GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
CRIMINAL LAW REVIEW
BY: ATTY. VICTORIA GARCIA
Transcribed by:
Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne
Rose De Guia, Ma. Althea Raypon, J-ann Javillonar &
Maria Maica Angelika Roman.
Updated by:
Updated by Anonymous Lawyer
(https://www.facebook.com/Anonymouslawer/)
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.
1
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
2
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.
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;
2.2. Purpose of penalty is for purposes of rehabilitation;
 Offender is a socially sick individual who need to be
corrected not to be punished;
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 extraterritorial 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;
1.3. Determination of penalty is done mechanically;
 Done mechanically since the punishment is proportionate
to the severity sustained by the victim;
1.4. Emphasis is on the crime and not on the criminal;
 …on the offense and not on the offender
POSITIVIST/REALISTIC PHILOSOPHY
2.3. Determination of penalty is done on the case to case basis
2.4. 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
Basis of criminal activity is
human free will;
Purpose
of
penalty
is
Retribution;
Determination of penalty is
done mechanically;
Emphasis is on the crime and
not on the criminal;
4.
POSITIVIST PHILOSOPHY
Basis of criminal liability is
man’s social environment;
Purpose of penalty is for
purposes of rehabilitation;
Determination of penalty is
done on the case to case basis;
Emphasis of the law is on the
offender and not to the
offense;
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)
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
3
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.
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;
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.
--xXx--
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;
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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 –
4
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
5
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).
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
6
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;
Omission
Omission is the failure of a person to perform an act or to do a duty
which is required by law.
Freedom
There is freedom of action when the offender performs the act on his
own free will, without force, duress, uncontrollable fear.
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.
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.
Kinds of Felonies
2 kinds of felonies that are may be committed under Art. 3;
1. Deceit (dolo);
2. Fault;
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.
DECEIT (DOLO)
Deceit (Dolo) or intentional felony exist when the act is done with
deliberate intent;
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.
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;
INTENT
Intent is the use of a particular means to achieve the desired result;
An intentional felony is a voluntary act because it is committed by
means of deliberate intent.
Intelligence
Intelligence is the mental capacity of a person to know wrong from
right and to appreciate the consequences of one’s act.
* 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;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
2.
3.
4.
The nature, location, and number of wounds sustained by
the victim;
The conduct of the malefactors before, during, or
immediately after the killing of the victim; and
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.
7
The prosecution does not have
the burden to prove it;
Therefore, it must be proven
by the prosecution beyond
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
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
General Criminal Intent is
conclusively presumed by law
by the mere doing of an act;
SPECIFIC CRIMINAL INTENT
Specific Criminal Intent is just
like an element, an ingredient
of the commission of the
crime;
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;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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
Use of a particular means to
achieve a desired result;
A material element in
determining the criminal
liability of the accused;
Established/proven by the
overt act of the offender or by
the means employed;
MOTIVE
It is the moving power which
impels a person to do a specific
act to achieve the desired
result, therefore, it is the
reason behind intent;
Immaterial to determine the
criminal liability of the
offender;
Established by the
acts/statements made by the
accused prior to or
8
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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 3 rd 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 3rd 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)
9
Example;
Killing another, taking the thing of another;
MALA IN SE
Inherently evil, wrong per se;
Criminal liability is based on the
intent or morality of the
offender;
Good faith or lack of criminal
intent is a valid defense;
Modifying circumstances such
as mitigating and aggravating
are considered by the court in
the imposition of penalty;
Degree of participation of the
offender (principal, accomplice,
or accessory) is considered in
the imposition of the penalty;
Stage (attempted, frustrated,
or consummated) is taken into
consideration in the imposition
of the penalty;
MALA PROHIBITA
Not inherently
evil
or wrong;
Criminal liability is based on the
mere doing of the prohibited
act;
Good faith or lack of criminal
intent is not a valid defense;
Modifying circumstances such
as mitigating and aggravating
are NOT considered by the
court in the imposition of
penalty UNLESS otherwise
provided by Special Penal Law;
Degree of participation by the
offender is NOT considered. All
perpetrators of the act are
equally punished UNLESS
otherwise provided by the
Special Penal Law;
The only stage considered is the
consummated
stage.
