Criminal Law Book 1 Articles 11 – 20

Art.  11:  Justifying Circumstances – those wherein the acts of the actor are in accordance with law, hence, he is justified.  There is no criminal and civil liability because there is no crime.

  • Self-defense
  1. Reason for lawfulness of self-defense: because it would be impossible for the State to protect all its citizens.  Also a person cannot just give up his rights without any resistance being offered.
  1. Rights included in self-defense:

1.  Defense of person

2.  Defense of rights protected by law

  1. Defense of property:

a.  The owner or lawful possessor of a thing has a right to exclude any person from the enjoyment or disposal thereof.  For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. (Art. 429, New Civil Code)

b.    defense of chastity

  1. Elements:
  1. 1.      Unlawful Aggression- is a physical act manifesting danger to life or limb; it is either actual or imminent.
    1. Actual/real aggression – Real aggression presupposes an act positively strong, showing the wrongful intent of the aggressor, which is not merely threatening or intimidating attitude, but a material attack.  There must be real danger to life a personal safety.
    2. Imminent unlawful aggression – it is an attack that is impending or on the point of happening.  It must not consist in a mere threatening attitude, nor must it be merely imaginary.  The intimidating attitude must be offensive and positively strong.
    3. Where there is an agreement to fight, there is no unlawful aggression.  Each of the protagonists is at once assailant and assaulted, and neither can invoke the right of self-defense, because aggression which is an incident in the fight is bound to arise from one or the other of the combatants. Exception:  Where the attack is made in violation of the conditions agreed upon, there may be unlawful aggression.
    4. Unlawful aggression in self-defense, to be justifying, must exist at the time the defense is made.  It may no longer exist if the aggressor runs away after the attack or he has manifested a refusal to continue fighting.  If the person attacked allowed some time to elapse after he suffered the injury before hitting back, his act of hitting back would not constitute self-defense, but revenge.
  • A light push on the head with the hand is not unlawful aggression, but a slap on the face is, because his dignity is in danger.
  • A police officer exceeding his authority may become an unlawful aggressor.
  • The nature, character, location, and extent of the wound may belie claim of self-defense.

               2. Reasonable necessity of the means employed to prevent or repel it;

a.    Requisites:

  • Means were used to prevent or repel
  • Means must be necessary and there is no other way to prevent or repel it
  • Means must be reasonable – depending on the circumstances, but generally proportionate to the force of the aggressor.
  1. The rule here is to stand your ground when in the right which may invoked when the defender is unlawfully assaulted and the aggressor is armed with a weapon.
  2. The rule is more liberal when the accused is a peace officer who, unlike a private person, cannot run away.
  3. The reasonable necessity of the means employed to put up the defense.
  • The gauge of reasonable necessity is the instinct of self-preservation, i.e. a person did not use his rational mind to pick a means of defense but acted out of self-preservation, using the nearest or only means available to defend himself, even if such means be disproportionately advantageous as compared with the means of violence employed by the aggressor.
  • Reasonableness of the means depends on the nature and the quality of the weapon used, physical condition, character, size and other circumstances.

3. Lack of sufficient provocation on the part of the person defending himself.

  1. When no provocation at all was given to the aggressor by the person defending himself.
  2. When even if provocation was given by the person defending himself, such was not sufficient to cause violent aggression on the part of the attacker, i.e. the amount of provocation was not sufficient to stir the aggressor into the acts which led the accused to defend himself.
  3. When even if the provocation were sufficient, it was not given by the person defending himself.
  4. When even if provocation was given by the person defending himself, the attack was not proximate or immediate to the act of provocation.
  5. Sufficient means proportionate to the damage caused by the act, and adequate to stir one to its commission.
  1. Kinds of Self-Defense
    1. Self-defense of chastity – to be entitled to complete self-defense of chastity, there must be an attempt to rape, mere imminence thereof will suffice.
    2. Defense of property – an attack on the property must be coupled with an attack on the person of the owner, or of one entrusted with the care of such property.
    3. Self-defense in libel – physical assault may be justified when the libel is aimed at a person’s good name, and while the libel is in progress, one libel deserves another.

*Burden of proof – on the accused (sufficient, clear and convincing evidence; must rely on the strength of his own evidence and not on the weakness of the prosecution).

