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CRIMINAL LAW – branch of division of law which defines crimes, treats of their nature and provides for their

punishment.
CRIME – act committed or omitted in violation of the law. 2 injuries are committed;

1. Injury committed against a person;


2. Injury committed against the state;

Injury committed against a person


Personal injury against the private offended party. Civil indemnity is awarded to the offended party on the heirs.

Injury committed against the state - Punishment is imprisonment.


Social injury against the state for the disturbance of peace.

Note: for every crime committed, it is more of an offense against the state rather than against the private
offended party.

Example:
A hit B. B sustained a fatal wound but he survived. Thereafter, B filed frustrated homicide. The fiscal found
probable cause. In the information filed by the fiscal, the title is People of the Philippines vs
A. The trial continued and the judge found the accused guilty beyond reasonable doubt. The first
penalty of the judge is imprisonment due to social injury. Aside from this, B will pay a civil indemnity.

Definition of Terms
There are three kinds of Crime;
1. Felony – Acts or omissions punished by the Revised Penal Code (RPC);
2. Offense – punished by a special law;
3. Acts/Infractions – punished by ordinances, local legislation;

*Note that all three are under the umbrella term of Crime.

Q: Who has the power to enact Penal Laws?


A: As a general Rule the Legislative Department has the power to enact Laws. However, in case of emergency,
president may issue a Penal Issuance Order provided that there is a law granting it to the president.

Q: Is the power of Congress absolute?


A: No, there are limitations.
Limitations to the Power of Congress to enact Penal Laws:
1. Penal law must be General in application otherwise it would be violative of the Equal Protection
Clause;
2. Must not partake the nature of an ex post facto law – ex post facto law makes criminal an act done
before the passage of the law and which was innocent when done, and punishes such an act;
3. Not a Bill of Attainder – A bill of attainder is a legislative act which inflicts punishment without judicial
trial;
4. Cannot impose cruel or excessive penalties or punishments
- e.g. congress cannot amend article 308-309 death, by saying that henceforth that any who commit
theft will be given death. This is unusual punishment so it is prohibited.

Characteristics of Penal Laws


The following are the characteristics of penal laws;
1. Generality - Persons to whom criminal law shall apply;
2. Territoriality - Place where penal law shall be applied;
3. Prospectivity - Time when it shall apply

GENERALITY
 Penal laws shall be applied to all persons on being within the Philippine territory whether they are Filipino
Citizens or foreigners regardless of any of their personal circumstances;
 Applicable to all so long as within the Philippines;
 Applies to non-citizens since while they are within the Philippines, they are given protection in the same
way that the government protects its own citizen;
 Article 14 of the Civil Code – penal laws shall be binding on all those who live or sojourn in the Philippines
whether citizen or not;

Exceptions to the GENERALITY characteristic:


1. Generally Accepted Principles of International Law;
2. Laws of Preferential Application;

Generally Accepted Principles of PIL;


Heads of state, chief of state and other diplomatic heads such as ambassadors and public ministers enjoys
blanket immunity from the criminal jurisdiction of the country where they are assigned. Since they are immune,
they cannot be arrested, prosecuted or punished. (Diplomatic Immunity from Suit);

Laws of Preferential Application;


Laws which exempt certain individuals from criminal prosecution such as members of Congress are immune
from libel, slander and defamation for every speech made in the House of Congress during a regular or special
session.

Example;
X, the head of state Japan, went to the Philippines for a working visit. X was summoned to Malacañang.
However, the driver of X was not feeling well so instead, X drove himself to Malacañang. X drove the vehicle in
a reckless manner. As a result, he hit and killed an innocent pedestrian.

Q: May X be prosecuted?
A: No. As a head of state, X enjoys blanket immunity from prosecution.
*Consuls – not among those who enjoy the diplomatic immunity from suit

Generally, consuls are subject to penal laws of the country where they are assigned unless there is a treaty or an
agreement between the home country of the consul and the country where he is designated stating that the
consul is immune from the criminal jurisdiction of the host country.
Example;
A is an employee in ADB, a foreigner economist. A Filipino filed an oral defamation against the foreigner
economist. The DFA issued a letter and protocol to the court which states that ADB and PH has an agreement
that the ADB economist is immune from suit. The SC held that it was erroneous that there was a decision
immediately to dismiss the case without adducing any evidence, without informing the fiscal. SC ruled that
diplomatic immunity is only applied in the exercise of one’s function, but in this defamation case, it immunity will
not lie. Evidence first must be gathered to determine if the act was done in the exercise of one’s functions. (Liang
v. People, G.R. No. 125865. January 28, 2000)

TERRITORIALITY
Penal laws shall be applicable only within the Philippine jurisdiction including its atmosphere, internal waters, etc;

General Rule
Crimes committed outside the Philippine jurisdiction cannot be under Philippine courts.

Exception;
Art. 2 of the Revised Penal Code provides situations where the extra- territorial jurisdiction of the Revised Penal
Code may be applied.

PROSPECTIVITY
Penal laws Penal laws shall only be applied from the time of effectivity. It be given retroactive application unless;
1. If penal laws are favorable to the accused provided that the is not a habitual criminal; and
2. If the penal laws allow retroactivity;

Philosophies under the Criminal Law System


1. Classical/ Juristic Philosophy;
2. Positivist/ Realistic Philosophy;
3. Mixed/Eclectic;

CLASSICAL/JURISTIC PHILOSOPHY
3.1 Basis of criminal activity is human free will;
 Man is a moral creature which understands right from wrong;
 When he commits a wrong, he voluntarily does the same, therefore, he shall be ready for the
consequences of his acts

1.2 Purpose of penalty is Retribution;


 Evolves from the maxim “an eye for an eye.” therefore, for every crime committed, there is a
corresponding penalty based on the injury inflicted on the victim;

3. Determination of penalty is done mechanically;


 Done mechanically since the punishment is proportionate to the severity sustained by the victim;

4. Emphasis is on the crime and not on the criminal;


…on the offense and not on the offender
POSITIVIST/REALISTIC PHILOSOPHY
2.1 Basis of criminal liability is man’s social environment;
 “All men are born good, they only become evil due to the influence of the community.”
 Crimes are a social phenomenon;

2. Purpose of penalty is for purposes of rehabilitation;


 Offender is a socially sick individual who need to be corrected not to be punished;

3. Determination of penalty is done on the case to case basis


4. Emphasis of the law is on the offender and not to the offense;
 ...on the criminal not on the crime;
 great regard to the human element of the crime;
 takes into consideration why the offender committed the crime;

CLASSICAL PHILOSOPHY POSITIVIST PHILOSOPHY


Basis of criminal activity is Basis of criminal liability is
human free will; man’s social environment;
Purpose of penalty is Purpose of penalty is for
Retribution; purposes of rehabilitation;
Determination of penalty is Determination of penalty is
done mechanically; done on the case to case basis;
Emphasis is on the crime and not on the criminal;Emphasis of the law is on the offender and not to the
offense;

4. MIXED/ECCLECTIC PHILOSOPHY
 Crimes which are heinous/obnoxious in nature-classical
 Crimes which are social/economic – positivist

* The Revised Penal Code adheres to Classical philosophy;


 Merely copied from Spanish...French espoused classical;

Although RPC is molded with classical philosophy, the amendments are geared toward the positivist
philosophy;

Example;
 Indeterminate Sentence Law – once served the minimum of his penalty, eligible for parole (rehabilitation);
 Probation Law – 6 years and below, probation report to probation officer;
 RA 9346 –abolished death penalty;

THEORIES/RULES CONCERNING CRIMINAL LAW;


The following are the theories concerned with Criminal Law;
1. Utilitarian. Protective theory;
2. Doctrine of Pro Reo;
3. Lenity Rule;
4. Equipoise Rule;

Utilitarian/ Protective Theory;


Purpose of punishment is to protect the society from actual/potential wrong doing;

Even in violation of special penal laws, wherein intent does not matter, courts should see to it that punishment
shall only be imposed to actual/potential wrongdoers;
Magno v. CA (G.R. No. 96132)

Potential wrongdoer was not Magno rather it was Mrs. Teng. She should not have deposited the check upon
withdrawing the machineries. She was the one who acted in bad faith.
Q: Should Magno should be convicted of violation of B.P. 22?
A: NO. If Magno will be the one to be punished, then it will bring about opportunism. Magno was acquitted on the
ground of good faith.

Doctrine of Pro Reo


Penal laws should always be construed liberally in favor of the accused and strictly against the state.

Lenity Rule
Whenever a penal law or a provision of penal law is susceptible of 2 interpretations, the one lenient to the
accused which will bring about acquittal and the other one strictly against the accused which will bring about
conviction, the lenient interpretation shall prevail.

Maxim: In case of doubt, rule always for the accused;

Constitution: Unless proven guilty, deemed innocent. “Guilt must be proven.”

Equipoise Rule
Whenever the evidence of the prosecution is equally balanced with the evidence of the defense, the scales of
justice shall be titled towards the accused;

Reason: Presumption of innocence;

Prosecution has the burden of proving conviction beyond reasonable doubt. Conviction based on the strength of
the evidence of the accused.

Example;
Police officers received a tip from a credible source that a person wearing white shirt and blue shorts will arrive at
bus terminal in Cubao at 10pm carrying shabu. Acting thereon, the police officers arrived at the bus station and
waited. When a man wearing white shirt and blue shorts came out of the bus, the police immediately frisked and
searched the man. A white crystalline substance was found in his possession which was identified as shabu by
the crime lab. During the trial, the defense presented two witnesses who were passengers of the same bus with
the accused, and seated beside him. The witnesses said that they did not see the police officer frisked and
searched the accused. Furthermore, they did not see any drugs apprehended from the accused. How should the
judge rule the case?

The Judge should rule in favor of the accused. Under the equipoise rule, when the evidence of the prosecution
and the defense is equally balanced, justice should be tilted in favor of the accused.

Q: What if what has performed was a perverted/immoral act but there is no law which punishes the said act. Can
the person be prosecuted in court?
A: No, “nullem crimen nulla poena sine lege” there is no crime when there is no law which punishes it.

Q: Are there common law crimes in the Philippines?


A: NO. Common law crimes are principles, usages and use of action which the community considers as
condemnable even if there’s no law that punishes it;
There are no common law crimes in the Philippines since the Philippines is a civil law country. Penal laws are
enacted. They do not evolve through time;

--xXx--

Article 1. Time when Act takes effect. — This Code shall take effect on the first day of January, nineteen
hundred and thirty-two.

RPC took effect on January 1, 1932 passed into law on December 8, 1930.

--xXx--
Article 2.Application of its provisions. - Except as provided in the treaties and laws of preferential
application, the provisions of this Code shall be enforced not only within the Philippine Archipelago,
including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction,
against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and
securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the obligations and
securities mentioned in the presiding number;
4. While being public officers or employees, should commit an offense in the exercise of their
functions; or
5. Should commit any of the crimes against national security and the law of nations, defined in Title
One of Book Two of this Code.

Art. 2 of the RPC has 2 scopes of application ;


1. Intraterritorial application – Intraterritorial application provides that the RPC shall enforced within the
Philippine archipelago, including its atmosphere, its interior waters and maritime zone;
2. Extraterritorial application;

Q: What does the phrase ‘Except as provided in the treaties and laws of preferential application’ mean?
A: This phrase means treaties entered with other countries, laws of preferential palliation takes preference
over the provision of the RPC.
 Therefore, if there is any conflict between any agreements entered into by the Philippines with another
country, if it is in conflict with any provisions of the RPC, the said agreement shall prevail over the
provision of RPC.

*Remember the Larranaga case, based on the RPC, a person who is convicted of a crime shall serve his
sentence in the New Bilibid prison, that is the national penitentiary. However, the Philippines entered into an
agreement with Spain. This agreement was ratified by the Senate. As a result thereof, after Larranaga has
been convicted of kidnapping and serious illegal detention with rape and homicide, considering that he has 2
citizenship – both Filipino and Spanish. He was brought to Spain, and there he is serving his sentence.
Because based on that agreement, Spanish citizens who are serving their sentence in the Philippines can be
brought to Spain and they are to serve their sentence there. Larranaga took advantage because definitely, the
facilities perhaps are better than prison facilities here.

Example;
Many heads of state arrived here for the 2017 Ms. Universe. Among these was Pres. X, of X state. He found Ms
Portugal very attractive and invited her to a date in a hotel. Afterwards, Pres. X raped her.

Q: Can Pres. X be prosecuted for rape?


A: YES. Immunity is NOT absolute, limited only to official functions. As rape is outside of the functions of the
head of state, Pres. X may be prosecuted here.

Example;
Pres. X was driving his car on his way to the pageant, and he hit a pedestrian, who died.

Q: May Pres. X be prosecuted?


A: No. This time he is performing official functions, thus he cannot be prosecuted in Philippine courts.

EXTRATERRITORIAL APPLICATION:
There are 5 instances where the Revised Penal Code shall take effect outside the Philippine Territory;
1st: Those who should commit an offense while on a Philippine ship or airship.

Q: When is it a Philippine ship or airship?


A: If it’s registered in the Philippines and under the Philippine laws. Even if totally or wholly owned by a Filipino
citizen, if it is not registered in the Philippines it cannot be considered as a Philippine ship/airship. It is only upon
registration that this aircraft/vessel can fly the Philippine flag. Therefore, it is registration which is the operative
act which makes it a Philippine ship/airship.

This is a situation where a crime is committed on board a Philippine vessel while it is outside Philippine territory
but not in the territory of another country.

Q: If a Philippine vessel is on waters of the Philippines, and a crime was committed on board. What country will
have jurisdiction?
A: Obviously, the Philippines.

Q: What if that Philippine Vessel is on the high seas or international waters and a crime was committed on
board the said Philippine Vessel. What country will have jurisdiction over the said crime?
A: Still the Philippines. Because of the extraterritorial application of the RPC. It is the situation referred to as the
1st circumstance under paragraph 2 of Art. 2. It is the situation where the Philippine ship is outside the Philippine
territory but not in the territory of another country.

Q: What if the Philippine Vessel is on the waters on Malaysia and a crime was committed on board. What
country will have jurisdiction? A: Malaysian courts will have the jurisdiction because of the territoriality
characteristic of criminal law.

Exceptions;
If the vessel is a Philippine war vessel or warship or it is a Philippine warplane. A Philippine warship or war aircraft is
considered an extension of the Philippine sovereignty.
Wherever they may be, when a crime is committed on board a Philippine war vessel or warplane, the Philippines
will always have jurisdiction and the reason is the 1st paragraph of Art. 2 of the RPC –
that is the Intraterritorial application of the RPC because it is as the crime is committed within the Philippine
territory;

Jurisdictional Rules for Merchant Vessels


There are two jurisdictional rules for merchant vessels;
1. French Rule;
2. British Rule;

French Rule
The French Rule states that crimes committed on board while the foreign vessel is on the water of another
country is within the jurisdiction of the flag country. That is the country where the country is registered;

Exception;
when the crime committed affects the public order, the peace and security of the host country, then the host
country will have jurisdiction over the said crime. Therefore, the French Rule recognizes the jurisdiction of the
country where the vessel is registered.

French Rule = flag country

English Rule
The English Rule states that when a crime is committed on board a foreign merchant vessel while on the
waters of another country it is the host country which will have jurisdiction over the said crime;

Exception;
When the crime merely affects the internal management of the vessel, then it is the flag country which will
have jurisdiction. In effect, the English Rule is territorial in nature.
*Philippines adhere to the English Rule which is strictly territorial in nature.

Example;
A foreign merchant vessel is on Manila Bay. A crime was committed on board, the Philippines will have
jurisdiction over the said crime and criminal because we follow the English Rule.

2nd: Those who should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and
securities issued by the Government of the Philippine Islands.

3rd: Those who should be liable for acts connected with the introduction into these islands of the obligations and
securities mentioned in the presiding number.

Example;
So X was in Japan. He counterfeited Philippine coins. He then introduced these coins in to the Philippine
Islands. Although the crime has been committed in Japan, he can be held liable before Philippine courts. This
is necessary in order to maintain and preserve the financial circulation and financial stability of the Philippines.
Otherwise, no other country would be interested in prosecuting him except the Philippines because it is only
the Philippines will be affected by the said counterfeiting of coins.

4th: Those who while being public officers or employees should commit an offense in the exercise of their functions.

This refers to public officers or employees who are working in another country, while they are working, they
committed a crime. The crime committed by this public officers or employees must be in connection with the
exercise of their functions.

If the crime they committed is not connected with the exercise of their functions, then they should be prosecuted
in the courts of the country where they are assigned;

Example;
OFW who lost his passport, he went to the Philippine Embassy in Japan applying for a new passport. He has
been going there back and forth that it has not it was not yet approved or it was not yet released. On his way out,
he saw the approving authority (AA). He talked to AA requesting and begging him that it be immediately
approved and released. He was invited to a coffee shop, while having coffee, AA asked $500 from him and
promised on that same afternoon, his passport would be released. So the poor OFW gave the $500.

Q: Where may this AA be prosecuted? Before Philippine courts or before the courts of Japan?
A: AA may be prosecuted before the Philippine courts. He did not commit in effect a crime in approving the said
passport because it his obligation to approve the said passport. However, he would not perform his obligation
without a bribe. He would not perform his function without the money given by the said OFW. So in effect, he
committed bribery in its 2nd form – he performs an act not constituting a crime in connection with the exercise of
his function in consideration of the bribe money. So here, he committed bribery, he can be prosecuted before
Philippine courts. His act is in connection with the exercise of his functions.

What if instead of the AA, here comes a Filipino filing clerk (FC) inside the Philippine Embassy. The FC followed
the OFW, the FC told him that he can facilitate the release of his passport if he will him $50. Desperate, the OFW
gave him the money. However, that afternoon, the passport was still not released. He wanted to file a case
against the FC.

Q: Where can he file a case? Before courts of Japan or Philippines? A: It should be filed before the courts of
Japan because the act performed by FC has nothing to do with the exercise of his official functions. In effect,
what he has committed is estafa because he made this OFW believe that he has the authority to facilitate the
release of the said passport but he did not have such qualification. He committed estafa under Art.315 (2)(a).
Therefore, he should be prosecuted before the courts of Japan.

Example;
There is this Philippine consul (PC). The PC told his secretary to work overtime. So S followed PC. In the
evening, PC gave coffee to S. Unknown to S, there was something mixed in the coffee to make her unconscious.
So after drinking the coffee, she became unconscious and she was raped by PC. S now wanted to file a case
against PC.

Q: Where may she file the case?


A: The act of rape committed has nothing to do with the exercise of PC’s functions. Therefore, it should be filed
before the courts of Japan. However, it was committed inside the Philippine Embassy.

The Philippine Embassy which is considered an extension of the Philippine sovereignty, then it is as if the crime
was committed within
the Philippine territory. Therefore, S should file the case before the Philippine courts because it is as if the
crime was committed within the Philippine archipelago. The reason for this is the Intraterritorial application of
the RPC. But if the rape was committed at any other place outside the Philippine Embassy, then PC should be
prosecuted before the courts of Japan because rape is in no way connected with the exercise of his functions
and a consul does not enjoy diplomatic immunity.

5th: Those who should commit any of the crimes against national security and the law of nations, defined in Title One
of Book Two of this Code.

Crimes against National Security includes the following;


1. Treason;
2. Conspiracy/proposal to commit treason;
3. Misprision of treason;
4. Espionage;
5. enticing to war or giving motives for reprisals;

If any of this crime is committed, even if it is done outside the Philippine archipelago the offender can be
prosecuted before the Philippine courts.

Crime committed against the Law of Nations include the following;


1. Piracy;
2. Qualified piracy;
3. Mutiny; and
4. Qualified mutiny

Likewise, if the crime committed is against the Law of Nations the said offender can also be prosecuted before
the Philippine courts;

Example;
A, B, C, D, and E are in America. They decided to over throw the government of the Philippines. In preparation
for their plan, they bought guns, ammos, and grenades. However, before they can proceed with their plan, thy
got caught.

Q: Can A, B, C, D, and E be tried in the Philippines?


A: NO. Their crime is conspiracy to commit rebellion which is a crime against public order, Title Three of the
Revised Penal Code, thus they are outside the scope of extra-territorial jurisdiction of the Philippines under
Article 2 of the RPC.

Example;
Accused A, B, C, D, and E were in America. At that time, America is at war with the Philippines. The accused
decided to over throw the government of the Philippines. However, before they can overthrow the government,
all the accused were caught.
Q: Can A, B, C, D, and E be tried in the Philippines?
A: YES. All the accused committed conspiracy to commit treason which is penalized under Title One, Book
two of the Revised Penal Code. Thus, it is within the scope of extra-territorial jurisdiction of the Philippines
under Article 2 of the RPC.

--xXx--

Article 3. Definitions. - Acts and omissions punishable by law are felonies (delitos).

GARCIA NOTES - CRIMINAL LAW REVIEW [2018]

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).
There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act
results from imprudence, negligence, lack of foresight, or lack of skill.

Felonies
Felonies are acts or omissions punishable by the RPC. When the law says ‘by law’, it means the RPC.

Acts
Acts refer to any body movement which has a direct connection to the felony intended to be committed.
It is an external act, an overt act in connection with the felony intended to be committed. Internal acts or mere
criminal thoughts will never give rise to a crime;

Example;
A lust for his neighbor. Whenever the neighbor would pass by going to work, A would always look at the
neighbor. And for the whole day, he would think of the neighbor with nothing but lust. No matter how criminal his
thoughts are it will never give rise to a crime because it is merely an internal unless he performs an external act
or an overt act related to acts of lasciviousness or attempted rape or rape. The law requires an act.

Omission
Omission is the failure of a person to perform an act or to do a duty which is required by law.

Example;
If a person found, any personal property on the street or on any place and he failed to deliver the same to the
owner or to the local authorities. Under Art.308 he becomes liable for theft. Or if a person was driving his vehicle,
then he bumped and hit another person. And instead of helping that person, he increased his speed and left. It is
a hit-and-run situation. Such fact that he failed to lend help and assistance to that victim will aggravate his
criminal liability under Art.
365. So here, for failing to perform an act which is required by law to be done. He commits a felony. So felonies
are acts or omissions punishable by the RPC.

Kinds of Felonies
2. kinds of felonies that are may be committed under Art. 3;
1. Deceit (dolo);
2. Fault;

DECEIT (DOLO)
Deceit (Dolo) or intentional felony exist when the act is done with deliberate intent;
Elements:
1. Criminal intent on the part of the offender;
2. Freedom of action in doing the act on the part of the offender;
3. Intelligence of the offender;

An intentional felony is a voluntary act because it is committed by means of deliberate intent.


FAULT (CULPA)
Fault (culpa) or culpable felony exist when the wrongful act results from imprudence, negligence, lack of
foresight or lack of skill;

Elements;
1. Criminal negligence;
2. Freedom of action;
3. Intelligence;

Under Art. 365, a culpable felony is defined as one wherein the offender, although without malice or deliberate
intent caused an injury to another by the means of negligence or imprudence. Therefore, even a culpable
felony is a voluntary act;

Voluntariness
In so far as criminal law is concerned, voluntariness is actually the concurrence of the 3 elements of intentional
felony and the concurrence of the 3 elements of culpable felony;

In other words, in so far as voluntariness of intentional felony is concerned, it is the concurrence of criminal
intent, freedom of action and intelligence;

Therefore, without voluntariness, there can neither be an intentional felony nor a culpable felony;

Freedom
There is freedom of action when the offender performs the act on his own free will, without force, duress,
uncontrollable fear.

So note if the offender performs the criminal act but he did the act because there was this compulsion and
irresistible fear or under the impulse of an uncontrollable fear. There is no criminal liability. They are exempting
circumstances under Art. 12 of the RPC because there is no freedom of action, an element of voluntariness.
There is neither an intentional felony nor culpable felony because there is wanting of freedom of action, an
element of voluntariness.

Intelligence
Intelligence is the mental capacity of a person to know wrong from right and to appreciate the consequences of
one’s act.

If the person acted without intelligence, there is no criminal liability. So if the criminal act has been committed
by an insane, an imbecile or a minor, the said offender is said to be exempted from criminal liability.

Under Art. 12, they are exempting circumstances, he is free of both intentional and culpable felony because he
acted without intelligence, an element of voluntariness.

INTENT
Intent is the use of a particular means to achieve the desired result;

 You cannot see intent. It is an internal state of the mind;

Factors to Determine Intent


In the case of Rivera v. People (G.R. No. 166326, January 25, 2006), Court declared that evidence to prove intent to
kill in crimes against persons may consist of the following;
1. The means used by the malefactors;

2. The nature, location, and number of wounds sustained by the victim;


3. The conduct of the malefactors before, during, or immediately after the killing of the victim; and
4. The circumstances under which the crime was committed and the motives of the accused;

Example;
A was walking. Then here comes B with a lead pipe and hit the head of A with it. B hit it hard and thereafter ran
away. A went to the hospital, however, based on the medical certificate no injury whatsoever was sustained by
the head of A. So there was no injury. Nevertheless, A filed a case for attempted homicide against B. Therefore,
intent to kill is incumbent to be proven by the prosecution because the case filed is attempted homicide.

Q: Will B be held liable for attempted homicide? Was there intent to kill?
A: There was NO intent to kill. Let us apply in this case the factors to determine whether intent is present;

Q: Was there motive?


A: NO. In the problem, there was no motive.

Q: What was the nature and number of weapon used?


A: B used a lead pipe.

Q: What is the nature, number and location of wound inflicted on the victim?
A: The victim did not sustain any wound despite the fact that it was hit with a lead pipe.

Q: What was the manner of committing the crime?


A: After hitting A once, B ran away. If he had intended to kill the victim, he would have hit A several times.

Q: What were the act, deeds and words made by the offender before, during or after the commission of the
crime?
A: He just saw the victim, hit the victim thereafter ran away. All of these would show there was no intent to kill on
the part of said offender.

Therefore, B should not be convicted of attempted homicide.

Example;
The use of a lethal weapon would show intent to kill on the part of the offender although death did not arise.
Taking the personal property of another without the consent of the owner would show intent to gain on the part of
the offender.

Kinds of Intent
There are 2 kinds of intent:
1. General Criminal Intent (GCI);
2. Specific Criminal Intent (SCI);

GENERAL CRIMINAL INTENT SPECIFIC CRIMINAL INTENT


Specific Criminal Intent is just like an element, an ingredient
General Criminal Intent is conclusively presumed by
of the commission of the crime;
law by the mere doing of an act;

Therefore, it must be proven by the prosecution beyond


The prosecution does not have the burden to prove it;
reasonable doubt;

Example;
Intent to kill must be proven in frustrated/attempted homicide. A and B were fighting. A was losing and so A
shot B. B was hit on the left arm. He was brought to the hospital. Thereafter, after B’s release from the
hospital, he filed a case against A for attempted homicide. Since the case filed is attempted homicide. The
prosecution has the burden of proving intent to kill on the part of A when he shot B and hit him on the left arm.
Otherwise, if the prosecution failed to prove intent to kill on the part of A. Then A can only be convicted of
serious/less serious/slight physical injuries depending on the date required for medical intervention or he
should be acquitted of the crime. Intent to kill must be proven.

But what if in the course of their fight, A was losing and so A took out his pistol and he shot B. B was shot on
the heart, a fatal wound, a mortal wound was sustained because it was a vital organ which was hit. A
immediately bought B to the hospital. However, upon arrival, he was pronounced dead. Therefore, the heirs of
B filed a case for homicide against A. A’s defense, I have no intention to kill B. According to him, he only
intended to threaten B because they were fighting.

Q: Will A’s defense stand in court?


A: NO. A’s defense that he has not intent to kill B will not lie. The reason is since the victim died, intent to kill
becomes a General Criminal Intent which is presumed by law. Prosecution need not prove intent to kill in
homicide, parricide, murder, infanticide because the victim died. It is only in the attempted and frustrated
stages of the HPMI wherein intent to kill is considered an element.

Q: Why is it only in the consummated stage of Homicide, Patricide, Murder, Infacnticide that intent to kill is
presumed?
A: Because the best evidence to prove intent to kill is that the victim died. So it is presumed by law.

Q: Is there a defense to negate criminal intent?


A: YES. The accused may plead mistake of fact

MOTIVE
Motive is the moving power which impels a person to do an act to achieve the desired result

General Rule: Motive is not material in determining the criminal liability of the offender is identified, admits to
the commission to the crime, if the prosecution has direct evidence or eyewitness to the commission of the
crime, if crime committed is a culpable felony, crime committed is not a special penal law.

Exceptions;
Motive becomes material in determining the criminal liability of the offender;
1. When the act of the offender would result to variant crimes (to know what crime should be charged);
2. When the identity of the offender is doubtful;
3. When the prosecution only has circumstantial evidence to prove the commission of the crime;

Example;
City mayor (CM) was jogging near the seashore. Here comes X who went to CM and him. CM was not in the
performance of his official duty when he was shot. Therefore, the act of X in killing and shooting CM may result to
variant crimes depending on the motive, depending on the reason of X of killing. If the reason is a personal
grudge/vendetta, murder is committed. But if the reason is because of CM’s past performance of his duty, then
the crime committed is direct assault with homicide.

Example;
There are so many suspects, A, B, C, D and E. There’s doubt as to who among the committed the crime. Then
motive will become material in determining the criminal liability of the offender.

Example;
Who was the last person seen together with the victim before he was killed? Why was he with the victim at that
time? What could be the motive behind the kill? All of these must be taken into consideration because there was
no eyewitness, no direct evidence in the commission of the crime.

*Motive alone, however strong, will never bring about conviction. But motive and circumstantial evidence, or
motive and supporting evidence is necessary for conviction.

People v. Mapalo (G.R. No.172608, February 6, 2007)


SC convicted him only of ill treatment of another by deed, a form of slight physical injury. Ill treatment of another
by deed is the circumstance wherein a person was hit or there was injury caused to the person but there was no
intent.

Q: How do you prove Motive?


A: Motive is proved by the testimony of the witnesses as to the acts or statements made by the accused before
or immediately after the commission of the crime.

Example;
Before the killing of A, a witness saw B threatening to kill A. Therefore, B would have the motive because of his
acts prior to the commission of the crime. Or right after the killing of A, a witness saw B running away from the
scene of the crime laughing saying “finally, I have my revenge” there is the motive.

So here motive is established by the acts or statements made by the accused prior to or after the commission of
the crime but NOT DURING because in motive, there is no direct evidence. The witness did not see how the
crime was committed.

INTENT MOTIVE
It is the moving power which impels a person to do a specific act
to achieve the desired result, therefore, it is the
Use of a particular means to achieve a desired reason behind intent;
result;

A material element in Immaterial to determine the


determining the criminal liability of the accused; criminal liability of the offender;

Established/proven by the overt act of the Established by the acts/statements made by the accused
offender or by the means employed; prior to or

immediately after the


commission of the crime;

MISTAKE OF FACT
Mistake of Fact is the misapprehension of facts on the person who caused injury to another.

If a person acted under mistake of fact, he is absolved of criminal liability because he acted without criminal
intent. That is, had the facts been as he believed them to be, his act done would have been lawful and
justifiable.
Elements of Mistake of Fact
Before one may be absolved of criminal liability for having acted under mistake of fact, the following are
elements:
1. That the act done would have been lawful and justifiable had the facts been what the accused
believed them to be - Had it been as he believed, the act performed would’ve amounted to a justifying
or exempting circumstance;
2. That the intention of the accused in doing the act must be lawful - The must be ignited by a noble or
lawful or justifiable intent
3. That the mistake must be without fault, negligence, careless on the part of the offender - The offender
cannot be negligent in ascertaining the true facts of the case and at the same time invoke mistake of
fact;

Q: Can a mistake of fact be used as a defense against culpable felony?


A: NO. One of the elements of Mistake of Fact is that the intent must be lawful. Since intent is not an element
in culpable felonies, then mistake of fact cannot be used as a efense.

US v. Ah Chong (G.R. No. L-5272 March 19, 1910.)


Ah Chong was acquitted because he acted under mistake of fact. [M’Garcia: BUT that was because the case
was decided a long time ago. If the case is decided now, I doubt if there will be an acquittal. Let’s go by the
elements: 2nd and 3rd elements are present.

However, the 1st element is wanting - that the act done would have been lawful and justifiable had the facts
been as the accused believed them to be - the victim was only trying to enter.

Q: Will that act already constitute unlawful aggression?


A: NO. There is no unlawful aggression because there was no imminent or immediate danger on the life and
property of the said offender. 1st element is wanting.]

Example;
The police officers A, B and C were dining in a restaurant when they noticed a group of men who are so noisy.
And so A looked at them and noticed that one of them, X had a gun tucked on his waist. So A went on the
back of X and told him “I can see that you have a gun tucked on your waist. Do you have a license? I’m a
police officer.” X said “Yes sir, I have a license.” And A said “Show me your license.” So X stood up and he
tried to get his wallet from his pocket in order to show his license as requested by A. As he was picking his
wallet, he was turning around to look at A. The moment he faced A, A shot him. X died. Prosecuted for
homicide, A said he acted under mistake of facts. He thought, what X was picking was his gun and that he
would be shot by X. Therefore, in self-defense he shot X first.

Q: Will his defense of mistake of facts lie in his favor?


A: NO. The 1st element is wanting. Granting for argument that what X was picking was the gun, it will not
constitute unlawful aggression because the gun was not yet pointed at A. it will not yet bring an immediate
danger on the life of A. Also, the 3rd element is wanting. A was negligent, there was fault or carelessness on his
part in ascertaining the true facts of the case. He was asking for the license and X said he has one. Definitely,
what would be shown to him would be the license not the gun.

Yapyucu v. Sandiganbayan (G.R. No. 120744-46, June 25, 2012) Yapyucu were members of the Police stationed
in Pampanga. They received a tip that NPA were spotted near their vicinity. Thus, Yapyucu and his men
convened in a nearby road to wait for the alleged vehicle of the NPA. Upon seeing a Tamaraw Jeep reportedly
containing NPA soldiers, Yapyucu and his men immediately open shot the jeep. As a result, Licup, one of the
passengers of the jeep, died, and another one, Villanueva, was injured. Upon closer inspection of the jeep, it was
later found out that the passengers were not members of the NPA, and that they were not armed. An information
for homicide was filed against Yapyuco. Yapyucu on the other hand, pleaded mistake of facts. He argued that
had the passengers been members of the NPA, he would have been justified in firing at them.

Q: Is the contention Yapyucu justified?


A: NO. The 1st element of Mistake of fact is that the act done would have been lawful had they been what the
offender believed them to be. In this case, even if the passengers were members of the NPA, the accused was
not justified in firing at them absent of any reason to believe that their lives were in danger. Also, the 3 rd element
of Mistake of fact is that the mistake must be without fault, negligence, or carelessness of the offender. In this
case, the accused could have been more prudent in the exercise of his functions. He could have stopped the
jeep to ascertain the passengers. Likewise, even if the jeep did not stop, they could have pursued the jeep
seeing as they have an available car and the jeep was moving in a slow speed due to the potholes in the road.

The Supreme Court convicted the accused of homicide and denied their defense of mistake of fact.

Q: Can a crime be committed without criminal intent?


A: YES. There are 2 instances wherein intent is not an essential element of a crime;
1. Culpable Felony
2. When the crime is in violation of special penal laws (Acts
Mala prohibita)

ACTS MALA PROHIBITA


Acts mala prohibita are acts which are only wrong because there is a law that prohibits and penalizes it;

They are not inherently wrong;

Example;
Illegal possession of unlicensed firearms;

ACTS MALA IN SE
Acts mala in se are acts which are inherently evil or wrong per se, even if there’s not law, it is evil;
Example;
Killing another, taking the thing of another;

MALA IN SE MALA PROHIBITA


Inherently evil, wrong per se; Not inherently evil
or wrong;
Criminal liability is based on the intent or morality ofCriminal liability is based on the mere doing of the prohibited
the act;
offender;
Good faith or lack of criminal Good faith or lack of criminal
intent is a valid defense; intent is not a valid defense;
Modifying circumstances such as mitigating and Modifying circumstances such as mitigating and aggravating
aggravating are considered by the court in the are NOT considered by the court in the imposition of penalty
imposition of penalty; UNLESS otherwise
provided by Special Penal Law;

Degree of participation of the offender (principal, Degree of participation by the offender is NOT considered. All
accomplice, or accessory) is considered in the perpetrators of the act are equally punished UNLESS
imposition of the penalty; otherwise provided by the
Special Penal Law;
Stage (attempted, frustrated, or consummated) is The only stage considered is the consummated stage. No
taken into consideration in the imposition of the attempted or frustrated stage UNLESS otherwise provided by
penalty; the Special Penal Law;

**Not all acts punishable by special penal laws are mala prohibita!! There are some special penal laws which
punish acts mala in se, e.g. plunder is a special penal law yet the SC said plunder is malum in se. criminal
intent matters.

Garcia v. CA (G.R. No. 157171 March 14, 2006)


Garcia was the head of the board of canvassers. The number of votes of Sen. Pimentel was decreased. In
decreasing the number of votes, the said votes were not added to any candidate. So it did not favor any
candidate. So according to him, he acted in good faith, no criminal intent. But according to the other side, it is a
special penal law, therefore they should be held criminally liable.

Q: Should Garcia’s defense of good faith be appreciated in violation of the Omnibus Election Code (Special
Law)?
A: YES. The act of decreasing or increasing a candidate’s vote although punished by special penal law is a
malum in se. it is inherently evil or wrong.

What about in this case, it is a malum in se. And Garcia and company said, they acted in good faith, they were
already so tired, because of the counting. So how come they were still convicted?

According to the SC: They should exercise extraordinary diligence in the counting of the votes. Hence, they
are still held criminally liable. The defense of good faith would not lie in their favor as board of canvassers.

Q: Can an act mala in se absorb an act mala prohibita? And vice versa?

A: NO. In the case of Loney v. People the Supreme Court held that intent is a material element in acts mala
prohibita, on the other hand intent is immaterial in acts mala prohibita.

Lonely v. People (G.R. No. 152644, February 10, 2006)


Lonely and company, the head of marcopper company were charged 4 cases – violation of the water code of the
Philippines, violation of the Philippine mining act, violation of national pollution control degree – all three are acts
mala prohibita and one act malum in se – that is violation of Art.365 reckless imprudence resulting to damage to
property. Their contention was that the 3 other information involving violation of special penal law should already
be quashed because they are absorb by Art. 365. Anyway, the incident resulted from the same act of polluting.

Q: Should reckless imprudence resulting to damage to property under Article 365 of the Revised Penal Code
absorb the violation of special penal laws?
A: NO. Acts mala in se cannot absorb acts mala prohibita. What makes an act malum in se is the presence of
intent, deceit or dolo or fault or culpa. On the other hand, what makes an act malum prohibitum is the fact that it’s
in violation of a special penal law. Therefore, one cannot absorb the other. So they have to be prosecuted on all
4 cases.
Example;
X killed B with the use of motor vehicle. X hit and bumped B. X was charged with murder. So the information
charges an intentional felony of murder. Trial on merits ensued, after the prosecution presented evidence, the
defense presented evidence. The defense was able to show, to prove beyond reasonable doubt that the reason
for the said act of killing B was because X lost control of his brake. Therefore, according to them, there was only
imprudence and so X should only be held liable for reckless imprudence resulting in homicide. The judge
believed the defense. So in an information for an intentional felony of murder, the said court convicted X only of
reckless imprudence resulting in homicide, a culpable felony.

Q: Is the judge correct? Can the judge convict a person of a culpable felony in an information that charges him
of intentional felony?
A: Yes. The reason is that a culpable felony is necessarily included in an intentional felony because a culpable
felony is of lesser offense than that of intentional felony.

*A malum prohibitum is not necessarily included in malum in se. Therefore, one cannot absorb the other.

--xXx--

Art. 4. Criminal liability. — Criminal liability shall be


incurred:
By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.
By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or an account of the employment of inadequate
or ineffectual means.

Proximate Cause Doctrine


Proximate Cause Doctrine states that criminal liability shall be incurred by any person committing a felony (delito)
although the wrongful act done be different from that which he intended.
Proximate Cause - Proximate cause is the cause that sets in to motion all other causes and which unbroken by
efficient intervening cause produces the felony without which the felony would have not been committed.

For one to be criminally liable under the Proximate Cause doctrine, it is necessary that the felonious act and
the resulting felony must not be broken by any efficient intervening cause.

No efficient or supervening intervening cause must have broken the causal connection between the felonious
act of the offender and the resulting felony.

Elements;
In the case of Garcia v. People (G.R. No. 171951, August 28, 2009), The Supreme Court enumerated the following
elements of proximate cause:
1. The intended act is a felonious act;
2. The resulting act is a felony;
3. The resulting act is the direct, natural and logical consequence of the felonious act of the offender;

Therefore, for one to be criminally liable under the Proximate Cause doctrine, it is necessary that the offender
is performing a felonious act and since he is performing a felonious act, he becomes liable for all the resulting
crime although different from that which he intended. Provided that the resulting felony is the direct, natural
and logical consequence of his felonious act. Otherwise stated, his felonious act must be the proximate cause
of the resulting felony.

For one to be criminally liable under the Proximate Cause doctrine, it is not necessary that the offender should
have even touch the body of the victim. It suffices that the felonious act performed by the offender has
generated in the mind of the victim, fear for his life. By reason of that fear for his life the victim performed acts,
made risk that injured himself. The accused will become criminally liable.

Example;
B and G were boyfriend and girlfriend respectively. During their relationship, B promised G that he would marry
her. One day, B told G that she should wait for him outside the church at 7pm that night so they could get
married. However, instead of showing up, B sent G a letter saying that he couldn’t marry her because B
already has a wife and children. G was so heartbroken. She couldn’t live with the pain so she ended her life
and committed suicide.
Q: Is B liable for the death of G through the Proximate Cause Doctrine?
A: No. The first element of Proximate Cause is absent. Under the Family Code, breach of promise to marry is
not an actionable wrong. Thus, although the death of G is considered a felony, the intention of B is not a
felonious act.

Example;
B and G were boyfriend and girlfriend respectively. B promised G that he will marry her. However, B changed
his mind. G was so heartbroken, she went to the top floor of the nearest building. At the top, G jumped over
the ledge and committed suicide. G died. On her way down, G landed over a pedestrian. The pedestrian was
squashed by G resulting to the death of the pedestrian.

Q: Is G liable for the death of the pedestrian by virtue of the proximate cause?
A: NO. Under the Revised Penal Code, committing suicide is not considered a felony.

EFFICIENT INTERVENING CAUSE (EIC)


Efficient Intervening Force is an active force which is a distinct act absolutely foreign from the felonious act of the
offender.

