, hotels,
where the crime is committed within their (1) Compound crime;
establishment due to noncompliance with
general police regulations, if the offender (2) Complex crime; and
who is primarily liable cannot pay, the
proprietor, or owner is subsidiarily liable. (3) Composite crime.
This is one which in substance is made up The complex crime lies actually in the first
of more than one crime but which in the form under Article 148.
eyes of the law is only a single indivisible
offense. This is also known as a special The first form of the complex crime is
complex crime. Examples are robbery with actually a compound crime, is one where a
homicide, robbery with rape, and rape with single act constitutes two or more grave
homicide. and/or less grave felonies. The basis in
complexing or compounding the crime is the
The compound crime and the complex act. So that when an offender performed
crime are treated in Article 48 of the more than one act, although similar, if they
Revised Penal Code. But in such article, a result in separate crimes, there is no
compound crime is also designated as a complex crime at all, instead, the offender
complex crime, but “complex crimes” are shall be prosecuted for as many crimes as
limited only to a situation where the are committed under separate information.
resulting felonies are grave and/or less
grave. When the single act brings about two or
more crimes, the offender is punished with
Whereas in a compound crime, there is no only one penalty, although in the maximum
limit as to the gravity of the resulting crimes period, because he acted only with single
as long as a single act brings about two or criminal impulse. The presumption is that,
more crimes. Strictly speaking, compound since there is only one act formed, it follows
crimes are not limited to grave or less grave that there is only one criminal impulse and
felonies but covers all single act that results correctly, only one penalty should be
in two or more crimes. imposed.
only one criminal impulse which brought one and the same penal provision
about the commission of the crime, the committed at the same place and about the
offender should be penalized only once. same time for the same criminal purpose,
regardless of a series of acts done, it is
There are in fact cases decided by the regarded in law as one.
Supreme Court where the offender has
performed a series of acts but the acts In People v. de Leon, where the accused
appeared to be impelled by one and the took five roosters from one and the same
same impulse, the ruling is that a complex chicken coop, although, the roosters were
crime is committed. In this case it is not the owned by different persons, it was held that
singleness of the act but the singleness of there is only one crime of theft committed,
the impulse that has been considered. because the accused acted out of a single
There are cases where the Supreme Court criminal impulse only. However performing
held that the crime committed is complex a series of acts but this is one and the same
even though the offender performed not a intent Supreme Court ruled that only one
single act but a series of acts. The only crime is committed under one information.
reason is that the series of acts are impelled
by a single criminal impulse. In People v. Lawas, the accused
constabulary soldiers were ordered to
march with several muslims from one barrio
CONTINUED AND CONTINUING CRIMES to another place. These soldiers feared that
on the way, some of the Muslims may
In criminal law, when a series of acts are escape. So Lawas ordered the men to tie
perpetrated in pursuance of a single the Muslims by the hand connecting one
criminal impulse, there is what is called a with the other, so no one would run away.
continued crime. In criminal procedure for When the hands of the Muslims were tied,
purposes of venue, this is referred to as a one of them protested, he did not want to be
continuing crime. included among those who were tied
becase he was a Hajji, so the Hajji
The term “continuing crimes” as sometimes remonstrated and there was commotion. At
used in lieu of the term “continued crimes”, the height of the commotion, Lawas ordered
however, although both terms are his men to fire, and the soldiers
analogous, they are not really used with the mechanically fired. Eleven were killed and
same import. “Continuing crime” is the several others were wounded. The
term used in criminal procedure to denote question of whether the constabulary
that a certain crime may be prosecuted and soldiers should be prosecuted for the killing
tried not only before the court of the place of each under a separate information has
where it was originally committed or began, reached the Supreme Court. The Supreme
but also before the court of the place where Court ruled that the accused should be
the crime was continued. Hence, the term prosecuted only in one information, because
“continuing crime” is used in criminal a complex crime of multiple homicide was
procedure when any of the material committed by them.
ingredients of the crime was committed in
different places. In another case, a band of robbers came
across a compound where a sugar mill is
A “continued crime” is one where the located. The workers of said mill have their
offender performs a series of acts violating quarters within the compound. The band of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 127
robbers ransacked the different quarters another place within the same penitentiary.
therein. It was held that there is only one The Supreme Court ruled that all accused
crime committed – multiple robbery, not should be punished under one information
because of Article 48 but because this is a because they acted in conspiracy. The act
continued crime. When the robbers entered of one is the act of all. Because there were
the compound, they were moved by a single several victims killed and some were
criminal intent. Not because there were mortally wounded, the accused should be
several quarters robbed. This becomes a held for the complex crime of multiple
complex crime. homicide with multiple frustrated homicide.