No
attempted or frustrated stage
UNLESS otherwise provided by
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.
ACTS MALA PROHIBITA
Acts mala prohibita are acts which are only wrong because there is a
law that prohibits and penalizes it;
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?
They are not inherently wrong;
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.
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;
Q: Can an act mala in se absorb an act mala prohibita? And vice
versa?
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
10
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.
--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.
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
11
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
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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, 130days 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
12
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 THE RESULTING FELONY ALTHOUGH DIFFERENT FROM THAT
WHICH HE INTENDED:
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
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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.
13
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.
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.
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.
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.
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
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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?
14
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
15
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.
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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.
--xXx--
16
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.
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.
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.
There are no common law crimes in the Philippines.
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.
--xXx-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
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;
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;
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2.
17
That he does not perform all acts of execution that would
have produced the felony;
That his act was not stopped by his own spontaneous
desistance;
That he was not able to perform all acts of execution by
reason of some cause or accident other than his own
spontaneous desistance;
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.
Overt Act
Overt Act refers to any external act which if allowed to continue will
naturally and logically ripen into a crime.
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.
3.
4.
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.
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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 nonmortal 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.
18
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
the means employed is
spontaneous desistance;
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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 nonconsummation 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?
19
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
20
Intent to have carnal
knowledge with the girl is
evident;
There is no intent to have
carnal knowledge of the girl;
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;
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.
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: 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.
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.
* 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.
--xXx--
Acts of Lasciviousness v. Attempted Rape
ACTS OF LASCIVIOUSNESS
ATTEMPTED RAPE
Likewise, the penis only
The penis only touched the
touched the outer portion of
outer portion of the vagina;
the vagina;
Q: What is the reason for the exception?
A: The commission of felonies against persons or property
presupposes in the offender moral depravity.
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.
Conspiracy v. Proposal.
CONPIRACY
A bilateral act – there must be
at least two persons who
agreed to the commission of
the crime;
PROPOSAL
Unilateral act – only one
person who decide to commit
a felony is sufficient;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
General Rule – not punishable as an act;
Exception – unless the law especially provides for their penalty;
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;
21
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.
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 coconspirators but they are not yet punishable, they are not yet
criminally liable.
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;
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;
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.
2 kinds of Conspiracy as a means of committing a crime
1. Direct or express conspiracy;
2. Implied or Inferred Conspiracy;
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
22
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
23
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?
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
24
--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 selfdefense, a kind of justifying circumstance, the procedure in trial
would be inverted.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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25
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.
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
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.
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.
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 selfdefense 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.
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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 selfdefense, particularly defense of honor and chastity.
26
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. 2nd,
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: Was there self-defense?
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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 selfdefense. 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
27
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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;
28
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.
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.
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;
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. 2nd, 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 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.
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. 1st, the evil sought to be avoided
actually exist because there was a collision. 2 nd, 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;
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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29
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.
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.
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.
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.
--xXx--
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 doubleedged, 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.
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
30
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
31
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.
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 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.
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 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
Q: Is the police officer liable for homicide?
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
32
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
The act is legal;
There is no crime, hence there
is no criminal;
Since there is no crime, there is
no criminal and civil liabilities;
The emphasis of the law is on
the act; i.e. self-defense.
Cannot be invoked in Quasioffenses, i.e. reckless
imprudence;
JUSTIFYING
The act is criminal;
There is a crime, hence there is
a criminal;
Since there is a crime, there is
criminal liability, although he is
exempted therefrom, and
there are civil liabilities.
The emphasis of the law is on
the actor;
Can be invoked in quasioffenses;
--xXx-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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
33
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.
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.
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.
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 .
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
Lowers the penalty by one or
mitigating circumstance in
two degrees;
which case the penalty is
lowered by one degree only;
Not considered in the
determination of the proper
penalty when the penalty
Always considered regardless
prescribed by law for the single of the penalty imposed’
crime is a single indivisible
penalty;
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
34
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.