  • Defense of Relative

A. Elements:

  1. unlawful aggression
  2. reasonable necessity of the means employed to prevent or repel the attack;
  3. in case provocation was given by the person attacked, that the person making the defense had no part in such provocation.

B. Relatives entitled to the defense:

  1. spouse
  2. ascendants
  3. descendants
  4. legitimate, natural or adopted brothers or sisters
  5. relatives by affinity in the same degree
  6. relatives by consanguinity within the 4th civil degree.
  • The third element need not take place.  The relative defended may even be the original aggressor.  All that is required to justify the act of the relative defending is that he takes no part in such provocation.
  • General opinion is to the effect that all relatives mentioned must be legitimate, except in cases of brothers and sisters who, by relatives by nature, may be illegitimate.
  • The unlawful aggression may depend on the honest belief of the person making the defense.
  • Defense of Stranger

A. Elements

  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 other evil motive.
  1. A relative not included in defense of relative is included in defense of stranger.
  2. Be not induced by evil motive means that even an enemy of the aggressor who comes to the defense of a stranger may invoke this justifying circumstances so long as he is not induced by a motive that is evil.
  • State of Necessity
  1. Art. 11, Par. a provides:

Any person who, in order to avoid an evil or injury, does an 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; and

            Third. That there be no other practical and less harmful means of preventing it.

  1. A state of necessity exists when there is a clash between unequal rights, the lesser right giving way to the greater right.  Aside from the 3 requisites stated in the law, it should also be added that the necessity must not be due to the negligence or violation of any law by the actor.
  2. The person for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which may have been received.  This is the only justifying circumstance which provides for the payment of civil indemnity.  Under the other justifying circumstances, no civil liability attaches.  The courts shall determine, in their sound discretion, the proportionate amount for which law one is liable
  • Fulfillment of Duty or Lawful Exercise of a Right or Office
  1. Elements:
  1. that the accused acted in the performance of a duty, or in the lawful exercise  of a right or office;
  2. that the injury caused or offense committed be the necessary consequence of the due performance of the duty, or the lawful exercise of such right or office.
  1. A police officer is justified in shooting and killing a criminal who refuses to stop when ordered to do so, and after such officer fired warning shots in the air.
  • shooting an offender who refused to surrender is justified, but not a thief who refused  to be arrested.
  1. The accused must prove that he was duly appointed to the position he claimed he was discharging at the time of the commission of the offense.  It must be made to appear not only that the injury caused or the offense committed was done in the fulfillment of a duty, or in the lawful exercise of a right or office, but that the offense committed was a necessary consequence of such fulfillment of duty, or lawful exercise of a right or office.
  2. A mere security guard has no authority or duty to fire at a thief, resulting in the latter’s death.
  • Obedience to a Superior Order
  1. Elements:
  1. there is an order;
  2. the order is for a legal purpose;
  3. the means used to carry out said order is lawful.
  1. The subordinate who is made to comply with the order is the party which may avail of this circumstance.  The officer giving the order may not invoke this.
  2. The subordinate’s good faith is material here.  If he obeyed an order in good faith, not being aware of its illegality, he is not liable.  However, the order must not be patently illegal.  If the order is patently illegal this circumstance cannot be validly invoked.
  3. The reason for this justifying circumstance is the subordinate’s mistake of fact in good faith.
  4. Even if the order be patently illegal, the subordinate may yet be able to invoke the exempting circumstances of having acted under the compulsion of an irresistible force, or under the impulse of an uncontrollable fear.

EXEMPTING CIRCUMSTANCES

  • Exempting circumstances (non-imputability) are those ground for exemption from punishment because there is wanting in the agent of the crime of any of the conditions which make the act voluntary, or negligent.
  • Basis: The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused.
  • A person who acts WITHOUT MALICE (without intelligence, freedom of action or intent) or WITHOUT NEGLIGENCE (without intelligence, freedom of action or fault) is NOT CRIMINALLY LIABLE or is EXEMPT FROM PUNISHMENT.
  • There is a crime committed but no criminal liability arises from it because of the complete absence of any of the conditions which constitute free will or voluntariness of the act.
  • Burden of proof: Any of the circumstances is a matter of defense and must be proved by the defendant to the satisfaction of the court.

