ARTICLE 11
Velasquez vs. People
G.R. No.195021, March 15, 2017
FACTS:
On May 24, 2003 in the evening, Velasquez (accused) while armed with stones and wooden poles,
conspiring, confederating and mutually helping one another, with intent to kill, with treachery and
abuse of superior strength, did, then and there willfully, unlawfully and feloniously attack, maul and hit
Jesus del Mundo inflicting upon him injuries in the vital parts of his body, the said accused having thus
commenced a felony directly by overt acts, but did not perform all the acts of execution which could
have produced the crime of Murder but nevertheless did not produce it by reason of some causes or
accident other than their own spontaneous desistance to his damage and prejudice.
The accused invoke the first and second justifying circumstances under Article 11 of the Revised Penal
Code reiterating that it was Jesus, who was supposedly inebriated, vented his ire upon Nicolas and the
other accused, as well as on Mercedes. The accused thus responded and countered Jesus' attacks,
leading to his injuries.
Petitioners Nicolas Velasquez and Victor Velasquez, along with four others -Felix Caballeda, Jojo Del
Mundo, Sonny Boy Velasquez, and Ampong Ocumen - were charged with attempted murder under
Article 248, in relation to Article 6, of the Revised Penal Code.
Issue:
Whether or not petitioners may be held criminally liable for the physical harm inflicted on Jesus Del
Mundo.
Held:
Yes. A person invoking self-defense (or defense of a relative) admits to having inflicted harm upon
another person - a potential criminal act under Title Eight (Crimes Against Persons) of the Revised Penal
Code. However, he or she makes the additional, defensive contention that even as he or she may have
inflicted harm, he or she nevertheless incurred no criminal liability as the looming danger upon his or
her own person (or that of his or her relative) justified the infliction of protective harm to an erstwhile
aggressor.
The accused's admission enables the prosecution to dispense with discharging its burden of proving that
the accused performed acts, which would otherwise be the basis of criminal liability. All that remains to
be established is whether the accused were justified in acting as he or she did. To this end, the accused's
case must rise on its own merits:
It is settled that when an accused admits harming the victim but invokes self-defense to escape criminal
liability, the accused assumes the burden to establish his plea by credible, clear and convincing
evidence; otherwise, conviction would follow from his admission that he harmed the victim. Selfdefense cannot be justifiably appreciated when uncorroborated by independent and competent
evidence or when it is extremely doubtful by itself. Indeed, in invoking self-defense, the burden of
evidence is shifted and the accused claiming self-defense must rely on the strength of his own evidence
and not on the weakness of the prosecution.
ART. 12
PEOPLE OF THE PHILIPPINES vs. PANTOJAG.R. No. 223114 November 29, 2017
FACTS:
Prior to the commission of the crime, the accused had already exhibited signs of mental illnesswhich started manifesting after
he was mauled by several persons in an altercation when he wastwenty-one (21) years old. Because of the incident, he
sustained head injuries, which requiredstitches. No further physical examination was conducted on him, because they did
not have the fundsto pay for additional checkups. Cederina, mother of the accused, observed that his personality
hadchanged, and he had a hard time sleeping. There was a time when he did not sleep at all for oneweek, prompting
Cederina to bring the accused-appellant to the psychiatric department of thePhilippine General Hospital (PGH). There, the
attending physician diagnosed him with schizophrenia.On July 14, 2010 at 7:45 in the evening, the accused was able to
escape from the hospital andarrived at their house the day after. Cederina asked herein accused how he was able to find his
wayhome, the accused responded that he roamed around until he remembered the track towards theirway home.
Cederina reported to PGH that he has custody of his son, the latter advised that shereturn his son but was not able to do so
because they could not afford the transportation expenses.On 22 July 2010, at around 8:00 o'clock in the morning, Cederina
and the accused-appellantwere inside their house. Eventually, she noticed that accused-appellant was gone. She went
outsideto look for him and noticed that the front door of the house where six-year-old AAA resided was open.She then saw
accused-appellant holding a knife and the victim sprawled on the floor, bloodied.Dr. Nulud testified that he conducted an
autopsy on the victim. His examination revealed thatthe victim sustained four (4) stab wounds: on his forehead, his neck, his
right shoulder, and below hiscollar bone. The RTC then found the accused guilty beyond reasonable doubt of the crime of
murderand sentenced him to suffer the penalty of reclusion perpetua. On appeal, the CA affirmed thedecision of the lower
court.