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.
Q: When is provocation is sufficient?
A: For provocation to be sufficient, there must be 2 elements;
1.
2.
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.
It must be adequate to stir a person to commit a wrongful
act;
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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35
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.
1.
Example;
There was this long line of evacuees, victims of Pablo who are to be
given reliefs. A was 5th 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.
2.
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. 1st according to the court, there was
sufficient provocation. 2nd, 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.
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;
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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?
36
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
37
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 willpower 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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
--xXx-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.
38
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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
39
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
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40
his public position as a means to facilitate the commission of the
crime.
disrespected the said person as a public authority if he has no
knowledge that he is a public authority.
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.
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.
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
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
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41
from committing the crime against B. Hence, the second aggravating
circumstance is present.
offended party was inside his dwelling at the time of the commission
of the crime and he has not given any provocation.
DISRESPECT OF RANK, AGE OR SEX, OR DWELLING OF THE
OFFENDED PARTY, IF THE LATTER HAS NOT GIVEN 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.
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
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.
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42
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.
ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS.
There are two aggravating circumstances;
1. Abuse of confidence;
2. Obvious ungratefulness;
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.
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.
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.
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
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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.
43
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.
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.
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;
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
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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,
44
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
There must be at least 4 armed
malefactors;
Must have acted together in
the actual commission of the
crime; (conspiracy)
AID OF ARMED MEN
There is no requisite as to the
number of armed men;
The armed men may have
direct or indirect participation.
They are mere accomplices of
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
45
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)
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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Recidivism v. Reiteracion
RECIDIVISM
Requires conviction by final
judgment;
Crimes must be felonies;
Offenses are under the same
title of the RPC;
REITERACION
Requires service of sentence;
May be felonies or offenses
punishable by special law;
Offenses may or may not be in
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?
46
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
47
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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48
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.
The Offender Adopted Particular Means
The offender must have deliberately adopted the particular means,
method or form of attack employed by him.
If the victim was able to put out any defense, no matter how minor,
treachery is not present.
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.
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.
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 accusedappellant 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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
49
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 dogstyle 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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
50
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
The victim suffered moral pain;
The victim may either be alive
or dead;
CRUELTY
The victim suffered physical
pain or physical suffering;
It is necessary that the victim is
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.
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.
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.
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.
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;
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 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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
51
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
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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.
52
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
The mens rea (evil intent)
originated from the mind of the
public officer;
An absolutory cause by reason
of public policy;
The public officer is liable as
principal by inducement;
ENTAPMENT
The mens rea (evil intent)
originated from the mind of the
offender;
Not an absolutory cause;
The public officer
criminally liable;
is
not
--xXx-PERSONS 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.
Examples;
1. Mistake of fact;
2. Instigation;
3. Accessories in Light felonies;
Kinds
There are three kinds of Principals;
1. Principal by direct participation;
2. Principal by inducement;
3. Principal by direct participation;
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
PRINCIPAL BY DIRECT PARTICIPATION
Principal by direct participation are those who take direct part in the
execution of the act.
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.
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.
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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.
--xXx-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.
53
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.
--xXx-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
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54
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;
of arson. W executed the acts of execution of arson in burning the
house of Y with the body of Y inside.
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.
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.
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
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
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
55
as an accessory because estafa or swindling is not among the crimes
mentioned in the second part of the 3rd act.
the incident to the police. Upon investigation, the police
apprehended X, the mother, and the jewelry store owner.
Q: What is the criminal liability of the friend?
A: He is liable for obstruction of justice under P.D. 1829.
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.
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.
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--
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
CRIMINAL LAW REVIEW
BY: ATTY. VICTORIA GARCIA
PART II
PENALTIES
Transcribed by:
Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne
Rose De Guia, Ma. Althea Raypon, J-ann Javillonar &
Maria Maica Angelika Roman.