Art. 12.   CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY.  The following are exempt from criminal liability:

1.  An imbecile or 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 on one of the hospital or asylums established for persons thus afflicted. He shall not be permitted to leave without first obtaining the permission of the same court.
  • Requisites:
  1. Offender is an imbecile
  2. Offender was insane at the time of the commission of the crime
  • IMBECILITY OR INSANITY
  • An imbecile is exempt in all cases from criminal liability.  The insane is not so exempt if it can be shown that he acted during a lucid interval.  In the latter, loss of consciousness of ones acts and not merely abnormality of mental faculties will qualify ones acts as those of an insane.
  • Procedure:  court is to order the confinement of such persons in the hospitals or asylums established. Such persons will not be permitted to leave without permission from the court.  The court, on the other hand, has no power to order such permission without first obtaining the opinion of the DOH that such persons may be released without danger.
  • Presumption is always in favor of sanity.  The defense has the burden to prove that the accused was insane at the time of the commission of the crime.  For the ascertainment such mental condition of the accused, it is permissible to receive evidence of the condition of his mind during a reasonable period both before and after that time.  Circumstantial evidence which is clear and convincing will suffice.  An examination of the outward acts will help reveal the thoughts, motives and emotions of a person and if such acts conform to those of people of sound mind.
  • Insanity at the time of the commission of the crime and not that at the time of the trial will exempt one from criminal liability.  In case of insanity at the time of the trial, there will be a suspension of the trial until the mental capacity of the accused is restored to afford him a fair trial.
  • Evidence of insanity must refer to the time preceding the act under prosecution or to the very moment of its execution. Without such evidence, the accused is presumed to be sane when he committed the crime.  Continuance of insanity which is occasional or intermittent in nature will not be presumed.  Insanity at another time must be proved to exist at the time of the commission of the crime.  A person is also presumed to have committed a crime in one of the lucid intervals.  Continuance of insanity will only be presumed in cases wherein the accused has been adjudged insane or has been committed to a hospital or an asylum for the insane.
  • Instances of Insanity:
  • Reyes:  Feeblemindedness is not imbecility because the offender can distinguish right from wrong.  An imbecile and an insane to be exempted must not be able to distinguish right from wrong.
  • Relova:  Feeblemindedness is imbecility.
  • Crimes committed while in a dream, by a somnambulist are embraced in the plea of  insanity.  Hypnotism, however, is a debatable issue.
  • Crime committed while suffering from malignant malaria is characterized by insanity at times thus such person is not criminally liable.
  1. Basis:  complete absence of intelligence, and element of voluntariness.
  2. Definition : An imbecile is one who while advanced in age has a mental development comparable to that of children between 2 and 7 years of age.  An insane is one who acts with complete deprivation of intelligence/reason or without the least discernment or with total deprivation of freedom of the will.
  1. Dementia praecox is covered by the term insanity because homicidal attack is common in such form of psychosis.  It is characterized by delusions that he is being  interfered with sexually, or that his property is being taken, thus the person has no control over his acts.
  2. Kleptomania or presence of abnormal, persistent impulse or tendency to steal, to be considered   exempting, will still have to be investigated by competent  psychiatrist to determine if the unlawful act is due to the irresistible impulse produced by his mental defect,  thus loss of will-power.  If such mental defect only diminishes the exercise of his willpower and did not deprive him of the consciousness of his acts, it is only mitigating.
  3. Epilepsy which is a chronic nervous disease characterized by convulsive motions of the muscles and loss of consciousness may be covered by the term insanity.  However, it must be shown that commission of the offense is during one of those epileptic attacks.

2.  A person under nine years of age.

  • MINORITY
  • Under nine years to be construed nine years or less.  Such was inferred from the next subsequent paragraph which does not totally exempt those over nine years of age if he acted with discernment.
  • Presumptions of incapability of committing  a crime is absolute.
  • Age is computed up to the time of the commission of the crime.  Age can be established by the testimonies of families and relatives.
  • Senility or second childhood is only mitigating.
  • 4 periods of the life of a human being:
  1. Requisite: Offender is under 9 years of age at the time of the commission of the crime. There is absolute criminal irresponsibility in the case of a minor under 9-years of age.
  2. Basis:  complete absence of intelligence.