In order that an act is considered an Efficient Intervening Cause, it is necessary that it is totally foreign from the
felonious act that is performed by the offender;

Proximate Cause is not always the immediate cause. At times it may be a remote cause;

Example;
A was driving his car along SLEX followed by B, by C, by D, by E. When A reached the tollgate, he stopped to
pay the toll, so B stopped as well as C and D. E however was very sleepy, he did not put to stop so he hit D, D hit
C, C hit B, B hit A. Because of the impact the car of A sustained serious damage.

Q: What is the proximate cause of the damage sustained by the car of A?


A: The Proximate Cause was E because it was the car of E which sets into motion all other cars to bump each
other. It was not the immediate cause because the immediate cause was the car of B because it is the car of B
which hit the car of A. So a PC is not always the immediate cause, at times it may be the remote cause.

Example;
A bus was going to Quezon, suddenly 4 men boarded a bus, 2 man seated at front seats and the other 2 seated
at back. While they were traversing a zigzag portion on the road, the 4 men stood up and announced a hold up.
One passenger was so afraid of the robber as he had a previous experience of robbers. He was so afraid that he
opened a window and he jumped out of a window, he fell on a cliff and he died.

Q: Are the robbers liable for the death of the passenger?


A: Yes. The robbers in announcing a holdup are committing a felonious act.

The resulting act was a felony, the resulting felony was the direct, natural and logical consequence of the
felonious act of the offenders. Were it not for the robbers announcing a hold up, there would be no fear on the
mind of the passenger. But because of the announcement, there was fear on the mind of passenger and by
reason of that fear, he made risk that caused his death. The robbers are liable for robbery with homicide because
they are liable for the death of the passenger.

Example;
X was having a siesta on the terrace of their house on a rocking chair. Suddenly he was awakened by the noise
of the children. He found out that it was coming from the backyard of their house, saw 4 boys harvesting his
mango tree. So he told the boys to come down the tree, otherwise, he will be calling the police and let them be
arrested. The boys hurriedly went down the tree. One boy from the top most portion of the tree jumped down and
his head hit a big stone. He suffered hemorrhage, thereafter he died.
Q: Is X criminally liable for the death of the boy?
A: YES. First element, the intended act is a felonious act. He was not committing a felonious act. He was just
acting his right when he said he will call the police considering that the boys were taking his mangoes, they
were committing theft. Therefore, he was just acting within his right. Since X was not committing a felonious
act, he cannot be held criminally liable for the resulting felony.

 So if you are given a problem, the first thing you should do is to determine if the person is committing a
felonious act. If not, a person cannot be held liable for the resulting felony. If he is, then he is liable for the
resulting felony.

Example;
In the same case, X told the boys, if you will not come down I have here my shotgun, I will shoot each one of
you and he fired shots in the air. The boys were so afraid and hurriedly went down, one of them jumped, fell
and suffered serious physical injuries because of his broken legs.

Q: Is X criminally liable for the injuries sustained by the boy?


A: NO. Because this time he was committing a felonious act. He was threatening to shoot the children. It is a
felonious act amounting to grave threats. Therefore, this time he is criminally liable for the resulting felony
although different from that which he intended.

 For one to be criminally liable under the Proximate Cause Doctrine, it is necessary that there is no efficient
intervening cause that has broken the chain between the felonious act and the resulting felony.

Example;
A and B, they are boyfriend and girlfriend respectively. The A promised to marry B that night. B waited in vain,
however, A did not arrive. Instead B received a text message saying that A would not be able to come, and
could not marry B because A is already a married man with 5 children. So B became so sad. Frustrated, she
began crying terribly and went out of the house, walked on the streets, not on her own rightful self. She fell on
a canal and she died.

Q: Is A the boyfriend, liable for the death of B?


A: NO. It is a settled rule that breach of promise to marry is not a felonious act. Since B was not committing a
felony, therefore, he cannot be liable for the death of A.

Example;
In the same problem, when the girl learned that the man could not marry her. She went on the top most portion
of the building, decided to commit suicide to take her own life. She jumped. However, as she was falling, she
fell on a child. The girl survived but the child was pinned down and died.

Q: Is A, the boyfriend, liable for the death of the child?


A: NO. Again, breach of promise to is not a felony. Since A was not performing a felonious act, he is not liable
for any resulting felony.

Q: is B, the girlfriend, liable for the death of the baby?


A: NO. Committing suicide is not a felony either the RPC or any special Penal law in PH jurisdiction. It is not a
felonious act. However, in performing said lawful act, she did not do so with due care. Since she did not do so
with due care, she becomes liable for a CULPABLE FELONY. So here there is a simple negligence on the part
of the said
woman, therefore, the said woman may be held liable for simple negligence resulting to homicide for the death of
the said child.

People vs. Villacorta (G.R. No. 186412, August 28, 2009)


January 23, 2002, there was a stabbing incident. Cruz was stabbed by Villacorta on the left side of his body with
a sharpened bamboo stick. He was brought to the Tondo Medical Center. He was released on the very same day
as out patient because his wound was not fatal. February 14, 2002 he was brought to San Lazaro Hospital. He
was already suffering from tetanus infection. A day after February 15 he died. The cause of his death was
tetanus infection. Villacorta was prosecuted for the crime of homicide for the death of Cruz. The lower court
convicted him.

Q: Is the accused liable for homicide?


A: NO. Supreme Court: Citing Urbano case, he cannot be convicted of the crime of homicide. Based on the
expert testimony of the doctor, the incubation period of the tetanus virus is within 14 days. In the case, it took the
victim 22 days before he died. Therefore the stab wound was without tetanus virus. Cruz may have performed
acts which brought about the tetanus virus. The stabbing was only a remote cause and the tetanus infection was
the proximate infection which brought about the death of the victim.

So Villacorta was only convicted of slight physical injuries because they were not able to prove intent to kill. First,
no evidence of motif. Second nature and number of weapon used. A sharpened bamboo stick, not even a little
weapon made of metal. Third, the nature, number and location of wound. It was only on the left side of the body.
Fourth, manner of committing the crime. After one stabbing, there was no more. So from homicide, he was only
convicted of slight physical injury punished by the lowest penalty arresto menor, 1- 30days or fine of not more
than P200.

Urbano vs. IAC (G.R. NO. 72964, September 7, 2011)


Javier was hacked by Urbano on his right palm. Javier suffered an incised wound and brought to the hospital.
There was settlement. Thereafter he was released. However, after 22 days he was brought to the hospital, he
was already suffering from tetanus poisoning. The next day he died.

Q: Is the accused liable for homicide?


A: NO. SC: same reasoning by the SC. The act committed by Javier after he was released from the hospital, the
fishing, going to the farm was considered as the proximate cause that brought about the tetanus virus on his
incised wound. Therefore he was not convicted of the crime of homicide but only physical injuries.

Example;
A and B were fighting. A stabbed B. B sustained a less serious physical injuries. B was brought to the hospital, it
was not a serious wound, however, because of the negligence or careless treatment of the doctor, this not
serious wound became a very serious wound which later on caused the death of B. The relatives of B filed a
case of homicide against A.

Q: Is A liable of homicide for the death of B? Or would you consider the careless treatment of the doctor as an
EIC?
A: A is liable for the death of B. The negligence or careless treatment of the doctor cannot be considered as an
EIC. The negligent treatment of the doctor was an active force but it is not a distinct act or fact absolutely foreign
from the felonious act of the offender. Because
precisely he needed medical intervention, he needed treatment of the doctor because he sustained a stab
wound from A. Therefore, there is a connection between the felonious act and the medical treatment. It there
for cannot be considered as an EIC. The doctors negligence would only make him liable administratively but
not criminally.

Example;
A and B were friends. After farming while they were having a drinking spree, they had a political discussion, A
was pro Pnoy and B was pro GMA. Their agreement heated, B stood up and broke a bottle of beer, stabbed A.
A was wounded. They parted ways. A was on his way home when suddenly it rained. After it rained there was
lightning and A was hit by lightning. A died. The heirs of A filed a case of homicide against B.

Q: Is B criminally liable for the death of A?


A: NO. Under the proximate cause doctrine, B is not criminally liable for the death of A because there was an
EIC that is the lightning. The lightning was an active force which is a distinct act or fact absolutely foreign from
the felonious act of the offender which was the stabbing of the victim. Therefore he cannot be held liable for
the death of A but only physical injuries sustained by the victim.

3. SITUATIONS WHEREIN A PERSON BECOMES CRIMINALLY LIABLE FOR


RESULTING FELONY ALTHOUGH DIFFERENT FROM THAT WHICH HE INTENDED:
THE

1. Abberatio Ictus (Mistake in the blow)


2. Error in Personae (Mistake in the identity);
3. Praeter intentionem;

ABERRATIO ICTUS
Aberratio Ictus is a situation wherein the offender directed a blow at his intended victim but because of poor
aim, the blow landed on another victim.

Example;
X and Y had a fist fight. X lost. However, X vowed to Y that he will have his revenge. One day, X saw Y riding
in a tricycle. In that instance, X pulled out his gun and with intent to kill, shot Y. However, due to poor aim, X hit
the tricycle driver instead. The tricycle driver died.

Q: What crime may X be convicted in so far as Y is concerned?


A: In so far as Y is concerned, X is liable for attempted murder because he intended to kill Y. He already
performed an overt act when he fired the gun with intent to kill against B. There was treachery because the
victim was totally defenseless. However, because of poor aim, it was the tricycle driver who died.

Q: What crime may X be convicted in so far as the tricycle driver is concer?


In so far as the tricycle driver is concerned, X is liable for murder. In the case of People v. Flora (G.R. No. 125909,
June 23, 2000), the Supreme Court held that treachery is appreciated in Aberratio Ictus. The Flora doctrine was
likewise adopted by the court in People v. Adrian (G.R. No. 205228, July 15, 2015).

Q: Therefore, of what crime will you charge and convict X?


A: There are two crimes committed. Against Y attempted murder, against the tricycle driver is murder. But
since this 2 crimes were brought about by a single act, it will give rise to a complex crime under Art. 48. Under
Art. 48 when a single act constitutes two or more grave

or less grave felonies, we have compound crime or a complex crime.Thus, the crime committed by X is Murder
with attempted murder because it results from the single act of the crime.

Q: In the same case as mentioned above, the tricycle driver survived but sustained a mortal wound. What crime
may be charged to X? A: As to Y, X is liable for attempted murder. As to the tricycle driver, X is liable for serious
Physical injuries only because there is no intent to kill on his part.

Q: What if when the tricycle driver was hit by the bullet, he only sustained a slight physical injury which is a
light felony, are you going to complex?
A: NO. This time you cannot complex because under Art. 48, you can only complex grave and less grave
felonies. You cannot complex a light felony. Therefore, there would be 2 cases filed separately. Attempted
murder in so far as B is concerned. Slight physical injury in so far as C is concerned. So 2 informations, 2 cases
must be filed in the court.

People v. Flora (G.R. No. 125909, June 23, 2000).


Hermogenes Flora and his brother Edwin Flora were in a party. In that party, they saw Ireneo Gallarte, the uncle
of their enemy Villanueva. As a revenge against Villanueva, the brothers shot Gallarte, but because of poor aim,
they hit Flor Espinas and killed Emerita Roma. However, the brothers succeeded in killing Gallarte.

Q: What is the liability of the brothers to the deceased Gallarte and Roma?
A: As to Gallarte and Roma, the Supreme Court held that the brothers were guilty of murder because the killing
was qualified by treachery. Treachery is present when the deceased was not given a chance to defend
themselves. Since neither Gallarte and Roma were given a chance to defend themselves, both accused were
guilty of murder.

Q: What is the liability of the brothers to the Espinas?


A: As to Flor Espinas, the brothers were guilty of attempted murder.

People v. Adriano (G.R. 205228, July 15, 2015)


Police Officers Garabiles and Santos were on patrolling the streets of Pampanga when they saw a Toyota
Corolla overtook them. The Corolla reached alongside a SUV. The Corolla cut the lane of the SUV leading the
latter to swerve and fall into a canal. 4 men alighted the Corolla and thereafter peppered the SUV with gunshots
resulting to the death of the driver. A stray bullet hit a bystander identified as Bulanan. Further investigation
showed that the accused Cabiedes was one of those men who participated in the killing of the driver of the SUV.

Q: What is the liability of the accused to the driver of the SUV?


A: As to the driver of the SUV, the accused is guilty of murder because the killing was coupled by treachery. The
accused ambushed the SUV giving the driver no chance to defend himself.

Q: What is the liability of the accused to Bulanan?


A: As to Bulanan, the accused is likewise guilty of murder. The Court held that treachery is appreciated in
aberration ictus applying the Flora doctrine.
ERROR IN PERSONAE
Error in Personae is a situation wherein the victim actually received the bullet but he was mistaken to be the
intended victim. The intended victim was not at the scene of the crime.

Effects
The effect of error in personae depends on the variance between the intended crime and the actual crime
committed;

Mitigating - If there is variance between the penalty of the intended crime and the penalty of the actual crime
committed, the lesser penalty between the two shall apply;

If there is no variance between the penalty of the intended crime and the crime actually committed, then it will
not affect the criminal liability of the offender;

Example;
A and B were fighting. A punched B so hard, he fell on the ground, his face facing the ground. A left the scene
of the crime. At that precise moment when A left, here comes the father of B who saw his poor son boxed by A
so he came to the rescue of his son and went near him. To retaliate, B took out his balisong and stabbed the
person next to him thinking that it was still his opponent A but in truth it was already his father. Let's say the
father died.

Q: What was the intended crime committed by B?


A: B intended to commit homicide because he intended to kill A, the person who boxed him.

Q: What crime did B actually commit?


A: B actually committedparricide because he killed his own father.

Q: Of what crime will you prosecute B?


A: B should be prosecuted for Parricide because that is the crime he
actually committed.
Let's say that he is now charged of parricide. Trial on the merits proceeded. The Judge found him guilty
beyond reasonable doubt of parricide.

Q: What penalty as a Judge would you impose on him?


A: The judge should impose the penalty for homicide. The penalty for parricide under Art. 246 is reclusion
perpetua to death whereas the penalty for homicide under Art. 249 is reclusion temporal. Although he
committed parricide. You have to impose upon him the penalty which is lesser and that is reclusion temporal
but in its maximum period.

Under Art. 49, in case of Error in Personae or Mistake in the Identity, when there is a variance between the
intended crime and the actual crime committed, you have to compare the 2. Whichever has a lesser penalty,
that penalty has to be imposed.

In the case the intended felony is homicide but the actual felony is parricide. Compare the penalty of the 2,
although B should be convicted of the crime of parricide, the penalty will be that of the crime with a lesser
penalty. That is reclusion temporal for homicide.

Example;
In the same problem, instead of the father coming to the rescue of B, it was the friend of B who came to his
rescue. So when A left, the

friend of B arrived and was the one stabbed by B and died. Therefore, B killed his own best friend. The crime
committed is homicide.

Q: What was B’s intended crime?


A: B intended to commit homicide.

Q: What crime did B actually commit?


A: B actually committed homicide because he killed his own best friend.

Q: What crime would you charge him of?


A: B should be charged of Homicide because that was his actual crime.

Q: After trial on the merits what penalty will you impose?


A: The penalty to be imposed against B is the penalty for homicide because there is no variance between the
intended felony and the felony actually committed. In this case, Error in Personae will not mitigate the liability of
the offender. Art. 49 will not apply.

PRATER INTENTIONEM
Praeter intentionem occurs when the consequence went beyond the intention or when the injurious result is
greater than that intended.

Praeter Intetionem is a situation wherein the offender directed the blow at his actual victim, the victim received
the blow. However, the injurious result is far greater than what is intended by the victim.

Effect
Praeter Interionem it is always a mitigating circumstance because of Art. 13 of the Revised Penal Code;

The offender has no intention to commit so grave a wrong as that committed.


Elements;
1. That the offender committed a Felony;
2. There must be a notable or notorious disparity between the means employed by the offender and the
result of the felony;

For Praeter intentionem to be considered as a mitigating circumstance, the prime element or requisite is that
there must be a notable disparity between the means employed by the offender and the resulting felony.

 Out of the means employed by the offender, no one could have anticipated or foreseen that injurious result.

Example;
H arrived home and asked W what was their dinner and the W answered that she has not yet cooked because
she was watching teleserye. Since the H was so tired, he got mad and elbowed the W. The W fell on floor and
her head hit the edge of the table and so she suffered hemorrhage. Thereafter, she died. H said he had no
intention of killing his W, he only elbowed her. However, since death is the result, it is a general criminal intent
which is presumed by law.

Q: What crime should H be prosecuted?


A: H should be prosecuted for the crime of Parricide

Q: Should H be given the benefit of Praeter intentionem?


A: YES. because no one could have foreseen that the mere act of elbowing the W, death would result. There
was a notable disparity between the means employed, the act of elbowing the W, and the resulting felony
which is death or parricide. Therefore, he should be given the benefit of mitigating circumstance.

Garcia vs. People (G.R. No. 171951)


Accused Garcia was having a karaoke with his friends late at night when deceased Chy requested the
accused to quiet down. Thereafter, accused vowed to kill Chy one day. On one instance, the accused saw the
deceased in a sari-sari store. Suddenly, the accused hit the victim in the nape with a bottle of beer and
thereafter mauled him. The deceased was able to escape and called his wife to call for police. When his wife
returned, the Chy was already lying in the floor lifeless. Autopsy report concludes that Chy died from a heart
attack brought about by emotional stress. The accused was charged with the crime of homicide.

Q: Should the accused be convicted for the crime of homicide?


A: YES. His act of mauling him was the proximate cause of his heart attack. However, he was given the
benefit of Praeter intentionem. Who would have anticipated that the mere act of mauling or boxing him, death
would result. Therefore, there was Praeter intentionem.

People vs. Noel Sales (G.R. No. 177218).


The accused Noel Sales beat his sons because they went out of the house for two days without permission.
The accused tied one of his sons to a coconut tree and thereafter hit him with a thick piece of wood.
Thereafter, the son experienced a difficulty in breathing, and his eyes were moving up and down. The son
collapsed, and died. Autopsy report suggest that the son died. According to the accused, he cannot be held
liable for parricide. He claimed that he has no intention to kill the child, he only intended to discipline his
children. However, since the victim died, death is considered a general criminal intent which is presumed by
law. Therefore, he should be held liable of parricide.

Q: Does the Proximate Cause Doctrine Apply?


A: Yes. The father in beating the son with a thick piece of wood while the child was tied on a coconut tree was
already a felonious act. Therefore the father should be liable for the resulting felony although different from that
which he intended.

Q: Should the father be given the benefit of Praeter intentionem? A: No. According to the SC, there was
no notable disparity between the act of the father hitting the said son with a thick piece of wood while being tied
on a coconut tree and the resulting felony which is death. Considering the age of the child, such act of the
father would produce and indeed produce the death of the child. Therefore it cannot b said that there is no
intention to commit so grave a wrong as that committed.

IMPOSSIBLE CRIME DOCTRINE


Impossible Crime is committed by any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or an account of the employment of
inadequate or ineffectual means.

It is not really a crime in the legal sense of the word because a crime requires a substantive change in the
outside world. Here the act dis not ripen into a crime. It was not accomplished into a crime because of its
inherent impossibility.

The offender is being punished because of his criminality and dangerousness. So although objectively, no crime
is committed, still the offender shall be punished that is why he is convicted only of Impossible Crime.

The penalty of IC is only arresto mayor or a fine of P200-P500 depending on the criminality or dangerousness of
the offender.

Elements;
For a person to be liable of Impossible Crime, the following requisites must concur;
1. That the act done would have been an offense against
persons or property;
2. That the act was done with evil intent;
3. That the act was not accomplished because of its inherent impossibility or the employment of
inadequate or ineffectual means;
4. That the act done should not constitute any other violation of the Revised Penal Code;

CRIMES AGAINST PERSON OR PROPERTY


Under the Revised Penal Code, crimes against person includes the following;
1. Parricide;
2. Murder;
3. Homicide;
4. Abortion;
5. Infanticide;
6. Duel;
7. Physical injuries;
8. Rape;

Under the Revised Penal Code, crimes against property include;


1. Robbery;
2. Brigandage;
3. Theft;
4. Usurpation or occupation of real property;
5. Estafa or swindling;
6. Malicious mischief;
7. Arson.

*Only crimes against persons and property would an IC

Example;
H and W were lawfully married. During the subsistence of their marriage, H caught W having sexual intercourse
with another man. As a result, H filed a complaint of adultery against W. As a defense, W argued that she cannot
be held liable for adultery because she was born a man and merely changed her sexual organ.

Q: Is W liable for an impossible crime of adultery?


A: NO. For a person to be held liable for impossible crime, the act committed would have been a crime against
person or property were it not for the inherent impossibility of the crime or the inadequate and ineffective means
employed. In this case, adultery is a crime against chastity. Thus, the first requisite of an impossible crime is
absent.

INTENT
It is necessary that the offender in doing the act must be incited by an evil intent.
KINDS OF INHERENTLY IMPOSSIBILITY
According to jurisprudence, there are two kinds of inherent impossibility;
1. Legal Impossibility;
2. Physical Impossibility;

Legal Impossibility
There is legal impossibility when all the intended acts even if committed would not have amounted to a crime.

Example;
X saw his enemy Y lying on a bench. He went to Y and stabbed Y 10 times not knowing that Y had already
long been dead for 2 hours due to a heart attack. Even if X performed all the acts amounting to murder, still
murder would not arise which is a crime against persons because the victim is already deceased. He is no
longer a person in the eyes of criminal law. Therefore there is Impossible Cime and what we have is legal
impossibility.

Physical Impossibility
Physical or Factual Impossibility exist when an extraneous circumstance unknown to the offender prevented
the consignation of the crime. Here, there are circumstances unknown to the offender, the inadequate control
of the offender which prevented the consignation of the crime.

Example;
A person placed his hands inside the pocket of the polo of another, intended to get the wallet of the said
person but the pocket was empty. It is an IC. Extraneous Circumstances unknown to the offender prevented
the consignation of the crime. Unknown to him the wallet was not inside his pocket. S it is an IC because it
would have amounted to theft, a crime against property.

MUST NOT CONSTITUTE ANY OTHER VIOLATION OF THE REVISED PENAL CODE
It is necessary that the act done must not be a violation of any crime under the RPC otherwise that person
would be held liable of that crime and not of an Impossible crime.

Intod vs. CA (G.R. No. 103119 October 21, 1992)


Intod, accompanied by other men, wanted to kill Palampangan. Thus, the accused peppered Palampangan’s
room with bullets. However, the intended victim was not there. Only the son-in-law and children were present
but they were not hit. Intod and his company were charged with the crime of attempted murder up to the CA.

Q: Should Intod be convicted for attempted murder?


A: NO. The Supreme Court held that an impossible crime was committed. It was unknown to the offenders that
the intended victim was not at the scene of the crime. It could have amounted to a crime against persons
which is murder. But it was inherently impossible because the victim was not there.

This decision of the SC were criticized because under the 4th element, the act must not constitute any other
violation of the RPC. When this accused peppered the house of Palampangan with bullets, they did peppered
the house with bullets. So they said, they should be liable with malicious mischief because damage was done
to the house and not IC. SC retained its decision that it is an IC and this case of Intod vs. CA was cited in the
case of Jacinto vs. People.
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 1

Jacinto vs. People (G.R. No. 162540. July 13, 2009)


A check which was supposed to be remitted was not remitted by the offender to Megafoam. Instead the check
was depositedto her own account. Since the check was not remitted, Megafoam filed a case of qualified theft
against the employee. She was convicted before the lower court up to the CA.

Q: Should the accused be convicted of theft if the check she stole was dishonored due to lack of funds?
A: NO. The Supreme Court held that the crime committed was an Impossible Crime citing the case of Intod vs.
CA. The act amounted to qualified theft. However, unknown to the said offender the check was not funded.
Therefore, she was not able to get the face value of the said check. Hence, physical circumstances unknown to
the offender prevented the consummation of the crime. We have physical or factual impossibility.

Q: What about the fact that the check was taken and was not remitted to Megafoam?
A: According to the Supreme Court, theft has been defined under Art. 308 as the taking of a property with intent
to gain the personal property of another. Therefore it is necessary that the property taken must have value
because the taking must be with intent to gain. The mere taking of a check without value would not amount to
theft because the check without value is a worthless check. Hence, the SC said that the crime committed is only
an IC.

Art. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. — Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which
induce the court to believe that said act should be made the subject of legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution of the sentence,
when a strict enforcement of the provisions of this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.

There are no common law crimes in the Philippines.

Art. 6. Consummated, frustrated, and attempted felonies.


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

2 Phases in the Commission of the crime


There are always 2 phases in the commission of the crime;
1. Subjective phase;
2. Objective phase;

Subjective Phase
The subjective phase is the portion in the commission of the act wherein the offender commences the
commission of the crime after the time that he still has control over his acts.

He may or may not proceed in the commission of the crime. He still has control over his acts

Objective Phase
From the moment the offender loses control over his acts, it is already in the objective phase of the
commission of the crime.

Stages in the Development of the Crime


The following are the stages in the development of a crime;
1. Internal Acts;
2. External Act;

Internal Acts
Internal acts are not punishable. Mere criminal thoughts will never give rise to criminal liability. There must be
an external act.

External Act
External Act are acts which includes preparatory acts and acts of execution. As a rule, preparatory Acts are not
yet punishable because they are not yet connected to a particular felony.

Example;
Conspiracy to commit a crime, proposal to commit a crime -> merely preparatory acts. Hence, as a rule they are
not punishable

ACTS OF EXECUTION
Acts of Execution is the actual act of committing the crime. We have 3 stages;
1. Attempted;
2. Frustrated; and
3. Consummated;

ATTEMPTED STAGE
There is an attempt when the offender commences the commission of a felony directly or over acts, and does
not perform all the acts of execution which should produce the felony by reason of some cause or accident
other than this own spontaneous desistance.

The offender is still in the subjective phase, the offender has still control over his acts, he may proceed in the
commission of the crime or he may desist.

The moment he desist on his own spontaneous desistance then he will no longer be held criminally liable.

Elements;
The following are the elements of attempted felony;
1. The offender commences the commission of the felony directly by overt act;

2. That he does not perform all acts of execution that would have produced the felony;
3. That his act was not stopped by his own spontaneous desistance;
4. That he was not able to perform all acts of execution by reason of some cause or accident other
than his own spontaneous desistance;

Overt Act
Overt Act refers to any external act which if allowed to continue will naturally and logically ripen into a crime.

What the law requires is that the overt act must be directly connected to the intended felony. The offender
commences the commission of the crime directly by overt act.

Directly By Overt Acts


Directly by Overt Acts means that the Overt Acts performed by the offender must be directly connected to the
intended felony.

The attempted felony that is punished by law is one which is directly connected to the overt act performed by the
offender although he has admitted the crime.

Example;
X won the lottery. X put the lottery money in a safe in his house. Y wanted to steal the lottery money in X’s
house. On that night, Y went to the house of X. In order to enter the house, Y removed the jalousies of the
window of X’s house. When Y was about to enter the house of X, a barangay tanod saw Y. Thereafter, Y was
apprehended by the barangay tanod before he could enter X’s house. Y was charged with attempted robbery.

Q: Should X be convicted of attempted robbery?


A: NO. The act of Y in removing the jalousie window of X is not directly connected to the act of robbery. The act
of removing the jalousies of the window will not necessarily ripen in to the crime of robbery because once inside,
Y may rape, may kill, may rob, etc.

Q: What is the liability of X, if any?


A: X is liable only for attempted trespass to dwelling. Removing the jalousie of the window is an overt act directly
connected to trespass to dwelling. It will necessarily ripen into the crime of trespass to dwelling. However,
because the barangay tanod apprehended Y before he could enter the house of X, he did not perform all the acts
of execution by reason or some accident other than his own spontaneous desistance.

Poeple vs. Lamahag (G.R. No. L-43530, August 3, 1935)


A person intending to rob a store made an opening on the wall of the store sufficient for his body to enter. His
intention was to rob. Before he could enter he was already apprehended.

Q: Can he be liable of attempted robbery?


A: NO. Because his OA of making an opening on the wall of the store is not an overt act directly connected to
robbery. It is only an overt act directly connected to trespassing. Hence, he can only be held liable for attempted
trespassing.

Although his intention was to commit robbery, once inside he may rob, he may rape, he may kill, he may injure
the owner of the store. Therefore, it is not an act directly connected to robbery.
Baleros vs. People (G.R. No. 138033, February 22, 2006)
The woman was awakened by a man pressing a cloth soaked with chemical on her face. The man was on top
of her, she struggled, she was able to kick the man, the man jumped out of the window. She called on the
guard and then everyone came up to her. The case filed against the man was attempted rape. The man was
convicted up to the CA of attempted rape.

Q: Was there attempted rape?


A: NO. The Supreme Court held that the overt act of pressing a cloth soaked with chemical on the face of a
woman is not an overt act directly connected to rape. The obvious intent was to make the woman unconscious
but once the woman is made unconscious, the man may rape, may touch the private parts of the woman, or he
may injure the woman, or may rob the property of the woman. Therefore he cannot be held liable for attempted
rape.
When the overt act of a person is ambiguous in so far as the intended felony is committed, what we have is an
attempt to commit an indeterminate offense which is a juridical standpoint insofar as the RPC is concerned

Indeterminate Offense
In indeterminate offense, the overt act of a person in relation to the intended felony is ambiguous. It is
necessary that the overt act must be necessarily connected to the felony. Only then he will be punished of the
said attempted felony.

Rivera vs. People (G.R. No. 166326, January 25, 2006)


The victim was mauled, hit with hollow blocks, Rivera brothers were able to pin him down on the ground.
Suddenly there was the siren of the police, so the Rivera brothers fled. The medical certificate showed that the
victim only suffered superficial injuries, only slight physical injuries, yet they were charged of attempted
murder.

Q: What is the criminal liability of the Rivera brother, if any?


A: The Rivera Brothers are liable for attempted murder. The first element was present, they boxed the victim,
they mauled him, their intention was to kill him. Second, they were not able to perform all acts of execution
because of the arrival of the police. Therefore, the non-consummation of the crime was because of a cause or
accident other than the accused's own spontaneous desistance.

Q: Why attempted murder? Why not slight physical injuries?


A: Because there was intent to kill.

Determining Intent to Kill


The following are the factors to determine whether or not there is intent to kill;
1. Evidence of motive;
2. The nature and number of weapons used by the offender;
3. The nature, number and location of the wounds inflicted on the victim;
4. Manner of committing the crime;
5. Acts and statements made by the offender before, during and after the commission of the crime;

Example;
X and Y were fighting. In the course of the fight, X pulled out a gun. Upon seeing this, Y ran away from X. With
intent to kill, X aimed the gun towards Y and pulled the trigger. At the last minute, Y evaded the bullet.

Q: Is X liable for any crime?


A: YES. The crime committed was attempted homicide or murder as the case may be. Even if the victim was not
hit, since the act of discharging the firearm was with intent to kill the victim, it was already in the attempted stage.
Such act of firing the fire arm was already an OA directly connected to the act of homicide or murder as the case
may be.

Example;
In the same problem, X aimed the gun towards Y and pulled the trigger. Y was hit in the right shoulder. Y safely
got away. Upon medical examination, the doctor said that Y’s wound will heal within 5 days.

Q: What crime was committed by X against Y?


A: X is liable for attempted homicide or murder as the case may be. The wound sustained was not fatal or not
mortal. It requires another act for the crime to be consummated. No one would die by a non- mortal or non-fatal
wound.

Example;
A shot B with intent to kill. B was hit on a vital organ. So he sustained a fatal, mortal wound. However, he
survived due to immediate medical intervention.

Q: What crime was committed by A against B?


A: It is already frustrated homicide or murder as the case may be.

People v. Labiaga (G.R. No. 02867, July 15, 2013)


Accused Labiaga was in the house of Gregorio Conde when suddenly he shot Gregorio in the forearm. Gregorio
shouted for help. One of his daughters, Judy Conde, came to his rescue. However, the accused shot Judy to the
stomach. Accused was charged with murder and frustrated murder.

Q: Whether or not the accused is guilty of frustrated murder against Gregorio Conde?
A: NO. Gregorio Conde failed to present prove that the wound he sustained was fatal. If the wound sustained by
the victim is a not fatal or not mortal, the crime is only in the attempted stage. The reason is that it is only when
the wound sustained is mortal or fatal that it can be said that the said offender has already performed all the acts
of execution which would produce the felony. However, the felony was not produced by reason of a cause
independent of his will that is the immediate medical intervention.

Example;
X and Y are enemies. In one instance, X saw Y outside his house. Angered, X took his father’s gun. The gun was
not used for a long time. Thereafter, X took aim and, with intent to kill, pulled the trigger of the gun. However, the
gun did not fire the shot. X pulled the trigger four times, yet no bullet came out. The gun was jammed.

Q: What is the liability of X, if any?


A: X is liable for homicide. The overt act of pointing the gun to Y is directly connected to the crime of homicide.
However, the gun jammed. X was prevented from performing all the acts of execution by some reason or
accident other than his own spontaneous desistance.
Example;
X and Y are enemies. In one instance, X saw Y walking in the streets. X took out his gun from his house with
the purpose of killing Y. X aimed the gun at Y. At that very moment, Y’s son ran towards Y. Upon seeing the
son, X did not shoot Y.

Q: What crime did X commit, if any?


A: Nothing. Although X commenced the commission of killing Y through overt acts, X did not perform all the
acts of execution which should produce the felony. Upon seeing the son of Y ran towards him, he voluntary
and spontaneously desisted.

Attempted Felony v. Impossible Crime


ATTEMPTED FELONY IMPOSSIBLE CRIME
In attempted felony, the crime In impossible crime, the felony
may be accomplished; cannot be accomplishment;
It is inherently impossible, or
It is not accomplished by spontaneous desistance;
the means employed is inadequate or ineffective;

Example;
X and Y are enemies. In one instance, X saw Y outside his house. Angered, X took his gun out of his house. X
took aim at Y and pulled the trigger of the gun. However, the gun did not fire the shot. X pulled the trigger
again, yet no bullet came out. Upon inspection, X found out that the gun was not loaded with bullets.

Q: What crime did X commit, if any?


A: X is liable for an impossible crime. Had the gun been loaded with bullets, X would have committed the
crime of murder. However, because the gun had no bullets, it is inherently impossible to commit the crime of
murder in any circumstance.

FRUSTRATED STAGE
There is frustrated felony when the offender performs all the acts of execution which would produce the felony
as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of
the perpetrator.

Elements:
In the case of People v. Badriago (G.R. No. 183566, May 8, 2009) the Supreme Court gave the elements of frustrated
homicide;
1. The offender performs all the acts of executions;
2. All the acts performed would produce the felony as a consequence;
3. Felony is not produced;
4. By reason of cause or accident other than the will of the perpetrator;

Example;
A wanted to kill his own father to get his inheritance immediately and wanted to be rich. Went to drug store and
bought poison. Before going home, he went to the house of his friend and told his friend "tonight I will be rich, I
will be poisoning my father, I will be a millionaire." After telling that to his friend, A ran to his house. Upon
reaching his house, he took the poison out of the plastic. Meanwhile, the friend went to the police and told plan
of A to kill the father. The friend and the police went to the house of A and the father. Upon reaching the
house, they saw A in the act of taking out the said poison from the plastic bag. A was arrested.

Q: Is A liable of attempted parricide?


A: NO. He is not yet liable of attempted parricide. The act of buying poison, taking out of the plastic are only
preparatory act. It is not yet an overt act directly connected to parricide. He may use the poison not really to kill
the father, he may use it to kill insects or pests. Therefore, he cannot be liable of attempted parricide.

Example;
A mixed the poison to the juice of the father and then he gave it to his father. The father was about to drink the
juice with poison. However, since the father was clumsy, the glass fell from the hands of the father.

Q: Is A liable of attempted parricide?


A: YES. He already liable. The moment he poured the poison in the juice of the father and he gave it to the father
for him to drink, he already performed an overt act directly connected to parricide. However, parricide was not
consummated and he was not able to perform all the acts of execution by reason of an accident. It was purely
accidental because the father was clumsy and the glass slipped from his hands.

Example;
In the same problem, after mixing the poison in the juice, he gave it to his father. The father was about to drink
the juice with a poison when A took pity on his father and had a change of heart. He immediately grabbed the
juice and threw it on the garden.

Q: Is A liable of attempted parricide?


A: NO. He is not liable of attempted parricide. The act of mixing of the poison with the juice is an overt act directly
connected to parricide, however, he was not able to perform all acts of execution by reason of his own
spontaneous desistance. Therefore, he is absolved of criminal liability. Because for one to be liable in the
attempted stage, the reason for the non-consummation of the crime must not be his own spontaneous
desistance.

Example;
In the same problem, A mixed the poison with a juice and gave it to his father. The father drank the juice and was
poisoned. Suddenly, he was already showing signs of being poisoned, he was chilling. Upon seeing his father in
that condition, A immediately administered an antidote to his father, after that he immediately rushed his father to
the hospital. The father survived. The doctor said, were it not for the antidote given by the son, the father would
have died.
Q: Is the son liable of attempted parricide?
A: NO. The moment the father drank the juice, all the acts for the performance of the crime has already been
done. The offender has already performed all acts of execution necessary to consummate the crime. However,
the crime was not consummated.

Q: Is the son liable of frustrated parricide?


A: NO. In frustrated parricide although the offender has already performed all the acts of execution, the reason
for the non- consummation of the crime must be a cause independent of his will. The reason for the non-
consummation of the crime is the own will of the son. Therefore, the son is not liable of frustrated homicide.

Q: What is the liability of the son?


A: The son is liable of physical injuries depending on the required medical intervention. 1-9 days slight physical
injuries. 10-30 days less serious physical injuries, more than 30 days serious physical injuries.

NO FRSUTRATED THEFT
In the case of People vs. Valenzuela (G.R. No. 160188, June 21, 2007) the Supreme Court held that there is
no such thing as frustrated theft. Under Art. 308, theft is committed when the person takes the personal
property of another with intent to gain without violence, force or intimidation upon persons or things without the
consent of the owner.

Theft can admit only either an attempted and consummated stage because the moment the offender gains
possession of the personal property of another, unlawful taking is already committed.

Even if he has no opportunity to dispose of the property and the moment the unlawful taking is complete, theft
is already consummated. Hence, there can be no instance of frustrated theft.

Example;
A woman went to Rustans and bought perfume. While she was sitting and the saleslady was taking the
perfume in the counter, she saw a new line of lipsticks on a glass shelf. She went there but it was locked. Saw
the key on the table and opened it, took one and slipped in inside her bag, closed the glass, placed the key
back on the table. The saleslady arrived and gave her the perfume. She was about to leave Rustans when
suddenly this certain device detected and made a sound, so the unpaid lipstick was discovered.

Q: What crime was committed by the woman?


A: The woman committed consummated Theft. Even if she has not yet left Rustans, the moment she took the
lipstick from the glass shelf, taking is already complete, theft is already consummated.

In the same problem, woman took a lipstick and slipped it inside her bag. Suddenly she has a change of heart.
She took the lipstick from her back and placed it back on the glass shelf and the closed the glass and locked it.

Q: Did the woman commit any crime?


A: YES. She is already liable of consummated theft. The moment she took the lipstick from the glass shelf and
placed it inside her bag, taking is already complete, therefore, theft is already consummated. Her change of
heart would not amount to desistance. Too late. Desistance will only lie in the attempted stage but never in the
consummated nor in the frustrated stage.

Q: What is the effect of returning back the lipstick?


A: There will only be NO civil liability. She will not be made to pay the lipstick because she returned it but
nevertheless, she is already liable for consummated theft because unlawful taking is already committed.

Example;
In the same case, the woman opened the glass shelf. She was about to take the lipstick when suddenly there
was this hand placed on top of her hand before she could even get the lipstick. Unknown to her, her acts were
being seen on a CCTV camera and the head of the administrative office immediately went to her upon seeing
that she was about to take the lipstick.
Q: Is the woman liable of any crime?
A: Yes. She is already liable of attempted theft. A note was posted on the glass shelf saying, do not open, ask for
assistance. The moment she opened it with use of the key, it shows her intent to gain. It is on the attempted
stage because she has not yet taken possession of the personal property of another.

NO FRUSTRATED RAPE
In the case of People v. Pareja (G.R. No. 188979, September 5, 2012) the Supreme Court held that rape is
consummated by the slightest penile penetration of the labia majora or pudendum of the female organ. Without
any showing of such penetration, there can be no consummated rape; at most, it can only be attempted rape or
acts of lasciviousness.”

Example;
A woman was raped. She filed a case of rape against the man. In her open court testimony, she said she was not
sure if the penetration was complete. Likewise in the medical certificate it shows that her hymen was not
lacerated, it was intact.

Q: Can the said man be liable of consummated rape?


A: YES. According to the Supreme Court, rape does not admit of any frustrated stage. Rape is consummated the
moment the penis has touched the lips or the labia of the pudendum of a woman's genitalia. It is not necessary
that there is full or complete penetration nor a hymenal laceration. The hymen may remain intact yet rape can be
committed because what is required is the penis must touch lips or the labia.

People vs. Lizada (G.R. No. 143468-71, January 24, 2003)


The man was still in his shorts. His penis has not yet even touch the genitalia of the girl. He only touched the
private parts of the girl.

Q: How come the conviction was for attempted rape and not mere acts of lasciviousness?
A: The Supreme Court convicted the accused of attempted rape taking into consideration the 3 other
consummated rape that has been done by the stepfather on the daughter. Considering that in these 3 former
acts rape had been consummated, the obvious intent of the stepfather is to rape the girl. It just so happen that he
saw the son peeping and so he went out of the room. That is the reason given.

 If that is the reason given without the said facts that there has been consummated rape for the past 3 acts, it
should only be acts of lasciviousness or at least attempted rape if there in an intent to lie. In the case, the
stepfather was still in his shorts, the penis has not yet touched even the outer portion of a woman's genitalia.
Absent the facts that there were 3 former consummated rape, it should only be acts of lasciviousness.
Because to amount to at least attempted stage, it is necessary that the penis must touch at least the outer
portion to show intent to lie. The man was still in his shorts, how can you know that there was intent to lie. It
is only a different ruling because there were 3 previous consummated rape and the SC considered all these
saying that the obvious intent of the stepfather was also to rape the daughter.

Acts of Lasciviousness v. Attempted Rape


Intent to have carnal knowledge with the girl is
There is no intent to have carnal knowledge of the girl;
evident;

MATERIAL CRIMES
Material crimes are crimes which admits stages of attempted, frustrated, and consummated.