Updated by:
Anonymous Lawyer
(https://www.facebook.com/Anonymouslawer/)
PENALTIES
Penalties refers to punishment, imposed by lawful authority upon a
person who has committed an intentional felony or a culpable felony
56
Light penalties:
Arresto menor,
Public censure.
Penalties common to the three preceding classes:
Fine, and
Bond to keep the peace.
ACCESSORY PENALTIES
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be
voted for, the profession or calling.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and proceeds of
the offense,
Payment of costs.
--xXx-CAPITAL PUNISHMENT
DEATH
Under RA 9346, death penalty cannot be imposed.
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.
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.
--xXx---xXx-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:
Death.
Afflictive penalties:
Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute
disqualification,
Perpetual or temporary special disqualification,
Prision mayor.
Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
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
Penalty is imposed in case of
violation of the Revised Penal
Code;
Carries a duration of 20 to 40
years;
Carries with it an accessory
penalty;
LIFE IMPRISONMENT
Penalty is imposed in case of
violation of special penal laws;
No fixe duration;
Does not carry an accessory
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,
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
57
CORRECTIONAL 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,
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.
SUSPENSION
Suspension may either be a principal penalty or an accessory penalty.
DISQUALIFICATION
Perpetual or Temporary Absolute Disqualification Perpetual or
Temporary Special Disqualification may be either 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.
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.
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.
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.
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;
--xXx--
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 Disqualification lasts during the
the convict and even after the term of the sentence, and is
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--
LIGHT PENALTIES
ARRESTO MENOR
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
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
court in the judgment, or otherwise to deposit such amount in the
office of the clerk of the court to guarantee said undertaking.
58
Bond to keep the peace is a principal penalty.
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.
Bond for Good Behavior
Bond to keep the peace is different from bond for good behavior.
PAYMENT OF COST
Cost means the expenses of litigation.
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.
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.
Bond to keep the peace v. Bond for good behavior
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
If a person fails to post a bond
the peace results to
for good behavior , he shall be
imprisonment either for six (6) sentenced to destierro;
months or thirty (30) days
depending on whether the
felony committed is grave or
less grave on one hand, or a
light felony on the other;
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-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.
--xXx-ACCESSORY PENALTIES
CIVIL INTERDICTION
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.
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
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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.
59
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 Pardon may only be made after
the institution of the criminal conviction by final judgment
case; only in private crimes;
--xXx--
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
(ARTICLE 38)
Imposed by the court in case of
conviction but not as penalty;
PECUNIARY PENALITIES
(ARTICLE 25)
Imposed by the court in case of
conviction as a penalty;
--xXx-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.
60
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
61
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;
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.
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.
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.
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 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.
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: 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
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;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
62
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
B.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.
--xXx-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.
Q: How many crimes will you file against X?
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
--xXx-PENALTY IMPOSED UPON ACCESSORIES AND ACCOMPLICES
(Articles 50-57)
Articles 50-57 provides for penalties if the offender is a principal,
accomplice or accessory whether or not the felony is consummated,
frustrated, attempted.
CONSUMMATED
Penalty
prescribed by
law for the
offense;
PRINCIPALS
ACCOMPLICES
ACCESSORIES
A penalty lower
by one degree
than that
prescribed by
law for principal
of a
consummated
felony;
(Art. 52)
A penalty lower
by two degrees
than that
prescribed by
law for principal
of a
consummated
felony;
(Art. 53)
FRUSTRATED
The penalty
lower by one
degree than
that
prescribed
by law for
the principal
of a
consummate
d felony;
(Art. 50)
The penalty
lower by one
degree than
prescribed
by law for
the principal
of a
frustrated
felony;
(Art. 54)
The penalty
lower by two
degrees than
prescribed
by law for
the
principals of
a frustrated
felony;
(Art. 55
ATTEMPTED
A penalty lower
by two degrees
than that
prescribed by law
for principal of a
consummated
felony;
(Art. 51)
A penalty lower
by one degree
than that
prescribed by law
for principals of
an attempted
felony;
(Art. 56)
The penalty lower
by two degrees
than that
prescribed by law
for principals of
an attempted
felony; (Art. 57)
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.