Age

Criminal Responsibility

9 years and below Absolute irresponsibility
Between 9 and 15 years old Conditional responsibility

Without discernment – no liability  With Discernment – mitigated liability

Between 15 and 18 years old Mitigated responsibility
Between 18 and 70 years old Full responsibility
Over 70 years old Mitigated responsibilit

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 article 80 of this Code.

When such minor is adjudged to be criminally irresponsible, the court, in conformity 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.

  • QUALIFIED MINORITY: Basis:  complete absence of intelligence
  • Such minor over 9 years and under 15 years of age must have acted without discernment to be exempted from criminal liability.  If with discernment, he is criminally liable.
  • Presumption is always that such minor has acted without discernment.  The prosecution is burdened to prove if otherwise.
  • Discernment means the mental capacity of a minor between 9 and 15 years of age to fully appreciate the consequences of his unlawful act.  Such is shown by: (1) manner the crime was committed (i.e. commission of the crime during nighttime to avoid detection; taking the loot to another town to avoid discovery), or (2) the conduct of the offender after its commission (i.e. elation of satisfaction upon the commission of his criminal act as shown by the accused cursing at the victim).
  • Facts or particular facts concerning personal appearance which lead officers or the court to believe that his age was as stated by said officer or court should be stated in the record.
  • If such minor is adjudged to be criminally liable, he is charged to the custody of his family, otherwise, to the care of some institution or person mentioned in article 80.  This is because of the court’s presupposition that the minor committed the crime without discernment.
  • Allegation of “with intent to kill” in the information is sufficient allegation of discernment as such conveys the idea that he knew what would be the consequences of his unlawful act.  Thus is the case wherein the information alleges that the accused, with intent to kill, willfully, criminally and feloniously pushed a child of 8 1/2 years of age into a deep place. It was held that the requirement that there should be an allegation that she acted with discernment should be deemed amply met.

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.

  • ACCIDENT: Basis: lack of negligence and intent.
  • Elements:
  • Discharge of a firearm in a thickly populated place in the City of Manila being prohibited by Art.  155 of the RPC is not a performance of a lawful act when such led to the accidental hitting and wounding of 2 persons.
  • Drawing a weapon/gun in the course of self-defense even if such fired and seriously injured the assailant is a lawful act and can be considered as done with due care since it could not have been done in any other manner.
  • With the fact duly established by the prosecution that the appellant was guilty of negligence, this exempting circumstance cannot be applied because application presupposes that there is no fault or negligence on the part of the person performing the lawful act.
  • Accident happens outside the sway of our will, and although it comes about some act of our will, lies beyond the bounds of humanly foreseeable consequences.
  • The accused, who, while hunting saw wild chickens and fired a shot can be considered to be in the performance of a lawful act executed with due care and without intention of doing harm when such short recoiled and accidentally wounded  another.  Such was established because the deceased was not in the direction at which the accused fired his gun.
  • The chauffeur, who while driving on the proper side of the road at a moderate speed and with due diligence, suddenly and unexpectedly saw a man in front of his vehicle coming from the sidewalk and crossing the street without any warning that he would do so, in effect being run over by the said chauffeur, was held not criminally liable, it being by mere accident.
  1. A person is performing a lawful act
  2. Exercise of due dare
  3. He causes injury to another by mere accident
  4. Without fault or intention of causing it.

5.         Any person who acts under the compulsion of an irresistible force.

  • IRRESISTIBLE FORCE: Basis:  complete absence of freedom, an element of voluntariness
  • Elements:
  • Force, to be irresistible, must produce such an effect on an individual that despite of his resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime.  It compels his member to act and his mind to obey.  It must act upon him from the outside and by a third person.
  • Baculi, who was accused but not a member of a band which murdered some American school teachers and was seen and compelled by the leaders of the band to bury the bodies, was not criminally liable as accessory for concealing the body of the crime.  Baculi acted under the compulsion of an irresistible force.
  • Irresistible force can never consist in an impulse or passion, or obfuscation.  It must consist of an extraneous force coming from a third person.
  1. That the compulsion is by means of physical force
  2. That the physical force must be irresistible.
  3. That the physical force must  come from a third person