ISSUE:
Whether accused-appellant has clearly and convincingly proven his defense of insanity toexempt him from
criminal liability
HELD:
The Supreme saw no reason to overturn the decision of the CA. A scrutiny of the evidencepresented by accused-appellant
unfortunately fails to establish that he was completely bereft ofreason or discernment and freedom of will when he fatally
stabbed the victim. Cederina tends to showthat accused-appellant exhibited signs of mental illness only after being injured in
an altercation in2003; that she observed changes in his personality and knew he had difficulty sleeping since then;that
accused-appellant was confined in the hospital a few times over the years for his mental issues;and that he was confined at
the NCMH on 8 July 2010 from where he subsequently escaped. Nothingin her testimony pointed to any behavior of the
accused-appellant at the time of the incident inquestion, or in the days and hours before the incident, which could establish
that he was insane whenhe committed the offense.
ART. 13
G.R. No. L-48976
October 11, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MORO MACBUL, defendant-appellant.
Cesar C. Climaco for appellant.
Office of the Solicitor General De la Costa and Solicitor Madamba for appellee.
OZAETA, J.:
Appellant pleaded guilty to an information for theft of two sacks of papers valued at P10 belong to the
Provincial Government of Sulu, alleged to have been committed on March 9, 1943, in the municipality of
Jolo; it being also alleged that he was a habitual delinquent, having been twice convicted of the same
crime on November 14, 1928, and August 20, 1942. The trial court sentenced him to suffer one month
and one day of arresto mayor as principal penalty and two years, four months, and one day of prision
correccional as additional penalty for habitual delinquency.
The trial court found two mitigating circumstances: plea of guilty under paragraph 7, and extreme
poverty and necessity under paragraph 10, of article 13 of the Revised Penal Code; but it took into
account the aggravating circumstance of recidivism in imposing the principal as well as the additional
penalty.
The only question raised here by counsel for the appellant is the correctness of the consideration by the
trial court of recidivism as an aggravating circumstance for the purpose of imposing the additional
penalty for habitual delinquency, counsel contending that recidivism should not have been taken into
account because it is inherent in habitual delinquency. While that contention is correct, as we have
decided in the case of People vs. Tolentino, 1 Off. Gaz., 682, it is beside the point here because the error
committed by the trial court lies not so much in its having considered recidivism as an aggravating
circumstance for the purpose of penalizing habitual delinquency, as in its having considered appellant as
a habitual delinquent at all, it appearing from the information that his two previous convictions were
more than ten years apart. "A person shall be deems to be habitually delinquent, if within a period of
ten years from the date of his release or last conviction of the crimes of robo, hurto, estafa,
or falsification, he is found guilty of any of said crimes a third time or oftener." (See last paragraph,
article 62, No. 5, of the Revised Penal Code.) Therefore, appellant's first conviction, which took place in
November, 1928, cannot be taken into account because his second conviction took place in August,
1942, or fourteen years later. Hence within the purview of the Habitual Delinquency Law appellant has
only one previous conviction against him, namely, that of 1942.
The trial court considered extreme poverty and necessity as a mitigating circumstance falling within No.
10 of article 13 of the Revised Penal Code, which authorizes the court to consider in favor of an accused
"any other circumstance of a similar nature and analogous to those above mentioned." The trial court
predicates such consideration upon its finding that the accused, on account of extreme poverty and of
the economic difficulties brought about by the present cataclysm, was forced to pilfer the two sacks of
papers mentioned in the information from the Customhouse Building, which he sold for P2.50, in order
to be able to buy something to eat for various minor children of his. (The stolen goods were
subsequently recovered.) The Solicitor General interposes no objection to the consideration of such
circumstance as mitigating under No. 10 of article 13. We give it our stamp of approval, recognizing the
immanent principle that the right to life is more sacred than a mere property right. That is not to
encourage or even countenance theft but merely to dull somewhat the keen and pain-producing edges
of the stark realities of life.
Conformably to the recommendation of the Solicitor General, the sentence appealed from is modified
by affirming the principal penalty and eliminating the additional penalty, without costs.