There is a complex crime not only when
The definition in Article 48 is not honored there is a single act but a series of acts. It
because the accused did not perform a is correct that when the offender acted in
single act. There were a series of acts, but conspiracy, this crime is considered as one
the decision in the Lawas case is correct. and prosecuted under one information.
The confusion lies in this. While Article 48 Although in this case, the offenders did not
speaks of a complex crime where a single only kill one person but killed different
act constitutes two or more grave or less persons, so it is clear that in killing of one
grave offenses, even those cases when the victim or the killing of another victim,
act is not a single but a series of acts another act out of this is done
resulting to two or more grave and less simultaneously. Supreme Court considered
grave felonies, the Supreme Court this as complex. Although the killings did
considered this as a complex crime when not result from one single act.
the act is the product of one single criminal
impulse. In criminal procedure, it is prohibited to
charge more than one offense in an
If confronted with a problem, use the information, except when the crimes in one
standard or condition that it refers not only information constitute a complex crime or a
to the singleness of the act which brought special complex crime.
two or more grave and/less grave felonies.
The Supreme Court has extended this class So whenever the Supreme Court concludes
of complex crime to those cases when the that the criminal should be punished only
offender performed not a single act but a once, because they acted in conspiracy or
series of acts as long as it is the product of under the same criminal impulse, it is
a single criminal impulse. necessary to embody these crimes under
one single information. It is necessary to
You cannot find an article in the Revised consider them as complex crimes even if
Penal Code with respect to the continued the essence of the crime does not fit the
crime or continuing crime. The nearest definition of Art 48, because there is no
article is Article 48. Such situation is also other provision in the RPC.
brought under the operation of Article 48.
Duplicity of offenses, in order not to violate
In People v. Garcia, the accused were this rule, it must be called a complex crime.
convicts who were members of a certain
gang and they conspired to kill the other In earlier rulings on abduction with rape, if
gang. Some of the accused killed their several offenders abducted the woman and
victims in one place within the same abused her, there is multiple rape. The
penitentiary, some killed the others in offenders are to be convicted of one count
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 128
of rape and separately charged of the other complex crime of forcible abduction with
rapes. rape. The rapes committed were in the
nature of a continued crime characterized
In People v. Jose, there were four by the same lewd design which is an
participants here. They abducted the essential element in the crime of forcible
woman, after which, the four took turns in abduction.
abusing her. It was held that each one of
the four became liable not only for his own The abuse amounting to rape is complexed
rape but also for those committed by the with forcible abduction because the
others. Each of the four offenders was abduction was already consummated when
convicted of four rapes. In the eyes of the the victim was raped. The forcible
law, each committed four crimes of rape. abduction must be complexed therewith.
One of the four rapes committed by one of But the multiple rapes should be considered
them was complexed with the crime of only as one because they are in the nature
abduction. The other three rapes are of a continued crime.
distinct counts of rape. The three rapes are
not necessary to commit the other rapes. Note: This is a dangerous view because
Therefore, separate complaints/information. the abductors will commit as much rape as
they can, after all, only one complex crime
In People v. Pabasa, the Supreme Court of rape would arise.
through Justice Aquino ruled that there is
only one count of forcible abduction with In adultery, each intercourse constitutes one
rape committed by the offenders who crime. Apparently, the singleness of the act
abducted the two women and abused them is not considered a single crime. Each
several times. This was only a dissenting intercourse brings with it the danger of
opinion of Justice Aquino, that there could bringing one stranger in the family of the
be only one complex crimeof abduction with husband.
rape, regardless of the number of rapes
committed because all the rapes are but Article 48 also applies in cases when out of
committed out of one and the same lewd a single act of negligence or imprudence,
design which impelled the offender to two or more grave or less grave felonies
abduct the victim. resulted, although only the first part thereof
(compound crime). The second part of
In People v. Bojas, the Supreme Court Article 48 does not apply, referring to the
followed the ruling in People v. Jose that complex crime proper because this applies
the four men who abducted and abused the or refers only to a deliberate commission of
offended women were held liable for one one offense to commit another offense.
crime – one count or forcible abudction with
rape and distinct charges for rape for the However, a light felony may result from
other rapes committed by them. criminal negligence or imprudence, together
with other grave or less grave felonies
In People v. Bulaong, the Supreme Court resulting therefrom and the Supreme Court
adopted the dissenting opinion of Justice held that all felonies resulting from criminal
Aquino in People v. Pabasa, that when negligence should be made subject of one
several persons abducted a woman and information only. The reason being that,
abused her, regardless of the number of there is only one information and
rapes committed, there should only be one prosecution only. Otherwise, it would be
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 129