FORMAL CRIMES
Formal crimes are crimes which does not admit any stages. It only punishes a consummated stage.
The following are considered formal crimes;
1. Physical injuries;
2. Slander;
3. Adultery;

--xXx--

Art. 7. When light felonies are punishable. — Light felonies are punishable only when they
have been consummated, with the exception of those committed against person or property.

The following are light felonies;


1. Slight Physical Injuries; (Art. 266)
2. Theft; (Art. 309, Par. 7 and 8)
3. Alteration of boundary marks; (Art. 313)
4. Malicious Mischief; (Art. 328, par. 3, Art. 329, par. 3)
5. Intriguing against honor;

As a rule, light felonies are punishable only when they are on their consummated stage. Unless the crime is
committed against person or property

Q: Why are attempted and frustrated felonies not punishable?


A: Light felonies produces such light, such insignificant, moral and material injuries. If they are not
consummated, the wrong done is so slight that there is no need of providing a penalty at all.

Q: What is the reason for the exception?


A: The commission of felonies against persons or property presupposes in the offender moral depravity.

--xXx--

Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and proposal to commit
felony are punishable only in the cases in which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony proposes its
execution to some other person or persons.

CONPIRACY PROPOSAL
A bilateral act – there must be at least two persons who
Unilateral act – only one person who decide to
agreed to the commission of
commit a felony is sufficient;
the crime;

Conspiracy v. Proposal.

ACTS OF LASCIVIOUSNESS ATTEMPTED RAPE


Likewise, the penis only touched the outer portion of
The penis only touched the outer portion of the vagina;
the vagina;
CONSPIRACY AS A CRIME
If conspiracy or proposal to commit a crime are provided in penalties by law, it is not necessary that there be an
overt act committed. The mere act of conspiring or proposing will already give rise to a crime.

The following are conspiracies as a crime;


1. Conspiracy to commit treason;
2. Conspiracy to commit rebellion;
3. Conspiracy to commit sedition;
4. Conspiracy to commit terrorism; (Special Penal Laws)

It is not necessary that there be overt acts. They are punishable acts by themselves.

Example;
A, B, C, D, and E come to an agreement to take up arms and overthrow the government and stir public uprising.
They already bought guns and other pieces of equipment. However, before they could execute their plan, they
were apprehended.

Q: Are A, B, C, D, and E criminally liable?


A: YES. They were liable for the crime of conspiracy to commit rebellion. Even though they were not able to
execute their plan, conspiring to overthrow the government is already a felony which makes them criminally
liable.

Example;
A, B, C, D, and E come to an agreement to kidnap X and thereafter exchange him for ransom. However, before
they could execute their plan, all of them were arrested.

Q: Did A, B, C, D, and E incur criminal liability?


A: NO. There is no crime of conspiracy to commit kidnapping for ransom. A, B, C, D, and E di not incur criminal
liability.

OVERT ACT IN FURTHERANCE OF THE CONSPIRACY


1. Active participation in the crime itself;
2. Lending moral assistance to his co-conspirators by being present at the commission of the crime;
3. Exerting moral ascendancy on the other co-conspirators;

CONSPIRACY AS A MEANS OF COMMITTING A CRIME


If conspiracy is only a means of committing a crime it is not yet a punishable act. The mere act of conspiring will
make the offenders co- conspirators but they are not yet punishable, they are not yet criminally liable.

Elements
In the case of People v. Castillo (G.R. No. 132895, March 10, 2004)
conspiracy is established by the presence of two factors;
1. Singularity of intent;
2. Unity in the execution of the unlawful objective;

2 kinds of Conspiracy as a means of committing a crime


1. Direct or express conspiracy;
2. Implied or Inferred Conspiracy;
Direct or Express Conspiracy
There is direct or express conspiracy when the offenders or conspirators met, planned, agreed, decided to commit a
crime. There is a preconceived plan prior to the commission of the crime.
For one to be criminally liable of direct or express conspiracy, the following elements must be present;
1. There is a prior agreement or preconceived plan;
2. Presence at the time of the commission of the crime;

Even if he is part of the agreement if at the time of the commission of the crime he failed to appear, such
failure on his part to appear at the scene of the crime would be construed by law as a desistance. Therefore,
even if he part of the agreement he will not be liable as a conspirator.

Example;
A, B and C decided to kill X on a particular date and time. On the said date and time, A and B arrived and
killed X. However, C failed to appear.

Q: Is C liable for the death of X?


A: NO. Although C was part of the agreement, he cannot be held criminally liable as a conspirator for the crime
of murder because he failed to appear at the scene of the crime. His failure to appear is construed by law as a
desistance on his part.

Example;
In the same problem but all were present. A and B were about to kill X but C performed acts preventing A and
B from committing the crime.

Q: Is C criminally liable as a conspirator for the crime of murder?


A: NO. Since C performed acts trying to prevent A and B from committing the crime, he cannot be held
criminally liable as a conspirator for the crime of murder in the said case.

General Rule;
Conspirators are liable only for the crime agreed upon. They are not liable for any crime which is not agreed
upon.

Exceptions;
1. When the other crime was committed in the presence of the other conspirators and they did not
perform acts to prevent its commission;
2. When the other crime committed was the natural consequence of the crime agreed upon; and
3. When the resulting crime is a composite crime or a special complex crime or a single indivisible
complex crime;

Example;
A, B and C decided to kill X. Went to the place where X will be passing at night time. When they saw X, A B
and C surrounded X and they all stabbed X. When X was lying on the ground, A and B left. C remained and
took the valuables of X.

Q: What is or are the criminal liabilities of A, B and C?


A: A, B and C are all liable for the crime of murder as conspirators because it is the crime agreed upon.
However, only C will be liable for the crime of theft. A and B cannot be held liable for the crime of theft because
theft was not a crime agreed upon by all of them.

Also, theft was committed in the absence of A and B. There was no opportunity for A and B to stop C in theft.
Therefore, only C will be held liable for theft.

Example;
In the same problem, C took the valuables of X in the presence of A and B. While he was taking them, A said
what about the cellphone, B what about the ring, here take it also.
Q: What is or are the criminal liabilities of A, B and C?
A: Although theft was not a crime agreed upon, all of them will be held liable of the crime of theft because
although theft was not agreed upon, it was committed in the presence of A and B and they did not perform acts to
prevent C from committing theft.

Example;
A, B and C decided to injure X to teach him a lesson. When X arrived, they surrounded him, boxed, punched, hit
X. While X was lying on the ground, seriously wounded, A inflicted a fatal wound by kicking the neck of X. X died.

Q: Who is liable for the death of X?


A:All of them are criminally liable for the death of X. They all agreed to injure X. That was their agreement. The
death of X however was the natural consequence of their agreement to injure X. Therefore, even if it is not their
intended act, since it is the natural consequence of the crime, they are all criminally liable for the death of X.

Example;
A, B and C decided to rob the house of X. They went inside the house of X. They have already taken the
valuables. On their way out however, C pushed a chair. The chair fell on floor and created a noise. The owner of
the house was awakened and began shouting upon seeing A, B and C. C shot the owner of the house. The
owner died.

Q: What is or are the criminal liabilities of A, B and C?


A: The crime agreed upon was robbery. However, by reason or on the occasion of robbery, homicide was
committed. Therefore, the resulting felony is a special complex crime.

Under Art. 294 it is robbery with homicide. Since the resulting felony is a special complex crime, which cannot be
separated from each other, all of them can be held criminally liable of the special complex crime of robbery with
homicide.

People vs. Carandang, Milan and Chua (G.R. No. 175926, July 6, 2011) All of them were charged of 2 counts of murder
and 1 count of frustrated murder. The only participation of Milan was to close the door. It was only Carandang who
shot the 3 police officers. Chua instructed Milan to finish the 3rd police officer and Milan followed him.

Q: Is there conspiracy among the accused?


A: YES. The Supreme Court held that although the participation of Milan was only to close the door, Chua was
only to order Milan to shoot the 3rd police officer, such act of Chua showed that he exercised moral ascendancy
over Milan. Therefore, since what is present here is a prior agreement to kill the police officers, mere exercise of
moral ascendancy will already make one a conspirator. It is not necessary that they actually participate in the
execution of the crime. Thus, all of them are held criminally liable.
In People vs. Garchitorena (G.R. No. 131357, August 28, 2009), the Supreme Court held that direct proof is
not necessary for one to become a conspirator because conspiracy can be proven from the acts done or
performed prior, during or subsequent to the commission of the crime.

Example;
A, B and C alighted in the house of X, they were all armed with armalites. They all went in front of the door. A
knocked at the door. When X opened the door, B fired at X. X fell on the floor. C kicked his body inside and
closed the door. All of them left still armed.

Q: Are they all conspirators for the murder of X?


A: YES. It is evident here that there is a pre conceived plan prior to the commission of the crime. Although the
only participation of A was to knock at the door and the only participation of C was to close the door, it was
obvious, there was a pre conceived plan. All of the, arrived at the same time armed with armalites. They went
in front of the door, one knocked, one fired, one closed the door, left together still armed. All of these showed
that there was a pre conceived plan to kill X. As such they are all liable as conspirators regardless of the
quantity and quality of their participation.

Implied or Inferred Conspiracy


Implied or inferred conspiracy is deduced from the mode and manner of committing the crime, there is no pre-
conceived plan but the offenders acted simultaneously in a synchronized and coordinated manner, their acts
complimenting one another towards a common criminal objective or design. T

It may happen that the conspirators do not know each other. Since the offenders acted in a synchronized and
coordinated manner, a conspiracy was established instantly, impulsively, at the spur of the moment.

Example;
X was trying to stab Y. Y evaded all the blows. Z saw that X was having a hard time stabbing Y. Z was an
enemy of Y. So Z went at the back of Y and held both hands of Y at the back and told X to stab Y which X did.

Q: Was there conspiracy between Z and X?


A: YES. An implied conspiracy was established, instantly, impulsively, at the spur of the moment. There was
no pre conceived plan but the act of Z of holding the hands of Y is a direct and positive overt act showing that
he has the same criminal design as That of X which is to kill Y.

In case of implied conspiracy, for one to be considered as a conspirator, it is necessary that the offender have
an active participation in the commission of the crime.

Mere presence at the scene of the crime, mere approval, mere acquiescence, mere knowledge of the
commission of the crime will not make one a conspirator absent any active participation. Because the basis is
on the acts performed by the offender. Unlike a preconceived plan there was a prior agreement, therefore
mere presence or exercise of moral ascendancy will make one a conspirator. In implied the conspiracy is
established based on the acts performed. Therefore, if you do not perform an act, if you are merely present
then you cannot be held a conspirator.

Example;
X was trying to stab Y. When Z saw that X was stabbing Y he shouted "sige tirahin mo pa, sa kaliwa sa kanan..."
X kept on stabbing Y.

Q: Was there conspiracy between Z and X?


A: NO. Absent any active participation, mere approval, mere acquiescence, mere knowledge of the commission
of the crime will not make one a conspirator in case of implied or inferred conspiracy.

PENALTY BETWEEN CONSPIRATORS


When conspiracy is established whether direct or express, implied or inferred, the act of one is the act of all.
Therefore, all the perpetrators in the crime will have one and the same penalty. The same penalty will be
imposed regardless of the quantity and quality of the participation. The moment conspiracy is established, it is
immaterial to determine who inflicted because all of them will have the same penalty.

If however, conspiracy is not established, the penalty will be individual in nature depending on the act that they
performed.

Example;
X and Y were fighting. X punched Y so hard, he fell down. Thereafter, X pulled out a knife with intent to kill Y.
However, instead of stabing Y, X stabbed the ground instead. Afterwards, X left. Not long after, X’s brother came
out of nowhere and stabbed Y to death.

Q: Was there conspiracy between X and his brothers?


A: NO. In the problem, there was no prior agreement between X and his brothers. Furthermore, X already left
when his brothers appeared and repeatedly stabbed Y.
Q: What is the criminal liability of X and his brothers?
A: X is guilty of physical injuries because he had no intent to kill Y. However, X’s brothers being conspirators of
each other, are equally guilty for themurder of Y.

People vs. Bokingco (G.R. No. 187356, August 10, 2011)


Bokingco killed Pasyon inside the apartment. At the time that he was killing, Reynante was inside the main
house, he was asking the wife to open the vault of the pawnshop. After killing the husband, Bokingco called
Reynante and said "tara na, patay na siya!" They fled at the same time. They were both charged for the crime of
murder. Convicted both of murder in the CA.

Q: Was there conspiracy between Bokingco and Reynante?


A: NO. The Supreme Court held that there was no conspiracy between Bokingco and Reynante in killing the
husband. While one is killing the victim the other was trying to commit another crime. They did not act in a
synchronized and coordinated manner. There was no evidence that there was a pre conceived plan because one
was committing another crime different from the other.

They are one in escaping but not in the commission of the crime. Since conspiracy was not established, the most
that is established is that they planned to commit 2 crimes simultaneously at the same time. But the charge was
only murder, there was no charge for robbery. Therefore, Bokingco was convicted, Reynante was acquitted of
the crime of murder. So absent any evidence of conspiracy, the liability is individual.

2. KINDS OF MULTIPLE CONSPIRACY


There are two kinds of multiple conspiracy;
1. Wheel or Circle Conspiracy;
2. Chain Conspiracy;

Wheel or Circle Conspiracy


Wheel or Circle Conspiracy exist when a single person or group of persons known as a hub, deals individually
with another person or group of persons known as the spokes.

Chain Conspiracy
Chain Conspiracy usually involving the distribution of narcotics or other contraband, in which there is
successive communication and cooperation in much the same way as with legitimate business operations
between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.

In Fernan vs. People (G.R. No. 145927, August 24, 2007) The Supreme Court held that what is present is a
wheel or circle conspiracy. 4 persons headed by the chief accountant acted as the hub. They enticed all other
36 employees of the DPWH to be one with them in committing fraud against the government. They falsified
LAA's and would negotiate it at a certain percentage, then one of them would compute the general voucher,
funds then will be issued as if materials will be delivered for the construction. Fernan and Torevillas were civil
engineers of the DPWH, they signed tally sheets, saying that there were deliveries when in fact these were
ghost deliveries. No actual deliveries of the materials.

CONSPIRACY IN SPECIAL PENAL LAWS


Conspiracy may be appreciated in Special Penal Laws if the law specifically provides therein.

Morillo v. People (G.R. No. 189833, February 5, 2014)


Mayor Mitra was traversing a road in his starex when he encountered a check point. He was allowed to pass
without undergoing a checkpoint. Mayor Mitra was followed by an ambulance driven by Morilla. Morilla was
flagged down in the checkpoint and upon inspection, bags of shabu were found in his possession. Morilla said
he is with Mayor Mitra. The police officers then pursued the vehicle of Mayor Mitra and upon inspection, bags
of shabu were found in the starex.

Q: Was there a conspiracy between Mayor Mitra and Morilla?


A: YES. The Supreme Court held that the accused Mitra and Morilla committed the crime of transportation of
illegal substance through conspiracy. Morilla himself admitted that he was with Mayor Mitra. This admission
was enough to establish conspiracy between them.
Go Tan v. Tan (G.R. No. 168852, September 30, 2008)
Sharica and Steven were lawfully married. However, during their marriage, Sharica filed a temporary protection
order against Steven and her in-laws. She argued that Steven and her in-laws were acting in conspiracy in
causing her physical and psychological abuse in violation of R.A. 9262 known as the Anti-Violence Against
Women and Children Act. The in-laws argued that they are not proper party to the case because R.A. 9262 is
filed only against the husband, boyfriend, or intimate partner of the woman.

Q: Whether or not R.A. 9262 may be filed against the in-laws?

A: YES. R.A. 9262 allows suppletory application of the Revised Penal Code. Hence. The i-laws may likewise be
charged of violation of R.A. 9262 if they acted in conspiracy with the husband or the man.

--xXx--

Art. 9. Grave felonies, less grave felonies and light felonies.


 Grave felonies are those to which the law attaches the capital punishment or penalties which in any
of their periods are afflictive, in accordance with Art. 25 of this Code.

Less Grave Felonies


Less grave felonies are those which the law punishes with penalties which in their maximum period are
correctional, in accordance with the above-mentioned Article

Light Felonies
Light felonies are those infractions of law for the commission of which a penalty of arrest menor or a fine not
exceeding 200 pesos or both; is provided.

3. kinds of felonies according to severity


1. Grave felonies;
2. Less grave felonies;
3. Light felonies;

--xXx--

Art. 10. Offenses not subject to the provisions of this Code.


 Offenses which are or in the future may be punishable under special laws are not subject to the
provisions of this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

Example;
What if a person convicted of a violation of a SPL? A issued a check to B for payment of an obligation. B
deposited but the check bounced. Notice of dishonor was sent. After the trial on the merits, A was found guilty of
the violation of BP 22 beyond reasonable doubt. Fine and payment of the value of the check. The court said in
case of non payment of the fine, the said convict shall suffer subsidiary imprisonment.

Q: Can a person who violated a SPL and was imposed with fine be made to suffer subsidiary imprisonment in
case of non payment of fine?
A: YES. There is no provision in B.P. 22 prohibiting the application of the Revised Penal Code, then the RPC
shall apply suppletorily or supplementarily to the provisions of Special Penal Law unless the Special Penal Law
provides otherwise.
Example of "unless"
Sec. 98 of RA 9165. It is expressly provided that the provisions of the RPC shall not apply to the violations RA
9165 or the 2002 Comprehensive Dangerous Drugs Act. The law uses the word shall.

Exception;
If the offender is a minor. In that case if the minor is penalized with life imprisonment to death, it will be
considered as reclusion perpetua to death and the nomenclature of the penalties in the RPC will now be applied
--xXx--

Art. 11. Justifying circumstances. — The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by
affinity in the same degrees and those consanguinity within the fourth civil degree,
provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the revocation was given by
the person attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger, provided that
the first and second requisites mentioned in the first circumstance of this Article are
present and that the person defending be not induced by revenge, resentment, or other
evil motive.
4. Any person who, in order to avoid an evil or injury, does not act which causes
damage to another, provided that the following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office.
6. Any person who acts in obedience to an order issued by a superior for some
lawful purpose.

CIRCUMSTANCES WHICH AFFECT THE LIABILITY OF THE OFFENDER


The following circumstances affects the criminal liability of the offender;
1. Justifying circumstances; (Art. 11)
2. Exempting circumstances; (Art. 12)
3. Mitigating Circumstances; (Art. 13)
4. Aggravating Circumstances; (Art. 14)

JUSTIFYING CIRCUMSTANCES
Justifying circumstances are those where the acts of the actor are in accordance with the law, thus he incurs no
criminal liability. Since there is no crime, there is no criminal and civil liability.

Effect of Invoking Justifying Circumstance


The moment the offender or the accused invokes any of the acts amounting to justifying circumstance, he is in
effect admitting the commission of the crime. But he wanted to evade criminal liability by invoking justifying
circumstances.

Example;
A killed B. A case of homicide was filed against A. A pleaded not guilty during the arraignment. During the pre-
trial, the counsel of A invoked self-defense. The moment the counsel said that their defense is self- defense, a
kind of justifying circumstance, the procedure in trial would be inverted.
Inverted Trial
As a rule it is the prosecution that must first present evidence, it is only after the prosecution has presented
evidence that the defense would present evidence.

If however the defense invoke any of the justifying circumstances, the trial will be inverted. It is the defense that
must first present evidence. Because he in effect admits the commission of the crime. He only wanted to avoid
liability by saying that his act was justifying.

Burden to Prove Justifying Circumstance


Therefore the burden of evidence is upon the defense to prove all the elements, all the requisites of the justifying
circumstance that he is invoking.

If the defense failed to prove the evidence or requisites of justifying circumstance that he is invoking, that will
amount to conviction because he already admitted to the commission of the crime.

SELF-DEFENSE
Self-defense is not limited to one’s life. The following is the scope of self-defense;
1. Defense of life;
2. Defense of honor or chastity;
3. Defense of property provided that it is coupled with an attack on the person entrusted with the said
property;

Elements of Self-defense
The following are the elements of self-defense;
1. Unlawful Aggression;
2. Reasonable necessity of the means employed to prevent or repel it;
3. Lack of sufficient provocation on the part of the person defending himself;

UNLAWFUL AGGRESSION
Unlawful Aggression is an attack with physical force or with a weapon as to cause injury or danger to life or
personal safety. Unlawful aggression must come from the victim.

Unlawful aggression I the primordial requisite which must at all times be present. When unlawful aggression is
absent, there is no self- defense whether complete or incomplete.

Elements of unlawful aggression


In the case of People v. Dulin (G.R. No. 171284, June 29, 2015), the Supreme Court provided the elements of unlawful
aggression;
1. There must be physical or material attack or assault;
2. The attack or assault must be actual or at least imminent;
3. The attack or assault must be unlawful;

Kinds of Unlawful Aggression


In the case of People v. Fontanilla (G.R. No. 177743, January 25, 2012), the Supreme Court held that there are two
kinds of unlawful aggression;
1. Actual or Material Unlawful Aggression;
2. Imminent Unlawful Aggression;

Actual or material unlawful Aggression means an attack with physical force or with a weapon, an offensive act that
positively determines the intent of the aggressor to cause the injury.
Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively
strong
Test for unlawful aggression
In the same case of People v. Dulin, the Supreme Court held that that the test for unlawful aggression under
the circumstance is whether the aggression from the victim put in real peril the life or personal safety of the
person defending himself. The peril must not be an imaginary threat.

Example;
X was walking along the street. Suddenly, Y went up to him. Y pointed a gun towards X. Y commanded X to
give him his wallet, watch, and cellphone otherwise he will stab him. X gave his cellphone and his wallet. When
X was about to give his watch, he suddenly grabbed the gun from Y. Now with the possession of the gun, X
ordered Y to give him back his cellphone and wallet. Instead of giving X back his belongings, Y ran away.
Thereafter, X fired a shot against Y, hitting Y in his knee. Unable to run, X approached Y and thereafter took
his belongings. X left. Thereafter, X was charged with physical injury. X argued self-defense.

Q: Is X liable for physical injury


A: NO. Although X already gained possession of the gun, the unlawful aggression did not cease. The unlawful
aggression continued because Y still had the property of X. Had X not shot Y in the knee, Y would have gotten
away with the property of X.

REASONABLE NECESSITY OF THE MEANS EMPLOYED TO PREVENT OR REPEL IT.


When you say reasonable necessity, what the law requires is rational equality or rational equivalence as determined
by the emergency. Rational is the means employed. Rationally necessary to prevent or repel it.

Reasonable necessity does not necessarily mean that when the aggressor makes use of a bolo, the person
defending must also make use of a bolo.

Factors of Reasonable Necessity


Factors to be considered in order to be said that the means employed is rationally necessary are the following;
1. Nature and the number of the weapon used by the aggressor;
2. Physical condition, size, weight and other personal circumstances of the aggressor versus that of the
person defending himself;
3. Place and location of the assault;

All of these would determine if the means employed of the person defending himself is reasonably necessary
to prevent or repel the aggression.

LACK OF SUFFICIENT PROVOCATION


There must be lack of sufficient provocation on the part of the person defending himself.

Provocation
Provocation refers to any immoral act or conduct, unjustified act or conduct which stirs a person to do wrong.

GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 2

Sufficient Provocation
Sufficient Provocation refers to an act which is adequate to stir a person to do the wrongful act and when it is
proportionate to the gravity of the act.

No Sufficient Provocation
The following circumstances show that there is no sufficient provocation on the part of the person defending
himself;
1. When no provocation at all was given;
2. When although provocation was given, it was not sufficient;
3. When although the provocation was sufficient, it did come from the person defending himself; and
4. Although provocation came from the person defending himself, it is not immediate or imminent to the
aggression;

Example;
A saw his enemy B. B was fast approaching to A with a gun on his hand. Upon seeing that B was about 10 feet
away, A immediately pulled out his balisong and he spin B who was hit on the neck and died.

Q: Was there unlawful aggression?


A: NO. There was no unlawful aggression. The mere act of holding a gun will not constitute imminent and
immediate danger on the life of the person unless the said gun is aimed at the said person. Same with bolo or
any weapon. If it is just being held by a person, it will not yet produce any imminent or immediate danger.

For a bolo to produce imminent and immediate danger, it must be held in a hacking position. Only then that it will
produce unlawful aggression.

In the example, B was only walking with a gun on his hand and it was not yet pointed or aimed to the offender.
Therefore, there was no unlawful aggression. Therefore, A should be convicted of homicide. Self-defense would
not lie in his favor.

People v. Regalario (G.R. No. 174483, March 31, 2009)


The offended party or the victim, Roland shot allegedly the barangay official Ramon. Ramon hit the back of the
head of Roland with an ice pick and continued hitting him so he would not gain balance. When the accused hit
the victim whatever inceptive unlawful aggression has been started by the victim, it has already ceased to exist.
Therefore, the accused has no more right to wound or kill the victim.

The Supreme Court held that the moment the inceptive unlawful aggression cease to exist, the person defending
himself must not kill or wound the aggressor. Retaliation is not a justifying circumstance.

Example;
W and H are husband and wife. One early morning, the husband left the house to go fishing. N, the neighbor,
upon seeing that the husband left, snuck into the house of H and W. N proceeded to the bedroom and found W
still sleeping. N proceeded to have carnal knowledge of W. Thinking that it was the husband, W allowed N to
finish. When N finished, he dressedhimself up and he told the W, "salamat! ". Upon hearing the voice, the W
realized that he is not the husband. W immediately jumped out of the bed, took the bolo and hacked N. N died. W
was prosecuted for homicide. She invoked self- defense, particularly defense of honor and chastity.

Q: Was there self-defense?


A: NO. There was no self-defense. The unlawful aggression already ceased to exist because the sexual
congress was already finished. There was no more honor to protect.

Q: If you were the judge, would you convict or acquit the accused? A: YES, I would convict the accused for the
crime of homicide, but I will give the said victim the mitigating circumstances of immediate vindication of a grave
offense and sudden impulse of passion and obfuscation. This to lower the imposable penalty.

Example;
A tried to stab B. B evaded the blow. In the course of said struggle, B gained possession of the bolo or gun
and fired at A. A died.

Q: Was there self-defense?


A: NO. Even if the unlawful aggression was started by A, the moment B gained possession of the bolo or gun,
the unlawful aggression has already ceased to exist. There was no more danger on the life of B. so when B
fired, it was not an act of retaliation which is justifying circumstance.
Example;
A woman was on her way home. Suddenly a man appeared, boxed her, dragged her on a portion of a vacant
lot, boxed her again, pinned her down, undressed her. When the man stood up to undressed himself, the
woman took the moment to get the balisong in her bag. When the man placed himself on top of the woman,
the woman stabbed the man. The man died. Prosecuted for homicide. The woman invoked self-defense
particularly defense of one’s honor and chastity.

Q: Is there self-defense?
A: YES. There was unlawful aggression since the man boxed the woman, dragged her, undressed her, pinned
her down. This is unlawful aggression sufficient to mean that she would be raped. 2 nd, it is reasonably
necessary for the woman to make use of the balisong because although the said man has no arms, you must
take into consideration of the personal circumstances of the woman versus that of the man, the physical
circumstances. Likewise, you must take into consideration the place and the occasion. It was 3 o'clock in the
morning, nobody could give help to the woman. The only means she could do to help herself and prevent the
act of rape would be to stab the man. Lastly, there was lack sufficient provocation because the woman was
merely walking on her way home. Absolutely there was no sufficient provocation coming from the woman.
Therefore, the woman was justified in killing the man. She acted in self-defense.

Example;
When the father went home, his son was crying. When he was asked by his father why he was crying, he said
he was slapped by the neighbor. When he was asked why he was slapped, the son did not answer. The father
decided to inquire from the neighbor why he slapped his son. Such inquiry angered the neighbor. The neighbor
who was at that time was gardening tried to hit the father with a rake that he was using for gardening. The first
blow and the second blow were evaded. The neighbor tried to hit again the father for the third time, the father
saw a pointed stick on the ground, took it and stabbed the neighbor. The neighbor suffered a fatal wound,
brought to the hospital and survived. The father was prosecuted for frustrated homicide. He invoked self-
defense.

Q: may the father invoke self-defense in order to be exempt from the criminal liability frustrated homicide?
A: YES. There was unlawful aggression because the neighbor tried to hit him with a rake 3 times. There was an
image of danger from his life. 2nd, the means was reasonable and necessary because tThe father went to the
house of the neighbor without any arms and at the time he was attacked, he just saw a pointed stick. That is the
only means that he could avail at the moment to protect himself. Lastly, there was lack of sufficient provocation
on the part of the father. The act of the father inquiring from the neighbor why he slapped his son was an act
within his right. It cannot be considered as sufficient provocation. It is the right of the father to know why his son
was hurt or injured by the neighbor.

Toledo vs. People (G.R. No. 158057, September 24, 2004)


The Supreme Court held that there is no such thing as accidental self- defense. You cannot invoke self-defense
and accident at the same time. Because in self-defense it is direct and positive overt act in the name of self-
preservation. The offender killed the victim so as to preserve his own life. It is direct and positive. It cannot be
done out of accident imminence. Therefore, it is inconsistent with accident.

Stand Ground When in the Right


The reason behind self-defense stand ground when in the right. Stand ground in the right means that where the
said accused is where he should be and his assailant is fast approaching, the law does not require him to retreat
because the moment he retreats he runs the risk of being stabbed at the back.

DEFENSE OF A RELATIVE
Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate,
natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity
within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the revocation was given by the person attacked, that
the one making defense had no part therein.

Elements
The following are the elements of defense of a relative;
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel it;
3. In case the provocation was given by the person attacked, the one making the defense had no part
therein;

Even if the relative, who was defended by the offender, was the one provoked the offended party, the offender
should took no part in the provocation in said situation so as to justify the defense of a relative.

Example;
H and W are husband and wife. C is the first cousin of W. In one instance, H saw C arguing with D. During that
argument, D was about to stab C. Thereafter, H immediately grabbed a stone and approached
D. H hit D with a stone. D sustained a fatal wound however he survived. H was charged with frustrated
homicide. H argues defense of relative.

Q: is H’s argument of defense of relative tenable?


A: NO. The law says that a person may defend the person or rights of his spouse, ascendants, descendants,
legitimate, natural, or adopted
brothers and sisters, or relative by affinity within the same degree. Although C is the first cousin of W and thus
related to H by affinity, C is not of the same degree mentioned by the provision. C is neither the ascendant,
descendant, legitimate, natural, or adopted brother or sister of W. Thus, the defense of relative is untenable.

Q: Are there other defenses which H can use?


A: YES. Although, C is not of the same degree as that mentioned by law, H can still argue defense of a
stranger since C in this case is a stranger.

DEFENSE OF A STRANGER
Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites
mentioned in the first circumstance of this Article are present and that the person defending be not induced by
revenge, resentment, or other evil motive.

Elements
The following are the elements of defense of a stranger;
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel the attack;
3. The person defending be not induced by revenge, resentment, or motive;

The 3rd element requires that the said offender must be disinterested and not induced by any other motive,
otherwise, defense of a stranger will not lie.

Example;
What if one night, A and B were on board a jeepney. Said jeepney was flagged down by X. Upon reaching a
dark portion of the street, X pulled a balisong and declared a hold-up. X poked A with his balisong and said
“give me your cellphone”. A did not want to give her cellphone to X. X was about to stab A when B, upon
seeing that the latter was about to stab B, immediately kicked X out of the jeepney. X, who fell from the
jeepney suffered physical injuries. B was prosecuted for serious physical injuries. B invoked defense of a
stranger.

Q: Is B be criminally liable for serious physical injuries?


A: NO. The elements of defense of a stranger is present. 1 st, there was unlawful aggression because X was
about to stab A because A did not want to give her Cellphone. 2nd, there was reasonable necessity of the
means employed because B was unarmed. All that he did was he kicked X out of the jeepney. It was
necessary for him to do said act in order for him to prevent the aggression. Lastly, in the problem, there was no
showing that B knows X, so it cannot be said that B is induced by any motive.
STATE OF NECESSITY
As a rule, it is noted that justifying circumstances are exempt from criminal as well as civil liability. However,
this paragraph of Article 11 is an exception when it comes to civil liability. Although he is not criminally liable,
he is civilly liable;

Civil liability is born not only by the accused, but all those people who benefitted in this state of emergence.
Under Art. 101 of the RPC, “In cases falling within subdivision 4 of Art 11, the persons for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may have received.

Elements
The following are the elements of state of necessity;
1. That the evil sought to be avoided actually exists;
2. That the injury feared be greater than that done to avoid it;
3. That there be no other practical and less harmful means of preventing it;

Example;
A pregnant woman met an accident. She was immediately brought to the hospital. Because of the said dire
situation, the doctor who was in charge of the pregnant woman has to make a decision, that is to save only one
life, either the life of the woman or the baby that she is carrying. The doctor chose to save the life of the woman.
Because of that, the fetus died. Prosecuted for abortion, the doctor invoked the doctrine of state of necessity.

Q: Is the doctor liable for abortion?


A: NO. The elements of state of necessity are all present. The evil sought to be avoided actually exist because
the life of the baby and the mother is in danger. 2 nd, The injury (death of the pregnant woman) is greater than that
of the death of the fetus. Lastly, there was no other less practical or harmful means of preventing it. The situation
was an emergency. The woman had no relatives with her so the doctor has to decide immediately—either to
save the life of the mother or the fetus. Therefore the doctor should be absolved from criminal liability.

Example;
What if on a taxi a family was on board. Said taxi was traversing ESDA during night time. Suddenly, without any
warning, a truck appeared in front of him. If he would go forward, he would be hitting the buses. If he swerved to
the right, he would be hitting bystanders. If he swerved to the left, he would hit a store. So the taxi driver chose to
swerve to the left, hit the store thereby causing damage. Prosecuted for reckless imprudence resulting to
damage to property, the taxi driver invoked the 4th justifying circumstances.

Q: Is the taxi criminally liable for reckless imprudence resulting to damage to property?
A: NO. The elements are all present. 1 st, the evil sought to be avoided actually exist because there was a
collision. 2nd, the injury feared (death) was greater than that done. Lastly, there was no other practical and less
harmful means of preventing it. Aside from these 3 requisites stated by the law, it should be added that the
necessity must not be due to the negligence or violation of the law by the actor. In this case, there was a warning
to the taxi driver not to enter the street, yet he proceeded. It is through his negligence that caused the state of
necessity, therefore he is criminally and civilly liable.

FULFILMENT OF A DUTY OR IN A LAWFUL EXERCISE OF A RIGHT OR OFFICE


Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

Elements:
The following are the elements of fulfillment of a duty or in a lawful exercise of office;
1. Accused acted in the performance of a duty or in the lawful exercise of a right or office;
2. Injury caused or offense committed be the necessary consequence of the due performance of duty or
the lawful exercise of such right or office;
It is important to note that the injury is the necessary consequence of the lawful exercise of duty.

OBEDIENCE TO AN ORDER ISSUED BY A SUPERIOR FOR SOME LAWFUL PURPOSE.


Any person who acts in obedience to an order issued by a superior for some lawful purpose.

Elements
The following are the elements;
1. An order has been issued by a superior;
2. Such order must be for some lawful purpose;
3. Means used by the subordinate to carry out said order is lawful;

Example;
What if a warrant of arrest was issued by the court against X. The chief of police handed the warrant to a
group of police and instructed them to arrest X, and if X would refuse to be arrested, they can immobilize
X. So the group headed by Police Officer Y received an information that X lived in a certain province. Police
Officer Y, together with his group went to said province and was able to verify that X actually lived there.
Police Officer Y thereafter went to the location of X. Police Officer Y, upon seeing X who was at that time
was cultivating the soil, immediately fired at X. Thereafter, X dies. Prosecuted for murder, Police Officer Y
invoked two justifying circumstances: lawful duty and acted in obedience to a lawful order.

Q: Can police officer Y invoke the justifying circumstance of lawful exercise of duty?
A: NO. Although the accused acted in the performance of his duty by obeying the orders of his officer to arrest
X by the chief of police by virtue of the warrant of arrest issued by the court, the injury committed was not the
necessary consequence of the due performance of such right because at that time, X was just cultivating his
soil.

Q: Can the accused use the defense of obedience to a lawful order? A: NO. Although there was a lawful
order by his superior to was arrest and immobilize X if he refuses to be arrested and the purpose was lawful,
the means employed by Police Officer Y, where his order was arrest and in case of resistance is to immobilize
X was not performed. X was merely cultivating his soil and was not resisting arrest at that time.

Example;
X was convicted by final judgment for the crime of homicide. When X was about to be transferred to a
maximum security prison, he suddenly escaped. Police officer Y was ordered by the jail warden to retrieve X. Y
thereafter pursued X. Knowing that he was being pursued, X went to a market and grabbed a 5 year old child
as hostage. X pointed a knife towards the neck of the child, and he told Y not to pursue him, otherwise he will
kill the child. However the child cried. The crying child started to annoy X to the point that he was about to kill
the child. However, sensing that X was about to stab the child. X fired a shot towards X. X suffered a mortal
wound and thereafter died. Y was charged with homicide.

Q: What defenses can Y utilize?


A: Y can make us of the justifying circumstance of performance of fulfillment of a duty or in a lawful exercise of
office. As a police officer, Y acted in the performance of his duty in pursing X, an escaped

convict. Likewise, the injury caused to X was the necessary consequence of the fulfillment of Y’s duties,
otherwise X will kill the child. Y can also use the justifying circumstance of defense of stranger.

BATTERED WOMAN SYNDROME


Battered Woman Syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms
found in women living in battering relationships as a result of cumulative abuse.

Battered Woman
Anti-Violence against Women and their Children Act of 2004 (R.A. 9262) defines battered woman as a battered
woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he wants her to do without concern for her rights.

Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to
be classified as a battered woman, the couple must go through the battering cycle at least twice.

Cycle of violence
In the case of People v. Genosa (G.R. No. 135981, January 15, 2004) the Supreme Court held that the battered woman
syndrome is characterized by the so-called cycle of violence, which has three phases;
1. The tension-building phase;
2. The acute battering incident; and
3. The tranquil, loving (or, at least, nonviolent) phase;

Tension Building Phase


During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another
form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way.

All the woman wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however,
proves to be double- edged, because her placatory and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

Acute Battering Incident


The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. At
this stage, the woman has a sense of detachment from the attack and the terrible pain, although she may later
clearly remember every detail.

Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering
incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get
hurt.

Tranquil or Loving Phase


During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a
tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make
up for it, begging for her forgiveness and promising never to beat her again.
On the other hand, the battered woman also tries to convince herself that the battery will never happen again;
that her partner will change for the better; and that this good, gentle and caring man is the real person whom
she loves.

No Criminal Liability and Civil Liability


Battered Woman Syndrome is akin to akin to justifying. It is even better that self-defense because in self-
defense, you have to prove that the elements are present. However, in battered woman syndrome, what
should be proven is that the wife is suffering from battered woman syndrome. It is through the expert testimony
of the psychiatrist who will prove that the wife is suffering from battered woman syndrome. If this is proven, she
is absolved from criminal and civil liability.

Art. 12. Circumstances which exempt from criminal liability. — the following are exempt from
criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law defines as a
felony (delito), the court shall order his confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission
of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under fifteen, unless he has acted with
discernment, in which case, such minor shall be proceeded against in accordance with
the provisions of Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the court, in conformably with the
provisions of this and the preceding paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education otherwise, he shall be committed to the care
of some institution or person mentioned in said Article 80.
4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.
5. Any person who act under the compulsion of irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear of an equal or
greater injury.
7. Any person who fails to perform an act required by law, when prevented by some
lawful insuperable cause.

EXEMPTING CIRCUMSTANCE
Exempting Circumstance are those grounds for exemption from punishment because there is wanting in the
agent of the crime any of the conditions which makes the act voluntary or negligent.

INSANITY AND IMBECILITY


In this paragraph there are two exempting circumstances;
1. Imbecility;
2. Insanity;

Just like exempting circumstance, imbecility and insanity are both admission and avoidance. In effect, invoking
insanity and imbecility is tantamount to admitting the crime. But in order to avoid criminal liability, he invokes
that he is either insane or imbecile

Imbecile
An imbecile is one who is already advanced in age but only have a thinking of a child between 2 and 7. There is
no intelligence, an element of voluntariness.

Imbecility is exempting under any circumstance.

Insanity
Insanity refers to the mental aberrational background or disease of the mind and must completely impair the
intelligence of the accused.

Insanity is not exempting under any circumstance. If it can be shown that he committed the crime in lucid interval,
he is liable.

Presumption of Sanity
In your civil code, it is presumed that the person is sane. Therefore the burden of evidence is on the defense.
Therefore, all the accused has to do is to prove that he was insane when he committed the crime.

Example;
A killed B and stabbed him many times. A was prosecuted for murder. The defense tried to prove that was he
was insane. To prove insanity, the defense presented the father of A, who testified that his son would go out of
their home naked and thereafter return. Second, his son was in and out of the mental institution. Third, his son
would steal the jewelries of his mother and would sell it at an extreme low price. These were the evidence
presented by the defense.
Q: Can the son be acquitted because of insanity?
A: NO. The father’s testimony, instead of proving that A was insane, established otherwise. First, an insane
person would not know where his house is. Second, A was in and out of the mental institution. Third, an insane
person would not know that a thing has a value (considering the evidence that the son sold the jewelries of the
mother at a low price)

Example;
A killed B. A stated that a week prior to the killing, he could not sleep and there was a voice that kept nagging
him, “Kill B, kill B.” And so he killed B, so he followed the voice. He pleaded guilty but his defense was insanity.

Q: Will A be acquitted due to insanity?


A: NO. In the case of People v. Antonio (G.R. No. 14426, November 27, 2002) the Supreme Court held that
mere mental disturbance, mere craziness is not the insanity contemplated by the law. It is the insanity which
would deprive the offender the capacity to distinguish right from wrong and the consequences of his act.

In the case of People v. Gimena (G.R. No. L-3387, February 6, 1931), an old case, sleep walking or
somnambulism is also considered as akin to insanity. He did not know what he was doing at that time when he
killed the victim. Therefore, there is no criminal liability.

MINORITY
The second and third circumstance was already amended by R.A. 9344 or the Juvenile Justice and Welfare Act of 2006.
This refers to a child in conflict of the law. A child in conflict with the law is a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws.
Criminal Liability
R.A. 9344, if a child committed a felony when he is 15 or below, he is exempted from criminal liability. If he is
over 15 but below 18, but he did not act with discernment, he is exempted from criminal liability. If he is over 15
but below 18 and he acted with discernment, he is not exempted from criminal liability and he will be
prosecuted just like any other criminal.