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

  • UNCONTROLLABLE FEAR: Basis:  complete absence of freedom
  • Elements
  1. that the threat which causes the fear is of an evil greater than, or at least equal to that w/c he is required to commit
  2. that it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.
  • Duress, to be a valid defense, should be based on real, imminent or reasonable fear for one’s life or limb. It should not be inspired by speculative, fanciful or remote fear.
  • Threat of future injury is not enough. The compulsion must leave no opportunity to the accused for escape or self-defense in equal combat.
  • Duress is the use of violence or physical force.
  • There is uncontrollable fear is when the offender employs intimidation or threat in compelling another to commit a crime, while irresistible force is when the offender uses violence or physical force to compel another person to commit a crime.
  • “an act done by me against my will is not my act”

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

  • LAWFUL OR INSUPERABLE CAUSE: Basis: acts without intent, the third condition of voluntariness in intentional felony
  • Elements:
  1. That an act is required by law to be done
  2. That a person fails to perform such act
  3. That his failure to perform such act was due to some lawful or insuperable cause
  • Examples of lawful cause:
  • To be an EXEMPTING circumstance – INTENT IS WANTING
  • INTENT – presupposes the exercise of freedom and the use of intelligence
  • Distinction between justifying and exempting circumstance:
  1. Priest can’t be compelled to reveal what was confessed to him
  2. No available transportation – officer not liable for arbitrary detention
  3. Mother who was overcome by severe dizziness and extreme debility, leaving child to die – not liable for infanticide
  1. Exempting – there is a crime but there is no criminal. Act is not justified but the actor is not criminally liable.

General Rule: There is civil liability

Exception: Par 4 (causing an injury by mere accident) and Par 7 (lawful cause)

b.  Justifying – person does not transgress the law, does not commit any crime because there is nothing unlawful in the act as well as the intention of the actor.

Distinction between Exempting and Justifying Circumstances

Exempting Circumstance

Justifying Circumstance

Existence of a crime There is a crime but there is no criminal, the actor is exempted from liability of his act There is no crime, the act is justified
  • Absolutory Causes – are those where the act committed is a crime but for some reason of public policy and sentiment, there is no penalty imposed.
  • Exempting and Justifying Circumstances are absolutory causes.
  • Other examples of absolutory causes:

1)      Art 6 – spontaneous desistance

2)      Art 20 – accessories exempt from criminal liability

3)      Art 19 par 1 – profiting one’s self or assisting offenders to profit by the effects of the crime

  • Instigation v. Entrapment

INSTIGATION

ENTRAPMENT

Instigator practically induces the would-be accused into the commission of the offense and himself becomes co-principal The ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.
Accused will be acquitted NOT a bar to accused’s prosecution and conviction
Absolutory cause NOT an absolutory cause

MITIGATING CIRCUMSTANCES

  • Definition – Those circumstance which reduce the penalty of a crime
  • Effect – Reduces the penalty of the crime but does not erase criminal liability nor change the nature of the crime
  • Kinds of Mitigating Circumstance:

Privileged Mitigating

Ordinary Mitigating

Offset by any aggravating circumstance Cannot be offset by any aggravating circumstance Can be offset by a generic aggravating circumstance
Effect on the penalty Has the effect of imposing the penalty by 1 or 2 degrees than that provided by law If not offset,  has the effect of imposing the penalty in the minimum period
Kinds Minority, Incomplete Self-defense, two or more mitigating circumstances without any aggravating circumstance (has the effect of lowering the penalty by one degree) Those circumstances enumerated in paragraph 1 to 10 of Article 13

Article  13.

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

  • Justifying circumstances
  1. Self-defense/defense of relative/defense of stranger – unlawful aggression must be present for Art 13 to be applicable. Other 2 elements not necessary. If 2 requisites are present – considered a privileged mitigating circumstance.

Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and tries to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-defense because although there was unlawful aggression and reasonable means to repel was taken, there was sufficient provocation on the part of Juan. But since 2 elements are present, it considered as privileged mitigating.

b.  State of Necessity (par 4) avoidance of greater evil or injury; if any of the last 2 requisites is absent, there’s only an ordinary Mitigating Circumstance.

Example: While driving his car, Juan sees Pedro carelessly crossing the street. Juan swerves to avoid him, thus hitting a motorbike with 2 passengers, killing them instantly. Not all requisites to justify act were present because harm done to avoid injury is greater. Considered as mitigating.

c. Performance of Duty (par 5)

Example: Juan is supposed to arrest Pedro. He thus goes to Pedro’s hideout. Juan sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may have acted in the performance of his duty but the crime was not a necessary consequence thereof. Considered as mitigating.