Yulo, C.J., Moran and Paras, JJ., concur.
Separate Opinions
BOCOBO, J., concurring:
I concur in the result. In view of the far-reaching significance of the doctrine enunciated in the foregoing
opinion — that extreme poverty is a mitigating circumstance — and of the fact that such a rule deviates
from established precedents, I deem it appropriate to set forth my reasons for subscribing to the new
principle.
I believe that extreme poverty and necessity is a mitigating circumstance, not only because it is
analogous mitigating circumstance under No. 10 of art. 13 of the Revised Penal Code, as stated in the
above opinion, but also for the reason that it is an incomplete exempting circumstance contemplated in
No. 1 of said article 13, in relation to Nos. 5 (irresistable force) and 6 (uncontrollable fear) of art. 12. The
trial court found that the accused committed the crime of theft "por extrema pobreza y necesidad," and
considered this as an analogous mitigating circumstance within the meaning of No. 10, art. 13 of the
Revised Penal Code. Such a finding is based on the fact that on March 9, 1943, the accused took the two
sacks of papers and sold the same for P2.50 because he is the father of several minor children and they
and he had nothing to eat on that day.
The Supreme Tribunal of Spain has refused to recognize extreme poverty as a mitigating circumstance
by analogy in cases of robbery and theft. (See sentences of April 20, 1871; July 12, 1904; April 18, 1907;
and July 9, 1907).lawphil.net
As for Philippine jurisprudence, as far as I know, this question has never been squarely passed upon by
this court. Possibly one of the reasons is that in view of the well-established doctrine of the Spanish
Supreme Court, above referred to, it seems to have been taken for granted by the legal profession here
that extreme poverty and need is not a mitigating circumstance by analogy in cases of robbery and theft.
In spite of precedents and widespread belief to the contrary, I do not hesitate to hold the proposition
that extreme poverty and need is a mitigating circumstance analogous to two of the circumstances
enumerated in art. 13. These two are:
1. "That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation." (No. 6)
2. "Such illness of the offender as would diminish the exercise of will-power without however depriving
him of consciousness of his acts." (No. 9)
It will be noted that there is a common idea underlying these two mitigating circumstances, namely,
that the offender either by a powerful impulse or through illness had no effective control over himself at
the time he committed the crime. Was this the state of mind of the defendant herein when he took the
papers? I believe so because the thought that his little children would starve on that day must have
temporarily dulled his conscience and driven him to steal. The spectre of hunger of his loved ones
terrified him into stealing. The reason for Nos. 6 and 9 of art. 13, above quoted, being the same as in the
instant case, the rule of analogy authorized in No. 10 of that article should be applied. The ancient
principle upheld by the Roman jurists, Eadem dispositio, ubi eadem ratio is a puissant logic and is
eminently just.
Furthermore, the facts of this case come within the purview of No. 1 of art. 13, which provides:
Art. 13. Mitigating circumstances. — The following are mitigating circumstances:
1. Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or to
exempt from criminal liability in the respective cases are not attendant.
In other words, the offense of the accused herein may be properly considered as mitigated by
incomplete exemption from criminal liability, under Nos. 5 and 6 of art. 12, (irresistible force and
uncontrollable fear of an equal or greater injury.)
The first question in this aspect of the case is whether No. 1 of art. 13 refers only to those exempting
circumstances which contain two or more requisites (self-defense, defense of relatives or of stranger,
and avoidance of an evil or injury in Nos. 1 to 4, art. 11.) The answer is negative because No. 1 of art. 13
refers to the preceding chapter relative to justifying and exempting circumstances, and the preceding
chapter, which consists of art. 11 and 12, includes circumstances which are not composed of several
requisites. In People vs. Oanis, G.R. No. 47722, (July 27, 1943) we held that improper performance of a
duty (No. 5, art. 11) is mitigating circumstance.
Coming now to irresistible force, No. 5 of art. 12 provides that "any person who acts under the
compulsion of an irresistible force" is exempt from criminal liability. It is true that according to the
doctrine of the Supreme Tribunal of Spain, the irresistible force must be external, proceeding from a
third person (S. of Feb. 28, 1891). But considering that the law makes no distinction between force
within the accused himself and from another person, and that one type of force is just as compelling as
another, I think it is but right to hold that such force need not be exerted by another person.