So, if the offender is 16, therefore he is over 15 but below 18, and he committed a crime and acted with
discernment. During the trial, it was established and proven that he is guilty beyond reasonable doubt. There is
already a pronouncement of a judgment of civil liability.

Suspension of Sentence
Under Sec. 38 of R.A. 9344, once the child who is under 18 years of age at the time of the commission of the
crime was found guilty of the offense charged the court shall determine and ascertain any civil liability which
may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under suspended sentence, without need of application.
Provided however, that the suspension of the sentence shall still be applied even if the juvenile is already 18
years of age or more at the time of the pronouncement of his guilt. Therefore, as long as he is 18 years and
below at the time of the commission of the crime, even if he is above 18 at the promulgation of the judgment,
he can still benefit from the suspended sentence.

Under Section 40 of R.A. 9344, if a child is under suspended sentence, the court shall decide to discharge or
to extend the sentence for a specific period of time or until the child attains the maximum age of
21. Although there is automatic suspension, it is tempered by Section
40. Therefore, the maximum limit is 21 years old.

People v. Sarcia (G.R. No. 169641, September 10, 2009)


The accused was convicted of statutory rape. In this case, the SC ruled that the law should be given a
retroactive application. Section 36 of the act provided that persons who have been convicted and are serving
sentence at the time of the effectivity of the act and who were below 18 at the time of the commission of the
offense for which they were convicted and are serving sentence shall be given a retroactive application of the
act.

The SC also ruled that although the crime committed is a heinous crime, the accused can still be given a
suspension of the sentence. Section 38 does not distinguish the nature of the crime, be it heinous, capital, or
light offense, the child is entitled to suspension of sentence.
However, the SC ruled that considering the age of Sarcia (already 31), he cannot be given anymore the benefit
of suspension. Although he committed the crime when he was 17 years old, the maximum age is 21.

The only benefit that was available to him was that he shall serve his sentence in an agricultural camp and
other training facilities.

People v. Mantalaba (G.R. No. 186227, July20, 2011)


The same case was applied in People vs Mantalaba. They have the very same issues. The case is about the
sale of illegal drugs involving minors. In this case, the SC remanded the CA. The CA should have

suspended the sentence because at that time the law was enacted and was on appeal to the CA, the accused
was 20 years of age, hence he is entitled to the automatic suspension of his sentence.

ACT OF DISCERNMENT
In the case of Madali v. People (G.R. No. 180380, August 4, 2009), there is an act of discernment when the
minor knows the consequences and circumstances of his act. Discernment is that mental capacity of a minor to
fully appreciate the consequences of his unlawful act. Such capacity may be known and should be determined by
taking into consideration all the facts and circumstances.

In this case, the accused who was 16 years old at the time of the commission of the crime, warned the witness
not to reveal their hideous act, otherwise, he (accused) and his co-accused would kill him. Therefore, he knew
that killing the victim was a condemnable act and should be kept in secrecy. He fully appreciated the
consequences for his unlawful act.

ACCIDENT
In the case of People v. Del Cruz (G.R. No. 187683, February 11, 2010) An accident is an occurrence that happens
outside the sway of our will, and although it comes about through some act of our will, it lies beyond the bounds of
humanly foreseeable consequences.

Elements;
1. A person is performing a lawful act;
2. With due care;
3. He causes injury to another by mere accident;
4. Without fault or intention causing it;

Note that although exempting, as a rule, there is no criminal liability but there is civil liability. However, paragraph
4 (accident) is an exception. There are no criminal liability and civil liability. Accident is akin to justifying
circumstance because the offender was performing a lawful act with due care.

Example;
A is a prisoner. He was about to be investigated and was escorted to the investigation room. Before reaching the
investigating room, A grabbed the service pistol of the officer who was accompanying him to the investigating
room. The police tried to get back his pistol, and in the course of the fight, the pistol was fired accidentally and A
was hit. Thereafter, A died. The police officer was prosecuted for homicide.

Q: Is the officer liable for homicide?


A: YES. The police was performing a lawful act in trying to get back his property, and that is his pistol. He caused
an injury by accident. He was performing an act with due care because there’s no other way to get back the
pistol. He causes an injury through accident because there was no intention on his part to kill A.
Example;
A police officer saw two men fighting on a street. They were hitting each other. The police tried to pacify the two
men, but they won’t stop. So what the police officer did was that he fired shots to pacify the men. However, one
of the stray bullets landed on the child. Unfortunately the child died. The police officer was prosecuted for
homicide. As a defense, the police officer invoked accident

Q: Is the police officer liable for homicide?


A: NO. Although the police officer is performing a lawful act in pacifying the two men are fighting on the street,
he did not perform it with due care. Considering that it was a community, he knew that a stray bullet would
have landed on any person. He should not have fired shots. The police officer is liable for reckless imprudence
resulting to homicide, a culpable felony.

IRRESISTIBLE FORCE
Any person who act under the compulsion of irresistible force.

Elements;
1. There must be Compulsion is by means of physical force;
2. Physical force must be irresistible;
3. Physical force must come from a third person;

In irresistible force, the offender must be reduced as a mere instrument, that he is not acting in his will.
Therefore, if he is acting against his will, voluntariness is absent.

UNCONTROLLABLE FEAR
Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.

Elements;
1. Existence of an uncontrollable fear;
2. Fear must be real and imminent;
3. Fear of an injury is greater than or equal to that committed;

It is necessary by the means employed by the third person, it would cause a person to suffer uncontrollable
fear. Again, he is reduced as a mere instrument such that he acted against his will. It is necessary that such
fear must be of imminence that an ordinary man cannot stand. When there is an existence of uncontrollable
force or fear there is lack of freedom of action—an element of voluntariness. Therefore, the person totally has
no free will.

Even if there was force employed but the person has a choice to do the act or not, this exempting provision will
not lie.

Example;
A farmer and his carabao was on his way home. On his way home, he heard gun shots, so he went to the
place where he heard the gun shots. He hid behind a tree and saw two men shooting X. X way already lying
on the ground. The farmer was so shocked and afraid that he tried to leave the place. However, when he was
about to leave, he stepped on the dried leaves and caused a noise. The two men saw him. One of the men
pointed the gun at the farmer and told him to come near them. Afraid for his life, the farmer obeyed. The men,
pointing the gun at the farmer told him to bury X lying on the ground. The farmer said, “No, I don’t want to.” “If
you will not bury X, we will shoot you”, said one of the men. The farmer was so afraid and so he dug the
ground and buried X.

Q: Is the farmer criminally liable together with the two men?


A: YES. There was an uncontrollable fear when the farmer saw that the two men shot X. If the two men can
shoot X, they can also shoot him. Therefore, there was an uncontrollable fear and it was real and imminent.
The farmer’s fear is of an injury is greater than or equal to that committed because his life is more important.
Therefore all the elements are present, he is not liable
Example;
I the same problem, the farmer was told that If he will not bury X, they will shoot and kill his carabao. The farmer
was so afraid. His carabao was his only means of living. And so, he buried X.

Q: Is the farmer criminally liable together with the two men?


A: YES. There was an uncontrollable fear and it is real and imminent because the farmer saw that the two men
shot X. If the two men can shoot X, they can also shoot the carabao. However, the third element is wanting. The
death of the carabao is not equal to or greater than the life of the human.

Example;
In the same problem, the two men told the farmer that if the farmer will not bury X, they will go to his house, rape
his wife, thereafter kill her and his children and burn his house. His family is the most important people in his life.
Therefore, he was constrained to bury X.

Q: Is the farmer criminally liable?


A: NO. Although there is an existence of an uncontrollable fear because, his wife would be raped, his children
would be killed and his house would be burned, the 2nd element is not present. The fear is not present. It is in
the future, speculative. Imagine, the two men would still have to go to the house of the farmer and look for his
wife and children. By that time, the farmer had already gone to his house and warned his family. He could also
have reported the killing of X. So his fear is not real imminent. Imaginative not present.

Ty v. People (G.R. No. 149275, September 27, 2004)


In the case of Vicky Ty, she was accused of issuing bouncing checks. Vicky Ty’s defense was that she feared
that her ailing mother who was confined in the hospital would commit suicide because of the hospital’s ill
treatment. So she was compelled to issue unfunded checks for her mother to be discharged. In this case, yes
there is an uncontrollable fear. However, her fear was not real and imminent. It is mere imaginative, speculative.
It is not now, or not present.

Q: How about state of necessity?


A: NO. The threat of the mother does not actually exist because the threat is in the future. Therefore state of
necessity is not present. The Supreme Court ruled that she was not in state of necessity. Because she has
several jewelries. She could have sold the jewelries to pay for the hospital expenses

LAWFUL AND INSUPERABLE CASUE


Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause.

Elements;
1. An act is required by law to be done;
2. A person fails to perform such act;
3. Failure to perform such act was due to some lawful or insuperable cause;

No Civil Liability
Note that it is one of the instances in exempting circumstances that the actor is exempt from both criminal and
civil liability. It is akin to a justifying circumstance because what prevented the offender from performing a lawful
act is a lawful cause.
Example;
For example, there is a war in which the Philippines is involved. A, B, and C conspired to commit treason
against the government. A, one of the conspirators went to the priest and confided to the priest that there was
conspiracy between B and C to commit treason against the government. Despite knowledge on the conspiracy
to commit treason, the priest did not immediately divulge it to the police. Under Art 116, the priest is criminally
liable for misprision of treason, for not divulging the conspiracy to commit treason. However, the priest failed to
perform such act due to a lawful cause. Under your rules on evidence, a confession made to a priest is
considered as a privileged communication. Therefore the priest does not incur any criminal liability.
EXEMPTING V. JUSTIFYING
EXEMPTING JUSTIFYING
The act is legal; The act is criminal;
There is no crime, hence there There is a crime, hence there is
is no criminal; a criminal;
Since there is a crime, there is criminal liability, although he is
Since there is no crime, there is no criminal and exempted therefrom, and
civil liabilities; there are civil liabilities.

The emphasis of the law is on The emphasis of the law is on


the act; i.e. self-defense. the actor;
Cannot be invoked in Quasi- offenses, i.e.
Can be invoked in quasi- offenses;
reckless
imprudence;

Article 13.Mitigating circumstances. - The following are mitigating circumstances;


1. Those mentioned in the preceding chapter, when all the requisites necessary to justify or to
exempt from criminal liability in the respective cases are not attendant.
2. That the offender is under eighteen year of age or over seventy years. In the case of the minor,
he shall be proceeded against in accordance with the provisions of Art. 80.
3. That the offender had no intention to commit so grave a wrong as that committed.
4. That sufficient provocation or threat on the part of the offended party immediately preceded
the act.
5. That the act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same
degrees.
6. That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or
that he had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which
thus restricts his means of action, defense, or communications with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and analogous to those above
mentioned.

MITIGATING CIRCUMSTANCE
Mitigating Circumstances are those circumstances which if present or attendant in the commission of a felony
would reduce the imposable penalty because it shows lesser perversity or criminality of the offender.

Mitigating circumstances need not be alleged in the information in order to be appreciated by the court provided
that such circumstance is shown and proven during the trial.

There is a lesser criminality on the part of the offender because the offender acted with the diminution of any of
the elements of voluntariness.

There is a diminution on the following;


1. Criminal intent;
2. Freedom of action; or
3. Intelligence.

Kinds of mitigating Circumstance


There are 2 kinds of mitigating circumstance;
1. Ordinary Mitigating Circumstance;
2. Privilege Mitigating Circumstance;

Ordinary Mitigating Circumstance


An Ordinary Mitigating Circumstance is one which may be offset by a generic aggravating circumstance
aggravating circumstance. If an ordinary mitigating circumstance is not offset by a generic ac it would reduce the
imposable penalty to its minimum period.

Privilege Mitigating Circumstance


A Privilege Mitigating Circumstance is one which cannot be offset by any ac and the effect of privilege mitigating
circumstance is to reduce the imposable penalty not only to its period but by one or more degrees

*If in the computation of penalties there’re aggravating circumstances, mitigating circumstances, if there is a
privilege mitigating circumstance, that presence of privilege mitigating circumstance takes preference over all
other things. Before you can even the appropriate penalty, you still have to first consider the presence of the
privilege mitigating circumstance. That is how important that is why it’s privileged.

Ordinary Mitigating v. Privilege Mitigating


ORDINARY MITIGATING PRIVILEGE MITIGATING
Can be offset by generic Cannot be offset by any kind of
aggravating circumstance; aggravating circumstance;
Lowers the penalty to the minimum period except when there are two ordinary
mitigating circumstance in which case the penalty is
lowered by one degree only;
Lowers the penalty by one or two
degrees;

Not considered in the determination of the proper penalty when the penalty
prescribed by law for the single crime is a single indivisible
penalty;
Always considered regardless of
the penalty imposed’

INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCE


Incomplete Justifying or exempting circumstances are those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal liability in the respective cases are not attendant.

Privilege Mitigating or Ordinary Mitigating


The following are the rules to determine whether an incomplete justifying or incomplete exempting
circumstance should be treated as privilege or ordinary mitigating;
1. If majority of the elements necessary to justify the act or to exempt from liability are present, then it’s
treated as privilege mitigating circumstance;
2. If less than the majority is present, then it is an ordinary mitigating circumstance which can be offset
by a generic aggravating circumstance;
3. If the elements necessary to justify the act or to exempt from criminal liability is only 2, the presence
of 1 element is already a privilege mitigating circumstance .

Incomplete Self-Defense
In case of incomplete self-defense, incomplete defense of a relative, incomplete defense of a stranger, there
must always be unlawful aggression in order for the mc to mitigate.
It is only ordinary mitigating if only the element of unlawful aggression is present, the incomplete self-defense
should be treated as an Ordinary.

It is privilege mitigating circumstance if aside from unlawful aggression, another element but not all is present,
it is to be treated as a privilege mitigating circumstance .

Example;
A was running in a subdivision with a bolo, he was hacking all those he passed by. So the residents called for
police assistance. The police arrived headed by police officer X. They called on A to put down his weapon but
A instead of laying down his weapon, advanced towards the police with the bolo in his hands in a hacking
position in the act of hacking the police officers. So X immediately fired at A. He hit the hands and legs of A.
non-fatal wounds. A slam on the ground face facing the ground. At that particular moment, X went to A, got his
bolo and then fired shot at the head of A and A died. X was prosecuted for murder, police officer invoked 2
justifying circumstance. We have self-defense and fulfillment of duty.

Q: Is there self-defense or at least incomplete self-defense?


A: NO. There’s no self-defense because at the time X shot the head of A, A was already lying on the ground.
Whatever inceptive unlawful aggression he has commenced, it has ceased to exist from the time the fatal blow
was inflicted on him. Therefore, there was no unlawful aggression. Since unlawful aggression is the element
that is wanting. There’s no self-defense, neither is there incomplete self-defense.

Q: Is there fulfillment of duty?


A: NO. There are only 2 elements in fulfillment of duty, 1stelement - that the accused acted in the due
performance of his duty or in lawful exercise of his proper office. It is present right because the police officer
went there because the residents asked for police assistance. They went there to maintain peace and order.
The 1st element is present. The 2nd element – that the injury caused is an unavoidable consequence of the
due performance of a duty. The 2nd element is

absent. The act of X in shooting the head of A is not a necessary consequence of the due performance of his
duty. Therefore, based on the rule that if there are only 2 elements necessary to justify the act and the presence
of 1 is already considered as the majority and it is considered as a privilege mitigating circumstance . Therefore,
in this case, there is an incomplete fulfillment of duty which is a privilege mitigating circumstance which may
lower the imposable penalty by degrees not only by period.

MINORITY/SENILITY
That the offender is under eighteen year of age or over seventy years. In the case of the minor, he shall be
proceeded against in accordance with the provisions of Art. 80.

There are 2 mitigating circumstance here;


1. Minority;
2. Seniority;

Minority
Remember that if minority is not exempting, it is always and always a privilege mitigating circumstance. Never an
ordinary mitigating circumstance

So if the offender is over 15 but below 18, and he acted with discernment, it is not exempting but it is a privilege
mitigating circumstance .

Senility
Senility (a person over age70) is generally an ordinary mitigating circumstance.
[Prosecutor Garcia: In your book there are instances wherein seniority shall be considered as a privilege
mitigating circumstance , when the crime committed by the person over 70 year old is punishable by death, death
shall not be imposed on him. Or when he has already been convicted it shall be computed to reclusion perpetua.
These provisions of the RPC are no longer applicable at the moment. At the moment because we have RA 9346
which prohibits the imposition of death penalty on whoever be the offender. Then senility, at the moment is only
an omc. I am emphasizing ‘at the moment’ because at the moment the reign of P.Noy ends, the new president
may bring back death penalty. Then there will now be again a circumstance where seniority will be a privilege
mitigating circumstance . But at the moment, we have no death penalty that may be imposed.]

PRAETER INTENTIONEM
That the offender had no intention to commit so grave a wrong as that committed.
We have already studied this in Art. 4. This is praeter intentionem. Elements;

1. The offender committed a felony;


2. There must be a notable or notorious disparity between the means employed by offender and the result
felony.

So for praeter intentionem, for this mitigating circumstance to lie, it is necessary that there must be a notable or
notorious disparity between the means employed and the resulting felony. That is, out of the means employed by
the offender, no one could have anticipated that the resulting felony would come.
Example;
A and B were fighting, A boxed B, B boxed A, A retaliated and boxed B again. When A boxed B, B’s head hit a
cemented wall and so he suffered cerebral hemorrhage and thereafter caused his death.

Q: Is A criminally liable for the death of B?


A: YES. When A boxed B, he was committing a felonious act. Therefore he is criminally liable for the resulting
felony although it be different from which he intended.

Q: But can he be given the benefit of praeter intentionem that he has no intention to commit so grave a wrong
as that committed?
A: YES. There was a notable disparity between the means employed by the offender and the resulting felony.
Who could have anticipated that by the mere act of boxing death would result. Therefore, he should be given
the benefit of prater intentionem.

Example;
In the same problem A and B were fighting by means of fist, the suddenly, A who was losing pulled out a
balisong or a fan knife and stabbed B on the neck, a fatal wound. B died. A was prosecuted for homicide. He
said he had no intention to commit a wrong so grave as that committed, no intention to kill B.

Q: Can A benefit from praeter intentionem that he has no intention to commit so grave a wrong as that
committed?
A: No, because there was no notable disparity in the between means employed – stabbing on the neck using a
balisong or fan knife resulting to death. In fact, the act of the victim of stabbing would produce, and did produce
the death of the victim. Therefore, praeter intentionem would not lie in favor of the accused.

SUFFICIENT PROVOCATION OR THREAT


That sufficient provocation or threat on the part of the offended party immediately preceded the act.

There must be a sufficient provocation or threat on the part of the offended party and it must immediately
precede the commission of the crime.

The following are the elements of sufficient provocation;


1. The provocation must be sufficient;
2. It must be immediate to the commission of the crime;
3. it must originate from the offended party;

Provocation
Provocation is any unjust or immoral act or conduct on the part of the offended party which is capable of
inciting, exciting or inflating(?) another.

Q: When is provocation is sufficient?


A: For provocation to be sufficient, there must be 2 elements;

1. It must be adequate to stir a person to commit a wrongful act;


2. It must be proportionate to the gravity of the crime;

Immediate
The 2nd element requires that the provocation must be immediate to the commission of the crime.

The word immediate here does not allow a lapse of time. There must be no lapse of time between the
provocation and the commission of the crime.

Example;
There was this long line of evacuees, victims of Pablo who are to be given reliefs. A was 5 th on the line, suddenly,
X inserted himself in front of A. This angered A, A told X to place himself at the end of the line but X didn’t want
because he was so hungry. This angered A, and so A pulled out his bolo and hacked X at the back. A was
prosecuted for homicide.

Q: Is the mitigating circumstance of sufficient provocation on the part of the offended party justified?
A: NO. Although the act of X in inserting himself to the line is an act adequate to stir a person to commit a
wrongful act, the 2nd element is absent – it is not proportionate to the gravity of the act. The act of killing is not
proportionate to the act of X of placing himself in front of A in a long line. Therefore, sufficient provocation as a
mc is not present so as to reduce the imposable penalty.

Urbano v. People (G.R. No. 182750, January 20, 2009)


The victim has always been calling and teasing on the accused Urbano. So there was a confrontation because
whenever the victim was drunk, he would defame Urbano. So there was a verbal confrontation and ensued into a
fight. In the said fight, Urbano was losing because he was just a small man. However, he was able to land one
lucky punch on the face of the victim (parangsiPacquiao). Because of the said lucky punch, the said victim was
about to fall unconscious on the ground. However, the other employees were able to prevent him from falling on
the ground. Nevertheless, he became unconscious and later on regained consciousness. In and out of the
hospital, later on he died.

Q: Is Urbano criminally liable for the death of the victim?


A: YES. Under Art. 4, because he was committing a felonious act. Therefore he is criminally liable for the
resulting felony although different from that which he intend.

But there are 2 mitigating circumstance considered by the court to reduce the imposable penalty. 1 st according to
the court, there was sufficient provocation. 2 nd, that the offender has no intention to commit so grave a wrong as
that committed. Who could have anticipated that out of one lucky punch, death would result. There was a total
disparity on the means employed by the offender and the resulting felony.

Q: How about sufficient provocation, is it present?


A: YES. The provocation was on the part of the victim. He would always call names and defame Urbano. Is it
sufficient? Yes, because what Urbano only did was to confront the victim verbally. That was his first act, later on
only did it ensue to a fight.

IMMEDIATE VINDICATION OF A GRAVE OFFENSE


That the act was committed in the immediate vindication of a grave offense to the one committing the felony
(delito), his spouse, ascendants, or relatives by affinity within the same degrees.

Elements;
He following are the elements of immediate vindication of a criminal offense.
1. That there be a grave offense to the one committing the felony, his spouse, ascendants,
descendants, legitimate, natural, or adopted brothers or sister, or relatives by affinity within the same
degree;
2. It requires that the said act or grave offense must be the proximate cause of the commission of the
crime.

It is necessary that the commission of the crime was in immediate vindication of the grave offense done to the
one committing the felony.

Q: Is it necessary that the grave offense need be a punishable act? A: NO. It suffices that it be any act unjust act,
immoral act which cause the offender sleepless nights and move him to vindicate himself.

Immediate
The 2nd element requires that the commission of crime was in immediate vindication of the grave offense. This
time the word immediate allows a lapse of time.

According to the Supreme Court, very funny reasoning, there was an erroneous Spanish translation. Our RPC
was copied from the Spanish Codigo Penal, in there, the word used there was proximate. Yet when it was
translated in the RPC, the word used was immediate. Supreme Court said wrong translation. It is sufficient that
the said grave offense must be the proximate cause of the commission of the crime.

Immediate allows an interval of time between the commission of the offense and its vindication as long as the
offender is still suffering from the mental agony brought about by the offense.

PASSION OR OBFUSCATION
That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.

In the case of People v. Lobino (G.R. No. 123071, October 28, 1999), the Supreme Court held that there is
passion and obfuscation when the crime was committed due to an uncontrollable burst of passion provoked by
prior unjust or improper acts, or due to a legitimate stimulus so powerful as to overcome reason.

Paragraphs 4 and 5 are related to each other. They are collectively known as sudden impulse of passion and
obfuscation.

Elements;
1. There be an act both unlawful and sufficient to produce passion and obfuscation;
2. The act that must produce passion and obfuscation must not be far removed from the commission of
the crime by the considerable length of time during which the offender might have recovered his
normal equanimity;

 Passion and obfuscation on the part of the accused must arise from lawful sentiments because an
unlawful act was committed against him.

Immediate
2nd element requires also the immediateness. It is necessary that it must be done immediately because the law
says the commission of the act which produced the passion and obfuscation must not be far removed from the
commission of the crime by a considerable length of time.
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 3

Example;
What if A attempted on the virtue of the wife of B, B learned about this from a neighbor. When B learned about
this, 4 days after, he went to A and hacked A to death.

Q: Is the mitigating circumstance of sudden impulse of passion and obfuscation and immediate vindication of
grave offense present? A: NO. 4 days had already lapsed. According to the SC, 4 days is already a long time for
the said offender to have recovered from his normal equanimity.

More so in the case of People v. Ignas (G.R. No. 140514-15, September 30, 2003), in this case, from the time of
the discovery of the adultery of the wife, to the time of the killing, 2 weeks had already lapsed, the SC said such 2
weeks is too long a time for such offender to have recovered already his normal equanimity.

In the case of People v. Romera, the Supreme Court said par.4 - sufficient provocation on the part of the
offended party, par.5 - immediate vindication of grave offense, par.6 – sudden impulse of passion and
obfuscation are related to each other such that in the commission of the crime, all three present, or any 2 are
present, if they are based on the same facts and circumstances they should be appreciated only as 1 mitigating
circumstance, not 2 or 3.

Q: Why is this important?


A: It is important because in the computation of the penalties, if you consider them as 3, you will be wrong in the
penalties.

*So again note, if 4, 5 and 6 are all present or if any 2 is present and they are all based on the same facts and
circumstances, they should only be treated as 1 mc.

Example;
Husband and wife were about to have dinner. Then someone was calling the name of the husband outside their
house. The wife opened the door, upon opening, the neighbor who was calling the name tried to hack the wife.
Good enough, the wife was able to reach and close the door and the wife was not hacked. The neighbor however
with a use of a bolo continuously hacked the wooden or the bamboo door and walls of the house. And so,
considering that his house was being damaged, the husband was forced to go outside to confront the neighbor.
He used the kitchen door. He called the neighbor and asked what was the reason why he was hacking. The
neighbor instead of answering tried to hack the husband. They struggled for the possession of the bolo, and in
the course the husband gained possession of the bolo. Once in the possession of the bolo, the husband hacked
the neighbor. The neighbor suffered a fatal wound but was brought to the hospital by the husband and so he
survived. Husband was prosecuted for frustrated homicide, the husband as a defense invoked 2 mitigating
circumstance – 1st, there was sudden impulse of passion and obfuscation, 2nd that there was sufficient
provocation on the part of the offended party immediately preceded the action.

Q: Is sufficient provocation present?


A: YES. Both are present. There is sufficient provocation because of the act of the neighbor trying to hack the
wife. And his act of continuously hacking the wooden door and walls of the house – that is sufficient provocation.

Q: Is sudden impulse of passion and obfuscation present?


A: Yes. It is also present. The act of the neighbor trying to hack the wife and his act of continuously hacking
the wooden door and walls.

Q; Since both mitigating circumstance are present, should you consider both in the computation of the
penalty?
A: NO. Since both mitigating circumstance arises from only one act, you should only consider mitigating
circumstance.
VOLUNTARY SURRENDER AND VOLUNTARY PLEA OF GUILT
That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution;

There are 2 mitigating circumstance here;


1. Voluntary surrender;
2. Voluntary plea of guilt;

If both are present, you have to consider always 2 mitigating circumstance. They have different elements and
would always arise from different set of facts and circumstances. Therefore, they are always separate and
distinct from each other.

Voluntary Surrender
The elements of Voluntary surrender are the following;
1. The offender had not actually arrested; T
2. The offender had voluntarily surrendered himself to a person in authority or his agent; S
3. Such surrender must be voluntary;

So it is necessary that the offender has not yet been arrested. It is necessary that he surrender to a person in
authority or his agent. The surrender must be voluntary.

Q: When is surrender voluntary?


A: Surrender is said to be voluntary when it is done spontaneously and unconditionally either because he has
this feeling of remorse and wanted to admit his guilt or he wanted to save the government that much needed
time or effort which will be incurred in looking for him.

Example;
A case was found against B in the fiscal’s office. A warrant of arrest was requested, the fiscal found probable
cause. The information filed in court, the court agreed with the fiscal, a warrant of arrest was issued. B got a tip
from the court employee that a warrant of arrest was now in possession of the police officers. And so B upon
learning that there was already an issued warrant of arrest, immediately went to the police station and
surrendered himself to the authorities. Then trial against him proceeded, and after trial on the merits, he was
convicted. But the judge did not consider voluntary surrender in reducing his imposable penalty.

Q: Is the judge correct?


A: The judge is wrong because voluntary surrender is present as a mitigating circumstance. Although there is
already a warrant of arrest issued. The police officers have not yet gone out looking for him. Therefore, any
surrender would still be considered as voluntary surrender even if there is already a warrant of arrest against
the said offender.

In the case of De Vera v. De Vera (G.R. No. 172832, April 7, 2009), the Supreme Court held that mere filing of an
information and/or the

issuance of a warrant of arrest will not automatically make the surrender involuntary. The accused may still be
entitled to the mitigating circumstance in case he surrenders, depending on the actual facts surrounding the very
fact of giving himself up.

Voluntary Plea of Guilt


The elements of voluntary plea of guilt are the following;
1. That guilt tendered is confessed spontaneously and unconditionally;
2. That he confesses guilt in open court that is before the court tried his case;
3. The confession that was made before the presentation of the evidence for the prosecution;

Example;
A was charged with the crime of frustrated murder. During the plea bargaining, with the consent of the judge, the
fiscal and the offended party, he said that he had plead guilty to attempted murder. And so he pleaded guilty to
attempted murder. The judge rendered judgment without considering voluntary plead of guilt so as to reduce his
penalty.

Q: Is the judge correct?


A: YES. For said plea of guilty to be considered voluntary, it must be done spontaneously. Spontaneously, it
must be the original crime charged.

Example;
A was charged as a principal in the crime of robbery. He pleaded guilty with the consent of the judge, the fiscal
and the offended party to the crime of robbery but merely as an accomplice. The judge rendered judgment
because of the plea of guilt. The judge did not consider the said plea of guilt as mitigating.

Q: Is the judge correct?


A: Yes, the judge is correct because when he pleaded guilt as an accomplice, his plea of guilt was not done
unconditionally.

Example;
A was prosecuted for the crime of reckless imprudence resulting in homicide and multiple physical injuries. He
was driving his vehicle, bumped a person and injured several others. During arraignment, he immediately
pleaded guilty. The judge rendered judgment. In rendering judgment, the judge did not consider the voluntary
plea of guilt as mitigating.

Q: Is the judge correct?


A: YES. In Mariano v. People (G.R. No. 178145, July 7, 2014) the Supreme Court held that in the case of a
culpable felony, in case of quasi-offenses, under Art. 365 the judge may or may not consider these mitigating
circumstance in the imposition of penalty. If the judge consider it or if the judge did not consider it, that is the
decision of the judge. Under Art. 365, the court is not mandated to consider the rules, the decision is based on
the sound discretion whether or not to consider the mitigating circumstance.

Q: May the mitigating circumstance of voluntary plea of guilt be appreciated in confessions before the media?
A: NO. Confessions before the media are considered extra-judicial confessions. For voluntary plea of guilt be
appreciated, the confession must be made before the court.
Q: If the offender voluntary confessed his guilt to a court which has no jurisdiction and later on pleaded guilty
before the proper court, will the voluntary plea of guilt still be appreciated?
A: YES. Since the proceedings before the former court was void, the voluntary plea of guilt may still be
appreciated in the court with proper jurisdiction.

PHYSICAL DEFECT
That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his
means of action, defense, or communications with his fellow beings.

For this mitigating circumstance to lie in favor of the accused, it is necessary that there must be a connection,
a relation between the physical defect and the crime committed. It is necessary that the said physical defect
must have restricted his use of action, defense or communication with his fellow being.

Example;
A is a cripple, he has no legs, he always position himself near the Quiapo church. He was on board a
skateboard. So he often stays there, and his work was to snatch the handbags of any churchgoers. And so
one time, he snatched the handbag of a churchgoer and thereafter, he sped away on board his skateboard. He
was thereafter arrested.

Q: Will his physical defect of being crippled, a man with no legs, be mitigating?
A: NO. His physical defect has no relation at all to the crime he has committed.
Example;
A is a blind man, blind beggar, near the Quiapo church. One time he was begging for alms, suddenly, he was
scraped on his head with a wound, it was so strong that he fell on the ground wounded. Angry, he stood up,
took his cane and retaliated by hitting the person next to him, not knowing that it was not the person but an
innocent passerby. The innocent passerby suffered less physical injuries. So the blind beggar was prosecuted
for less serious physical injuries.

Q: Is the mitigating circumstance of physical defect present so as to reduce the imposable penalty?
A: YES. His being blind restricted his means of action, defense or communication with his fellow being. His
intention was to hit the person who scraped him with the wound. But because of he could not see, he hit an
innocent passerby. There was a relation between the physical defect and the crime committed. Therefore, it
will mitigate his criminal liability.

ILLNESS
Such illness of the offender as would diminish the exercise of the will- power of the offender without however
depriving him of the consciousness of his acts.

So this is illness. It is necessary that the said illness must diminish the exercise of the will-power of the
offender. But it must not deprive him of his consciousness of his act because if it will deprive him of
consciousness of his act, then it is exempting not merely mitigating.

Example;
A is a kleptomaniac, he has this urge to steal. Now, his urge is to steal diamonds. So one time he was in a
party, he was talking to a lady with

diamond earrings, diamond necklace, diamond watch, diamond bracelet. Then after the conversation, the lady
went to the restroom. Upon looking at the mirror, she shouted, she was shocked, the diamond earring, necklace,
watch and bracelet were all gone. It was already taken by the said accused. A was prosecuted for theft.

Q: Will his illness mitigate his criminal liability?


A: Yes. It diminishes his exercise of his will-power without however depriving him of consciousness. He knew
that he was committing theft, he knew that he was taking the personal property of another but he cannot control,
he has a diminished self-control to prevent the commission of the crime. It will only mitigate, reduce the
imposable penalty but it will not exempt from criminal liability.

ANALOGOUS CIRCUMSTANCE
And, finally, any other circumstances of a similar nature and analogous to those above mentioned.

Any other circumstance which is similar in nature from the 1st to the 9th paragraph, then it is also considered as
a mc.

Example;
A public officer who has malversed public funds, voluntarily, voluntary returned the public funds, it is akin to
voluntary surrender. Or what if a person is already of 65 years of age, sickly, suffering from a disease it can be
said to be akin or similar to seniority. It will mitigate his criminal liability.

Article 14. Aggravating circumstances. - The following are aggravating circumstances:


1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt or with insult to the public authorities.
3. That the act be committed with insult or in disregard of the respect due the offended party on
account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if
the latter has not given provocation.
4. That the act be committed with abuse of confidence or obvious ungratefulness.
5. That the crime be committed in the palace of the Chief Executive or in his presence, or where
public authorities are engaged in the discharge of their duties, or in a place dedicated to
religious worship.
6. That the crime be committed in the night time, or in an uninhabited place, or by a band,
whenever such circumstances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band.
7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake,
epidemic or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by
final judgment of another crime embraced in the same title of this Code.
10. That the offender has been previously punished by an offense to which the law attaches
an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward, or promise.
12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of
a vessel or international damage thereto, derailment of a locomotive, or by the use of any
other artifice involving great waste and ruin.
13. That the act be committed with evidence premeditation.
14. That the craft, fraud or disguise be employed.
15. That advantage be taken of superior strength, or means be employed to weaken the
defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
17. That means be employed or circumstances brought about which add ignominy to the
natural effects of the act.
18. That the crime be committed after an unlawful entry. There is an unlawful entry when an
entrance of a crime a wall,
roof, floor, door, or window be broken.
19. That the crime be committed with the aid of persons under fifteen years of age or by
means of motor vehicles, motorized watercraft, airships, or other similar means. (As amended
by RA 5438).
20. That the wrong done in the commission of the crime be deliberately augmented by
causing other wrong not necessary for its commissions.

AGGRAVATING CIRCUMSTANCE
Aggravating Circumstance are those which, if attendant in the commission of the crime, serve to increase the
penalty without, however, exceeding the maximum of the penalty provided by law for the offense.

Kinds of aggravating Circumstances:


1. Generic Aggravating;
2. Specific Aggravating;
3. Inherent Aggravating;
4. Qualifying Aggravating;
5. Special Aggravating;

In order for aggravating circumstance to be appreciated, all the aggravating circumstance must be alleged in
the information and must be proven during the trial.

Unlike justifying, exempting and mitigating circumstances, which are not stated or alleged in the information,
aggravating circumstances must be alleged in the information. Even if they are proven in trial but they are not
alleged in the information, they cannot be considered against the person. They must be both alleged and
likewise proven during trial, so as not to deprive the accused of right to know the nature of the accusation
against him.

Generic Aggravating Circumstance


Generic Aggravating Circumstance are those that applies generally to all crimes.

Example:
Nos. 1,2,3,4,5,6,9,10,14,18,19, and 20 of the Revised Penal Code; Nightime - it can be applied to crimes against
persons, crimes against property, crimes against chastity and applied to all other crimes; Recidivism.

Specific Aggravating Circumstance


Specific Aggravating Circumstance are those that apply only to certain or particular crimes.

Example:
Treachery (Par.16 Art. 14) can only be considered or appreciated in crimes against persons.

Inherent Aggravating Circumstance


Inherent Aggravating Circumstance are those which of necessity follow the commission of the crime because
they are considered as elements in the commission of the crime, therefore they are considered inherent in the
commission of the crime.

If inherent aggravating circumstance are present in the commission of the crime, they are no longer considered
so as to increase the penalty because they are considered as elements

Qualifying Aggravating Circumstance


Qualifying Aggravating Circumstance are those which either change the nature of the crime to bring about a
more serious for a higher penalty or even without changing the nature of the crime it would impose a higher
penalty.

Example:
In Art. 248 of the RPC, the circumstances therein present would qualify the killing of a person from homicide to
murder. The presence of treachery, evident premeditation, cruelty in killing would make a crime not of homicide
but would be qualified to murder

Special Aggravating Circumstance


In the case of People of the Philippines v. De Leon (G.R. No. 179943, June 26, 2009) the Supreme Court defined
Special Aggravating Circumstances as circumstances which arise under special conditions to increase the penalty
for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree.

In the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance.

Example;
The following are examples of Special Aggravating Circumstance;
1. Quasi-recidivism under Article 60 of the Revised Penal Code;
2. Complex Crimes under Article 48 of the Revised Penal Code; and
3. When homicide or murder is committed with the use of an unlicensed firearm under P.D. 1866 as
amended by R.A. 8294;
4. When in the omission of the crime, advantage was taken by the offender of his public position under
Article 62 of the RPC;

Effect of more than one Qualifying Circumstance


If there are more than one qualifying aggravating circumstance as for example, homicide qualified to murder, only
one will qualify the
felony to murder and the others shall be considered as a generic aggravating circumstance.

Example;
In case of qualifying aggravating circumstance, for example, A killed B there was treachery, it was done in
consideration of a price, reward or promise, there was also cruelty, so there are three qualifying aggravating
circumstances present. Only one of them will qualify the killing to murder. So if treachery is already proven, the
crime committed is already murder. Cruelty and the other circumstance of in consideration of a price, reward or
promise shall only be considered as generic aggravating circumstances.

THAT ADVANTAGE BE TAKEN BY THE OFFENDER OF HIS PUBLIC POSITION.


This aggravating circumstance can be applied only if the offender is a public officer.

Taking Advantage of Public Position


Taking advantage of public position means that the offender use the prestige, influence or ascendency of his
office in the commission of the crime or to facilitate the commission of the crime.

Example;
Police officer A was having a drinking spree with his friends outside his house. In the course thereof, they were
discussing about the alleged shoot out in Quezon. According to the police officer, since he was a police officer,
it was a shoot out. But according to his friend it was a rub-out. They were arguing, exchanging views until the
police officer got mad. At that time, he had with him his pistol. He used his service pistol and shot his friend
who thereafter died.

Q: Is the said act of killing done by taking advantage of his public position?
A: NO. The said offender, public officer, did not use or misuse his public office. He did not use the influence,
the ascendency or the prestige of his office in order to commit the crime. Even not being a public officer he
could have killed his friend in the same situation . He could even have used another weapon, not necessarily
his service pistol.

Special Aggravating Circumstance


Under Art. 14, taking advantage of his public position is a generic aggravating circumstance. However, under
Art. 62 (as amended by RA 7659), the fact the crime was committed by taking advantage of his public position
is a special aggravating circumstance because the maximum penalty prescribed by law shall be the one
imposed.

Example;
Police officer X was assigned as a traffic enforcer. X was always demanding toll in the amount of fifty pesos
from jeepney drivers otherwise he would not let them enter a certain street. One day, jeepney driver Y got mad
at X for extorting toll on him because Y had no earning that day. He filed a case for robbery against X. the
information alleged that in order to perpetrate the crime of robbery, X took advantage of his public position.

Q: How do we appreciate the aggravating circumstance of taking advantage of public position in this case?
A: taking advantage of public position should be appreciated as a special aggravating circumstance. Article 62
of the RPC states that the maximum penalty shall be imposed if the offender took advantage of

his public position as a means to facilitate the commission of the crime.

Example;
W is a woman who drives a jeepney for a living. While she was driving her route, police officer X flagged her
down and demanded for her to pay a toll in the amount of fifty pesos. However W refused to give money to X.
Thus, X arrested W and brought her to the police station. W was detained in the investigation room. Thereafter, X
entered in the investigation room. While there, X had carnal knowledge of W. an information for rape was filed
with the aggravating circumstance of taking advantage of public position.

Q: How do we appreciate the aggravating circumstance of taking advantage of public position in this case?
A: Taking advantage of public position should be appreciated as a qualifying circumstance in this case. Article
266-B (3) of the Revised Penal Code states that Death penalty shall be imposed if the crime of rape is committed
when the victim is under the custody of the police or the military or any law enforcement or penal institution. In
this case, the charge against X should qualified rape. Since death penalty is suspended, X shall suffer the
penalty of Reclusion perpetua.

CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES.


This is based on the greater perversity of the offender, as shown by his lack of respect for the public authorities.

Elements:
1. That the public officer or public authority is engaged in the exercise of his function;
2. That the public authority is not the person against whom the crime is committed;
3. That the offender knows him to be a public authority;
4. That the presence of the public authority did not prevent the offender from the commission of the crime.

That the public officer or public authority is engaged in the exercise of his function.
Public authority refers to Justice of the peace, persons in authority, or any person directly vested with jurisdiction
whether an individual or some members of court or governmental commissioner. It is necessary that he has the
duty to govern and execute the laws.

Example;
Mayors, barangay chairman police officer is merely an agent of a person in authority.

Agents of public authority are not included. Police officers are agents of public authority.

That the public authority is not the person against whom the crime is committed.
If the offender is the person against whom the crime is committed, such fact that the crime was committed in
contempt of the public authority is an element because the crime committed would be direct assault. In direct
assault, in contempt of or with insult to public authority is an element, no longer an aggravating circumstance.