63
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);
--xXx--
Aggravating circumstances which in themselves constitute a crime
especially punishable by law.
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
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)
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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;
64
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.
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;
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.
Those which arise from the moral attributes of the offender
The maximum penalty shall be imposed if the offense was committed
by any person who belongs to an organized/syndicated crime group.
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;
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 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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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NUMBER OF CONVICTION
Third Conviction;
PENALTY PRESCRIBED
The penalty for the last crime
of which he be found guilty.
65
No prescriptive period on the
commission of the offense;
No additional penalty;
Prescribes in ten years;
Provides additional penalty;
ADDITIONAL PENALTY;
prision correccional in its
medium and maximum
periods;
The penalty provided for the
last crime of which he be
found guilty.
QUASI RECIDIVISM
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.
ADDITIONAL PENALTY;
Prision mayor in its minimum
and medium periods;
The culprit shall be sentenced
to the penalty provided for the
last crime of which he be found
guilty.
* The first crime may be any crime. The second crime must be a
felony.
Again it is a special aggravating circumstance.
Fourth Conviction;
Fifth Conviction;
ADDITIONAL PENALTY;
prision mayor in its maximum
period to reclusion temporal in
its minimum period.
Limitation
The penalty committed for the crime plus additional penalty should
not exceed thirty years.
Example;
A, while serving a final judgment, he was found in possession of illegal
drugs.
Q: Is A a quasi-recidivist?
A: NO. The second crime is not a felony, it is a special law.
Example;
If A was was serving sentence for possession of illegal drugs and then
inside a crime he killed a co-inmate.
Q: Is A a quasi-recidivist?
A: YES. Maximum period prescribed by law shall be imposed.
--xXx--
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.
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.
RECIDIVISM
Generic aggravating
circumstance - Can be offset;
Requires
at
least
two
conviction;
Felony violated must be within
the same title of the code;
HABITUAL DELINQUENCY
Cannot be offset by ordinary
mitigating circumstance;
Requires at least three
convictions;
The felony violated are serious
physical injuries, less serious
physical injuries, robbery, theft,
estafa, falsification;
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;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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a.
b.
c.
d.
When there is only one aggravating
circumstance, the greater penalty shall be
imposed;
When there is neither mitigating nor aggravating
circumstances, the lesser penalty shall be
imposed;
When there is a mitigating circumstance and no
aggravating circumstance, the lesser penalty shall
be imposed.
When both mitigating and aggravating
circumstances are present, the court shall allow
them to offset one another;
Example;
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;
66
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
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.
--xXx--
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
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
67
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 willpower, 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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
68
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
69
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
--xXx-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;
70
3.
4.
5.
To prevent further commission of crimes because the
offender is placed under an individualized treatment;
To decongest cases;
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
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71
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.
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.
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.
CONDITIONS IMPOSED UPON OFFENDER UNDER PROBATION
There are two conditions imposed upon a person seeking probation;
1. Mandatory/ Ordinary;
2. Discretionary/ Special;
2.
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.
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?
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
Imprisonment of not more
than 1 year;
All other cases of
imprisonment;
Fine subsidiary imprisonment
in case of insolvency;
PERIOD OF PROBATION
Will not exceed two years;
Will not exceed 6 years;
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.
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
72
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.
Factors to consider in imposing fines;
1. Aggravating and mitigating circumstance;
2. Wealth and means 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 probation.
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
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.
--xXx-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.
--xXx-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
--xXx-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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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:
73
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.
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
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.
5. Prision correccional,
6. Arresto mayor,
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.
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.
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.
SUCCESSIVE SERVICE OF SENTENCE
All forms of imprisonment cannot be served simultaneously.
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.
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.
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
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:
74
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.
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.
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--
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
75
EXECUTION AND SERVICE OF PENALTIES
--xXx-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.
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--
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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
CRIMINAL LAW REVIEW
76
1.
BY: ATTY. VICTORIA GARCIA
PART II
2.