  • Exempting circumstance

a. Minority over 9 and under 15 – if minor acted with discernment, considered mitigating

Example: 13 year old stole goods at nighttime. Acted with discernment as shown by the manner in which the act was committed.

b.  Causing injury by mere accident – if 2nd requisite (due care) and 1st part of 4th requisite (without fault – thus negligence only) are ABSENT, considered as mitigating because the penalty is lower than that provided for intentional felony.

Example: Police officer tries to stop a fight between Juan and Pedro by firing his gun in the air. Bullet ricocheted and killed Petra. Officer willfully discharged his gun but was unmindful of the fact that area was populated.     

        c. Uncontrollable fear – only one requisite present, considered mitigating

Example: Under threat that their farm will be burned, Pedro and Juan took turns guarding it at night. Pedro fired in the air when a person in the shadows refused to reveal his identity. Juan was awakened and shot the unidentified person. Turned out to be a neighbor looking for is pet. Juan may have acted under the influence of fear but such fear was not entirely uncontrollable. Considered mitigating

2. That the offender is under 18 years of age or over 70 years. In the case of a minor, he shall be proceeded against in accordance with the provisions of Art 192 of PD 903

  • Applicable to:

a. Offender over 9, under 15 who acted with discernment

b. Offender over 15, under 18

c. Offender over 70 years

  • Age of accused which should be determined as his age at the date of commission of crime, not date of trial
  • Various Ages and their Legal Effects

a. under 9 – exemptive circumstance

b. over 9, below 15 – exemptive; except if acted with discernment

c. minor delinquent under 18 – sentence may be suspended (PD 603)

d. under 18 – privileged mitigating circumstance

e. 18 and above – full criminal responsibility

f.  70 and above – mitigating circumstance; no imposition of death penalty; execution g. of death sentence if already imposed is suspended and commuted.

3. That the offender had no intention to commit so grave a wrong as that committed (praeter intentionam)

  • Can be used only when the facts prove to show that there is a notable and evident disproportion between means employed to execute the criminal act and its consequences
  • Intention: as an internal act, is judged by the proportion of the means employed to the evil produced by the act, and also by the fact that the blow was or was not aimed at a vital part of the body.
  • Judge by considering (1) the weapon used, (2) the injury inflicted and (3) the attitude of mind when the accuser attacked the other.

Example: Pedro stabbed Tomas on the arm. Tomas did not have the wound treated, so he died from loss of blood.

  • Not applicable when offender employed brute force

Example: Rapist choked victim. Brute force of choking contradicts claim that he had no intention to kill the girl.

  • Art 13, par 3 addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act, not to his intention during the planning stage.
  • In crimes against persons – if victim does not die, the absence of the intent to kill reduces the felony to mere physical injuries. It is not considered as mitigating. Mitigating only when the victim dies.

Example: As part of fun-making, Juan merely intended to burn Pedro’s clothes. Pedro received minor burns. Juan is charged with physical injuries. Had Pedro died, Juan would be entitled to the mitigating circumstance.

  • Not applicable to felonies by negligence. Why? In felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence, imprudence, lack of foresight or lack of skill in culpable felonies. There is no intent on the part of the offender which may be considered as diminished.
  • Basis of par 3: intent, an element of voluntariness in intentional felony, is diminished

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

  • Provocation – any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.
  • Basis: diminution of intelligence and intent
  • Requisites:

a. Provocation must be sufficient.

1. Sufficient – adequate enough to excite a person to commit the wrong and must      accordingly be proportionate to its gravity.

2. Sufficiency depends on:

  • the act constituting the provocation
  • the social standing of the person provoked
  • time and place provocation took place

3. Example: Juan likes to hit and curse his servant. His servant thus killed him.  There’s mitigating circumstance because of sufficient provocation.

4.  When it was the defendant who sought the deceased, the challenge to fight by the deceased is NOT sufficient provocation.

b. It must originate from the offended party

1. Why? Law says the provocation is “on the part of the offended party”

2. Example: Tomas’ mother insulted Petra. Petra kills Tomas because of the insults. No Mitigating Circumstance because it was the mother who insulted her, not Tomas.