That the offender knows him to be a public authority.


There must be knowledge on the part of the offender that the said person is a public authority. Otherwise, it
cannot be said that he
disrespected the said person as a public authority if he has no knowledge that he is a public authority.

That the presence of the public authority did not prevent the offender from the commission of the crime.
An offense may be said to have been committed in contempt of public authority when his presence, made
known to the offender, has not prevented the latte from committing the criminal act.

Example;
The barangay chairman was in a restaurant having dinner with his wife because it was there wedding
anniversary. Suddenly here comes A, B and C who are constituents of the barangay chairman. Upon seeing
the chairman, they greeted him and even congratulated him and his wife upon learning that they were
celebrating their wedding anniversary. They seated next to the table of the chairman and ordered food. In the
giving of the food, there was an argument between A and the waiter. The argument immediately became a
heated one. A took the table knife and stab the waiter. The waiter suffered serious physical injuries.
Prosecuted for frustrated homicide.

Q: In the prosecution for said crime, is the aggravating circumstance of in contempt of or with insult to public
authority present?
A: NO. The first element is absent. The first element is that the public officer or public authority is engaged in
the exercise of his function. At the time of the commission of the crime, yes he was there but he was in a
private act. He was not engaged in the exercise of his function, hence it cannot be said that the said offender
insulted the said public authority.

Example;
The public authority was the city mayor who was inside his office. Suddenly he heard commotion on the
ground floor. He looked out his window, he saw his two supporters having an argument. A and B were having
an argument over a parking space. The mayor went down the building and talked to both A and B. He told
them to shake hands and forget everything. Then he told A to just allow B to park his car anyway there was
another parking space available. This angered A because he thought that the mayor was siding with B. A took
out his balisong and stabbed the mayor.

Q: Is the aggravating circumstance of in contempt of or with insult to public authority present?


A: YES. It is present but it is not an aggravating circumstance but an element of the crime because the crime
committed is direct assault. It is direct assault because the public authority at the time of the attack was
engaged in the performance of his functions. Since the crime committed was against the public authority
himself, the fact that it was committed in contempt of or with insult to the said public authority is an ingredient
of the crime.

Example;
hat if in the same problem instead of stabbing the said mayor, A felt insulted with the mayor’s words that he is
giving the parking space to B so this angered A. A stabbed B. B died.

Q: Is the aggravating circumstance of in contempt of or with insult to public authority present?


A: YES. The mayor’s act of pacifying A and B was engaged in his official functions. He was not the person
against whom the crime was committed. A was a supporter, therefore he knew mayor was a person in
authority. Yet, the presence of the mayor did not prevent A

from committing the crime against B. Hence, the second aggravating circumstance is present.

DISRESPECT OF RANK, AGE OR SEX, OR DWELLING OF THE OFFENDED PARTY, IF THE LATTER HAS NOT
GIVEN PROVOCATION.

There are four aggravating circumstances under this paragraph;


1. Disregard of rank;
2. Disregard of age;
3. Disregard of sex;
4. Crimes committed in dwelling of the offended party;

These four aggravating circumstances can be appreciated singly or collectively if present in the commission of
the crime. There must be deliberate intent on the part of the offender to disrespect the offended party on account
of the latter’s age, sex, or rank.

Disregard of rank, disregard of age and disregard of sex can only be considered in crimes against persons and
crimes against chastity. You do not consider these in crimes against property; you do not consider these in
crimes against public interest. They can only be considered in crimes against persons and crimes against
chastity.

Disregard of rank
Rank refers to a high social standing, a high position in the society. For this to be considered as an aggravating
circumstance, it is necessary that the offender be of lower rank than that of the offended party.

Example;
A student attacking a professor. There was a disregard of rank of the said professor. An employee attacking his
employer. There was a disregard of rank of the said employer.

Disregard of age
Age here refers to both minority and senority.

Example;
The offended party is 95 years old. A killed him by hitting his head for 25 times with a lead pipe. Obviously, there
was disregard of his age. Considering his age, whereas even one hit of the lead pipe could have already killed
the said old man but he was hit 25 times showing disregard of the age of the old man.

Example;
A child is 4 years old. He was stabbed 25 times, thereafter his body was placed inside a dram filled with water
and then the dram was covered. There was disregard of age. The victim was a minor and therefore any attack,
just 1 stab, could have killed the minor. But he was stabbed 25 times; not only that, he was also submerged and
the drum was covered, which shows disrespect of age.
*If there was disrespect of age and there was also treachery, the aggravating circumstance to be considered is
treachery because it absorbs disrespect of age.

Disrespect of sex
Disrespect of sex refers to the female sex. This is inherent in the crime of rape and in certain crimes involving
chastity.

Crimes committed in dwelling of the offended party


Dwelling is considered as aggravating circumstance if the crime is committed inside the dwelling of the offended
party, that is, the
offended party was inside his dwelling at the time of the commission of the crime and he has not given any
provocation.

If the crime is committed inside the dwelling of the offended party, it is as an aggravating circumstance
because it shows the greater perversity of the offender than when the crime is committed in any other place.

The constitution itself provides that a man’s abode must be respected and therefore when a crime is
committed inside the house dwelling it shows the greater criminality on the part of the offender.

Even if a crime is committed inside dwelling, it cannot be considered as aggravating if the following
circumstances are present;
1. offended has given provocation;
2. If the offender and the offended party are living in the same dwelling;
3. Dwelling is inherent in the commission of the crime.

Example;
X and Y are roommates in a rented apartment. One night, when X was studying for his exam, Y arrived from
work. Y was so tired, he went directly straight to bed and turned off the lights. However, X turned on the lights
and told Y that he was still studying. On the other hand, Y turned off the lights because he can’t sleep with the
lights. X turned off the lights, and Y turned it on again. An altercation ensued between X and Y. Suddenly, X
stabbed Y with a ballpen in the eye. Y was blinded. X was charged with serious physical injury.

Q: May the aggravating circumstance of dwelling be appreciated in this case?


A: NO. One of the exceptions for dwelling to be appreciated is that when the offender and the offended party
are both living together in the same dwelling. In this case, X and Y are roommates. They are living in the same
dwelling together. Thus, the aggravating circumstance of dwelling cannot be appreciated.

Example;
X and Y were fighting in the streets. In the course of their fight, X lost. Thereafter, X went home and left the
gate and door open. Sometime later, X saw Y walking in the street in front of his home. X told Y “kung
matapang ka, pumasok ka dito”. Y entered the house of X. Without any warning, Y stabbed X multiple times. Y
was charged with the information of homicide.
Q: Whether or not the aggravating circumstance of dwelling should be appreciated?
A: NO. In order for dwelling to be appreciated, there must be no provocation on the part of the owner of the
house who is also the offended party. In this case, were it not for X taunting Y to come into his house if Y is
brave, Y would not have had the opportunity to stab X.

*Dwelling includes the dependencies, the staircase and the enclosures therein.

*The dwelling need not be owned by the offended party. It suffices that the offended party uses it for rest and
comfort. E.g., a room being rented by the lessee or a tenant; room where a person is living as a bedspacer.

Example;
A who lives in a nipa hut was sitting at the staircase when B came and forcibly drag her to another house, 1
kilometer away from A’s house, where she was raped by B.

Q: Is the aggravating circumstance of dwelling present?


A: YES. The aggravating circumstance is present even if the crime was committed in another place far from the
dwelling, the aggression started in the dwelling of the offended party. The aggression that started in the dwelling
of the offended party when she was dragged from the said staircase, that aggression cannot be divided from the
commission of said crim. So even if it grounds were consummated in another place for as long as aggression
started in the dwelling, still dwelling is an aggravating circumstance.

Example;
X woke up 6:00 in the morning. He got up from bed, and looked out the window wanting to get fresh morning air.
Suddenly and without any warning, Y shot X. X died. The information charges Y with murder qualified by
treachery and with the aggravating circumstance of dwelling.

Q: Should the aggravating circumstance of dwelling be appreciated? A: YES. Dwelling is an aggravating


circumstance. It is not necessary for dwelling to be aggravating that the perpetrator of the crime was able to get
in. It suffices that the offended party or the victim is inside his house. The assailant may device ways and means
to commit the crime from the outside.

Q: Will the treachery absorb the aggravating circumstance of dwelling?


A: NO. Treachery does not absorb dwelling. In this case, murder was qualified by treachery, and dwelling will be
treated as an ordinary aggravating circumstance.

Example;
W is 95 years old; a woman of high standing in the society. She was a former department secretary. She is living
alone in her house. One time here comes X. X wanted to rob the valuables inside the house of the said old
woman. X entered the said house and he was able to get the valuables from the vault of the house. He was
about to leave the house when accidentally pushed the chair. By reason thereof, the woman was awaken. The
woman upon seeing X begun screaming. X then fired at the woman 50 times. The woman died.

Q: Are the aggravating circumstances of disregard of rank, disregard of age, disregard of sex present?
A: NO. The crime committed is robbery with homicide, under article 10 which is a crime against property.
Disregard of rank, age and sex are not applicable to any other crimes but only to crimes against person and
crimes against chastity. Since the crime committed is a crime against property, therefore, disregard of rank, age
and sex cannot be considered against the accused.

Q: Is the aggravating circumstance of dwelling present?


A: YES. The crime committed robbery with homicide is a form of robbery with violence against or intimidation of
persons. Dwelling is only inherent in robbery with use of force upon things but dwelling is not inherent in case of
robbery with violence against or intimidation of persons just like robbery with homicide. So in this case, only
dwelling should be considered as an aggravating circumstance.
ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS.
There are two aggravating circumstances;
1. Abuse of confidence;
2. Obvious ungratefulness;

Abuse of Confidence
The circumstance exists only when the offended party has trusted the offender who later abuses such trust by
committing the crime. The abuse of confidence must be a means of facilitating the commission of the crime,
the culprit taking advantage of the offended party’s belief that the former would not abuse said confidence.

Elements of abuse of confidence;


1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a crime against the offended party;
3. That the abuse of confidence facilitated the commission of the crime

Example;
H and W were husband and wife living here in Manila for 4 years. Suddenly here comes X. X was their former
neighbor in Batangas. He told H and W “I am looking for work here in Manila, can I live in your house while I
am looking for work?” Since X was a good neighbor back then, H and W trusted X and allowed X to live inside
their house. X now sleeps in the house of H and W while he was looking for work here in manila. One time H
was out of the house. The house helpers and the drivers were also away. The only person left in the house
was X and W. While H was out, X went to the master’s bedroom and had carnal knowledge of W against the
latter’s will.

Q: Is the aggravating circumstance abuse of confidence present in this case?


A: YES. X was there because A and B trusted him, yet he abused such trust and confidence and instead
facilitated the commission of the crime. Therefore this aggravating circumstance is present.

Q: Is the aggravating circumstance of dwelling present in the case? A: NO. The aggravating circumstance of
dwelling in this case cannot be considered because at the time of the incident, H and W allowed X to live with
them even though it was only in a temporary basis. Ownership of the house is irrelevant in dwelling.

Obvious Ungratefulness
Ungratefulness means the offender has no gratitude, does not even know how to say thank you.

The elements of obvious ungratefulness are the following;


1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a crime against the offended party;
3. That the act be committed with obvious ungratefulness

Example;
A was selling kettles and other kitchen wares on the street under the heat of the sun. A goes from one house
to another under the heat of the sun. He was so thirsty already so he knocked on the gate of the house of X. X
opened the gate and A told X that he was so thirsty. X being a good person, allowed A to go inside their house
and asked him to take a sit while he get him a glass of water. When he came back, he was not only holding a
glass of water but also brought some

biscuits. However A suddenly, brought out his knife and stabbed X and thereafter robbed him.
Q: Is the aggravating circumstance obvious ungratefulness present? A: YES. Instead of showing gratitude
for having been allowed to enter the house and given a glass of water with biscuits, he instead took advantage of
the goodness of the man and committed the crime of killing and robbery. There was obvious ungratefulness on
the part of the offender.

THE PALACE OF THE CHIEF EXECUTIVE, OR IN HIS PRESENCE, OR WHERE PUBLIC AUTHORITIES ARE
ENGAGED IN THE DISCHARGE OF THEIR DUTIES OR IN A PLACE DEDICATED TO RELIGIOUS WORSHIP.
If the crime is committed in any of these places it is considered as an aggravating circumstance because it shows
on the part of the offender lack of respect on these places.

There are four aggravating circumstances in this case;


1. In the Palace of the chief executive;
2. In the presence of the chief executive;
3. Public authorities engaged in the discharge of their duties;
4. Place dedicated to religious worship;

In order however for these aggravating circumstances to be considered, it is necessary that the offender
deliberately sought the said place to commit the crime because otherwise it cannot be said that he disrespected
the place.

In the Palace of the Chief Executive


This aggravating circumstance may be committed regardless of whether there is a public affair or official affair
going on, if a crime is committed it is aggravating.

Example:
A and B are chefs in Malacanang. They are outdoing each other in trying to prepare the best meal for P-noy. One
time, both of them were preparing lunch for the president. Suddenly they had an argument. In the course thereof,
A stabbed B. B suffered a fatal wound but he survived. Prosecuted for frustrated homicide.

Q: Is the aggravating circumstance that the crime was committed in the palace of the Chief Executive present?
A: NO. Because he works there, he lives there. It cannot be said that he sought the said place in order to commit
the crime. It cannot be said that he went to said place in order to commit the crime or can it be said that he
disrespected the said place.

In the presence of the Chief Executive


Even if the Chief Executive is not engaged in his official duty, still it is considered as aggravating because of the
lack of respect to the chief executive.

Where the Public Authorities are engaged in the discharge of their duties
It is not only necessary that the said places are where public authorities are engaged in the discharge of their
duties, it is also necessary that at the time of the commission of the crime, the public authorities are actually
engaged in the performance of their duties.

Example;
Many farmers were having a rally outside the DAR. They started the rally around 6am, it is now 8pm, they were
still there. The officials and
employees had already left, so the farmers were there still having their rally. They set tents and prepared to
sleep there. In the course thereof, 2 farmers argued at each other. In the course of their argument one farmer
jumped into the fence and went inside the DAR. The second farmer followed him and when the second farmer
was able to catch up with the first farmer, he killed the latter.

Q: Is the aggravating circumstance that the crime was committed in a place where the Public Authorities are
engaged in the discharge of their duties present?
A: NO. Although DAR is a place where the Public Authorities are engaged in the discharge of their duties, at
the time of the commission of the crime, the officials and employees are not in the actual performance of their
duties. Under this aggravating circumstance, it is not only necessary that the said places are where public
authorities are engaged in the discharge of their duties, it is also necessary that at the time of the commission
of the crime, the public authorities are actually engaged in the performance of their duties.
In a place dedicated to religious worship
Even if there is no religious ceremony on going, for as long as the said crime is committed in said place
dedicated to religious worship it is aggravating because of lack of respect on said place.

Example;
X was in a church praying to kill Y. X saw Y at the back of the church. X went out of the church. X entered the
church in the back door and suddenly, he stabbed Y. Y died. X was charged with homicide.

Q: Is the aggravating circumstance of place of religious worship present?


A: YES. In order for the aggravating circumstance of religious worship to be appreciated, the offender must
especially sought the place to facilitate the commission of the crime. In this case, when X saw Y, he went out
of the church and entered in the back so that he could stab
Y. X deliberately sought the place of religious worship to facilitate the commission of the crime.

NIGHTTIME, UNINHABITED PLACE, OR BY A BAND


There are three aggravating circumstances in this case;
1. Nighttime;
2. Uninhabited place;
3. Band;

Nighttime
Nighttime is from sunset to sunrise. In order for these aggravating circumstances to be considered, it is
necessary that the offender deliberately sought the darkness of the night either to facilitate the commission of
the crime or to insure or afford impunity.

Elelements;
The following are the elements of Nighttime;
1. The darkness or silence of the night was especially sought by the offender;
2. That night time was taken advantage of by the offender to facilitate the commission of the crime;
3. The purpose is to insure his immunity from capture;

Even if the offender sought nighttime, the moment the scene of the crime has been illuminated by any light,
rule out nighttime as an aggravating circumstance.

Example;
In the commission of the crime, A decided to kill B, his enemy. A knew that B would pass by the place wherein
there were no light posts. A waited for B in the said place. Upon the moment B arrived A left his post and was
about to stab B when suddenly a tricycle passed by and the light coming from the tricycle illuminated the scene of
the crime. Even if A deliberately sought nighttime, nighttime is not aggravating because a light illuminated the
scene of the crime. Whenever any light has illuminated the scene of the crime, rule out nighttime as an
aggravating circumstance. Light coming from the tricycle, from any vehicle, nearby house, light posts or even
from the moon, for as long as the scene of the crime has been illuminated, nighttime is not aggravating.

An uninhabited place
Means a place which is isolated from the others or located far from others. However this is not the requirement
for it to be considered aggravating.

Requisites;
1. That in the place where the crime was committed there was a remote possibility for the victim to receive
some help;
2. That the offender deliberately sought the uninhabited place in order to facilitate the commission of the
crime;

Example;
A, B and C are fishermen. Around 3 am, they all went out fishing on their respective boats. They were sailing 5
meters away from each other. Suddenly X sprung out of the water and he stabbed A.

Q: In the prosecution for killing of A, is the aggravating circumstance of uninhabited place present?
A: YES. First, in the place where the crime was committed, there was very little, remote possibility for A to
receive some help. Because B and C must still swim before they could render help or assistance to
A. Before they could have swum and reached A, A is already dead. Therefore there was very litter or remote
possibility for the victim to be saved. The said accused X deliberately sought the place in order to facilitate in the
commission of the crime because he suddenly appeared from the water. Therefore the aggravating circumstance
of uninhabited place is present.

By a band
For the aggravating circumstance of by a band to be present, the law says where more than three armed
malefactors shall have acted together in the commission of the offense, it shall be deemed to have been
committed by a band. Therefore, there must be at least 4 armed men in the commission of the crime or they must
have acted together in the commission of the crime.

Example;
A, B, C, D and E all armed with knives, killed X. The information stated that A, B, C, D and E conspired with one
another and as a band they committed the crime of murder against X. during the presentation of evidence,
conspiracy was proven beyond reasonable doubt. Likewise, band as an aggravating circumstance was proven
beyond reasonable doubt. Thus the judge convicted A, B, C, D and E for the crime of murder as conspirators.
The judge also considered the aggravating circumstance of by a band. The counsel for the accused filed a
motion for the consideration, questioning the consideration of the aggravating circumstance of by a band.
According to the counsel,
conspiracy has already been considered therefore by a band can no longer be considered by the court.

Q: Is the counsel’s contention correct?


A: NO. Even if the court already considered conspiracy, by a band may still be considered by the court
because conspiracy is a means of committing a crime. It means they have the same criminal liability. On the
other hand, by a band is an aggravating circumstance. One does not absorb the other, therefore, both maybe
considered and appreciated by the court.

Example;
A induced B, C, and D wanted to kill W. A, B, C, and D planned to commit the crime at 11pm so that the
community is fast asleep. At 11pm, B, C, and D entered the house of W. They directly proceeded to his room.
W’s room was fully lighted. Thereafter, B, C, and D stabbed W. W died. A, B, C, and D was charged murder
qualified by treachery with the aggravating circumstance of nighttime, uninhabited place, and by a band.

Q: Is the aggravating circumstance of nighttime present?


A: YES. Although the room of W was fully lighted, the accused deliberately sought the darkness and silence of
the night in order to facilitate the commission of the crime.

Q: Is the aggravating circumstance of by a band present?


A: NO. A band is present whenever more than three armed malefactors come together in the commission of
the crime. All of the armed malefactors must be a principal by direct participation. In this case A is a principal
by inducement.

Q: Is the aggravating circumstance of uninhabited place present? A: NO. In order for an uninhabited place to be
present, the offender deliberately sought a place isolated from the others or located far from others so that there is
a remote possibility that the victim may receive help.

ON THE OCCASION OF A CONFLAGRATION, SHIPWRECK, EARTHQUAKE, EPIDEMIC, OR OTHER CALAMITY


OR MISFORTUNE.
It is considered as an aggravating circumstance because on occasion of these calamities, the offender took
advantage of the said occasion in order to commit the crime.

Example;
X and Y were fighting. X lost the fight. Suddenly, there was an earthquake and all the people panicked and
went outside their house. X went out of his house and saw Y also panicking. X saw this as an opportunity to kill
Y and get his revenge. X approached Y and stabbed him multiple times. X was charged with homicide
committed on the occasion of earthquake as an aggravating circumstance.

Q: How do we appreciate the aggravating circumstance that the crime was committed on the occasion of an
earthquake?
A: The aggravating circumstance that the crime was committed in the occasion of an earthquake must be
appreciated as a qualifying aggravating circumstance. Article 248 states that when a person kills another on
the occasion of a calamity such as an earthquake, the person is liable for murder. In this case, since X killed Y
on the occasion of an earthquake, such aggravating circumstance shall qualify the crime into murder.

Example;
An earthquake occurred. All of the persons in the community panicked and went outside their house. Upon
Seeing this, X saw an opportunity to commit theft and take the belongings of other person who are out of their
house. However, X was apprehended and charged for the crime of theft with the aggravating circumstance that
the crime was committed on the occasion of an earthquake.

Q: How do we appreciate the aggravating circumstance of earthquake in relation to the crime of theft?
A: The aggravating circumstance of earthquake should be considered as a qualifying circumstance. Article 310
of the RPC states that when theft was committed on the occasion of an earthquake, the crime committed is
qualified theft. In this case, since X committed the crime of theft in the occasion of an earthquake, he is liable for
qualified theft.

AID OF ARMED MEN


Aid of armed men means that the armed men aided the offender in the commission of the crime. The aid given
by the armed men maybe a direct or indirect participation in the commission of the crime.

The armed men who gives aid to the offender are merely accomplices because they may give material or moral
aid to the offender.

Armed men v. By a band


BY A BAND AID OF ARMED MEN
There must be at least 4 armed There is no requisite as to the
malefactors; number of armed men;
The armed men may have direct or indirect participation.
Must have acted together in the actual commission of
They are mere accomplices of
the crime; (conspiracy)
the offender.

RECIDIVISM
A recidivist is one whom at the time of his trial for one crime, shall have previously been convicted by final
judgment of another crime embraced in the same title of this Code.

The following are the elements of recidivism;


1. The offender is on trial for an offense;
2. He was previously convicted by final judgment of another crime;
3. Both the first and second offenses are embraced in the same title of the code;
4. That the offender is convicted of the second offense charged.

Example:
A has been convicted of the crime of attempted homicide. The judge found him guilty beyond reasonable doubt,
therefore, he was convicted. The judgment became final and executory, therefore he was behind bars. He served
out his sentence. Once out of prison cell, he lived a good life. However, after 25 years, he engaged in a fight and
killed the other man. By reasonable doubt he was charged with and convicted of the crime of murder.

Q: Can the judge consider recidivism as an aggravating circumstance in imposing the penalty for murder?
A: YES. Both homicide and murder are embraced in the same title of the code. The fact that 25 years had
lapsed from the time of the first crime to the second crime is immaterial because recidivism is
imprescriptible. There is no time limit between the first crime for which he has been convicted by final judgment
and the second crime for which he is also convicted.

Example;
X was a convicted murder. While serving his sentence, he was granted an absolute pardon by President
Duterte. X was released from prison. After a few weeks, X was engaged in a fight and killed Y. X was
convicted with homicide with the aggravating circumstance of recidivism.

Q: Is the aggravating circumstance of recidivism present in this case? A: YES. The fact that X was granted with
pardon does not erase the effects of the prior conviction of murder.

Example;
X was a military man. He was convicted of conspiracy to commit rebellion. While he was serving his sentence,
an amnesty proclamation was executed by the president for all those who conspired to commit rebellion. X
applied for amnesty and was granted. X was able to get out of prison. Sometime later, X joined some military
men and participated in their coup d’état. X, long with the other military men, were apprehended and convicted.

Q: Is the aggravating circumstance of recidivism present in this case? A: NO. Amnesty erases the effects of the
crime as if no crime happened and no crime was committed by the accused. It totally obliterates and erase the
former conviction. In this case, since X was granted amnesty in the conspiracy to commit to commit rebellion,
recidivism was not present.

REITERACION OR HABITUALITY
The offender has been previously punished for an offense to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a lighter penalty.

The following are the elements of reiteracion;


1. That the accused is on trial for an offense;
2. That he previously served sentence for another crime to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a lighter penalty;
3. That he is also convicted of the new offense.

The first situation is that, he has already served out the sentence, he has already been punished for a crime.

Under the second element there are two situations;


1. If it is only one crime it is necessary that the said crime must carry a penalty equal to or greater than
the second crime;
2. If there are two crimes for which he had been previously punished, it is necessary that they carry a
lighter penalties than the new crime for which he is convicted.

There are four forms of habituality;


1. Recidivism; (Article 14, par. 9)
2. Riteracion; (Article 14, par. 10)
3. Habitual Delinquency; (Article 62, no. 5)
4. Quasi-recidivism; (Article 160)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 4

Recidivism v. Reiteracion
RECIDIVISM REITERACION
Requires conviction by final
Requires service of sentence;
judgment;
May be felonies or offenses
Crimes must be felonies;
punishable by special law;
Offenses are under the sameOffenses may or may not be in
title of the RPC; the same title of the RPC;

Example:
A has been convicted of the crime of homicide. Convicted by final judgment, he was placed behind bars. He
served out his sentence. Once out of prison, he committed forcible abduction. Homicide is punished by reclusion
temporal. Forcible abduction is now on trial. The penalty prescribed by law for forcible abduction is also reclusion
temporal. The judge found him guilty for forcible abduction.

Q: Can the judge consider reiteracion as an aggravating circumstance in imposing the penalty for forcible
abduction?
A: YES. The penalty for the crime of homicide where he has already served out his sentence is equal to the
penalty for forcible abduction, both reclusion temporal. Therefore, reiteracion or habituality can be considered.

Example;
B committed forcible abduction. He was convicted by final judgment. He served out his sentence. He is now out
of prison. Once out of prison, he committed falsification of public document. He is on trial for the said falsification
of public document. The judge found him guilty beyond reasonable doubt.

Q: In imposing the penalty for falsification of public document, can judge consider reiteracion as an aggravating
circumstance?
A: YES. The penalty for forcible abduction is reclusion temporal, which is higher than the penalty for falsification
of public document committed by a private individual which is only prision correccional. Therefore, reiteracion or
habituality should be considered by the court in imposing the penalty for falsification of public document.

Example;
B committed falsification of public document. Convicted, served out the sentence. After service of sentence, he is
out of prison, he engaged in a fight and killed his opponent. His now on trial for homicide. The judge found him
guilty beyond reasonable doubt.

Q: Can the judge consider reiteracion as an aggravating circumstance?


A: NO. The crime for which he has served out his sentence carries a penalty lighter than that of the second
crime. The law requires that if it is only one crime, it must carry a penalty equal to or greater than the second
crime he committed.

Example;
A slapped B. B filed a case for slight physical injuries against A. He was convicted and served out his sentence
for slight physical injuries which is arresto menor. Once out of prison, he was still mad at B. He deliberately
caused damage to the property of B. B now filed a case of malicious mischief against A. The judge found him
guilty beyond reasonable doubt for malicious mischief.
Q: Can the judge consider reiteracion as an aggravating circumstance?
A: NO. Slight physical injuries which carries with it the penalty of arresto menor is lighter than malicious
mischief which carries with it the penalty of arresto mayor. Therefore the judge cannot consider reiteracion as
an aggravating circumstance. He was convicted of malicious mischief and placed behind bars.

Example;
In the same problem, after service of sentence, A is now out of prison. Once out of prison, he was still mad at
B. Therefore he made sworn affidavits stating false statements against B. B filed a case of perjury against A.
he is now on trial for the crime of perjury. The judge found him guilty beyond reasonable doubt.

Q: Can the judge consider reiteracion as an aggravating circumstance?


A: YES. The first two crimes, the penalties of which were already served out, carry lighter penalties than the
third crime: slight physical injuries, arresto menor; malicious mischief arresto mayor. Therefore reiteracion can
be considered.

Example;
X was convicted of homicide with the privilege mitigating circumstance of incomplete self-defense. The judge
imposed upon him the penalty of Prision coreccional (6 years). X applied for probation and it was granted.
While under probation, X forcibly abducted his neighbor. As a result, an information for forcible abduction was
charged against X with the aggravating circumstance of reiteracion.

Q: is the aggravating circumstance of reiteracion present in this case?


A: NO. In order for reiteracion to be appreciated as an aggravating circumstance, the offender must have
previously served his sentence. By applying probation, the accused admitted to the commission of the crime,
however, he avoided serving sentence. The Supreme Court held that probation is not the same as serving
once sentence. In this case, there was no reiteracion.

IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE.


If the price, reward or promise, as a circumstance is present in the killing of a person, it is not considered as a
generic aggravating person but a qualifying aggravating circumstance. It is one of the qualifying circumstances
under Art.248.

This aggravating circumstance should be considered both against the person who made the offer and the person who
accepted the price, reward or promise. Therefore, it is to be considered both against the principal by inducement
and the principal by direct participation.

To be considered against the principal by inducement, it is necessary that the price, reward or promise must
be the prime reason for the principal by direct participation committed the crime. That without the price, reward
or promise, the principal by direct participation would not have committed the crime.

BY MEANS OF GREAT WASTE AND RUIN


That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or
international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great
waste and ruin.
The offender makes use of inundation, fire or explosion in order to commit the crime. It is a means to commit
the crime. If these means

are used in killing a person, it is not a generic aggravating circumstance, it is a qualifying aggravating
circumstance under article
248. It qualifies the killing to murder.
EVIDENT PREMEDITATION
Evident premeditation is the stubborn adherence to a decision to commit a crime.

It implies a deliberate plans before or after the commission of the crime.

The following are the requisites of evident premeditation;


1. The time when the offender determined to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination;
3. Sufficient lapse time between the determination and execution, to allow him to reflect upon the
consequences of his acts;

Example;
A slapped B two times in front of the public. B felt so humiliated so he told A “the next time I see you, I will kill
you!” B went home and searched for his gun. He found the same and kept it under his pillow, waiting for the time
to kill A. A month has lapsed. B while walking saw
A. upon seeing A, he immediately run to his house, went to his bedroom and took the gun under his
pillow. He raised back to A and shot him.

Q: Is the aggravating circumstance of evident premeditation present?


A: YES. First, the time when the offender determined to commit the crime. That is the time when B told A “the
next time I see you, I will kill you!” Second, an overt act manifestly indicating that he has clung to his
determination. He brought a gun. It is an overt act showing that he has clung to his determination. Third, a
sufficient lapse time between the determination and execution. A month has passed. That is sufficient for him to
cool off, to reflect upon the consequences of his acts. Therefore, evident premeditation was present in the
commission of the crime.

THAT THE CRAFT, FRAUD OR DISGUISE BE EMPLOYED.


There are three aggravating circumstances;
1. Craft;
2. Fraud;
3. Disguise

Craft
Craft means intellectual trickery or cunning resorted to by the accused

Example;
The accused knocked at the door. He knows that only the maid was at home. He told the maid that he was a
relative of the owners of the house who came from the province. He was allowed to enter the house, thereafter
he committed a crime of robbery. There was cunning or intellectual trickery resorted to by the accused for he
tricked the maid to consummate the crime of robbery.
Fraud
Fraud or deceit is manifested by the use of insidious words or machinations resorted to by the accused so that
the offended party will perform an act that will make the offender do the crime easily.

Example;
The offended party was about to sleep on the upper portion of the house because the lower portion is a store.
The offender called over the owner, saying that he was going to buy something. The owner went down the
house and opened the store. However, upon opening the store, he was stabbed and robbery was committed.
There was fraud as manifested by the insidious words or machinations, resorted to by the offender.

Disguise
Disguise are ways and means resorted to by the accused to conceal his identity.

This include stockings, bonnet or anything that could be used so that one could not be recognized.

If despite disguise he is recognized, rule out disguise as an aggravating circumstance, it did not serve its
purpose.
ABUSE OF SUPERIOR STRENGTH
Abuse of superior strength is intentionally employing excessive force out of proportion to the means of defense
available to the offended party.

The requisites for abuse of superior strength are the following;


1. That there be a notorious inequality of forces between the offender and the offended party in terms of
their age, size and strength;
2. That the offender took advantage of this inequality of forces to facilitate the commission of the crime.

Inequality of forces
Inequality of forces includes the following;
1. Offender uses weapon to tak advantage;
2. Numerical Superiority;
3. Difference in physical characteristics such as age strength and size.

The mere fact that there was numerical superiority does not automatically mean that there is abuse of superior
strength. Under the second element, evidence must show that the offender deliberately took advantage of their
strength to facilitate the commission of the crime.

TRERACHERY
There is treachery or alevosia when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.

The following are the elements of treachery;


1. That the offender deliberately adopted the particular means, method or form of attack employed by
him;
2. That at the time of the attack, the victim was not in a position to defend himself.

The essence of treachery is the suddenness and unexpectedness of the act to unexpecting and unarmed victim
who has not even the slightest provocation. The victim must be totally without defense.

If the victim was able to put out any defense, no matter how minor, treachery is not present.

Example;
A was about to stab B but he was able to parry the blow, that is already a defense on his part. He was able to run
away, that is already considered as a defense. Treachery is no longer present. It is necessary that the offended
party or the victim must be totally without defense.

Q: What if the attack is a frontal attack?


A: Even if it is a frontal attack, if it is so sudden, unexpected, such that the offended party would not be aware of
it and was not able to put up any defense, there is still treachery.

Example;
A and B were walking towards each other. When near enough, B suddenly stabbed A. It was a frontal attack yet
obviously there was treachery. A was totally defenseless and B deliberately and consciously adopted the means
in the commission of the crime.

People v. Matibag (G.R. No. 206381, March 15, 2015)


Deceased Duhan was walking along the road when the accused Matibag confronted him and asked “ano bang
pinagsasabi mo?”, Duhan replied “wala”. Matibag thereafter hit Duahan and pulled out a gun and shot him.
Matibag was charged with the murder qualified by treachery.

Q: Is the aggravating circumstance of treachery present in this case? A: YES. The essence of treachery is
the sudden and unexpected attack. A frontal attack does not necessarily rule out treachery. The qualifying
circumstance may still be appreciated if the attack was so sudden and so unexpected that the deceased had no
time to prepare for his or her defense. In this case, Although the attack was frontal, the sudden and unexpected
manner by which it was made rendered it impossible for Duhan to defend himself, adding too that he was
unarmed.

When Victim is a Minor


Whenever the offended party is a minor, there is always treachery because the minor is always defenseless.

Example;
Victim is 17 years of age, but a big, macho man, full of muscles.

Q: Is there treachery?
A: The Supreme Court held that whenever the offended party is a minor, there is always treachery.

Minority Appreciated in Treachery


Minority here does not refer to the statutory definition of minority, that is, being below 18 years of age. Minority
here is with reference to the sense of helplessness of the victim. So it is necessary that the victim is helpless.

Example;
If the victim is 17 years old with a masculine physique and was able to put up a defense, there is no treachery.
But if the victim is 6 years old, then there is treachery.
The Offender Adopted Particular Means
The offender must have deliberately adopted the particular means, method or form of attack employed by him.

Example;
A prisoner arrived at the police station. Upon removal of his handcuffs, he immediately grab the pistol of the
arresting officer. Thereafter he went out pointing the said gun. Upon seeing a woman who was getting inside
the PNP station, he shot the woman.

Q: The woman died. Is the aggravating circumstance of treachery present?


A: NO. It is a mere chance encounter. The first element is wanting. There is no showing the offender
deliberately adopted the particular means, method or form of attack employed by him in killing the woman.

People v. Vilbar (G.R. No. 186541, February 1, 2012)


Guilbert Patricia and his wife Maria Liza owns a sari-sari store. One night, when Guilbert arrived home from
work, he saw the accused who was drunk, urinating in one of the table in their store. Guilbert reprimanded the
accused, but the accused merely ignored Guilbert. Suddenly, the accused approached Guilbert, drew out a
knife, and stabbed him repeatedly. The accused was charged with murder qualified by treachery.

Q: Was treachery present as an aggravating circumstance?


A: NO. The Supreme Court held that the prosecution in the instant case merely showed that accused-
appellant attacked Guilbert suddenly and unexpectedly, but failed to prove that accused- appellant consciously
adopted such mode of attack to facilitate the perpetration of the killing without risk to himself.

Treachery must be present at the commencement of the attack


For treachery to arise it is necessary that he must be present at the commencement of the attack in order to
know whether the offended party was totally defenseless.

People v. Bokingco (G.R. No. 187536, August 10, 2011)


The witness saw the deceased Pasion enter the room of Bokingco. The witness peeped through the window of
Bokingco who was seen hitting something in the floor. Bokingco was charged with murder qualified by
treachery.

Q: Is the aggravating circumstance of treachery present?


A: NO. For treachery to be appreciated, the prosecution must prove that at the time of the attack, the victim
was not in a position to defend himself, and that the offender consciously adopted the particular means,
method or form of attack employed by him.Nobody witnessed the commencement and the manner of the
attack. While the witness Vitalicio managed to see Bokingco hitting something on the floor, he failed to see the
victim at that time.

People v. Tabarnero (G.R. No. 68169, February 24, 2010)


The witness Emerito testified that he saw the deceased Ernesto bing held by two persons whil accused Gary
and Alberto Tabarnero were stabbing the deceased. The witness did not see how the attack commenced but
only that he was attacked by both the accused while his hands were held by another person.

Q: Is the aggravating circumstance of treachery present in this case? A: YES. The Supreme Court held that
there was treachery. What the witness saw was that the hands of the victim were being held at the back while he
was being attacked. That is sufficient because there was restraint on the person of the victim. Even the witness
did not observe the commencement of the attack, since there was restraint on his person, he was totally
defenseless, treachery is present according to the Supreme Court.

Treachery absorbs Craft


If craft was used to insure the commission of the crime without risk to the accused, it is absorbed as treachery.

Example;
A, B, C, and D wanted to kill X. Thus, they procured the uniform of military en and knocked on the door of X.
Upon seeing the military uniform, X allowed A, B, C, and D to enter his house. Once inside, A, B, C, and D, shot
X. They were charged with murder qualified by treachery and with the aggravating circumstance of craft.

Q: Was craft absorbed by treachery in this case?


A: NO. Although, the all the accused dressed up as military men, such did not facilitate the commission of the
crime. The uniform of military men was merely used as a means to gain entry into the house of X.

Example;
X wanted to kill Y. Thus, X took his gun and hid it in the pocket of his jacket so that it could be concealed.
Thereafter, X approached Y and started talking. While Y was talking, X shot Y with the gun concealed in his
jacket. Y died.

Q: Was craft used to facilitate the commission of the crime?


A: YES. Since X hid the gun in his jacket to conceal it from the eyesight of Y, such means facilitated the crime of
murder through craft.

Treachery Absorbs Abuse Superior Strength


When both abuse of superior strength and treachery is present, only treachery will be appreciated because
abuse of superior strength is absorbed by treachery.

Fantastico v. Malicse (G.R. No. 190912, January 12, 2015)


Elpidio Malicse got into a heated argument with his sister Isabela Iguiron. However, they were pacified by the
Barangay Chairman. Victim Malicse returned to the house of Isabela to apologize, however, accused Fantastico
(the son-in law of Isabela) along with Rolly Villanueva, suddenly attacked victim with a stick and lead pipe,
respectively. Malicse almost died were it not for the intervention of the barangay tanod. The accused was
charged with attempted murder qualified by abuse of superior strength.

Q: Is the aggravating circumstance of Abuse of superior strength present in this case?


A: YES. The victim in this case was unarmed, while the accused was armed with a stick and a lead pipe.
However, there was no treachery in this case. From the facts proven by the prosecution, the incident was
spontaneous, thus, the second element of treachery is wanting. The incident, which happened at the spur of the
moment, negates the possibility that the petitioners consciously adopted means to execute the crime committed.
IGNOMINY
Ignominy is a moral circumstance which adds disgrace or humiliation to the injury suffered by the victim.

People v. Bumidang (G.R. No. 130630, December 4, 2000)


Accused Bumidang went into the house of Melencio Imbat in the middle night. Accused threatened to kill
Melencio and her unmarried daughter Gloria if the door was not opened. When Melencio opened the door, the
accused asked where the room of Gloria is. Melencio thereafter pointed to the room of Gloria. The accused
went inside the room of Gloria. The accused threatened to kill her with a spear if she resisted. The accused
removed the garments of Gloria, inspected her genitals with a flashlight and proceeded to have carnal
knowledge in front of Melencio.

Q: Was there ignominy in this case?


A: YES. The Supreme Court held that it was established that BALIWANG used the flashlight and examined the
genital of Gloria before he ravished her. He committed his bestial deed in the presence of Gloria's old father.
These facts clearly show that BALIWANG deliberately wanted to further humiliate Gloria, thereby aggravating
and compounding her moral sufferings.

People v. Saylan (G.R. No. L-36941, June 29, 1984)


Accused Saylan raped Eutropia Agno five times. In one of those time, Saylan gained entry to the genitals of
the Eutropia from behind in dog- style position. Eutropia filed a complaint for rape against Saylan.

Q: Does the dog-style position adds ignominy to rape?


A: YES. The entry of the penis was from behind. Although this position was not novel and in fact normal in
case of two consenting partners, such act adds ignominy in rape cases.

People v. Fernandez (G.R. No. L-62116, March 22, 1990)


Rebecca Soriano is employed as a house helper. Rebecca had just taken a shower in the house of her master
when suddenly, accused went inside the house and raped her. She added that after the ape, the accused grab
a handful of mud and smeared it on her vagina.

Q: Is there ignominy in this case?


A: YES. The act of "plastering" mud on the victim's vagina right after she was raped, is adequately and
properly described as "ignominy".

UNLAWFUL ENTRY
There is an unlawful entry when an entrance is effected by a way not intended for the purpose

In correlation to this, paragraph 19 states that as a means to the commission of a crime a wall, roof, floor, door,
or window be broken.

Example;
A was on vacation. B knew that A was on vacation. He saw that the window on the third floor of the house was
open. He got a ladder and placed it in the window, climbed it and entered the house. Then he took the
valuables, got out through the window.

Q: Is the aggravating circumstance of unlawful entry present?


A: NO. The reason is that, the fact that a crime was committed after an unlawful entry is inherent in the
commission of the crime because the crime committed is robbery under Art.299, robbery with use of force
upon things. The essence of robbery, is in the act of unlawful entry. The entry was done through a means not
intended for anything

that is to a window. Thus, the fact that a crime was committed after an unlawful entry is not an aggravating
circumstance.