This being so, why should the offense of the accused herein be mitigated by extreme poverty and need?
Because misery and hunger impelled him to steal, although such force was not absolutely irresistible,
under No. 5 of art. 12. His condition was sufficiently grave to drive him to take the papers, but it was not
utterly inevitable that he should do so.
The same considerations apply in regard to uncontrollable fear of an equal or greater injury (No. 6, art.
12). The accused, desperate because of fear that his little children would starve, stole the papers, but his
fear was not absolutely uncontrollable.
Taking irresistible force and uncontrollable fear together, I believe that the force and the fear which
coerced the accused herein to steal are of the same nature contemplated in Nos. 5 and 6 of art. 12, but
they are of less degree than that required for complete exemption from criminal responsibility.
Therefore, I am of the opinion that according to No. 1 of art. 13, there is a mitigating circumstance of
incomplete exemption from criminal liability under Nos. 5 and 6 of art. 12 of the Revised Penal Code.
I am not unmindful of the possible objection that the doctrine herein enunciated may encourage theft
and robbery and undermines the right of property, and is therefore revolutionary. But so long as
extreme poverty and need is not declared an exempting but only a mitigating circumstance, the rule
herein announced is fully warranted. The crime itself is condemned, though the punishment is
tempered. It can not be successfully contended that a mitigating circumstance fosters crime. It is easy to
understand the conservatism of the precedents and of the attitude of the legal profession, but
considerable water has flowed under the bridge during the last two decades. Governments and peoples
all over the world have visualized more clearly the sufferings and hardships of the poor. Humanitarian
ideas have loomed larger on the horizon. More and more, legislation in all countries has been removing
from the bending backs of the underprivileged the unbearable burdens which had been crushing and
overwhelming their existence. More and more, lawmaking bodies throughout the world have seen to it
that the toiling masses participate, as much as possible, in the good things of life. More and more,
legislatures have realized that extreme poverty is brought about by general social conditions and
through no fault of the poor. More and more, legislation has remedied the sinister state of affairs which
seemed to consider poverty a crime.
Therefore, the original interpretation of laws must give way to a new one, which should be attuned to
the spirit of the age all over the earth. Although the wording of the articles of the Penal Code under
discussion has not been changed, their interpretation may be changed in order that they may not
become anachronistic. Considering that social conditions often unfold faster than legislation, it is a
salutary function of old laws as to adjust them to contemporary exigencies of the public weal. This is not
judicial legislation at all because the lawmakers intended that the law which they approved should
govern for many years to come, and that therefore it should be interpreted by the courts in such a way
as to meet new problems, provided the fundamental objectives of the law are distinctly kept in view. In
the instant case, theft is punished, so the principle of crime repression is carried out; and the penalty is
moderated because of extreme poverty and need, so the idea of punishment according to the
circumstances of each case is also recognized.
Finally, so long as there is widespread unemployment and so long as relief work, both private and
governmental, is inadequate, the punishment for stealing because of hunger should be lessened, but
not waived or lifted. Unless and until there is a job for every person willing to work, to mete out the
ordinary or highest penalty for stealing due to dire necessity flies in the face of the principle of social
justice. It is tantamount to exacting the pound of flesh in accordance with the letter of the law.
The foregoing considerations are strengthened by the leeway given to the courts in determining what in
each case constitutes a mitigating circumstance by analogy. The lawmaker, fully aware of the
impossibility of laying down an exhaustive enumeration of circumstances that would extenuate crime,
has formulated a general statement in No. 10 of art. 13. It is thus that each case must be judged by the
courts on its own merits, the only condition being that there must be similarity or analogy to one or
more of the nine circumstances specifically mentioned in said art. 13. Commenting on a similar provision
of the Spanish Penal Code (No. 8, art. 9), Groizard makes these observations:
Recuerdense una por una las siete circunstancias atenuantes que ya llevamos examinadas, y se advertira
la exactitud de lo que venimos diciendo. Todas y cada una son generalizaciones y en todas se hallara que
la libertad, o la inteligencia, o la intencion aparecen mutiladas en bastante grado para influir en la
responsabilidad de los actos humanos. Descender a demostrar esta verdad, lo tenemos por inutil: su
evidencia no han de ponerla en duda los que recuerden el texto de los numeros y el espiritu que las
vivifica.