EXTINCTION OF CRIMINAL
LIABILITY
Transcribed by:
Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne
Rose De Guia, Ma. Althea Raypon, J-ann Javillonar &
Maria Maica Angelika Roman.
Updated by:
Anonymous Lawyer
(https://www.facebook.com/Anonymouslawer/)
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;
3.
4.
Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil liability
based solely thereon;
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;
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.
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
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.
PARDON
Merely suspends the execution
of sentence, erases the penalty
to be imposed;
Granted only after conviction
by final judgment;
Private act of President. As
such, the person pardoned
AMNEST
Obliterates all effects of crime
as if no crime was committed;
Granted at any stage of
proceedings, before during or
after final judgment;
Public act of President. Granted
with the concurrence of
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018]
must plead and prove it before
the courts. No judicial notice of
Pardon;
May be given to all kinds of
offenders;
Congress. Courts take judicial
notice of it;
Generally granted to a class or
group of persons who have
committed political offenses;
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.
--xXx-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.
77
PRESCRIPTION OF CRIME
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.
Period of Prescription of Crimes
PENALTY OF CRIMES
Death, Reclusion perpetua,
reclusion temporal;
Other afflictive penalties;
Correctional penalties;
Arresto mayor;
Libel and other similar offenses;
Oral defamation and slander by
deed
Light felonies;
PRESCRIPTION PERIOD
20 years;
15 years;
10 years;
5 years;
1 year
6 months;
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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.
78
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.
--xXx--
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
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. Other afflictive penalties, in fifteen years;
3. 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
Death, Reclusion perpetua;
Afflictive penalties;
Correctional penalties;
Arresto mayor;
Light penalties;
PRESCRIPTION PERIOD
20 years;
15 years;
10 years;
5 years;
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
Loss or forfeiture of the right
of the State to prosecute;
of the State to enforce final
judgment;
Starts counting upon the
Starts counting upon the
discovery of the commission of escape or evasion of service of
the crime.
sentence.
Mere absence from the
Absence from the Philippines
Philippines interrupts the
interrupts the period only
running of the prescription;
when the convict goes to a
foreign country without an
extradition treaty with the
Philippines;
Commission of another crime
Commission of another crime
before the expiration of the
before the expiration of the
prescriptive period does not
period interrupts the
interrupt prescription.
prescription.
--xXx-Art. 94. Partial Extinction of criminal liability. — Criminal liability is
extinguished partially;
1. By conditional pardon;
2. By commutation of the sentence; and
79
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.
--xXx-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.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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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
First two years;
Third to fifth year, inclusive, of
his imprisonment;
Sixth until the tenth year,
inclusive, of his imprisonment;
Eleventh and successive years
of his Imprisonment;
At any time during the
period of imprisonment;
DEDUCTION
20 days for each month of good
behavior during detention;
23 days for each month of good
behavior during detention;
25 days for each month
of good behavior during
detention;
30 days for each month
of good behavior during
detention;
another deduction of 15 days,
in addition to numbers one to
four hereof for 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
8.9 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--
80
CRIMINAL LAW REVIEW
BY: ATTY. VICTORIA GARCIA
PART III
CIVIL LIABILITY
Transcribed by:
Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne
Rose De Guia, Ma. Althea Raypon, J-ann Javillonar &
Maria Maica Angelika Roman.
Updated by:
Anonymous Lawyer
(https://www.facebook.com/Anonymouslawer/)
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
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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3.
accused failed to comply with the terms of the contract.
There is breach of contract;
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
81
is the one who acted under the compulsion of irresistible force or
uncontrollable fear.
--xXx-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?
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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.
82
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
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83
price of the thing, whenever possible, and its special sentimental
value to the injured party, and reparation shall be made accordingly.
shall have a right of action against the others for the amount of their
respective shares.
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.
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.
--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
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
--xXx-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.
--xXx-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.
--END-Special Acknowledgement to the (2017) Garcia Notes Transcribers:
Bongalon, David, Garvida, Liwanag, Maranan, Melosantos, Mina,
Navarez, Santos.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika Roman]
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