Example;
A was passing by the house of B. Suddenly he saw through the window, two cellphones being charged.
Interested on the cellphones, he broke the window entered his hand and took the cellphones.

Q: Is the aggravating circumstance that as a means to the commission of the crime the window was broken
present?
A: YES. The crime committed is theft only and not robbery because the offender did not enter the house. In the
case of People v. Jaranilla (G.R. No. L-28547 February 22, 1974) One essential requisite of robbery with force
upon things is that the malefactor should enter the building or dependency, where the object to be taken is found.
If the culprit did not enter the building, there would be no robbery with force upon things. The crime committed is
only theft. In this case, the offender only broke the window, entered his hand and took the cellphones. Therefore
the crime committed is theft. In theft, the fact that a window was broken is not inherent it is an aggravating
circumstance.

AID OF PERSONS UNDER 15 YEARS


If the crime committed makes use of minors under 15 years of age, it shows the greater perversity of the offender
because he knows that minors cannot be arrested. Persons below 15 years of age cannot be prosecuted, it is
among the exempting circumstances. Therefore, it shows greater perversity.

BY MEANS OF MOTOR VEHICLE


If the crime is committed with the use of motor vehicle in killing a person, it is a qualifying aggravating circumstance
under article 248. If the motor vehicle is used in the commission of any other crime, it is a mere generic aggravating
circumstance.

Example;
X was walking along the road. Suddenly two men riding in tandem in a motorcycle snatched the handbag of X. X
was able to identify the plate number of the motorcycle and reported the matter to the police. The police made an
investigation which resulted to the arrest of the two men.

Q: Is the use of motor vehicle an aggravating circumstance?


A: YES. The two men used the motor vehicle to snatch the handbag of
X. Thereafter, the two men utilized the motor vehicle to facilitate their escape. Thus, the aggravating
circumstance of use of motor vehicle is present because it facilitated the commission of the crime.

CRUELTY
Cruelty is the additional physical pain aside from the material injury which is not necessary to the commission of
the crime.

The following are the elements of cruelty;


1. That at the time of the infliction of the physical pain, the offended party is still alive;
2. That the offender enjoys and delights in seeing his victim suffer gradually by the infliction of the physical
pain;

 The victim must be alive because a corpse cannot feel pain.


Example;
A person was found dead with several wounds all over his body. The fact that there was 25-50 wounds cannot
immediately mean that there was cruelty in the commission of the crime. It is necessary to determine, whether
first, he was still alive at the time the physical pain was inflicted; second, did the offender enjoy and delight in
seeing his victim suffer gradually by the infliction of the physical pain. If there were defense wounds, cruelty
cannot be appreciated.

Ignominy vs. Cruelty


IGNOMINY CRUELTY
The victim suffered moral pain;The victim suffered physical
pain or physical suffering;
The victim may either be aliveIt is necessary that the victim is
or dead; alive;

USE OF AN UNLICENSED FIREARM


Under section 1 of P.D. 1866 as amended by. R.A. 8294, If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

Special Aggravating Circumstance


In the case of People v. Palaganas (G.R. No. 165483, September 12, 2006) The Supreme Court held that the
passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now
considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.

Thus, if the use of unlicensed firearm is inherent in the crime committed, it shall not constitute as another
offense but will be considered as a special aggravating circumstance.

Example;
A killed B by means of an unlicensed firearm. B died and A was arrested. The firearm was recovered. Two
cases were filed against A; murder or homicide as the case maybe and illegal possession of unlicensed
firearm under PD. 1866 as amended by RA 8294.

Q: Are the charges correct?


A: NO. Under section 1 of PD. 1866 as amended by RA 8294 if homicide or murder is committed with the use
of an unlicensed firearm, such use of unlicensed firearm shall be considered as an aggravating circumstance.
Therefore, there shall only be one charge of murder or homicide as the case maybe. The use of the unlicensed
firearm shall be alleged in the information as an aggravating circumstance.

Example;
A father and son had an argument. The son shot his father with an unlicensed firearm. The father died. Two
cases were filed against the son: parricide and illegal possession of unlicensed firearm. The fiscal opined that
under section 1 of PD. 1866 as amended by RA 8294 if homicide or murder is committed with the use of an
unlicensed firearm, such use of unlicensed firearm shall be considered as an aggravating circumstance. It did
not provide for parricide, therefore two cases should be filed.

Q: Is the fiscal correct?


A: NO. SC has already ruled, that the words homicide and murder in the said law is used in its generic sense.
Therefore it includes all kinds of killing where the penalty prescribed by law is the same as murder

which is reclusion perpetua to death. The penalty prescribed by law is


reclusion perpetua to death.

Example;
X wanted to carnap the vehicle of Y. In doing so, X approached Y and intimidated him with an unlicensed firearm.
X told Y to surrender his vehicle otherwise he will be killed. Y, being terrified for his life, surrendered the keys to
his vehicle. X drove away. Thereafter, Y reported the incident to the police. An investigation ensued which lead to
the arrest of X. X was charged with the information of carnapping and use of an unlicensed firearm.

Q: Is the charge correct?


A: Yes. The use of an unlicensed firearm shall be considered as an aggravating circumstance only if such use is
inherent in the commission of the crime. In this case, since the use of an unlicensed firearm was not inherent in
the commission of the crime of robbery, it shall be a separate offense.

Example;
X and Y had a fight. X stabbed Y with a knife. Thereafter, the police arrived to arrest X. Upon his arrest, X was
body searched by the police and found in his possession an unlicensed firearm. X was charged with homicide
and illegal possession.

Q: Is the charge correct?


A: YES. Use of an unlicensed firearm will only be appreciated as a special aggravating circumstance if such was
inherent in the commission of the crime. In this case, although the crime committed was homicide, the unlicensed
firearm was not used as a means to facilitate the commission of the crime. Hence the proper charge against X
was the use of an unlicensed firearm and homicide.

DANGEROUS DRUGS
A killed B. thereafter he chopped the body of B. because of the manner employed by the accused in killing the
victim, the police suspected that he was under the influence of prohibited drugs. He was brought to the PNP
crime laboratory for forensic examination. the results provided that he was under the influence of prohibited
drugs.

Q: What is the effect of the positive result of the said examination on the commission of the crime of the said
accused?
A: Under Section 25 of RA 9165, when a crime is committed by an offender under the influence of dangerous
drugs, such state shall be considered as a qualifying aggravating circumstance. Therefore, it will bring about a
change in the nature of the crime to a more serious crime with a higher penalty.

--xXx--

Art. 15. Their concept. — Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and effects of the crime and the other
conditions attending its commission. They are the relationship, intoxication and the degree of instruction
and education of the offender.
The alternative circumstance of relationship shall be taken into consideration when the offended
party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative
by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into consideration as a mitigating
circumstances when the offender has committed a felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said felony but when the intoxication is habitual or
intentional, it shall be considered as an aggravating circumstance.

ALTERNATIVE CIRCUMSTANCE
Alternative circumstances are those circumstances which can either be aggravating or mitigating, depending
on their effect in commission of the crime.

There are three alternative Circumstances in Article 15


1. Relationship;
2. Intoxication;
3. Degree of Instruction or Education

RELATIONSHIP
Relationship is considered as an alternative circumstance when the offender is related to the offended party as
his spouse, ascendants, descendants, legitimate, illegitimate, natural, adopted brothers, sisters or relatives by
affinity within the same degree.

Relationship as mitigating
Relationship is considered as mitigating in crimes against property.

Relationship as an Absolutory Cause


In certain crimes against property, relationship of the offender with the offended party is exempting.

Example;
1. Theft;
2. Estafa or swindling; and
3. Malicious mischief;

Under article 332 if the crime committed is theft, estafa or swindling, and malicious mischief, relationship
exempts the offender from criminal liability.

Relationship in crimes against Persons


In crimes against persons, relationship is mitigating if the following circumstances are present;
1. The offender is of a higher degree than that of the offended party; and
2. The crime committed is less physical injury, or slight physical injury.

Relationship is aggravating if the crime committed by the offender who is of higher degree than that of the
offended party is serious physical injury

Relationship is inherent in the crime of parricide.

INTOXICATION
There is intoxication when the offender has taken such amount of liquor of sufficient quantity as to affect his
mental capacity to determine the consequences of his act.

Intoxication as mitigating
Intoxication is considered as a mitigating circumstance if it is not habitual or subsequent to the plan to commit
the felony

Intoxication as aggravating
Intoxication is considered as an aggravating circumstance if it is habitual and it is done subsequent to the
commission of a crime.

Example;
X wanted to commit a crime. Since he had no courage, he deliberately takes liquor as a stimulant for him to
commit the crime. He was so nervous he cannot commit the crime, so he takes liquor form him to have the
strength to commit the crime.

DEGREE OF INSTRUCTION AND EDUCATION


As a rule a low degree of education or instruction is considered as a
mitigating circumstance.

Exception: if the crime committed is inherently evil or wrong.


Exemption;
Killing a person, molesting a woman, taking the personal property of another. Such is as wrong as to a learned
man as it is to an ignorant man.

As Aggravating Circumstance
A high degree of education is considered as an aggravating circumstance if the offended makes use of his high
degree of education in facilitating the commission of the crime.

Example;
A lawyer committing estafa by falsifying a deed of absolute sale. The lawyer makes use of his high degree of
education in order to commit the crime.

However, in a case where a lawyer kills another person in the course of an argument, his high degree of
education has nothing to do with the commission of the crime. Therefore in this case, it cannot be considered as
an aggravating circumstance.

ABSOLUTORY CAUSES
Absolutory Causes are those circumstance which have the effect in Article 12. Absolutory causes exempts a
person from criminal liability but not from civil liability.

Examples;
1. Mistake of fact;
2. Instigation;
3. Accessories in Light felonies;

EXTENUATING CIRCUMSTANCES
Extenuating circumstances are those which have the same effect as mitigating circumstance but not included in
Article 13, to lower the imposable penalty

Example;
A mother killed her own child less than 3 days old in order to conceal her dishonor. The penalty here will be
lowered by 2 degrees, from reclusion perpetua to death, the penalty will be prision mayor.

INSTIGATION
I mentioned Instigation, as an absolutory cause. In instigation, the mens rea originated from the mind of the
public officer who only lured the offender to commit the crime.
On other hand, entrapment is not an absolutory cause because entrapment refers to ways and means resorted
to by the public officer in order to trap and capture a criminal in flagrante delicto. Here, the mens rea originated
from the mind of the offender

In People vs Naelga (G.R. No. 171018, September 11, 2009) The Supreme Court differentiated instigaton and
entrapment.

INSTIGATION ENTAPMENT
The mens rea (evil intent) originated from the mind of the The mens rea (evil intent) originated from the mind of the
public officer; offender;

An absolutory cause by reason Not an absolutory cause;


of public policy;
The public officer is liable as The public officer is not
principal by inducement; criminally liable;

--xXx--

RSONS CRIMINALLY LIABLE


Art. 16. Who are criminally liable. — The following are criminally liable for grave and less grave
felonies:
Principals. Accomplices. Accessories.

The following are criminally liable for light felonies: Principals


Accomplices

--xXx--

Art. 17. Principals. — The following are considered principals:


1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without which it would
not have been accomplished.

Kinds
There are three kinds of Principals;
1. Principal by direct participation;
2. Principal by inducement;
3. Principal by direct participation;

PRINCIPAL BY DIRECT PARTICIPATION


Principal by direct participation are those who take direct part in the execution of the act.

The principal by direct participation must necessarily be present in the scene of the crime because he is the
one who actually executed the crime. Without him, the crime will not be committed.

PRINCIPAL BY INDUCEMENT
Principal by direct participation are those who directly force or induce other to commit it.

The principal may or may not be present in the scene of the crime.

Elements;
1. Inducement be made with the intention of procuring the commission of the crime;
2. The inducement is the determining cause of the commission of the crime by the material executor;

Forms of inducement
Inducement may come in different forms;
1. Giving of price, reward or promise;
2. By employing force, command or ascendancy which is being followed by the principal by direct
participation.

PRINCIPAL BY INDISPENSABLE COOPERATION


Principal by indispensable cooperation are those who cooperate in the commission of the offense by another act without
which it would not have been accomplished.

Elements;
1. The accused participated in the criminal resolution;
2. Performance by him of another act indispensable to the accomplishment of the crime;
The principal by indispensable cooperation must be at the scene of the crime because he must perform another
act without the crime would not have been.

Art. 18. Accomplices. — Accomplices are those persons who, not being included in Art. 17,
cooperate in the execution of the offense by previous or simultaneous acts.

The accomplice merely cooperate in the commission of the crime by previous of simultaneous acts. The
participation is only minor in character. It only provides material and moral aide in an efficacious manner but not
in an indispensable manner.

If the act performed by the offender facilitated the commission of the crime, but it is not indispensable in the
commission of the crime, with or without said act nevertheless, the crime had been committed, the offender is
merely an accomplice.

Requisites to be an accomplice;
1. There must be a community of design;
2. That he performs the acts previous or simultaneous to the commission of the crime; and
3. That the acts performed by the principal is related to the acts performed by the accomplice.

Community of design
The accomplice had been informed of the criminal design of the offender and having been informed, he concurs
with the said criminal design. He’s not part of the conspiracy but he knows and concurs with the design because
he was informed of the same only after the principal had come up with agreement.

Example;
A, B, C, D, and E decided to rob a bank. Based on their agreement, A.B, and C will be the ones to enter the
bank. D will serve as lookout. E will serve as the driver of the vehicle. They committed the crime on the date
agreed upon.
Q: What are the liabilities of A, B, C, D, and E?
A: All of them are liable as principals by direct participation, because all of them are authors of the criminal
design.

Example;
What if, A, B and C decided to rob the bank. On the agreed time and place, they were already about to go to
the bank, but suddenly they realized they have no vehicle. So they flagged down a taxi. They informed the taxi
driver of their criminal design, to which the taxi driver agreed for his car to be used as a getaway vehicle. While
on their way to the bank, they realized that they needed a lookout. They saw a balut vendor and asked him,
“Can you be our lookout? The moment you see a police coming, shout baluuuuut!” The said vendor agreed to
the said criminal design. After robbing the bank, A B C and the balut vendor boarded the taxi.

Q: What is the criminal liability of each?


A: A, B, and C, are liable as principal by direct participation, while the taxi driver and the balut vendor are liable
as accomplices. They are accomplices since A, B, and C already agreed on the criminal design before they
informed the two of the same and the latter concurred by performing simultaneous acts or subsequent to the
commission of the crime.

 So no matter how minor the participation is of an offender, if he is an author of the criminal design, even if
he only acted as a lookout, still he is liable as a principal by direct participation

Example;
X wanted to kill Y. X knows that Y is living in a dorm. In order to execute his plan, X contacted W who is also
living in the same dorm as Y. X told W of his plan to kill Y. X asked W to open the gate of the dorm at exactly 1
am so that X could enter. At exactly 1am, W opened the door to the dorm allowing X to enter. Upon entering, X
immediately went to the room of Y. Thereafter, X stabbed Y. Y died.
Q: What is the liability of X?
A: X is liable as a principal by direct participation in the crime of homicide regarding the death of Y. X is the
one who performed all the acts of execution by stabbing Y resulting to the death of the latter.

Q: What is the liability of W?


A: W is liable as an accomplice. Although W knew of the plan to kill X, he did not participate the criminal
resolution thereof. X merely informed W of the plan, and W merely concurred. Likewise, the acts of W in
opening the gate for X is not an indispensable act in order to consummate the homicide of Y. X could have
easily asked another person to open the gate of the dorm for him.

Art. 19. Accessories. — Accessories are those who, having knowledge of the commission of
the crime, and without having participated therein, either as principals or accomplices, take part
subsequent to its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime;
2. By concealing or destroying the body of the crime, or the effects or instruments thereof,
in order to prevent its discovery;
3. By harboring, concealing, or assisting in the escape of the principals of the crime,
provided the accessory acts with abuse of his public functions or whenever the author of
the crime is guilty

of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually
guilty of some other;

Knowledge of the Crime


The accessory does not know the criminal design. What he knows is the commission of the crime. Despite
knowledge that the crime has been committed, he take part subsequent to its commission.

BY PROFITING FROM THE EFFECTS OF THE CRIME.


The accomplice profited themselves or assisted the offender to profit from the effects of the crime.

Example;
A, by means of deceit, was able to take the diamond ring of his friend. So A swindled his friend by means of
deceit. After taking the ring, she went to B. A told B “B, I have here a diamond ring, I swindled it from my friend
and I’m selling it to you for only 10k. B bought the said ring and displayed it to his shop to have it sold. Later B
was found in possession of the said ring.

Q: Is B liable as an accessory?
A: YES. B assisted A, the principal of the crime of swindling, in profiting from the effects of the crime by buying
the stolen diamond ring. Furthermore, B slater sold the diamond ring for profit. Thus, B is considered as an
accomplice.

DESTROYING THE BODY OF THE CRIME TO PREVENT ITS DISCOVERY


2nd act of an accomplice is by concealing or destroying the body of the crime, or the effects or instruments thereof,
in order to prevent its discovery.

Body of the crime


The body of the crime does not mean the corpse of a deceased person in murder, or the item stolen in case of
robbery or theft. It means that a fact has been committed by someone.

Elements of body of the crime;


1. Proof of occurrence of a certain event;
2. Proof of person’s criminal liability;

Example;
X and Y were engaged in a fight. In the course of the said fight, X killed
Y. Thereafter, X told his friend W to bring the body of Y to the house of Y and burn it to conceal and destroy the
body of Y in exchange for 100k. Needing the money, W took the body of Y and brought it in the house Y.
Thereafter, W burned down the house of Y. Thereafter, the relatives of Y reported to the police that he has been
missing for a long time. The police made an investigation which lead to the arrest of X and W.

Q: What is the liability of X?


A: X is a principal by direct participation in the crime of homicide of Y, because it was X who executed the acts of
execution which lead to the death of Y. Likewise, X, is a principal by inducement in the crime of arson. Were it
not for the consideration given by X to W, the latter would not have burned the house of Y with the body of Y
inside for the purpose of concealing the crime of homicide.

Q: What is the liability of W?


A: W is an accessory of the crime of homicide of Y. W assisted in the concealing and destroying the corpse of Y
by burning it in Y’s own house. However, W is a principal by direct participation in the crime
of arson. W executed the acts of execution of arson in burning the house of Y with the body of Y inside.

Example;
X and Y were fighting. Y kicked and punched X. X lost the fight and fell down. W, who saw the fight, gave X a
gun and ordered to shoot Y. S, another bystander, also told X to shoot Y. X shot Y who died immediately. X
went home. Feeling guilty of the crime that he committed, confessed to his father what he had done. X gave
the gun that he used to his father. The father hid the gun to prevent its discovery by the police.

Q: What is the liability of X?


A: X is guilty of homicide as a principal by direct participation. X completed all the acts of execution for
homicide by pulling the trigger of the gun which immediately resulted to the death of Y.

Q: What is the liability of W?


A: W is considered as a principal by indispensable cooperation in the crime of homicide. W gave a gun to X
which the latter used to shoot and kill Y. Were it not for the gun which W gave, X would not have used said gun
to kill Y therby committing homicide.

Q: What is the liability of S?


A: S is not criminally liable. Even though S also told X to shoot Y, he did not provide the gun to complete the
acts of the execution. Likewise, absence of any finding of conspiracy, or that S participated in the criminal
resolution of homicide, such words of encouragement does not make him criminally liable.

Q: What is the liability of the father?


A: The father is liable as an accessory. By concealing the gun which X, his son, used to commit the crime of
homicide, he assisted by concealing the effects or the instrument of the crime of homicide in order to prevent
its discovery. However, by virtue of Article 20, the father is exempted from the criminal liability because X was
his son. However, he is liable for obstruction of justice because he assisted in preventing the discovery of the
crime of homicide.

ASSISTING THE ESCAPE OF THE PRINCIPAL


The 3rd act of the accessory is by harboring, concealing, or assisting in the escape of the principals of the
crime, provided that he either;
1. Acts with abuse of his public functions; or
2. The author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the
Chief Executive, or is known to be habitually guilty of some other offense;

 If the accessory who harbored and concealed or assisted in the escape of the of the principal is a private
individual, the law specifies the crime committed, which is PD 1829, otherwise known as Obstruction of
Justice.
OBSTRUCTION OF JUSTICE
Obstruction of Justice is committed by any person who willfully and lawfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the investigation and prosecution of criminal cases.

Example;
The principal committed swindling or estafa. X harbored the principal despite knowing the latter committed
estafa. X cannot be considered

as an accessory because estafa or swindling is not among the crimes mentioned in the second part of the 3 rd act.

Q: What is the criminal liability of the friend?


A: He is liable for obstruction of justice under P.D. 1829.

Example;
What if A and B sisters. They had a housemaid, X. A and B were cruel to X, for a minor mistake they would slap,
boxed or injure her. One time, A went to work. When she arrived home, she saw the deceased body of X. A and
B placed the deceased body in a sack and placed it on the trunk of their car. However, someone witnessed their
act who immediately called the police, reporting that he saw 2 women putting a sack in the truck wherein 2 feet
were protruding from the said sack. A and B were prosecuted and both convicted for murder.

Q: Are both A and B liable for murder?


A: NO. The Supreme Court said that only B is liable, not for murder but only for homicide. When A arrived, the
housemaid was already dead.

Q: Does A have no criminal liability?


A: A is considered as an accessory. Her act of trying to place the deceased body inside the trunk of the car in
order to prevent the discovery of the crime her act constitutes that of an accessory. But she falls under Article 20
since she is related to the offender.

FENCING
Under P.D. 1612, a fence includes any person, firm, association corporation or partnership or other organization
who/which commits the act of fencing.

“Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess,
keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item,
object or anything of value which he knows, or should be known to him, to have been derived from the proceeds
of the crime of robbery or theft.

Elements
In the case of Dimat v. People (G.R. No. 181184, January 25, 2012) The Supreme Court held the following as elements
of fencing;
1. A robbery or theft has been committed;
2. The accused, who took no part in the robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner deals in any article or object taken
during that robbery or theft;
3. The accused knows or should have known that the thing derived from that crime; and
4. He intends by the deal he makes to gain for himself or for another.
Example;
X was a house helper. One night, when the master was not home, X went to the room of his master and took the
jewelries worth 500k and cash worth 1M from the cabinet. X went to his mother and told her that she stole the
jewelries and cash from the master. The mother deposited the cash to a bank. The mother sold the jewelries to a
jewelry store in a discounted amount of 100k. When the master came home, he found the jewelries and cash
missing. The master reported
the incident to the police. Upon investigation, the police apprehended X, the mother, and the jewelry store
owner.

Q: What is the liability of X?


A: X is liable as principal by direct participation in the crime of qualified theft. X used his occupation as a house
help as a means to facilitate the commission of the crime of theft.

Q: What is the liability of the mother?


The mother is liable as an accessory because she assisted X from profiting from the effects of the crime.
Despite having knowledge of the commission of the crime, the mother deposited the money to a bank in order
to gain interest therefrom. Likewise by selling the jewelries to the jewelry store, the mother enriched herself
from the stolen jewelries.

Q: What is the liability of the Jewelry store owner?


A: The Jewelry store owner is liable as a fence. The jewelry store owner, knowing that the said jewels were
sold to him at an extremely low price, should have known that the same were proceeds of the crime of robbery
or theft.

Q: If you were the fiscal, what case would you prefer to file against the jewelry store owner? a fence or an
accessory?
A: You can only file either of the two. It’s better to file fencing. Because it is easier to prove. While in
accessory, he must first know that the crime has been committed. In fencing, it is not necessary that he knows.

Section 5 of PD 1612 provided a prima facie presumption of fencing. The burden of evidence is shifted on the
accused

--xXx--

Art. 20. Accessories who are exempt from criminal liability. — The penalties prescribed for
accessories shall not be imposed upon those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the
same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of
the next preceding article.

An accessory is exempted from criminal liability in the following instances;


1. When the crime committed is a light felony;
2. When the said accessory is the spouses, ascendants, descendants, legitimate, natural, and adopted
brothers and sisters, or relatives by affinity within the same degrees;

--xXx--

GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 5


Penalties common to the
three preceding
classes: Fine, and

temporary special disqualification,


Suspension from public
office, the right to vote and be
voted for, the profession or calling.

Forfeiture or confiscation
of instruments and proceeds of the
offense,

PENALTIES
Penalties refers to punishment, imposed by lawful authority upon a person who has committed an intentional
felony or a culpable felony

2 kinds of penalties;
1. Principal; and
2. Accessory

Principal penalties
Principal penalties are penalties prescribed by law or precribed by the court.

Accessory penalties
Accessory penalties are those which are necessarily included in the imposition of principal penalties.

--xXx--
--xXx-- CAPITAL PUNISHMENT

DEATH
Under RA 9346, death penalty cannot be imposed.

SEC. 2 of RA 9346: in lieu of death penalty it shall be reclusion perpetua in case of violation of the RPC and
life imprisonment in case of violation of Special Penal Laws.

SEC. 3. Person convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to
reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise known
as the Indeterminate Sentence Law, as amended.

Art. 25. Penalties which may be imposed. — The penalties which may be imposed according to this
Code, and their different classes, are those included in the following:

SCALE

PRINCIPAL PENALTIES
Capital punishment:
ath.

Afflictive penalties:
clusion perpetua, Reclusion temporal,
Perpetual or temporary absolute disqualification,
petual or temporary special disqualification,
sion mayor.

Correctional penalties:
sion correccional, Arresto mayor, Suspension, Destierro.
--xXx-- AFFLICTIVE PENALTIES

RECLUSION PERPETUA AND LIFE IMPRISONMENT


Reclusion perpetua is imposed in case the offender violated the provisions of the Revised Penal Code. On the
other hand, life imprisonment is imposed in case the offender violate the provisions of the special penal laws.

Reclusion perpetua v. Life Imprisonment


The following are the distinctions reclusion perpetua and life imprisonment;

RECLUSION PERPETUA LIFE IMPRISONMENT


Penalty is imposed in case of violation of the Revised Penalty is imposed in case of violation of special penal
Penal laws;
Code;
Carries a duration of 20 to 40 No fixe duration;
years;
Carries with it an accessory Does not carry an accessory
penalty; penalty’

Q: Is Reclusion perpetua a divisible penalty?


A: NO. In People v. Lucas (G.R. Nos. 108172-73, January 9, 1995) had the Congress intended that Reclusion
perpetua be a divisible penalty, the application of two indivisible penalties under Article 63 of the Revised
Penal Code will be meaningless and there would be no statutory rules for determining when either
reclusion perpetua or death should be the imposable penalty
Q: If reclusion perpetua is an indivisible penalty, then what is the reason for fixing the duration of reclusion
perpetua?
A: In the same case as mentioned above, the Supreme Court held that the duration of thirty (30) years for
reclusion perpetua is necessary to serve as the basis for determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple penalties.

RECLUSION TEMPORAL
Under Article 27 of the Revised Penal Code, the duration of reclusion temporal is 12 years and 1 day to 20 years.

PRISION MAYOR
Under Article 27 of the Revised Penal Code, the duration of Prision mayor shall be from six (6) year and one day
to twelve (12) years.

DISQUALIFICATION
Perpetual or Temporary Absolute Disqualification Perpetual or Temporary Special Disqualification may be either a
principal penalty or an accessory penalty.

Principal Penalty
As a principal penalty, the duration of temporary absolute or special disqualification shall be from six (6) year and
one day to twelve (12) years under Article 27 of the Revised Penal Code.

Accessory Penalty
Under Article 27 of the Revised Penal Code, when the penalty of temporary special or absolute disqualification is
imposed as an accessory penalty, its duration shall be that of the principal penalty.
RRECTIONAL PENALTIES

PRISION CORRECCIONAL AND DESTIERRO


Under Article 27 of the Revised Penal Code, the duration of the penalties of prision correccional shall be from
six (6) months and one
1. day to six (6) years.

DESTIERRO
Under Article 87 of the Revised Penal Code, any person sentenced to destierro shall not be permitted to enter
the place or places designated in the sentence, nor within the radius therein specified, which shall be not more
than 250 and not less than 25 kilometers from the place designated.

Destierro is a principal penalty and has a duration of six (6) months and one (1) day to six(6) years under
Article 27 of the Revised Penal Code,

SUSPENSION
Suspension may either be a principal penalty or an accessory penalty.

Suspension as principal penalty


Under Article 27 of the Revised Penal Code, the duration of the penalties of destierro shall be from six (6)
months and one (1) day to six(6) years.

Suspension as accessory penalty


Under Article 27 of the Revised Penal Code, when the penalty of destierro is imposed as an accessory
penalty, its duration shall be that of the principal penalty.

ARRESTO MAYOR
Under Article 27 of the Revised Penal Code, The duration of the penalty of arresto mayor shall be from one (1)
month and one (1) day to six (6) months.
The principal penalty which accompanies perpetual absolute disqualification are the following;
1. Death; (thirty years following the date of sentence)
2. Reclusion perpetua;
3. Reclusion temporal;

ARRESTO MENOR
--xXx-- LIGHT PENALTIES

The principal penalty which accompanies perpetual special disqualification of the right of suffrage are the following;
1. Prision mayor;
2. Prision correccional ;

Perpetual Absolute v. Temporary Absolute


PERPETUAL ABSOLUTE TENMPORARY ABSOLUTE
Effective during the lifetime of the convict and Disqualification lasts during the term of the sentence, and is
even after the service of the sentence; removed after the service of the sentence, except:
1. Deprivation of the Public office/employment;
2. Loss of all rights to retirement pay or pension for any
office
formerly held.

--xXx--
Under Article 27 of the Revised Penal Code, the duration of the penalty of arresto menor shall be from one (1)
day to thirty (30) days.

PUBLIC CENSURE
A principal and indivisible penalty that has no fixed duration.

--xXx--

PENALTIES COMMON TO THE THREE CLASSESS

FINE
A pecuniary penalty which is imposed by the court in case of the judgment of conviction. Instead of
imprisonment, the penalty imposed is fine.

BOND TO KEEP THE PEACE


Under Article 35 of the Revised Penal Code, It shall be the duty of any person sentenced to give bond to keep
the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense
sought to be prevented, and that in case such offense be committed they will pay the amount determined by
the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to
guarantee said undertaking.

Bond to keep the peace is a principal penalty.

Bond for Good Behavior


Bond to keep the peace is different from bond for good behavior.

Under Article 284 of the Revised Penal Code, in cases of grave threats and light threats, the person making the
threats may also be required to give bail not to molest the person threatened, or if he shall fail to give such bail,
he shall be sentenced to destierro.

BOND TO KEEP THE PEACE BOND FOR GOOD BEHAVIOR


May be applied to all cases; Applicable only to cases of
grave threats and light threats;
Failure to post a bond to keep the peace results to imprisonment either for six If a person fails to post a bond for
(6) months or thirty (30) days depending on whether the felony committed is good behavior , he shall be
grave or less grave on one hand, or a sentenced to destierro;
light felony on the other;

Bond to keep the peace v. Bond for good behavior


Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless
they be property of a third person not liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.

PAYMENT OF COST
Cost means the expenses of litigation.

Cost Includes
Under Article 7 of the Revised Penal Code, costs shall include fees and indemnities in the course of the judicial
proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in
force, or amounts not subject to schedule.

Q: Who shall pay the cost?


A: If an accused is convicted of a crime, cost shall be adjudged against him. However, in case of acquittal,
each party must bear his own lost.
--xXx-
CIVIL INTERDICTION

--xXx-- ACCESSORY PENALTIES

PREVENTIVE IMPRISONMENT
Preventive Imprisonment is the detention of accused while the case against him is on going trial either because;
1. The crime he committed is a non-bailable offense and evidence of guilt is strong; or
2. The crime committed is a bailable offense but he does not have the funds.

Q: Can the period of preventive imprisonment undergone by the accused be credited to his final sentence?
A: YES. As a general rule, Article 29 of the Revised Penal Code states that offenders who have undergone
preventive imprisonment shall

Under Article 34 of the Revised penal Code, Civil interdiction shall deprive the offender during the time of his
sentence the following rights;
1. Rights of parental authority;
2. Guardianship, either as to the person or property of any ward;
3. Marital authority,
4. The right to manage his property; and
5. The right to dispose of such property by any act or any conveyance inter vivos.

The offender sentenced to civil interdiction ma make a last will and testament because the prohibition to dispose
property extends only to inter vivos and not to mortis causa.

Donation may also be made by the offender provided that it shall take effect after death or mortis causa.

An accessory penalty
Civil Interdiction is always an accessory penalty in case of the following principal penalties;
1. Death;
2. Reclusion perpetua;
3. Reclusion temporal;

FORFEITURE AND CONFISCATION


Under Article 45 of the Revised penal Code, every penalty imposed for the commission of a felony shall carry
with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed.
be credited in the service of their sentence consisting of deprivation
of liberty, with the full time during which they have undergone preventive imprisonment, if the detention
prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners,
except in the following cases;
1. When they are recidivists or have been convicted previously twice or more times of any crime; and
2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily;

Q: What is the effect if the detention prisoner does not abide by the same disciplinary rules imposed upon
convicted prisoners?
A: Under Article 29 of the Revised Penal Code, if the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with
four-fifths of the time during which he has undergone preventive imprisonment.

Q: What is the effect if the accused has undergone imprisonment for a period equal to or more than the
maximum imprisonment for the offense charged?
A: Under Article 29 of the Revised Penal Code, whenever an accused has undergone preventive
imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to
which he may be sentenced and his case is not yet terminated, he shall be released immediately without
prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review.

Preventive imprisonment for Destierro


In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after
thirty (30) days of preventive imprisonment.
Q: Can the period of preventive imprisonment be deducted in case of destierro?
A: YES. Because destierro also involves deprivation of liberty and has a fixed duration of six (6) months and one
(1) day to six (6) years.

NOTE: If detention has already exceeded the possible maximum imprisonment of the offense charged but his
case is not yet terminated, file a case for Habeas Corpus for the immediate release of the accused.

--xXx--

PARDON
There are two kinds of pardon;
1. Pardon by the offended party; (Article 23)
2. Pardon by the President; (Article 36)

Pardon by the offended party


Under Article 23 of the Revised Penal Code, a pardon of the offended party does not extinguish criminal action
except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is
extinguished by his express waiver.

Example;
X killed Y. The relatives of Y filed a complaint for homicide against X. thereafter, X asked forgiveness from the
relatives of Y. The relatives of Y accepted the apology of X and thereby granted him a pardon.

Q: Will the pardon of the offended party extinguish the criminal liability of the offender in homicide?
A: NO. In the crime of homicide, pardon by the offended party will not extinguish the criminal liability of the
offender. Homicide is a public crime and it is essentially more of an offense against the state rather than the
offended party because it causes disturbance or public disorder.

Private Crimes
Pardon by the offended party does will only operate to extinguish the criminal liability in private crimes as
mentioned under under Article 344 of the Revised Penal Code;
1. Adultery;
2. Concubinage;
3. Seduction;
4. Abduction;
5. Rape; and
6. Acts of lasciviousness;

Example;
X filed a complaint for acts of lasciviousness against Y. during the trial, Y asked for forgiveness from X. X
accepted the apology of Y. Thereafter, X granted Y a pardon.

Pardon prior to Criminal proceedings


For pardon to extinguish the criminal liability of the offender, it must be given prior to the institution of the criminal
action.
Q: Will the pardon of X in the crime of acts lasciviousness against Y operate to dismiss the case already
instituted?
A: NO. Although the crime committed by Y is a private crime under Article 344 of the Revised Penal Code, the
case will not be dismissed because it was given after the institution of the criminal prosecution.

Q: What is the effect of pardon given by X?


A: The pardon of X will only serve as to extinguish the civil liability of Y in the complaint for acts of
lasciviousness.

Regardless of whether private or public crimes, the pardon given by the private complainant must be prior to
the institution of the criminal case.
Marital Rape
Although the general rule is that pardon must be given prior to the institution of the criminal case, Article 266-C
of the Revised Penal Code, the subsequent valid marriage between the offended party shall extinguish the
criminal action or the penalty imposed.

Under Article 266-C of the revised penal Code, in case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty:
Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab
initio.

Pardon by the President


Under Article 36 of the Revised Penal Code, a pardon shall not work the restoration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

Just like amnesty and parol, the pardon by the president does not extinguish civil liability because the same is
personal to the victim.

2 kinds of pardon by the president;


1. Absolute pardon; (Article 89)
2. Conditional Pardon; (Article 94)

In addition, Presidential Pardon does not automatically restore the following rights, unless they are specifically
stated by the terms of the pardon;
1. To hold public office;
2. To vote and be voted; and
3. To exercise his right of suffrage;

Pardon by the President v. Pardon by the Offended party


PARDON BY THE PRESIDENT PARDON BY THE OFFENDED
PARTY
Extinguishes criminal liability; Does not extinguish criminal liability whether public or private crime with
the exception of Marital Rape
under Article 266-C;

Does not extinguish civil liability Extinguish civil liability as it is


of the offender; deemed as a waiver;
Pardon must be made before the institution Pardon may only be made after conviction by final judgment
of the criminal
case; only in private crimes;

--xXx--

Art. 38. Pecuniary liabilities; Order of payment. — In case the property of the offender should not
be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order:
The reparation of the damage caused. Indemnification of consequential damages The fine.
The cost of the proceedings.

PECUNIARY LIABILITIES PECUNIARY PENALITIES


(ARTICLE 38) (ARTICLE 25)
Imposed by the court in case ofImposed by the court in case of
conviction but not as penalty; conviction as a penalty;

Article 39. Subsidiary penalty. - If the convict has no property with which to meet the fine
mentioned in the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal
liability at the rate of one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain
under confinement until his fine referred to in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no
case shall it continue for more than one year, and no fraction or part of a day shall be
counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not
exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony,
and shall not exceed fifteen days, if for a light felony.
3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment
shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution,
but such penalty is of fixed duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivations as those of which the
principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by reason of his
insolvency shall not relieve him, from the fine in case his financial circumstances should
improve. (As amended by RA 5465, April 21, 1969).

SUBSIDIARY PENALTY
Subsidiary Penalty is a substitute penalty for fine in case of insolvency by the accused.

Q: If the accused is insolvent and cannot pay the fine, may he be imposed of a subsidiary penalty of
imprisonment?
A: NO. Absent any express statement of subsidiary penalty by the court, subsidiary penalty cannot be imposed
even if the accused is insolvent and cannot pay the fine.

Q: Why must there be an express statement by the court imposing subsidiary penalty?
A: Because it is only a substitute penalty. A subsidiary penalty is not a principal penalty nor an accessory
penalty, but only a substitute penalty for fine.
Rate of Subsidiary Penalty
Under Article 39 of the Revised Penal Code, if the convict has no property with which to meet the fine
mentioned in paragraph 3 of Article 38 of the Revised Penal Code, he shall be subject to a subsidiary personal
liability at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the
Philippines at the time of the rendition of judgment of conviction by the trial court subject to the following rules;
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under
confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue
for more than one year, and no fraction or part of a day shall be counted against the prisoner;
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six
months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not
exceed fifteen days, if for a light felony;
3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be
imposed upon the culprit;
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such
penalty is of fixed duration, the convict, during the period of time established in the preceding rules,
shall continue to suffer the same deprivations as those of which the principal penalty consists;
5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall
not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA
5465, April 21, 1969).

Limitations of Subsidiary Penalty


Subsidiary penalty cannot be imposed on the following instances;
1. If the judgment of the court did not impose fine as a penalty;
2. If the judgment of the court did not expressly state that in case of nonpayment of fine, the convict
shall suffer subsidiary penalty;
3. If the principal penalty that goes with fine exceeds prision correccional or higher than 6 years;
4. If the principal penalty that goes with fine does not have fixed duration;
5. If what the convict thinks to pay is not fine but damages and cost;

Example;
X was convicted of reckless imprudence causing damage to property. Penalty imposed on him is fine and
public censure. Lower portion of the decision “in case of insolvency to pay the fine, he shall suffer subsidiary
penalty”.

Q: Is the court correct?


A: NO. The principal penalty that goes with fine is public censure is not to be executed in a penal institution
and is an indivisible penalty.

Example;
Accused was convicted of prision mayor and fine. The decision of the court includes a statement that in case
of insolvency to pay the fine, he shall suffer subsidiary penalty.

Q: Is the court correct?


A: NO. Subsidiary penalty cannot be imposed if the principal penalty is higher than the prision correccional.
Since prision mayor is more than 6 years, subsidiary penalty cannot be imposed.

Example;
X was convicted of a felony. The penalty imposed on him is fine alone. The judgment became final and
executory. A writ of execution was issued by the court, however such writ was unsatisfied. The judge ordered for
his arrest to suffer subsidiary penalty.

Q: Is the court correct?


A: NO. Failure to state that in case of insolvency to pay the fine, convict cannot be made to suffer subsidiary
penalty.

Example;
X was convicted of a fine with a subsidiary penalty. However, X was insolvent so he was imprisoned. When he
was released he bought lottery tickets and won the lottery. X is now a multimillionaire. Thereafter, the court
issued a writ of execution against him. X argues that his fine is now satisfied because he was subsidiarily
imprisoned in lieu thereof.

Q: Can the court issue a writ of execution against X despite serving the subsidiary penalty of imprisonment?
A: YES. Even if X already served the prison term for subsidiary imprisonment, the court may still hold him liable
for the fine unsatisfied.

--xXx--

 Memorize the Rules in Articles 50 – 57.


 Exception to Articles 50 – 57 is Article 60.

--xXx--
Article 48. Penalty for complex crimes. - When a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied in its maximum period.

2 Kinds of Complex Crime


There are 2 kinds of complex crime;
1. Compound Crime;
2. Complex Crime Proper;

In both kinds, only one (1) information is filed and the accused shall suffer the penalty for the most serious crime
in its maximum period.

COMPOUND CRIME
Compound Crime is present when the offender performs a single act which constitutes to two or more grave or
less grave felonies.

Basis
Basis of compound crime is the singularity of act of the offender.

Elements
The elements of compound crime are the following;
1. Offender performs single act;
2. Resulted to two or more less grave felonies Basis: Singularity of act
Example; aberratio ictus
A aimed the gun at B. But because of poor aim, it shot C a pedestrian walking. Treachery was attended. As to
B, crime committed is attempted murder. As to C, murder. Crime committed is attempted murder.

Example;
A political rival placed a bomb on B’s car. A person died, several persons injured. A single act placing the
bomb produces two or more less grave felonies. Crime is murder with multiple frustrated murder.