Pero ese estudio amplio, vastisimo; estudio en el cual parece que se pierde el hombre dentro de la
humanidad; esas grandes corrientes, puntos cardinales, moldes en que todos se funden, aunque el
legislador crea que lo abarcan todo, podria suceder que se equivocase, y logico en su aspiracion de ser
un reflejo de la justicia moral, al trazar el circulo en que queda a salvo el principio de que parte, en
prevision de que algun caso quedase sin definir y fuera de las clasificaciones hechas, que ni por su
generalidad, ni por su alcance, pudiera engendrar una regla de aplicacion constante, un canon, fue
preciso establecer el unico criterio que pudiera apreciarle con entera conciencia: aludimos al criterio de
los Tribunales.
De aqui la circunstancia 8.a, que, en rigor, no es mas que una regla generica para todo lo que hallandose
fuera del cuadro de las anteriormente formuladas pudiera correr igual suerte que estas, cuando lo
exigieran igual identidad y analogia, El Codigo Penal de 1870, Concordado y Comentado, Vol. 1, p. 401.
(Emphasis supplied).
Although perhaps many decades will have to elapse before penal codes of the world recognize extreme
poverty and need as an exempting circumstance, yet I believe that in the meantime it is in keeping with
the humanitarian ideas of this generation to recognize the cruel pangs of hunger as a factor that
mitigates the penalty. Possibly the growing atmosphere favorable to the submerged classes will
eventually uphold the stand of Judge Paul Magnaud who about fifty years ago became popularly known
in France as the "bon judge" because of his significant decisions acquitting those who had been impelled
to steal on account of the excruciating tortures of hunger. Be that as it may, I am convinced that the
doctrine herein declared responds to the heart-throbs of mankind.
All in all, I am persuaded that the principal penalty fixed by the trial court, one month and one day of
arresto mayor, extreme poverty and need having been considered as a mitigating circumstance by
analogy, fits the facts of the instant case.
ART. 14
PEOPLE v. THEODORE BERNAL, GR No. 113685, 1997-06-19
Facts:
Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown,
were charged with the crime of kidnapping... one Bienvenido Openda, Jr.
A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution
presented four witnesse
On the other hand, Theodore Bernal testified for his defense.
around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree,
they invited Bernal, who was passing by, to join them.
After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his
child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was "Payat."[3]
When he said yes, one of them suddenly pulled out a... handgun while the other handcuffed him and
told him "not to run because they were policemen" and because he had an "atraso" or a score to settle
with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and
informed the latter's mother of... the abduction.
theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish
that Openda, Jr. had an illicit affair with Bernal's wife Naty and this was the motive behind the former's
kidnapping. Until now, Openda, Jr. is still missing.
defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence,
was never kidnapped... court a quo rendered judgment[5] finding Bernal "guilty... crime of kidnapping
for the abduction and disappearance of Bienvenido Openda, Jr... important is the testimony of Roberto
Racasa
He narrated that he and the victim were drinking at "Tarsing's Store" on that fateful day when Bernal
passed by... and had a drink with them. After a few minutes, Bernal decided to leave, after which, two
men came to the store and asked for "Payat." When Openda, Jr. confirmed that he was indeed "Payat,"
he was handcuffed and taken away by the unidentified men
Salito Enriquez, a tailor and a friend of Openda, Jr., testified
Openda, Jr. confided to him that he and Bernal's wife Naty were having an affair. One time, Naty even
gave Openda, Jr. money which they used to pay for a motel... room. He advised Naty "not to do it again
because she (was) a married woman.[9] Undoubtedly, his wife's infidelity was ample reason for Bernal
to contemplate revenge.
Issues:
Bernal assails the lower court for giving weight and credence to the prosecution witnesses' allegedly
illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt.
Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in
evidence
Ruling:
We find no compelling reason to overturn the decision of the lower court.
In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals "as
shown by their concerted... acts evidentiary of a unity of thought and community of purpose."[7] Proof
of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.[8] The
circumstances present in this case sufficiently indicate the... participation of Bernal in the disappearance
of Openda, Jr.
Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in
evidence
Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to
Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime,
is admissible in evidence[13] because no... sane person will be presumed to tell a falsehood to his own
detriment.
Principles:
Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled
with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused
was the malefactor, motive may be sufficient to support a... conviction... pursuant to Section 38, Rule
130 of the Revised Rules on Evidence, viz.:
"Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was
made so far contrary to declarant's own interest,... that a reasonable man in his position would not have
made the declaration unless he believed it to be true, may be received in evidence against himself or his
successors-in-interest and against third persons."
With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to
assume that "declaration against interest" has been expanded to include all kinds of interest, that is,
pecuniary, proprietary, moral or even penal
A statement may be admissible when it complies with the following requisites, to wit: "(1) that the
declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3)
that at the time he made said declaration the declarant was aware... that the same was contrary to his
aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to
be true."
ART. 15
PEOPLE VS. APDUHAN, JR.
G.R. No. L-19491, August 30, 1968
24 SCRA 798
CASTRO, J:
FACTS:
On 23 May 1961, Apolonio Apduhan together with five others, armed with unlicensed firearms,
and helping one another with violence, entered and robbed the house of the spouses Honorato Miano
and Antonia Miano, in which they attack and shoot Geronimo Miano and Norberto Aton.
In the trial, Apolonio Apduhan changed his plea from not guilty, with the condition that death
penalty will not be imposed to him, and instead just life imprisonment. The case was reopened.
The trial judge recommends to the President of the R-epublic the commutation of the death
sentence which he imposed on the accused to life imprisonment. The Solicitor General supports this
recommendation for executive clemency.
ISSUE:
Whether or not the trial court is correct in penalizing Apduhan for death after he pleaded guilty
in the crime robbery with homicide, appreciating band?
HELD:
No, the trial court is incorrect in penalizing Apduhan for death after he pleaded guilty in the
crime robbery with homicide, appreciating band. As previously stated, art. 295 provides that if any of
the classes of robbery described in subdivisions 3, 4, and 5 of art. 294 is committed by a band, the
offender shall be punished by the maximum period of the proper penalty. Correspondingly, the
immediately following provisions of art. 296 define the term "band", prescribe the collective liability of
the members of the band, and state that "when any of the arms used in the commission of the offense
be an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of
the corresponding penalty provided by law." Viewed from the contextual relation of articles 295 and
296, the word "offense" mentioned in the above-quoted portion of the latter article logically means the
crime of robbery committed by a band, as the phrase "all the malefactors" indubitably refers to the
members of the band and the phrase "the corresponding penalty provided by law" relates to the
offenses of robbery described in the last three subdivisions of art. 294 which are all encompassed within
the ambit of art. 295. Evidently, therefore, art. 296 in its entirety is designed to amplify and modify the
provision on robbery in band which is nowhere to be found but in art. 295 in relation to subdivisions 3,
4, and 5 of art. 294. Verily, in order that the aforesaid special aggravating circumstance of use of
unlicensed firearm may be appreciated to justify the imposition of the maximum period of the proper
penalty, it is a condition sine qua non that the offense charged be robbery committed by a band within
the contemplation of art. 295. To reiterate, since art. 295 does not apply to subdivisions 1 and 2 of art.
294, then the special aggravating factor in question, which is solely applicable to robbery in band under
art. 295, cannot be considered in fixing the penalty imposable for robbery with homicide under art.
294(1), even if the said crime was committed by a band with the use of unlicensed firearms.
The special aggravating circumstance of use of unlicensed firearm, however, was initially
applicable to all the subdivisions of art. 294 since the -said Rep. Act No. 12 also amended art. 295 to
include within its scope all the classes of robbery described in art. 294. With the then enlarged coverage
of art, 295, art. 296, being corollary to the former, was perforce made applicable to robbery with
homicide (art. 294[1]). Thus, in People v. B-ersamin (See note 3), this Court, in passing, opined: "The use
of unlicensed firearm is a special aggravating circumstance applicable only in cases of robbery in band
(Art. 296, Revised Penal Code, as amended by section 3, Republic Act No. 12)."
Supreme Court’s decision with the modification that the death sentence imposed upon Apolonio
Apduhan, Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is affirmed in all
other respects, without pronouncement as to costs