If two persons died, the charge is double murder. If three or more persons died, the crime is multiple murder. There is
no complex crime of triple murder.

Example;
X wanted to kill Y. to kill Y, X placed a bomb under the car of Y. When Y and wife and 3 children opened the
car, the bomb exploded. As a result, Y and his wife died. However, the children survived due to medical
treatment.

Q: Is X liable for a complex crime?


A: YES. The single act of X in placing the bomb in the car of Y resulted to 5 grave felonies; the murder of Y
and his wife, and the frustrated murder of the children. The charge should be double murder with multiple
frustrated murder.

Q: In the same problem, what is the crime committed if all of them died?
A: X will be liable for multiple murder because the single act of placing a bomb resulting to 5 grave felonies.
There should only be one charge or one information filed in court.

Example;
X is armed with M-16 high powered rifle, machine gun. He went inside the conference room. One pull of
trigger, many bullets came out hitting 5 persons.

Q: is X liable for the complex crime of multiple murder?


A: NO. If the weapon used is a high powered machine gun, the factor to be considered is the number of bullets
which came from the machine gun and the number of people wounded or killed rather than the single act of
pulling the trigger. Thus, X is liable for 5 counts of murder.
COMPLEX CRIME PROPER
Complex crime proper is present when the offense is a necessary means commit the another offense.

Elements
The following are the elements of complex crime proper;
1. Two offenses committed;
2. Offenses necessary means to commit the other;
3. Both crimes are punished by the same statute

Example
The following are examples of complex crime proper;
1. Rape with forcible abduction - A was on the ladder of the house, B a woman abducted her against her
will and with lewd design;
2. Estafa thru falsification of public document. Person falsifies a public document – Falsification used to
defraud another;

Estafa through falsification of private document


There is no estafa by falsification of private document. In estafa and falsification of private document, there is
only and the same damage contemplated by both felonies. Thus, only charge can be made, either falsification or
estafa, otherwise the prohibition against the twice recovery for damages will be violated.

If estafa cannot be committed without falsification, the correct charge is falsification. Estafa is merely a
consequence.

If estafa can be committed without falsifying, the proper charge is estafa. Falsification is merely an incident of
estafa.

On the other hand, in falsification of public document, damage is not an element of the offense. Thus, the charge
of estafa thru falsification of public document may exist.

SPECIAL COMPLEX CRIME


Special complex crimes exist when, in reality, two or more crimes are committed but in the eyes of law only one.

It is the law which provides what crimes would be complexed and what crimes go together;
1. Robbery with homicide; (Article 294)
2. Kidnapping with homicide; (Article 267 as amended by R.A. 7659)
3. Rape with homicide; (Article 266-B)

Special Complex Crime v. Compound Crime


SPECIAL COMPLEX CRIME COMPOUND CRIME
The law specifies the crimes Crimes are general;
which are combined;
Law provides for the penalty; The penalty for the most serious crime is imposed in the
maximum period;

Light felonies are absorbed; Light felonies committed is a


separate and distinct charge;

DELITO CONTINUADO.
Delicto continuado or continuous crime is present when the offender is impelled by a single criminal impulse
commits a series of overt acts in about the same time and about the same place violating one and the same
provision of law. Basis is singularity of impulse.

Basis
The basis is the singularity of impulse of the offender.

Elements
In the case of Santiago v. Garchtorena (G.R. No. 109266, December 2, 1993) the Supreme Court established the
elements of delito continuado;
1. Plurality of acts performed during a period of time;
2. Unity of penal provisions violated;
3. Unity of criminal purpose or aim;

Example;
A, B, C,D lives in one compound. All engaged in the business of selling rooster. One night, 11:00 in the evening
here comes X. While they were sleeping, X took the rooster of A, then of B, then of C, then of D.

Q: How many crimes will you file against X?


A: Crime committed is one charge of theft. X impelled by a single impulse committed overt acts leading to
theft.

Santiago v. Garchtorena (G.R. No. 109266, December 2, 1993) Petitioner Miriam Defensor-Santiago was
charged in the Sandiganbayan with the Anti-Graft & Corrupt Practices Act for favoring 32 “unqualified” aliens
with the benefits of the Alien Legalization Program. Defender-Santiago moved for a bill of particulars,
contending that unless she be provided with the names and identities of the “aliens” she would not be able to
adequately prepare for trial. Initially, the public prosecutors stated that they would file only one amended
complaint, but they later filed 32 amended informations, separately naming each of the aliens in each of the
informations. The Sandiganbayan admitted the 32 amended informations.

Q: Was it correct to admit the 32 amended informations?


A: NO. For delito continuado to exist there should be a plurality of acts performed during a period of time; unity
of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations of
the same penal provisions are united in one and same instant or resolution leading to the perpetration of the
same criminal purpose or aim. In this case, the 32 Amended Informations aver that the offenses were
committed on the same period of time, i.e., on or about October 17, 1988. The strong probability even exists
that the approval of the application or the legalization of the stay of the 32 aliens was done by a single stroke
of the pen, as when the approval was embodied in the same document.

CONTINUING CRIME OR TRANSITORY OFFENSE.


In Continuing crime, the offender may be prosecuted in any courts of the place where any of the crime has
been committed. This is more on remedial law not in criminal law.

Example;
X in payment of his obligation, issued a postdated check to Y in Manila, on the maturity date, Y deposited the
check to his depositary bank in Quezon City. The check however was dishonored by the drawee bank in
Caloocan City. Notice of dishonor was sent. X failed to make good the check. A complaint was filed against X
for violation of
P. 22.

Q: Where may Y file the case for violation of BP 22?


A: The complaint may be filed in any of the court where the elements of the crime occurred.

If the BP 22 case has already been filed in the MTC of Manila, the said case can no longer be filed before the
MTC of Quezon City or Caloocan City.
Art. 46. Penalty to be imposed upon principals in general.
 The penalty prescribed by law for the commission of a felony shall be imposed upon the principals
in the commission of such felony.
Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as
applicable to the consummated felony.

Penalty Imposed
Under Article 46, when the law prescribes a penalty for a felony, it shall be understood to mean that such penalty
shall be imposed upon principals of a consummated felony.

PENALTY IMPOSED UPON ACCESSORIES AND ACCOMPLICES


(Articles 50-57)

CONSUMMATED FRUSTRATED ATTEMPTED


Penalty prescribed by law for the The penalty lower by one A penalty lower by two degrees
offense; degree than that prescribed by than that prescribed by law for
law for the principal of a principal of a consummated
consummate d felony; felony;
(Art. 50) (Art. 51)

PRINCIPALS

A penalty lower by one degree The penalty lower by one degree A penalty lower by one degree
than that prescribed by law for than prescribed by law for the than that prescribed by law for
principal of a consummated principal of a frustrated felony; principals of an attempted felony;
felony; (Art. 54) (Art. 56)
(Art. 52)

ACCOMPLICES

A penalty lower by two degrees The penalty lower by two The penalty lower by two degrees
than that prescribed by law for degrees than prescribed by law than that prescribed by law for
principal of a consummated for the principals of a frustrated principals of an attempted felony;
felony; felony; (Art. 57)
(Art. 53) (Art. 55

ACCESSORIES

Articles 50-57 provides for penalties if the offender is a principal, accomplice or accessory whether or not the
felony is consummated, frustrated, attempted.
Exception
Under Article 60, the provisions contained in Articles 50 to 57, inclusive, of this Code shall not be applicable to
cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be
imposed upon accomplices or accessories.

Article 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual
delinquency. - Mitigating or aggravating circumstances and habitual delinquency shall be taken into
account for the purpose of diminishing or increasing the penalty in conformity with the following rules:
1. Aggravating circumstances which in themselves constitute a crime specially punishable by
law or which are included by the law in defining a crime and prescribing the penalty therefor
shall not be taken into account for the purpose of increasing the penalty.
2. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to
such a degree that it must of necessity accompany the commission thereof.

3. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or
from his private relations with the offended party, or from any other personal cause, shall only serve to
aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such
circumstances are attendant.

4. The circumstances which consist in the material execution of the act, or in the means employed
to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act or their cooperation therein.

5. Habitual delinquency shall have the following effects:

a. Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last
crime of which he be found guilty and to the additional penalty of prision correccional in its medium and
maximum periods;

b. Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the
last crime of which he be found guilty and to the additional penalty of prision mayor in its
minimum and medium periods; and

c. Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided
for the last crime of which he be found guilty and to the additional penalty of prision
mayor in its maximum period to reclusion temporal in its minimum period.

Notwithstanding the provisions of this article, the total of the two penalties to be imposed
upon the offender, in conformity herewith, shall in no case exceed 30 years.

PARAGRAPH 1.
The following aggravating circumstance shall not be taken into account for the purpose of increasing penalty;
1. Aggravating circumstances which in themselves constitute a crime specially punishable by law; or
2. Aggravating circumstances which are included by the law in defining a crime and prescribing the
penalty therefor;
3. Aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany
the commission thereof (Par. 2);

Aggravating circumstances which in themselves constitute a crime


especially punishable by law.

Example;
1. That the crime be committed by means of fire is not considered as aggravating in arson; (Art. 14, par.
2)
2. The crime be committed by means of derailment of a locomotive shall not be considered in damages
and obstruction to means of communication; (Art. 330)

Aggravating circumstances which are included by the law in defining a crime and prescribing the penalty
therefor;

Example;
1. The crime be committed in the dwelling of the offended party is not aggravating in robbery with force
upon things; (Art. 299)
2. Abuse of confidence is not qualified theft committed with grave abuse of confidence; (Art. 310)

PARAGRAPH 2.
The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree
that it must of necessity accompany the commission thereof.

Example;
Evident premeditation is inherent in robbery and theft;

PARAGRAPH 3.
The following aggravating or mitigating circumstance shall serve to aggravate for mitigate the liability of the
principals, accomplices, and accessories;
1. Those which arise from the moral attributes of the offender; or
2. From his private relations with the offended party; or
3. From any other personal cause;

Those which arise from the moral attributes of the offender

Example;
A and B killed C. A acted with evident premeditation, and B with passion and obfuscation.

Q: How should the aggravating circumstance be appreciated?


A: Evident premeditation should affect and aggravate only the penalty for A, while passion and obfuscation will
benefit B only mitigate his liability.

From his private relations with the offended party.


A and C inflicted slight physical injuries on B. A is the son of B. C is the father of B.

Q: How does A and C’s relationship with B affect their criminal liability?
A: The alternative circumstance of relationship, as aggravating shall be taken into account against A only,
because he is a relative of a lower degree than the offended party, B.

From any other personal cause In the material execution of the act A and B committed a crime. A was under 16
years of age and B was a recidivist.

PARAGRAPH 4
The following circumstance shall serve to aggravate or mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act or their cooperation therein;
1. In the material execution of the act; or
2. In the means employed to accomplish it;
Example;
A, as principal by induction, B, and C agreed to kill D. B and C killed D with treachery, which mode of
committing the offense had not been previously agreed upon by them with A. A was not present when B and C
killed D with treachery.

Q: How should the aggravating circumstance in this case be appreciated?


A: The aggravating circumstance of treachery should not be taken into account against A, but against B and C
only. But if A was present and had knowledge of the treachery with which the crime was committed by B and
C, he is also liable for murder, qualified by treachery.

In the means employed to accomplish it


A ordered B to kill C. B invited C to eat with him. B mixed poison with the food of C, who died after he had
eaten the food. A did not know that B used poison to kill C.
Q: Is the aggravating circumstance that the crime that the crime be committed by means of poison applicable
to A?
A: NO. The aggravating circumstance that the crime be committed by means of poison is not applicable to A.

ORGANIZED OR SYNDICATED CRIME GROUP.


An organized or syndicate crime group consists of two or more persons collaborating, confederating and
mutually helping another for purposes of gain in the commission of the crime.

The maximum penalty shall be imposed if the offense was committed by any person who belongs to an
organized/syndicated crime group.

The information charges A, B, C, D as collaborating, confederating and mutually helping another for purposes
of gain in the commission of the crime. This is what the information alleges. Trial found this so. The judge
considered conspiracy and considered this special aggravating circumstance.

Q: Is the court correct?


A: NO. Before the special aggravating circumstance be considered the court, evidence must show was held to
commit crimes involving gain.

HABITUAL DELINQUENCY
A person shall be deemed to be habitual delinquent, is within a period of ten years from the date of his release
or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he
is found guilty of any of said crimes a third time or oftener.

Elements;
1. The crime is specified should be serious physical injuries, less serious physical injuries, robbery,
theft, estafa;
2. There should be at least three convictions;
3. Each convictions must come within ten year from date of release or last conviction of the previous
crime;

Effect
Additional penalty shall be imposed in the maximum period being an aggravating circumstance.

No prescriptive period on thePrescribes in ten years;


commission of the offense;
No additional penalty; Provides additional penalty;

NUMBER OF PENALTY PRESCRIBED


CONVICTION
The penalty for the last crime of which he be found guilty.

ADDITIONAL PENALTY;
prision correccional in its medium and maximum periods;
Third Conviction;

The penalty provided for the last crime of which he be found guilty.

ADDITIONAL PENALTY;
Prision mayor in its minimum and medium periods;
Fourth Conviction;
The culprit shall be sentenced to the penalty provided for the last crime of which he be
found guilty.

ADDITIONAL PENALTY;
prision mayor in its maximum period to reclusion temporal in its minimum period.

Fifth Conviction;

Under Article 160, a person is said to


be a quasi-recidivist if after having
been convicted by a final judgment,
he shall commit a felony before
serving out his sentence or while
service of sentence. The maximum
period shall be imposed.

Again it is a special aggravating


circumstance.

* The first crime may be any crime. The


second crime must be a felony.

A, while serving a final judgment, he was


found in possession of illegal drugs.

A: NO. The second crime is not a felony,


it is a special law.

If A was was serving sentence for


possession of illegal drugs and then
inside a crime he killed a co-inmate.

Limitation
The penalty committed for the crime plus additional penalty should not exceed thirty years.

Recidivism and Habitual Delinquency


Recidivism and Habitual Delinquency may be simultaneously considered because they have different effects on
criminal liability of the offender. Recidivism effect is on the theft committed. It may be offset by mitigating
circumstances. Habitual delinquency will give him additional penalty.

Example;
A was charged and convicted of robbery he served his sentence. Within 10 years from date of release he
committed theft. He served sentence and again released. Within 10 years he committed another theft. The
judgment become final and executory. He served again and out of prison. Within 10 years against he committed
another theft. He is now in trial.
RECIDIVISM HABITUAL DELINQUENCY
Generic aggravating Cannot be offset by ordinary
circumstance - Can be offset; mitigating circumstance;
Requires at least two Requires at least three
conviction; convictions;
Felony violated must be within the same title The felony violated are serious physical injuries, less serious physical
of the code; injuries, robbery, theft,
estafa, falsification;

Q: Can the judge impose both recidivism and habitual delinquency? A: YES. He is recidivist because at the
time he served theft he was previously convicted of a final judgment of robbery embraced within the same title of
the code. He is also habitual delinquent, because within the ten years from the date of his last release he
committed a theft the third time.
Q: Is A a quasi-recidivist?
A: YES. Maximum period prescribed by law shall be imposed.

--xXx--

Article 63. Rules for the application of indivisible penalties.


- In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have attended the commission of the
deed.
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof;
1. When in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied;
3. When the commission of the act is attended by some mitigating circumstances and there
is no aggravating circumstance, the lesser penalty shall be applied;
4. When both mitigating and aggravating circumstances attended the commission of the act,
the court shall reasonably allow them to offset one another in consideration of their
number and importance, for the purpose of applying the penalty in accordance with the
preceding rules, according to the result of such compensation;

Outline of the rules.


1. When the penalty is single indivisible, it shall be applied regardless of any mitigating or aggravating
circumstances.
2. When the penalty is composed of two indivisible penalties, the following rules shall be observed;

GARCIA NOTES - CRIMINAL LAW REVIEW [2018]


Example;
a. When there is only one aggravating circumstance, the greater penalty shall be imposed;
b. When there is neither mitigating nor aggravating circumstances, the lesser penalty shall be
imposed;
c. When there is a mitigating circumstance and no aggravating circumstance, the lesser penalty shall
be imposed.
d. When both mitigating and aggravating circumstances are present, the court shall allow them to
offset one another;
circumstance. Since only one mitigating circumstance is left, the lesser penalty of reclusion perpetua shall
apply;

PRIVELEGE MITIGATING CIRCUMSTANCE


When there is a privileged mitigating circumstance, apply it first before computing the penalties.

Example;
A was charged with the information of Rape. At the time of the commission of the offense, A was only 16 years
old. After trial, he was sentenced to the indivisible penalty of reclusion perpetua. In his motion for
reconsideration, A argues that his penalty should be lowered by one degree because he is a minor. The judge
denied the motion on the ground that reclusion perpetua is an indivisible penalty

The penalty for Rape is reclusion perpetua. If the penalty is single and indivisible, it shall be imposed as is,
without consideration of any Aggravating or Mitigating circumstance

Example;
The penalty for the crime of murder is reclusion perpetua to death - two indivisible penalties.

Only one aggravating circumstance.


If the murder was committed with the aggravating circumstance of trespass to dwelling, the greater penalty of
death shall be applied;

Two or more aggravating circumstance and no mitigating circumstance


If the murder was committed with the aggravating circumstances of trespass to dwelling and recidivism, the
greater penalty of death shall be applied;

No mitigating nor aggravating circumstance


If there is no mitigating or aggravating circumstance in attendant, apply the lesser penalty of reclusion perpetua;

One mitigating and no aggravating circumstance


If the murder was committed with the mitigating circumstance of passion and obfuscation, the lesser penalty of
reclusion perpetua shall apply;

Two or more mitigating circumstance and no aggravating circumstance


If the murder was committed with the mitigating circumstances of passion and obfuscation and sufficient
provocation on the part of the offended party, the lesser penalty of reclusion perpetua shall apply;

If there are two aggravating circumstance and one mitigating circumstance


If the murder was committed with the aggravating circumstances of trespass to dwelling and recidivism, and the
mitigating circumstance of passion and obfuscation, one mitigating circumstance will offset one aggravating
circumstance. Since only one aggravating circumstance is left, the greater penalty of death shall apply;

If there are two mitigating circumstance and one aggravating circumstance


If the murder was committed with the mitigating circumstances of passion and obfuscation and sufficient
provocation on the part of the offended party, and the aggravating circumstance of trespass to dwelling, one
mitigating circumstance will offset another aggravating
and cannot be offset by mitigating circumstance.

Q: Is the judge correct?


A: NO. Minority is a privilege mitigating circumstance which lowers the penalty by one degree. Indivisible
penalties shall be imposed as is regardless of mitigating or aggravating circumstance. However, privilege
mitigating circumstance takes preference over prior to the computation of penalties. In this case, since A was a
minor at the time of the commission of the offense, his penalty should be lowered by one degree to reclusion
temporal.

Article 64. Rules for the application of penalties which contain three periods. - In cases in
which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following
rules, according to whether there are or are not mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances, they shall impose the
penalty prescribed by law in its medium period.
2. When only a mitigating circumstances is present in the commission of the act, they shall
impose the penalty in its minimum period.
3. When an aggravating circumstance is present in the commission of the act, they shall impose
the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall reasonably
offset those of one class against the other according to their relative weight.
5. When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period
that it may deem applicable, according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the courts shall
not impose a greater penalty than that prescribed by law, in its maximum period.
7. Within the limits of each period, the court shall determine the extent of the penalty according
to the number and nature of the aggravating and mitigating circumstances and the greater and
lesser extent of the evil produced by the crime.

Degree of penalty
Degree of penalty is a penalty prescribed by law for every crime committed whether divisible or indivisible.

Period of penalty
A period of penalty refers to the subdivision of every said divisible penalty into three portion, the first portion is
minimum, second is medium, third is maximum

Indivisible penalty
Indivisible penalties are penalties without fixed duration, death, reclusion perpetua, perpetual absolute disqualification,
perpetual special disqualification, public censure, fine.

Divisible penalty
Divisible Penalties are penalties with fixed duration and therefore can be divided into three period. the first portion
is minimum, second is medium, third is maximum

*Memorize the rules under Article 64.

Example;
X and Y had a fight. In the course of the fight, X killed Y. X was charged and convicted of homicide. The penalty
for homicide is Reclusion temporal.

No aggravating and no mitigating.


Reclusion temporal shall be imposed in its medium period.

One mitigating and no aggravating.


If there is voluntary surrender in the part of X, reclusion temporal shall be imposed in its minimum period.

One aggravating and no mitigating.


If X was a recidivist, reclusion temporal shall be imposed in its maximum period.

Both mitigating and aggravating are present.


If the homicide was committed in the dwelling of Y and X acted on passion and obfuscation, the aggravating and
mitigating circumstance will offset one another and reclusion temporal shall be imposed in its medium period.

Two mitigating circumstance and no aggravating circumstance.


The homicide was committed with passion and obfuscation and X voluntary surrendered. A penalty one degree
lower than reclusion temporal shall be imposed upon X. X shall suffer the penalty of prision mayor in its medium
period.

Two or more aggravating circumstance.


X committed the crime of homicide with trespass to dwelling and disregard of the age of Y. regardless of the
number of aggravating circumstance present, the court cannot impose a penalty higher than the maximum period
prescribed by law. Thus, X will suffer the penalty of reclusion temporal in its maximum period.

Three mitigating circumstance and no aggravating circumstance.


If there is sufficient provocation on the part of Y, and voluntarily surrendered and there voluntary plea of guilt, X
shall suffer the penalty lower by one degree than reclusion temporal. Thereafter, we apply the remaining
mitigating circumstance in accordance with the
previous rules. Thus, X will suffer the penalty of prision mayor in its minimum period.

Four mitigating circumstance.


X committed homicide with passion and obfuscation when he was suffering from an illness which would
diminish the exercise of his will- power, and thereafter voluntary surrendered and there is a voluntary plea of
guilt. The penalty imposed upon him cannot be lowered by two degrees. Thus, X will suffer the penalty of
prision mayor in its minimum period.

* In order that the penalty will be lowered by 1 degree, it is necessary that there absolutely is NO aggravating
circumstance.

Even if there are many Mitigating circumstances, as long as there is 1 aggravating circumstance, you will
cannot lower the penalty by degrees, it is only by periods.

Privilege Mitigating Circumstance


If present, Privilege Mitigating Circumstance must be applied first prior to the application of penalties under the
Rules of Articles 63 and 64.

Example;
X committed the crime of homicide. The penalty for homicide is
reclusion temporal.

One privilege mitigating circumstance.


X was a minor at the time he committed homicide. Minority is a privilege mitigating circumstance which will
lower the imposable penalty by one degree. Thus, X will suffer the penalty of prision mayor in its medium
period.

Two privilege mitigating circumstances.


X was a minor at the time he committed the homicide. He argues incomplete self-defense. Minority and
Incomplete self-defense are both privilege mitigating circumstance which will lower the imposable penalty by
two degrees. Thus, X will suffer the penalty of prision correccional in its medium period.

Two privilege mitigating circumstance and one ordinary mitigating circumstance.


X was a minor at the time he committed the homicide with incomplete self-defense. He voluntarily surrendered
to the persons in authority. Minority and Incomplete self-defense are both privilege mitigating circumstance
which will lower the imposable penalty by two degrees. The remaining ordinary mitigating circumstance shall
operate to make the penalty in its minimum period. Thus, X will suffer the penalty of prision correccional in its
minimum period.

2 privilege mitigating circumstance and 3 ordinary mitigating circumstance.


X was a minor who was suffering an illness which diminishes the exercise of his will-power at the time he
committed the homicide with incomplete self-defense on his part. He voluntarily surrendered to the persons in
authority and thereafter voluntarily plead guilty. Minority and Incomplete self-defense will lower the imposable
penalty by two degrees. The two ordinary mitigating circumstances will operate to lower the penalty imposed
after the application of the two privilege mitigating circumstance. The remaining ordinary mitigating
circumstance shall operate to make the penalty in its minimum

period. Thus, X will suffer the penalty of arresto mayor in its minimum period.
--xXx-- INDETERMINATE SENTENCE LAW (R.A. 4103)

Indeterminate Sentence Law modifies the imposition of penalty. It is


applied both to the Revised Penal Code and Special Penal Laws. It provides for a minimum and max term, such
that the moment the offender serves the minimum of the sentence, he shall be eligible for parole. If granted, he
will serve the remainder of the sentence out of prison, but subject to the supervision of the parole officer

OBJECTIVES
The following are the objectives of the Indeterminate Sentence Law;
1. Uplift and redeem valuable human material;
2. Avoid unnecessary and excessive deprivation of liberty;

These objectives are achieved when the moment the offender becomes eligible to apply for parole and he may
be able to serve sentence out of jail.

PAROLE
Parole is the conditional release of the offender form the correctional institution after serving minimum sentence
after showing that he has reformed. Note it does not extinguish criminal and civil liability.

Requisites;
1. He must be placed in prison jail to serve an indeterminate sentence penalty which exceeds 1 year;
2. Served minimum term of sentence;
3. Board of pardons and parole found that his released is for greater interest of society
DISQUALIFICATIONS UNDER THE INDETERMINATE SENTENCE LAW.
The general rule is that everyone is entitled to the Indeterminate Sentence law. However, this act shall not apply
to the following persons;
1. Convicted crime punished by death or life imprisonment; (Reclusion perpetua ias held by the Supreme
Court in People
v. Enriquez G.R. No.158797, July 29, 2005)
2. Those convicted of treason, conspiracy or proposal to commit treason, misprision of treason;
3. Those convicted of rebellion, sedition, or espionage;
4. Those convicted piracy;
5. Those who are habitual delinquents; (In People v. Jaranilla,
G.R. No. 28547, Feb. 22, 1974, the Supreme Court ruled that Recidivist are entitled to an indeterminate sentence law)
6. Those who shall have escaped from confinement or evaded sentence; (In People v. Perez, 44 OG
3884, a minor who escaped from confinement in the reformatory is entitled to the benefits of the law
because confinement is not considered imprisonment).
7. Those who having been granted conditional pardon by the President shall have violated the terms thereof;
8. Those whose maximum period of imprisonment does not
exceed one year;

Reclusion perpetua cannot Avail Indeterminate Sentence Law


In the concurring opinion of Justice Tinga in the case of (People v. Tubongbanua, G.R. No. 171271, August 31, 2006)
Parole is extended only to those convicted of divisible penalties. Under Section 5 of the
Indeterminate Sentence Law, it is after 'any prisoner shall have served the minimum penalty imposed on him,
that the Board of Indeterminate Sentence may consider whether such prisoner may be granted parole. There
being no 'minimum penalty imposable on those convicted to reclusion perpetua, it follows that persons
sentenced by final judgment to reclusion perpetua could not have availed of parole under the Indeterminate
Sentence Law.

Q: is the indeterminate sentence law applicable if the penalty imposed is destierro?


A: NO. Destierro does not involve imprisonment.

Effect of disqualification
If the offender is disqualified for the application of the indeterminate sentence law, he shall be given a straight
penalty. The offender must serve the entire term of his sentence and he is not eligible for parole.

Example;
A final judgment was rendered against X. He was granted conditional pardon by the Chief Executive. He
violated the terms and conditions of the said pardon. He was charged with evasion of service of sentence. He
was found guilty by the court.

Q: Can the court impose upon him an indeterminate sentence?


A: NO. X is among those disqualified under the law. By violating the condition of his pardon he cannot avail of
an indeterminate sentence law.

Example;
X has been convicted of final judgment of serious physical injuries, thereafter he committed homicide and the
judge found him guilty of homicide.

Q: Can the judge impose upon him an indeterminate sentence?


A: YES. X is a recidivist. Under the Indeterminate Sentence Law, only habitual delinquents are disqualified
from availing indeterminate sentence. A recidivist is qualified under the law from availing the Indeterminate
Sentence Law.

Example;
X is a minor who was charged and convicted for kidnapping with ransom, the penalty of which is reclusion
perpetua to death. Since minority is a privilege mitigating circumstance, we will lower the imposable penalty by
one degree.

Q: is X qualified under for indeterminate sentence?


A: YES. In applying the indeterminate sentence law, we should consider the imposable penalty rather than the
penalty prescribed by law. In this case, since the penalty of reclusion perpetua was lowered to reclusion
temporal, then X is qualified for indeterminate sentence.

Computation for Indeterminate Sentence Law


In order to arrive at an indeterminate sentence in the violation of the RPC, the following rules must be
considered;
1. Get first the maximum term of sentence with all the attendant circumstance in accordance with Article
64 of the RPC;
2. Lower it the one degree. Do NOT consider anymore the attendant circumstance. The minimum term
of sentence depends upon the sound discretion of the court.

VIOLATION OF SPECIAL PENAL LAWS


If the offense is punished by special laws, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than
the minimum term prescribed by the same.

Example;
X committed was charged and convicted of the anti-carnapping law. Section 14 of R.A. 6539 (Anti-Carnapping
law) provides a penalty for 17 years and 4 months to 30 years if a person committed carnapping by means of
violence against or intimidation of any person, or force upon things.

Q: Under the indeterminate sentence law, what is the duration of the penalty for the violation of the anti-
carnapping law?
A: Under the indeterminate sentence law, if a special law is violated, the courts may sentence the accused to an
indeterminate sentence provided that it shall not be less than the minimum or more than the maximum according
to the sound discretion of the judge. Thus, anywhere from 17 years and 4 months to 30 years may be imposed
upon X.

Argoncillo v. CA, G.R. No. 118816, July 10, 1998


The crime committed is illegal fishing with the use of explosives. The penalty prescribed by law is 20 years to life
imprisonment. The judge imposed him the penalty of straight 30 years.

Q: Is the judge correct?


A: NO. The Indeterminate sentence law states that a violation of special penal law and the said special penal law
does not use the enumeration of penalties in the RPC, the maximum term of the sentence shall not exceed the
maximum penalty prescribed by law and the minimum term of sentence shall not be less than the minimum
penalty prescribed by law. In this case, since the penalty prescribed by law is 20 years to life imprisonment, it
means that the penalty to be imposed upon the convict must be an indeterminate sentence. SC said the penalty
must be 20 years (minimum term) to 25 years (maximum term)

Article 64 and Indeterminate Sentence law


The indeterminate sentence law did not repeal Article 34 of the Revised Penal Code. On the contrary, they are
related.

Example;
A abducted B with lewd design. His intention was rape. But before A raped B, A was arrested. A was charged
with the crime of forcible abduction punishable by reclusion temporal.

Q: What is the penalty imposed if there is no mitigating or aggravating circumstance?


A: The maximum term will be reclusion temporal in medium period since there are no mitigating or aggravating
circumstance. The minimum term is 1 degree lower in any of its periods according to the sound discretion of the
court. Thus, the imposable penalty is prsion mayor in any of its period to reclusion temporal.
Q: What if there is only one ordinary mitigating circumstance is present?
A: Maximum term will be reclusion temporal in minimum period and the minimum term is Prision mayor in any of its
period according to the sound discretion of the court.
Q: What if there is only one aggravating circumstance is present? A: The maximum term will be reclusion
temporal in its maximum period and the minimum term is Prision mayor in any of its period according to the sound
discretion of the court.

Q: What if both aggravating and mitigating circumstance are present?


A: The maximum term shall be reclusion temporal in its medium period because under article 64 you should
offset the circumstances. The minimum term will be one degree lower than reclusion temporal which is Prision
mayor in any of its period according to the sound discretion of the court.

Q: What if there are 2 aggravating circumstance and 1 ordinary mitigating circumstance present?
A: The maximum term shall be reclusion temporal in its maximum period applying the last aggravating
circumstance after offsetting the aggravating circumstance and mitigating circumstance. The minimum term is
Prision mayor in any of its period according to the sound discretion of the court.

Q: What if there are two mitigating circumstances and no aggravating circumstance present?
A: The maximum term shall be prision mayor in its medium period. Since there are two ordinary mitigating
circumstances, we lower the imposable penalty by one degree. The minimum term is prision correccional in
any of its periods according to the sound discretion of the court.

Q: What if there are three mitigating circumstance with no aggravating circumstance present?
A: The maximum term shall be prision mayor in its minimum period. The two ordinary mitigating circumstances
shall operate to lower the imposable penalty by one degree, the remaining ordinary mitigating circumstance
shall operate to make the penalty in its minimum period. The minimum term is prision correccional in any of its
periods according to the sound discretion of the court.

Q: What if there are four mitigating circumstances and no aggravating circumstance?


A: The maximum term shall still be prision mayor in its minimum period. In case of ordinary mitigating
circumstance, you can only lower the penalty by one degree. You cannot lower the penalty by two degrees.
The two ordinary mitigating circumstances shall operate to make the penalty in its minimum period. The
minimum term is prision correccional in any of its periods according to the sound discretion of the court.

 In order that the penalty will be lowered by one degree, it is necessary that there is NO aggravating
circumstance.

Even if there are many mitigating circumstances, for as long as there is one aggravating circumstance, you
cannot lower the penalty by degrees. Only by periods.

Example;
A was charged with the information of rape with mitigating circumstance of passion and obfuscation, against B.
thereafter, A voluntarily surrendered. A convicted of rape and was punished with the penalty of reclusion
perpetua.

Q: since there are two mitigating circumstance, should the judge lower his penalty by one degree?
A: NO. Reclusion perpetua is an indivisible penalty. Under Article 63 of the Revised Penal Code, if the penalty
prescribe by law is a single invisible penalty you shall impose it as it is regardless of any aggravating or mitigating
circumstance.
Q: What is the penalty of A if, in a addition to the 2 mitigating circumstances above mentioned, A is a minor at
the time of the offense?
A: privilege mitigating circumstance must first be applied prior to the ordinary mitigating circumstance. Since
minority is a privilege mitigating circumstance which lowers the penalty by one degree, the maximum term is
prision mayor in its medium period and the minimum term prision correccional in any of its range according to the
sound discretion of the court.

*Only circumstance that can defeat an indivisible penalty is a privilege mitigating circumstance.

Example;
X was charged with the crime of frustrated homicide. X voluntarily surrendered to the authorities. In the trial, the
mitigating circumstance of immediate vindication to a grave offense was in attendant.

Q: What should be the penalty imposed to X?


A: Since the penalty for frustrated homicide is prision mayor and there are two other ordinary mitigating
circumstance present, the maxium term of sentence is Prision correccional in its medium period while the
mimimum term of sentence. Arresto mayor within the range or.

Q: What is the penalty if, in addition to the facts above mentioned, X is minor committing without discernment?
A: Since the penalty already imposed upon X is prision correccional, we lower it by one degree more because
minority is a privilege mitigating circumstance. Thus, according to Article 64, the maximum term is Arresto mayor
in its medium period. Indeterminate sentence law is not applicable if the penalty imposed upon the offender does
not exceed one year. In this instance we cannot give him an indeterminate sentence because the duration of
arresto mayor is 1 month to 6 months.

If the maximum term of sentence does not exceed one year, a straight penalty shall be imposed upon him.

PROBATION LAW (P.D. 968 as Amended by R.A. 10707)


Probation is a disposition by which a convict after conviction and sentence is released subject to the conditions
imposed by the court under the supervision of a probation officer.

Objectives
The following are the objectives of probation law;
1. To promote the correction and rehabilitation of the offender because he is placed under a personalized
treatment;
2. To provide an opportunity for the reformation of penitent offender;
3. To prevent further commission of crimes because the offender is placed under an individualized
treatment;
4. To decongest cases;
5. To save the Government from spending much-needed funds when the offender will be placed behind
bars

The first three objectives are based on P.D. 968. The last two purposes are jurisprudential.

Probation as a Privilege
Probation is not a right but a privilege. Thus, even if a convict is not among those disqualified of probation, the
judge can still deny the application. This denial is not appealable. The grant or denial of application is
dependent solely on the sound discretion of the judge.

DISQUALIFICATIONS
The following are disqualified to avail probation;
1. Those whose maximum term of imprisonment is more than 6 years;
2. Those who have been convicted of subversion and crimes against national security;
3. Those who have previously been convicted by final judgment of an offense punished by imprisonment
of more than six (6) months and one (1) day and/or a fine of more than one thousand pesos
(P1,000.00);
4. Those who have already availed the benefit of probation;
5. Those who have perfected an appeal from judgment of conviction;
6. Those convicted of an election offense under the Omnibus Election Code;
7. Those convicted of drug trafficking or drug pushing;
8. Those who filed a malicious report that a person is committing a violation of Anti-money laundering
law and was convicted because of such malicious filing

Example;
X was charged and convicted for alarms and scandals. He was sentenced to 30 days of arresto menor.

Q: Can X avail probation?


A: If the felony was committed prior to the amendment of the probation law, X cannot avail probation. Under
P.D. 968, a person who is convicted of a crime involving public disorder cannot avail probation. The felony of
Alarm and Scandal is a crime against public disorder. Thus X cannot avail probation. However, if the crime
was convicted after the amendment, X may avail probation. Under R.A. 1070, crimes against public disorder is
removed from the disqualifications. Thus, X may avail probations

Q: May probation be availed even if the penalty imposed upon the offender is only a fine?
A: YES. Under Section 4 of P.D. 968 as Amended by R.A. 10707, Probation may be granted whether the
sentence imposes a term of imprisonment or a fine only.

APPEAL AND PROBATION


Generally, under P.D 968, appeal and probation are mutually exclusive remedies. This is because the reason behind
appeal and the reason behind probation are diametrically opposed.

If a person appeals, it means that he is questioning the decision of the court. He is insisting on his innocence.
On the other hand, if a person

applies for probation, it means that he is accepting the judgment of the court. He, however, does not want to
serve his sentence behind bars.

Exceptions;
1. However, Section 4 of R.A. 10707 which amended the probation law, states that when a judgment of
conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is
modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for
probation based on the modified decision before such decision becomes final. The application for
probation based on the modified decision shall be filed in the trial court where the judgment of conviction
imposing a non-probationable penalty was rendered, or in the trial court where such case has since
been re-raffled.

This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the
modified decision which already imposes a probationable penalty.
2. Section 42 of the Juvenile Justice and Welfare act provides that the court may, after it shall have convicted
and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of
service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of
Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly.

Colinares v. People (G.R. No. 182748, December 13, 2011)


Colinares hit Rufino twice in the head with a stone. Thereafter, Colinares was charged and convicted for
frustrated homicide in the regional trial court. He was sentenced to 2 years and 4 months of prision correcional to
6 years and 1 day of prision mayor. Colinares appealed to the Court of Appeals for the purpose of modifying his
conviction from frustrated homicide to attempted homicide thereby lowering the penalty so that he can avail
probation. The Court of Appeals affirmed the decision of the RTC. Thus, Colinares elevated the case to the
Supreme Court. The Supreme Court held that Colinares is only liable for attempted homicide because the
prosecution failed to prove that the wound of Rufino is fatal. Thus the penalty imposed on him should be lowered
to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum.

Q: Can Colinares avail probation after the perfection of appeal to modify his conviction?
A: YES. Colinares did not appeal from a judgment that would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose
not to apply for probation." The stiff penalty that the trial court imposed on him denied him that choice. Besides, in
appealing his case, Colinares raised the issue of correctness of the penalty imposed on him. He claimed that the
evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Colinares sought from the beginning to bring down the penalty to the
level where the law would allow him to apply for probation.

Q: When and where do you apply for probation?


A: A grant of probation is applied before the Trial Court which heard the case within the period of perfecting an
appeal or within 15 days from promulgation of judgment.

CONDITIONS IMPOSED UPON OFFENDER UNDER PROBATION


There are two conditions imposed upon a person seeking probation;
1. Mandatory/ Ordinary;
2. Discretionary/ Special;

Mandatory
The following are mandatory conditions imposed by the court to the probationer;
1. Appear before the probationary officer within 72 hours from the receipt of the order;
2. Report once a month;

Discretionary
Discretionary or special conditions are dependent upon the sound discretion of the court. Usually involves
engaging in a vocation, not drinking alcohol, not going to house of ill-reputes.

The only limitation on the discretionary conditions is that they must not be so restrictive to the rights of the
accused such that they will no longer be in consonance with his freedom.

Example;
In the case of Baclayon v. Mutia (G.R. No. L-59298, April 30, 1984) the trial court prohibited the offender, who
is a teacher by profession, to teach as a condition during the period of probation. This is a restrictive condition.
It deprives the offender his means of livelihood.

PERIOD OF PROBATION:
SENTENCE PERIOD OF PROBATION
Imprisonment of not more
Will not exceed two years;
than 1 year;
All other cases of
Will not exceed 6 years;
imprisonment;
Not less than nor be more than 2x than the total number of days of subsidiary
imprisonment, taking into account the highest minimum wage rate at the time of the
rendition of the judgment.
Fine subsidiary imprisonment
in case of insolvency;

EFFECT OF PROBATION
Probation will suspend the execution of the sentence. However, it will
not extinguish civil liability.
Under Section 16 of P.D. 968 as amended by R.A. 10707, the final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a result of his conviction and to totally extinguish his criminal
liability as to the offense for which probation was granted.

Moreno v. COMELEC (G.R. No. 168550, August 10, 2006)


Moreno ran for the public office of punong barangay. However, a petition for disqualification was filed against
him because he was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to
suffer imprisonment of Four (4) Months and One
1. Day to Two (2) Years and Four (4) Months. Moreno argues that the disqualification under the Local
Government Code is for those ho

have served sentence for more than 1 year. Since Moreno applied and was granted of probation, he did not
serve his sentence because probation suspends the service of the offender.

Q: Can a person who was convicted by final judgment but was granted probation run for public office?
A: YES. The phrase service of sentence, understood in its general and common sense, means the confinement
of a convicted person in a penal facility for the period adjudged by the court. During the period of probation, the
probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all
the conditions prescribed in the probation order. Furthermore, he accessory penalties of suspension from public
office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum
period imposed upon Moreno were similarly suspended upon the grant of probatio

Example;
Lindsay Lohan, after conviction, applied for probation and was granted the same. Thereafter, she filed an appeal
questioning the civil indemnity imposed upon her. The judge denied the appeal on the ground that Lindsay
already applied for probation. Therefore, the appeal cannot be granted.

Q: Is the judge correct?


A: NO. The only effect of probation is to suspend the execution of the sentence. It has nothing to do with the civil
aspect of the case. Insofar as the civil aspect is concerned, the convict can still appeal it.

Example;
D, under the probation for two years, was imposed the condition that he could not change his residence. For two
years, he complied with this condition. After the lapse of two years, D now changed his residence. The probation
officer learned about this and filed for a Motion to Revoke the probation. D contended that the period of probation
(2 years) has already been completed, so he is already allowed to change residence. The trial court granted the
revocation.

Q: Is the trial court correct?


A: YES. The expiration of the period of probation does not ipso facto mean the termination of probation.
Probation is only terminated upon the issuance of the court of a final discharge of probation. This happens when
after the lapse of the period of probation, the probation officer will file a Motion before the court with a
recommendation stating that the convict has complied with the conditions imposed and therefore, he should be
discharged. The court will then issue a final discharge of probation. Only then will probation be terminated.

Art. 66. Imposition of fines. — In imposing fines the courts may fix any amount within the limits
established by law; in fixing the amount in each case attention shall be given, not only to the mitigating
and aggravating circumstances, but more particularly to the wealth or means of the culprit.
FINE
Fine is a pecuniary penalty imposed by court in case of judgment of conviction.
Factors to consider in imposing fines;
1. Aggravating and mitigating circumstance;
2. Wealth and means of the offender

Scale of Penalty in case of Fine


Article 26 of the Revised Penal determines whether a fine is afflictive, correctional, or light penalty.
SCALE OF PENALTY AMOUNT OF FINE
Afflictive Penalty; Exceeds P6,000.00
Correctional Penalty From P200.00 to P6,000.00
Light Penalty; Less than P200.00

Art. 75. Increasing or reducing the penalty of fine by one or more degrees. — Whenever it may
be necessary to increase or reduce the penalty of fine by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-fourth of the maximum amount prescribed by law,
without however, changing the minimum.

If a fine is imposed to an accomplice or an accessory, the fine shall be reduced or increased, respectively for e
each degree, by one fourth of the maximum amount prescribed by law.

Example;
If A prevented the meetings of congress by means of fraud, the penalty imposed upon him is P200 – P2000. If
he is merely an accomplice, the fine will be lowered by one degree and a decrease of
¼ of the maximum amount prescribed by law. Since ¼ of P2,000.00 is P500.00, the penalty imposed upon the
accomplice is P200.00 to P,500.00.

Example;
A, B, and C, was charged and convicted of an impossible crime. A as the principal, B as the accomplice, and C
as the accessory. The court imposed upon them a fine of P200.00 to P500.00 as prescribed by law.

Q: How much would A, B, and C, pay?


A: A, as the principal, is liable for a fine ranging from P200.00 – P500.00. To get the liability of B as an
accomplice we take ¼ of the maximum amount of fine and deduct it therefrom. So the maximum amount of
fine is P500.00 ¼ of P500.00 is 125. Deduct P125.00 from P500.00. This will now be P375.00 Thus, B, as an
accomplice, is liable for P200-P375. Let us say the offender is a mere accessory, deduct ¼ or P125.00 from
the maximum fine. The sum is P250.00. Thus, C as the accomplice is liable for P200.00 - P250.00

Article 70. Successive service of sentence. - When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the
following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so
that they may be executed successively or as nearly as may be possible, should a pardon have been
granted as to the penalty or penalties first imposed, or should they have been served out.
For the purpose of applying the provisions of the next preceding paragraph the respective
severity of the penalties shall be determined in accordance with the following scale:

1. Death,

2. Reclusion perpetua,

3. Reclusion temporal,

4. Prision mayor,

5. Prision correccional,

6. Arresto mayor,

7. Arresto menor,

8. Destierro,

9. Perpetual absolute disqualification, 10 Temporal absolute disqualification.

11. Suspension from public office, the right to vote and be voted for, the right to follow a profession or
calling, and

12. Public censure.

Notwithstanding the provisions of the rule next preceding, the maximum duration of the
convict's sentence shall not be more than three-fold the length of time corresponding to the most severe
of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the
sum total of those imposed equals the same maximum period.
Such maximum period shall in no case exceed forty years. In applying the provisions of this rule
the duration of perpetual penalties (pena perpetua) shall be computed at thirty
years. (As amended).

SIMULTANEOUS SERVICE OF SENTENCE


Under Article 70, as a rule, when the convict has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit.

Penalties that allow simultaneous service of sentence;


1. Improvement and fine;
2. Imprisonment and suspension;
3. Imprisonment and public censure;
Q: What penalties cannot be served at the same time?
A: All forms of imprisonment.

SUCCESSIVE SERVICE OF SENTENCE


All forms of imprisonment cannot be served simultaneously.

Example;
X was convicted of two counts of homicide. A penalty of reclusion temporal was imposed upon him for each
count of homicide. Reclusion temporal has a duration of 12-20 years. X will satisfy the first 12-20 years of
imprisonment. Thereafter, he shall serve another 12-20 years of reclusion temporal for the second count of
homicide.
Order of Severity.
In the imposition of penalties, the convict shall first serve the most severe penalty imposed upon him in
accordance with the scale provided for in Article 70.

THREE-FOLD RULE
The three-fold rule provides that when multiple successive penalties are imposed upon the offender, the
maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding
to the most severe of the penalties imposed upon him. However, such maximum period shall in no case
exceed forty years.

Example;
X raped her daughter 5 times. He was charged and convicted of 5 counts of rape. The penalty for 1 count of
rape is reclusion perpetua.

Q: What penalty shall the court impose on him?


A: 5 counts of reclusion perpetua.

Q: Since reclusion perpetua is 20-40 years, does that mean X will serve 200 years in prison?
A: NO. Under the three-fold rule the when the offender is serving multiple successive sentences, the maximum
duration of the offender’s sentence shall not exceed three folds of the length of the most severe penalty,
provided that such penalty will not be more than 40 years. In this case, since the penalty imposed upon X is 5
reclusion perpetua, his service of sentence will not be more than three-folds of the length of reclusion perpetua
which is the most severe penalty imposed upon him. However, since three counts of reclusion perpetua is 120
years which exceeds the maximum penalty of 40 years, X will serve the maximum sentence of 40 years.

Example;
X was charged and convicted of 5 counts of rape punishable by reclusion perpetua and a civil liability of
P50,000.00. The judge, applying the three-fold rule, sentenced X of 40 years of imprisonment and a civil
liability of P50,000.00.

Q: Is the judge correct?


A: NO. The three-fold rule is not for the judge to impose. The 40 years imprisonment in accordance to three-
fold rule refers to service of sentence, NOT to the imposition of penalties.

Q: If the judge will not impose the three-fold rule? Who will impose it?
A: The three-fold rule is for the Director of Prisons to apply and compute, and not for the judge to impose.

Q: How should the judge impose 5 counts of rape?


A: The judge shall impose upon him a penalty of reclusion perpetua for each count of rape, the penalty
prescribed by law for the crime of rape. Likewise, the judge shall impose upon the convict the civil liability of
P50,000.00 for each count of rape.

Q: does the three-fold rule also apply to civil liabilities of the offender?
A: NO. Each count of rape is a violation of the person of the victim therefore, civil indemnity is separate and
distinct from the criminal offense of rape. The civil indemnity shall be the number of times the victim was raped.

In answering questions regarding penalties, you need not state the equivalent duration. It suffices that you state
the designation, i.e. prision mayor, prision correcional, etc.

--xXx--
Article 71. Graduated scales. - In the case in which the law prescribed a penalty lower or higher
by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed
in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is comprised the
given penalty.
The courts, in applying such lower or higher penalty, shall observe the following graduated
scales:

SCALE NO. 1

1. Death,

2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
SUBSIDIARY PENALTIES
Subsidiary penalties are deemed imposed.

SUBSIDIARY IMPRISONMENT
Unlike subsidiary penalties, the subsidiary imprisonment must be
expressly stated in the decision.

--xXx--

Art. 74. Penalty higher than reclusion perpetua in certain cases. — In cases in which the law
prescribes a penalty higher than another given penalty, without specially designating the name of the
former, if such higher penalty should be that of death, the same penalty and the accessory penalties of
Article 40, shall be considered as the next higher penalty.

If the decision or law says higher than Reclusion perpetua or 2 degrees than Reclusion temporal, then the penalty
imposed is Reclusion perpetua or Reclusion temporal as the case may be.

Death must be designated by name. However, for the other penalties, this does not apply.

Example;
The penalty for crime X is 2 degrees lower than RP. The penalty imposed is prision mayor.

--xXx--

SCALE NO. 2

1. Perpetual absolute disqualification,


2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted for, the right to follow a
profession or calling,
4. Public censure,
5. Fine.
Q: What is the importance of 1 day in the duration of the period (6 yrs and 1 DAY -12 years)?
A: The 1 day separates the different degrees of the penalty. It also separates a divisible penalty from an
indivisible penalty. It also determines whether subsidiary imprisonment may be imposed on the offender.

--xXx--

Art. 72. Preference in the payment of the civil liabilities. — The civil liabilities of a person found
guilty of two or more offenses shall be satisfied by following the chronological order of the dates of the
judgments rendered against him, beginning with the first in order of time.

The penalties shall be satisfied according to the scale of Art 70

--xXx--

Art. 73. Presumption in regard to the imposition of accessory penalties. — Whenever the courts
shall impose a penalty which, by provision of law, carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this Code, it must be understood that the accessory
penalties are also imposed upon the convict.
Art. 75. Increasing or reducing the penalty of fine by one or more degrees. — Whenever it may
be necessary to increase or reduce the penalty of fine by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-fourth of the maximum amount prescribed by law,
without however, changing the minimum.

The same rules shall be observed with regard of fines that do not consist of a fixed amount,
but are made proportional.

--xXx--

Art. 76. Legal period of duration of divisible penalties. — The legal period of duration of
divisible penalties shall be considered as divided into three parts, forming three periods, the minimum,
the medium, and the maximum in the manner shown in the following table:

--xXx--
Art. 77. When the penalty is a complex one composed of three distinct penalties. — In cases in
which the law prescribes a penalty composed of three distinct penalties, each one shall form a period;
the lightest of them shall be the minimum the next the medium, and the most severe the maximum
period.

Whenever the penalty prescribed does not have one of the forms specially provided for in this
Code, the periods shall be distributed, applying by analogy the prescribed rules.

--xXx--

EXECUTION AND SERVICE OF PENALTIES

Art. 78. When and how a penalty is to be executed. — No penalty shall be executed except by
virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by law, nor with any other
circumstances or incidents than those expressly authorized thereby.
In addition to the provisions of the law, the special regulations prescribed for the government of
the institutions in which the penalties are to be suffered shall be observed with regard to the character of
the work to be performed, the time of its performance, and other incidents connected therewith, the
relations of the convicts among themselves and other persons, the relief which they may receive, and
their diet.
The regulations shall make provision for the separation of the sexes in different institutions, or
at least into different departments and also for the correction and reform of the convicts.

--xXx--

Art. 79. Suspension of the execution and service of the penalties in case of insanity. — When a
convict shall become insane or an imbecile after final sentence has been pronounced, the execution of
said sentence shall be suspended only with regard to the personal penalty, the provisions of the second
paragraph of circumstance number 1 of article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be executed, unless the
penalty shall have prescribed in accordance with the provisions of this Code.
The respective provisions of this section shall also be observed if the insanity or imbecility
occurs while the convict is serving his sentence.

INSANITY AT THE TIME OF TRIAL OR AFTER THE CONVICTION OF THE ACCUSED BY FINAL JUDGMENT
There will be a suspension of sentence. The accused cannot be made to suffer the sentence.

The moment he regains his sanity he is required to serve his sentence. Provided, that the period of penalty has
not yet prescribed.

--xXx--

Art 80 (as amended by PD 603: Child and Youth Welfare Code) Note: refer to R.A. 9344 (Minority)

--xXx--

Art. 81. When and how the death penalty is to be executed.


Art. 82. Notification and execution of the sentence and assistance to the culprit.
Art. 83. Suspension of the execution of the death sentence.
Art. 84. Place of execution and persons who may witness the same. Art. 85. Provisions relative to the corpse of
the person executed and its burial.

As of writing, the death penalty is suspended by virtue of R.A. 9346.

Under RA 9346, the prohibition pertains only to the imposition of death penalty. But for heinous crimes, the
penalty shall still be death. Only that it cannot be imposed.
--xXx--

Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and
arresto mayor. — The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor, shall be executed and served in the places and penal establishments
provided by the Administrative Code in force or which may be provided by law in the future.

--xXx--

Art. 87. Destierro. — Any person sentenced to destierro shall not be permitted to enter the
place or places designated in the sentence, nor within the radius therein specified, which shall be not
more than 250 and not less than 25 kilometers from the place designated.

DESTIERRO
Destierro is considered as a principal correctional and divisible penalty. Therefore, jurisdiction over crimes
punishable with destierro lies with the Metropolitan Trial Court.

Destierro shall be imposed in the following cases;


1. Death or serious physical injuries is caused or are inflicted under exceptional circumstance;
2. Person fails to give bond for good behavior in grave and light threats;
3. Concubine’s penalty for the crime of concubinage;
4. When after reducing the penalty by one or more degree, destierro is the proper penalty

Execution of Destierro
1. Convict shall not be permitted to enter the place designated in the sentence nor within the radius
specified, which shall not be more than 250 and not less than 25 km from the place designated;
2. If the convict enters the prohibited area, he commits evasion of sentence

--xXx--

Art. 88. Arresto menor. — The penalty of arresto menor shall be served in the municipal jail, or
in the house of the defendant himself under the surveillance of an officer of the law, when the court so
provides in its decision, taking into consideration the health of the offender and other reasons which
may seem satisfactory to it.

--xXx--

GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 7

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished;
1. By the death of the convict, as to the personal penalties and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Art 344 of this Code;
MODES OF EXTINGUISHING CRIMINAL LIABILITY
Article 89 is incomplete. The following are the modes ofextinguishing criminal liability;
1. Death;
2. Service of Sentence;
3. Amnesty;
4. Absolute pardon;
5. Prescription of crime;
6. Prescription of penalty;
7. Valid marriage of the offended with the offender;
8. Express repeal of the penal law; (Decriminalization of the act)
9. Probation under PD. 986 as amended by R.A. 10707;

DEATH
Death is the permanent cessation of life.

Q: When does death extinguish criminal liability?


A: Death extinguishes criminal liability at any stage of the proceedings, be it before or after conviction. This is
because the moment the offender dies, there is no one to serve the personal penalty.

Extinguishment of Civil liability through Death


In People v. Amistoso (G.R. No. 201447, August 28, 2013) the Supreme Court laid down rules in case the accused dies
prior to final judgment;
1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the
civil liability based solely thereon;
2. 2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same
may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise as a result of the
same act or omission:
a. Law;
b. Contracts;
c. Quasi-contracts;
d. (delict);
e. Quasi-delicts;

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is
based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155
of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription.
(Citations omitted.)

SERVICE OF SENTENCE
Service of sentence means satisfaction of the penalty imposed. If it is imprisonment, it means that he has
served his sentence behind bars. If it is fine, it means that he has paid the amount.

AMNESTY
Amnesty is an act of grace from the power entrusted with the execution of the law which does not only exempt
the offender from the service of penalty for the crime committed, but also obliterates the effects of the crime. It
does not only suspend the execution of the sentence. It also obliterates the effects of the crime.

ABSOLUTE PARDON
PARDON AMNEST
Merely suspends the execution of sentence, erases the Obliterates all effects of crime as if no crime was
penalty committed;
to be imposed;
Granted only after conviction by final judgment; Granted at any stage of proceedings, before during or
after final judgment;

Private act of President. As Public act of President. Granted


such, the person pardoned with the concurrence of
Absolute Pardon is an act of grace received from the power entrusted with the execution of the law which
exempts the offender from the penalty prescribed by law for the crime committed.

must plead and prove it before the courts. No judicial notice Congress. Courts take judicial notice of it;
of
Pardon;
May be given to all kinds of offenders; Generally granted to a class or group of persons who
have
committed political offenses;

Prescription of Crime is the loss or


forfeiture of the right of State to
prosecute an act prohibited by law.
The moment that a crime has already
prescribed, the court has to dismiss
the case even if the accused has not
moved for its dismissal. The courts
lose their jurisdiction to try the case.

VALID MARRIAGE
A valid marriage between the offender and the offended party extinguishes criminal liability only in relation to
private crimes; i.e. seduction, abduction, acts of lasciviousness and one public crime which is rape.

 Under Art 266, the valid marriage of the offended with the offender extinguishes criminal liability as well as
the penalty.

Example;
Jack raped Rose. Rose filed a case of rape against Jack. Trial on the merits ensued. During trial, Jack and Rose
would often see each other and because of this, they fell in love with each other. Later on, they got married. This
valid marriage will extinguish the criminal liability of Jack.

Q: IS the criminal liability extinguished if the marriage took place after the offender was convicted by final
judgment?
A: YES. Even if there is already a final and executory judgment, such as when the offender is already behind
bars, a valid marriage between the offender and the offended will still extinguish criminal liability and the penalty
imposed.

Art. 90. Prescription of crime. — Crimes punishable by death, reclusion perpetua or reclusion
temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the exception of
those punishable by arresto mayor, which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The crime of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of
the application of the rules contained in the first, second and third paragraphs of this article. (As
amended by RA 4661, approved June 19, 1966.)

Art. 91. Computation of prescription of offenses. — The period of prescription shall commence
to run from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run
again when such proceedings terminate without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to him.
The term of prescription shall not run when the offender is absent from the Philippine
Archipelago.
Period of Prescription of Crimes
PENALTY OF CRIMES PRESCRIPTION PERIOD
Death, Reclusion 20 years;
perpetua,
reclusion temporal;
Other afflictive penalties; 15 years;
Correctional penalties; 10 years;
Arresto mayor; 5 years;
Libel and other similar offenses; 1 year
Oral defamation and slander by 6 months;
deed
Light felonies; 2 month.

COMPUTATION OF PRESCRIPTIVE PERIOD


The running of the prescriptive period shall be from the time of the commission of the crime, if known. If not
known, from discovery by offended party, authorities and agents.

Example;
X and Y had a quarrel. In the course thereof, X killed Y. Thereafter, X buried the body of Y in his backyard.
Unknown to X, neighbor A witnesses A burry the body in his backyard. After 25 years from the commission of
the crime, the neighbor became old and sickly. He then told the police what he witnessed 25 years ago. The
police then went to the backyard, dug the ground and saw the bones of Y.

Q: Can the State still prosecute H for parricide?


A: YES. The crime has not yet prescribed. The authorities and their agents only came to know the crime 25
years from its commission. This is the only time when the prescriptive period for the crime shall commence to
run. Also, the neighbor who knew the commission of the crime is not the person required by law to discover
the crime in order to start the running of the prescriptive period. Therefore, the State can still file the case of
parricide.

Example;
Niki and Mariah were friends. Niki, before going to Mindanao, left the titles of her properties to Mariah for
safekeeping. Mariah became interested in one of the properties. While Niki was in Mindanao, Mariah falsified a
Deed of Absolute Sale forging the signature of Niki, making it appear that Niki sold the property to her. Mariah
then registered the Deed before the Registry of Deeds. The title was thereafter transferred to the name of
Mariah. 20 years thereafter, Niki came back to Manila and acquired the titles she left to Mariah. Niki noticed
that one title was missing. She eventually discovered that the property covered by such missing title was
already transferred to the name of Mariah.

Q: Can Niki file case of falsification of public document punishable by Prision mayor, against Mariah?
A: NO. The crime has already prescribed. If a document or transaction involves real properties (sale, lease,
attachment), the moment the document is registered before the Registry of Deeds, such registration
constitutes constructive notice. As such, the law presumes that the whole world, including Niki, knows about
the registration. The period

of prescription commences to run from that time. Since 20 years have already lapsed in this case, the crime has
already prescribed. This concerns only criminal liability. But Niki can still file a civil case for damages or any civil
action to recover the property.

VIOLATION OF SPECIAL PENAL LAWS


In the case of People v. Pangilinan (G.R. No. 152662, June 13, 2012), the Supreme Court said whether it is a
violation of a special penal law like the BP 22 or a violation of the RPC, the filing of a complaint before the office
of the public prosecutor suspends or interrupts the running of the prescriptive period. It remains suspended until
the case has been decided the accused being acquitted or convicted or the case has been dismissed for any
reason not imputable to him.

Here the checks were issued, and the notice of dishonor was received by the maker in 1995. The cases were
filed before the prosecutors in 1997, and they filed the information in the MTC in 2000. The MTC and RTC ruled
that the crime did not prescribe. The CA held that the crime had prescribed, and that the filing of the complaint
before the prosecutors did not suspend the running of the prescriptive period.

The CA cited the case of Zaldivia v. Reyes and ruled that the violation of BP 22 has already prescribed because
according to the CA, in case of violation of special penal laws, the running of the prescriptive period is only
interrupted upon the filing of the case before the appropriate court because the Supreme Court interpreted the
word “proceedings” as judicial proceedings in Zaldivia v. Reyes.

The SC said that the interpretation of the CA is erroneous. SC said it is now settled in jurisprudence that whether
it is a violation of a special penal law or a violation of the RPC, the filing of the complaint with the public
prosecutor interrupts the running of the prescriptive period.

Violation of Municipal Ordinance


In Zaldivia v. Reyes (G.R. No. 102342, July 3, 1992), what is involved is a violation of a municipal ordinance. It is
only in case of violation of municipal ordinance wherein the running of the prescriptive period is interrupted upon
the filing of the complaint before the proper court. The filing of the information in 1997 suspended the prescriptive
period and the same remains suspended; thus the crime has not yet prescribed

Example;
Gerald and Kim were spouses. Gerald, as a medical representative, was assigned in Visayas leaving his wife,
Kim, in Manila. 20 years thereafter, Kim while watching TV saw Gerald presenting another woman, Maja, as his
wife. Furious, Kim went to Visayas and therein discovered that there was a registered marriage certificate
between Gerald and Maja, the woman she saw on TV.

Q: Can Kim file a case of bigamy?


A: YES. The crime has not yet prescribed. The rule on constructive notice by registration is applicable only if the
transaction involves real properties. Registration as to other documents or transactions with the Office of the Civil
Registry does not constitute constructive notice to the whole world. Since the wife herein discovered the
bigamous marriage only 20 years thereafter, this shall be the starting point for the running of the prescriptive
period of the crime.

PRESCRIPTIVE PERIOD SUSPENDED


The Prescriptive period shall be suspended upon filing of complaint or info before the fiscal’s office or before the
court/public prosecutor for
purposes of preliminary investigation. It remains suspended until the accused is convicted or acquitted or the
case is terminated without the fault of accused.

The term shall not run when the offender is absent from the Philippine Archipelago.

Situations which do not follow Art. 91;


1. In continuing crimes-prescriptive period will start to run only at the termination of the intended result;
2. In crimes against false testimony, prescriptive period is reckoned from the day final judgment is
rendered in the proceeding where such false testimony is utilized not when the false testimony is
made;
3. In Election offenses;
a. if discovery of the offense is incidental to judicial proceedings, prescription begins when such
proceedings terminate; or
b. From the date of the commission of the offense.

Art. 92. When and how penalties prescribe. — The penalties imposed by final sentence prescribe
as follows;
1. Death and reclusion perpetua, in twenty years;

2.
3.
Other afflictive penalties, in fifteen years;
Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which
prescribes in five years;
4. Light penalties, in one year.

Art. 93. Computation of the prescription of penalties. — The period of prescription of penalties
shall commence to run from the date when the culprit should evade the service of his sentence, and it
shall be interrupted if the defendant should give himself up, be captured, should go to some foreign
country with which this Government has no extradition treaty, or should commit another crime before
the expiration of the period of prescription.

PRESCRIPTION OF PENALTY
Prescription of penalty is the loss of the right of the State to execute the sentence.

Prescription Period
PENALTY PRESCRIPTION PERIOD
Death, Reclusion perpetua; 20 years;
Afflictive penalties; 15 years;
Correctional penalties; 10 years;
Arresto mayor; 5 years;
Light penalties; 1 year

COMMENCEMENT PERIOD
The running of the period shall commence from the time the convict evaded the service of his sentence. It is
necessary therefore that the convict is serving his sentence and while serving, he escaped. It is from the time
of escape that the prescriptive period runs.

Example;
Garcia was convicted of homicide. The judgment became final and executory. He was brought to serve
sentence in Muntinlupa. While serving sentence, he escaped. Police failed to capture and find him. It
was only after 20 years that Garcia was located and brought behind bars. Garcia’s counsel filed a Petition for
Habeas Corpus contending that the penalty prescribed and therefore, Garcia could not be imprisoned.

Q: Is the counsel correct?


A: YES. The penalty has prescribed. Homicide prescribes in 15 years. Here, Garcia was captured 20 years from
escape.

Example;
Cuenca was charged with homicide. Being a bailable offense, Cuenca posted bail. During the arraignment and
pre trial, Cuenca appeared before the court. However, during the trial proper, he did not appear. Trial in absentia
ensued. Judgment was for conviction. Warrant of arrest was issued against Cuenca. It was only 20 years
thereafter that the police were able to arrest Cuenca and bring him behind bars. Cuenca’s counsel filed a petition
for habeas corpus contending that the penalty has prescribed.

Q: Is the counsel correct?


A: NO. The penalty has not prescribed. In fact, prescription has not even commenced to run. For the period to
run, it is necessary that the offender is serving sentence and while serving sentence, he escaped. The running of
prescriptive period only starts from the escape of offender. In this case, the offender has not even served his
sentence.

SUSPENSION OF PRESCRIPTIVE PERIOD OF PENALTY


The following are the grounds when the prescriptive period of penalty is suspended;
1. When offender surrenders;
2. When offender went to a country which has no extradition treaty with the Philippines;
3. When convict commits a crime before the expiration of period of prescription;
4. When the offender is captured;

Prescription of Crimes v. Prescription of Penalty


PRESCRIPTION OF CRIMES PRESCRIPTION OF PENALTY
Loss or forfeiture of the right of the State to Loss or forfeiture of the right of the State to enforce final
prosecute; judgment;

Starts counting upon the Starts counting upon the


discovery of the commission of the crime. escape or evasion of service of sentence.

Mere absence from the Philippines interrupts theAbsence from the Philippines interrupts the period only when the
running of the prescription; convict goes to a foreign country without an extradition treaty with
the
Philippines;

Commission of another crime before the Commission of another crime before the expiration of the period
expiration of the prescriptive period does not interrupts the
interrupt prescription. prescription.

Art. 94. Partial Extinction of criminal liability. — Criminal liability is extinguished partially;
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is serving his sentence.

MODES FOR PARTIALLY EXTINGUISHING CRIMINAL LIABILITY


The following are the modes for extinguishing criminal liability;
1. Conditional Pardon;
2. Commutation of sentence;
3. Good conduct of allowance;
4. Special Time Allowance for Loyalty;
5. Parole under the Indeterminate Sentence Law;
6. Implied repeal or amendment of penal law lowering the penalty;

CONDITIONAL PARDON
Conditional Pardon is an act of grace received from a power entrusted with the authority to execute the law,
but the pardon herein is subject to strict conditions.

Because of this strict conditions, there must be acceptance on the part of the offender. The moment he
accepts, it becomes incumbent upon him to comply with the strict terms and conditions of the pardon.

Failure to comply with any of the strict conditions, the State can file a criminal case under Art 159- evasion of
service of sentence. In addition, the Chief Executive can order the immediate incarceration of the offender
under the Administrative Code.

COMMUTATION OF SENTENCE
In commutation of sentence, a new sentence imposed shall be in lieu of the original sentence.

Example;
Death penalty commuted to Reclusion perpetua.

ART. 97. Allowance for good conduct. – The good conduct of any offender qualified for credit
for preventive imprisonment pursuant to Article 29 of this Code, or of any convicted prisoner in any
penal institution, rehabilitation or detention center or any other local jail shall entitle him to the
following deductions from the period of his sentence;
1. During the first two years of imprisonment, he shall be allowed a deduction of twenty days
for each month of good behavior during detention;
2. During the third to the fifth year, inclusive, of his imprisonment, he shall be allowed a
reduction of twenty-three days for each month of good behavior during detention;
3. During the following years until the tenth year, inclusive, of his imprisonment, he shall be
allowed a deduction of twenty-five days for each month of good behavior during
detention;
4. During the eleventh and successive years of his imprisonment, he shall be allowed a
deduction of thirty days for each month of good behavior during detention; and
5. At any time during the period of imprisonment, he shall be allowed another deduction of
fifteen days, in addition to numbers one to four hereof, for each month of study, teaching
or mentoring service time rendered. (As amended by R.A. 10592)

An appeal by the accused shall not deprive him of entitlement to the above allowances for
good conduct.
GOOD CONDUCT ALLOWANCE
Good conduct allowance is awarded
to the offender if he has been
behaving properly in prison. The
Director of Prisons shall compute the
good conduct allowance in favor of
the offender so that he will be
immediately released.

PERIOD OF IMPRISONMENT DEDUCTION


First two years; 20 days for each month of good
behavior during detention;
Third to fifth year, inclusive, of 23 days for each month of good
his imprisonment; behavior during detention;
Sixth until the tenth year, inclusive, of 25 days for each month of good behavior during
his imprisonment; detention;

Eleventh and successive years of his 30 days for each month of good behavior during
Imprisonment; detention;

At any time during the period of another deduction of 15 days, in addition to numbers one to four hereof for
imprisonment; each month of service time rendered for;
1. Study;
2. Teaching; or
3. Mentoring;

--xXx--

ART. 98. Special time allowance for loyalty. – A deduction of one fifth of the period of his
sentence shall be granted to any prisoner who, having evaded his preventive imprisonment or the
service of his sentence under the circumstances mentioned in Article 158 of this Code, gives himself up
to the authorities within 48 hours following the issuance of a proclamation announcing the passing away
of the calamity or catastrophe referred to in said article. A deduction of two-fifths of the period of his
sentence shall be granted in case said prisoner chose to stay in the place of his confinement
notwithstanding the existence of a calamity or catastrophe enumerated in Article 158 of this Code. (As
amended by
R.A. 10592)

Example;
During the time Bin Laden was serving his sentence behind bars, an
9. magnitude earthquake suddenly occurred prompting Bin Laden to escape. He then went to the house of his
mother. While Bin Laden was watching TV in the house of his mother, he saw the President announcing that the
earthquake subsided. Within 48 hours from announcement, Bin Laden surrendered. Because of this surrender, Bin
Laden is entitled to the special allowance for loyalty for being so loyal to the government.

If Bin Laden remained in prison despite the 8.9 magnitude earthquake, he is entitled to a deduction of 2/5 from
the period of his sentence.

However, if Bin Laden did not return, there will be an additional 1/5 to the term of his sentence. If Bin Laden
merely remained in prison, there will be neither deduction nor addition to his sentence.

--xXx--
Art. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is
also civilly liable.

CIVIL LIABILITY
As a general rule, every person criminally liable is also civilly liable. For every criminal action filed in court, the
civil action for the recovery of civil liability is deemed impliedly instituted.

Reason
The commission of a crime, 2 injuries are inflicted;
1. Social injury against the State for the disturbance of social order; and
2. Personal Injury against the offended party and his heirs;

The social injury against the state will be answered by reparation. The personal injury will be answered by the
civil indemnity.

Exceptions to Implied Institution of Civil Action


The following are the exemption to the general that a civil action is impliedly instituted in a criminal case;
1. When offended party waives the civil action;
2. When the offended party reserves the right to file a separate civil action, which must be made prior to
the presentation of evidence of the prosecution;
3. When the offended party files the civil action prior to the criminal action

ACQUITTAL; EFFECT ON CIVIL LIABILITY:


In the following cases, acquittal in a criminal action bars recovery in a civil action;
1. If the judgment of acquittal states that the alleged criminal acts of the offender were not committed by
him;
2. If the judgment of acquittal states that the accused is not guilty of criminal or civil damages;

In the following cases, the acquittal of the accused in a criminal case is not a bar to recover civil liability;
1. When judgment of acquittal is based on reasonable doubt - This is because civil actions require mere
preponderance of evidence;
2. When judgment of acquittal states that the liability of accused is not criminal but civil in nature - This
usually happens when the case is estafa and there is a contract between the accused and
complainant, upon which the

accused failed to comply with the terms of the contract. There is breach of contract;
3. When the judgment of acquittal states that the civil liability does not arise from the crime but from other
sources of obligations;

--xXx--

Art. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of article 12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability, which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an
imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen
years of age, who has acted without discernment, shall devolve upon those having such person under
their legal authority or control, unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in sound discretion, the proportionate amount for which each one
shall be liable.
When the respective shares cannot be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damages have been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or
causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing
the act shall be liable, saving always to the latter that part of their property exempt from execution.

INSANE, IMBECILE, MINOR


In case the offender is insane, imbecile or minor, the civil liability arising from their acts shall be shouldered by
the persons who have custody of the insane, imbecile or minor.

Secondary liability falls on the property of the insane, imbecile or minor, except those properties which are
prohibited from being attached.

STATE OF NECESSITY
All persons who have been benefitted during the state of necessity shall bear the civil liability. If there are many
persons benefitted, the liability shall be divided by the court proportionately.

IRRESISTIBLE FORCE OR UNCONTROLLABLE FEAR


Borne by the person who enforced the threats to the offender. Secondary liability falls upon the principal by direct
participation, who
is the one who acted under the compulsion of irresistible force or uncontrollable fear.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of


establishments. — In default of the persons criminally liable, innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses from guests lodging therein, or for the payment of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself, or the person representing him, of
the deposit of such goods within the inn; and shall furthermore have followed the directions which
such innkeeper or his representative may have given them with respect to the care and vigilance over
such goods. No liability shall attach in case of robbery with violence against or intimidation of persons
unless committed by the innkeeper's employees.

Art. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the
next preceding article shall also apply to employers, teachers, persons, and corporations engaged in
any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.

SUBSIDIARY CIVIL LIABILITY


Parents, teacher, employers, and proprietors shall be subsidiarily liable for the crimes committed by their children,
students, employees, servants.

Subsidiary Liability of employers


Employers may be held subsidiarily liable for the acts of their employees provided the following requisites are
present;
1. Employer must be engaged in some kind of industry;
2. Employer and employee relationship;
3. Employee committed a crime in the exercise of his duties as employee;
4. There must be conviction of the crime and the employee was found insolvent to pay civil indemnity;

The moment the employee was found insolvent, the liability of the employer now becomes absolute. A motion
for the issuance of a subsidiary writ of execution must then be filed by the complainant

Example;
Paris Hilton, a guest in a hotel, told the representative of the hotel that she carries valuables. The
representative of the hotel told Paris about the rules regarding the care and vigilance of the valuables.
However, during nighttime, a robbery occurred inside the hotel. Among those taken were the valuables of
Paris. The offender was arrested, convicted and civil liability was imposed upon him.

Q: In case of insolvency of the offender, does the proprietor of the hotel or establishment have subsidiary
civil liability?
A: YES. The guest complied with the rules and regulations as to the care and vigilance of the goods. He also
informed the representative of the hotel of the presence of his valuables.

Example;
Same situation as above. The guard of the hotel tried to fight the robbers. One of the robbers shot the guard.
Prosecuted for robbery with homicide and was convicted.

Q: In case of insolvency, is the proprietor of the hotel subsidiarily liable?


A: NO. The crime committed is robbery with homicide, which is a crime under robbery with violence against or
intimidation of persons. If the crime committed is robbery with violence against or intimidation of persons, the
proprietor is not liable, except if the offender is the employee of the hotel or establishment.

Solidum v. People (G.r. No. 192123, March 10, 2014)


Gerald Gercayo was born with an imperforated anus. Two days after his birth, Gerald underwent colostomy, a
surgical procedure to bring one end of the large intestine out through the abdominal wall, enabling him to excrete
through a colostomy bag attached to the side of his body. When Gerald was three years old, he was admitted at
the Ospital ng Maynila for a pull-through operation. Dr. Leandro Resurreccion headed the surgical team along
with the anesthesiologists which includes petitioner Dr. Fernando Solidum. During the operation, Gerald
experienced bradycardia, and went into a coma. His coma lasted for two weeks,9 but he regained consciousness
only after a month. He could no longer see, hear or move. Thus, the mother lodged a complaint for reckless
imprudence resulting in serious physical injuries against the attending physicians and Ospital ng Maynila.

Q: Is Dr. Solidum civilly or criminally liable?


A: NO. The Prosecution presented no witnesses with special medical qualifications in anesthesia to provide
guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not
impossible, to determine whether the first three elements of a negligence and malpractice action were attendant.

Q: Is Ospital ng Maynila subsidiarily liable?


A: NO. For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be
heard was not respected from the outset. Second, granting for the sake of argument that Ospital ng Maynila was
impleaded, still it cannot be subsidiarily liable because the requisites for the subsidiary liability of the employers
are not present. First, there is no employer-employee relationship because based on the evidence, Dr. Solidum is
a consultant and not an employee of OM. Second, OM is not engaged in some kind of industry, it is a charitable
institution that caters hospital services to poor patients; there is no profit. Also, Dr. Solidum was not criminally
liable. Lastly, granting that Dr. Solidum was held liable for civil liability, there was no proof that Dr. Solidum was
insolvent such that OM will be subsidiarily liable.

Example;
A municipal ordinance provides that Establishment XYZ should only be open during weekdays. However, this
establishment violated the ordinance as it opened on a Sunday. A crime was committed during the Sunday it
opened.
Q: Is the proprietor of the establishment liable?
A: YES. There was a violation of the ordinance. Any crimes committed in the establishment will make the
proprietor subsidiarily liable for civil liability only, not for criminal liability.

Example;
Vin Diesel was a driver of XYZ Corporation engaged in the business of distributing goods to supermarkets. Vin
Diesel was driving recklessly as he was headed to one supermarket. In the course thereof, Vin Diesel hit a car.
The car was damaged. Because of this, a crime for reckless imprudence resulting to damage to property was
filed against Vin Diesel. Court found him guilty. The penalties imposed were fine and payment of damage
caused. When the judgment became final and executory, a writ of execution was issued but was returned
unsatisfied due to the insolvency of Vin Diesel.

Q: Is there need to file a separate civil action?


A: NO. There is no need to file a separate civil action. In the very same action for reckless imprudence
resulting to damage to property, the moment the employee is found to be insolvent, the liability of the employer
becomes absolute. However, even if it is absolute, it is not automatic. The complainant has to file a Motion for
the Issuance of a Subsidiary Writ of Execution. This is not an ex parte motion, but a litigated one. Thus, the
other party (XYZ COrpo) must be informed for due process.

--xXx--

Art. 104. What is included in civil liability. — The civil liability established in Articles 100, 101, 102, and 103 of
this Code includes;
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

Art. 105. Restitution. — How made. — The restitution of the thing itself must be made
whenever possible, with allowance for any deterioration, or diminution of value as determined by the
court.
The thing itself shall be restored, even though it be found in the possession of a third person
who has acquired it by lawful means, saving to the latter his action against the proper person, who
may be liable to him.
This provision is not applicable in cases in which the thing has been acquired by the third
person in the manner and under the requirements which, by law, bar an action for its recovery.

RESTITUTION
Restitution is the return of the very thing taken.

Exception
Exception: if the innocent purchaser acquired the said property in a public sale. Then, it can no longer be taken
away from him.

Q: What is the remedy of the offended party if the thing can no longer be returned?
A: The remedy of the offended party is reparation.

--xXx--

Art. 106. Reparation. — How made. — The court shall determine the amount of damage, taking
into consideration the

price of the thing, whenever possible, and its special sentimental value to the injured party, and reparation shall
be made accordingly.

Reparation
In case of inability to return the property stolen, the culprit must pay the value of the property stolen. The court
shall determine the value of the thing taken including its sentimental value.

--xXx--

Art. 107. Indemnification — What is included. — Indemnification for consequential damages


shall include not only those caused the injured party, but also those suffered by his family or by a third
person by reason of the crime.

INDEMNIFICATION
Indemnification includes moral damages, civil indemnity, exemplary damages.
Moral Damages
Moral damages in case of rape or murder need not be proved. It suffices that the crime has been committed. The
law presumes that the victim suffered moral indemnity because of the crime committed.

Exemplary Damages
Exemplary damages can only be granted if there are aggravating circumstances in the commission of the crime.

--xXx--

Article 108. Obligation to make restoration, reparation for damages, or indemnification for
consequential damages and actions to demand the same; Upon whom it devolves. - The obligation to
make restoration or reparation for damages and indemnification for consequential damages devolves
upon the heirs of the person liable.

The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person
injured.

Article 109. Share of each person civilly liable. - If there are two or more persons civilly liable for
a felony, the courts shall determine the amount for which each must respond.

If there were 2 accused convicted, insofar as the civil liability is concerned, it is the court which shall determine
the civil liability of the 2 accused

--xXx--

Art. 110. Several and subsidiary liability of principals, accomplices and accessories of a felony
— Preference in payment.
 Notwithstanding the provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in solidum) among
themselves for their quotas, and subsidiaries for those of the other persons liable.
The subsidiary liability shall be enforced, first against the property of the principals; next,
against that of the accomplices, and, lastly, against that of the accessories.
Whenever the liability in solidum or the subsidiary liability has been enforced, the person by
whom payment has been made
shall have a right of action against the others for the amount of their respective shares.

Example;
X, Y and Z were charged in the case of robbery. They were all charged as principals. But the judge ruled that X
is a principal, Y is an accomplice and Z is a mere accessory. The judge divided the civil liability proportionately.
Their liabilities among themselves are in solidum.

Q: Against whom can the private complainant recover said civil liability?
A: The private complainant can recover the entire civil liability from X, the principal but X now has a right of
action against Y and Z insofar as their respective civil liabilities are concerned. If X cannot pay, the private
complainant can go against Y. Y can now go against X and Z because their liabilities are in solidum but
subsidiary insofar as the private complainant is concerned

Art. 111. Obligation to make restitution in certain cases. — Any person who has participated
gratuitously in the proceeds of a felony shall be bound to make restitution in an amount equivalent to
the extent of such participation.

Art. 112. Extinction of civil liability. — Civil liability established in Articles 100, 101, 102, and
103 of this Code shall be extinguished in the same manner as obligations, in accordance with the
provisions of the Civil Law.
EXTINGUISHMENT OF CIVIL LIABILITY:
Civil Liability shall be extinguished by the following acts;
1. By pardon of the offended party;
2. Other modes for extinguishing civil liability under Civil Code; (payment, Condonation, etc)

Civil liability is personal and cannot be extinguished by pardon, amnesty, probation, commutation of sentence,
etc. Civil liability can only be extinguished in the same manner as in Civil Law, by the extinguishment of
obligations, i.e., payment, loss of the thing, remuneration, compensation, etc.

Art. 113. Obligation to satisfy civil liability. — Except in case of extinction of his civil liability
as provided in the next preceding article the offender shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by him, notwithstanding the fact that he has served his
sentence consisting of deprivation of liberty or other rights, or has not been required to serve the
same by reason of amnesty, pardon, commutation of sentence or any other reason.