3. Provocation by  the  deceased  in  the first  stage  of  the fight  is not  Mitigating

Circumstance when the accused killed him after he had fled because the deceased from the moment he fled did not give any provocation for the accused to pursue and attack him.

c. Provocation must be immediate to the act., i.e., to the commission of the crime by the person who is provoked

  1. Why? If there was an interval of time, the conduct of the offended party could not have excited the accused to the commission of the crime, he having had time to regain his reason and to exercise self-control.
  2. Threat should not be offensive and positively strong because if it was, the threat to inflict real injury is an unlawful aggression which may give rise to self-defense and thus no longer a Mitigating Circumstance

5.  That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brother or sisters, or relatives by affinity within the same degree.

        1. Requisites:

  • there’s a grave offense done to the one committing the felony etc.
  • that the felony is committed in vindication of such grave offense.

2. Lapse of time is allowed between the vindication and the one doing the offense (proximate time, not just immediately after)

3. Example: Juan caught his wife and his friend in a compromising situation. Juan kills his friend the next day – still considered proximate.

PROVOCATION

VINDICATION

Made directly only to the person committing the felony Grave offense may be also against the offender’s relatives mentioned by law
Cause that brought about the provocation need not be a grave offense Offended party must have done a grave offense to the offender or his relatives
Necessary that provocation or threat immediately preceded the act. No time interval May be proximate. Time interval allowed
  • More lenient in vindication because offense concerns the honor of the person. Such is more worthy of consideration than mere spite against the one giving the provocation or threat.
  • Vindication of a grave offense and passion and obfuscation can’t be counted separately and independently

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

  • Passion and obfuscation is mitigating: when there are causes naturally producing in a person powerful excitement, he loses his reason and self-control. Thereby dismissing the exercise of his will power.
  • PASSION AND OBFUSCATION are Mitigating Circumstances only when the same arise from lawful sentiments (not Mitigating Circumstance when done in the spirit of revenge or lawlessness)
  • Requisites for Passion & Obfuscation

a. The offender acted on impulse powerful enough to produce passion or obfuscation

b. That the act was committed not in the spirit of lawlessness or revenge

c. The act must come from lawful sentiments

  • Act which gave rise to passion and obfuscation

a. That there be an act, both unlawful and unjust

b. The act be sufficient to produce a condition of mind

c. That the act was proximate to the criminal act

d. The victim must be the one who caused the passion or obfuscation

  • Example: Juan saw Tomas hitting his (Juan) son. Juan stabbed Tomas. Juan is entitled to Mitigating Circumstance of P&O as his actuation arose from a natural instinct that impels a father to rush to the rescue of his son.
  • The exercise of a right or a fulfillment of a duty is not the proper source of P&O.

Example: A policeman arrested Juan as he was making a public disturbance on the streets. Juan’s anger and indignation resulting from the arrest can’t be considered passionate obfuscation because the policeman was doing a lawful act.

  • The act must be sufficient to produce a condition of mind. If the cause of the loss of self-control was trivial and slight, the obfuscation is not mitigating.

Example: Juan’s boss punched him for not going to work he other day. Cause is slight.

  • There could have been no Mitigating Circumstance of P&O when more than 24 hours elapsed between the alleged insult and the commission of the felony, or several hours have passed between the cause of the P&O and the commission of the crime, or at least ½ hours intervened between the previous fight and subsequent killing of deceased by accused.
  • Not mitigating if relationship is illegitimate
  • The passion or obfuscation will be considered even if it is based only on the honest belief of the offender, even if facts turn out to prove that his beliefs were wrong.
  • Passion and obfuscation cannot co-exist with treachery since the means that the offender has had time to ponder his course of action.
  • PASSION AND OBFUSCATION arising from one and the same cause should be treated as only one mitigating circumstance
  • Vindication of grave offense can’t co-exist w/ PASSION AND OBFUSCATION
PASSION AND OBFUSCATION IRRESITIBLE FORCE
Mitigating Exempting
No physical force needed Requires physical force
From the offender himself Must come from a 3rd person
Must come from lawful sentiments Unlawful
PASSION AND OBFUSCATION PROVOCATION
Produced by an impulse which may be caused by provocation Comes from injured party
Offense, which engenders perturbation of mind, need not be immediate. It is only required that the influence thereof lasts until the crime is committed Must immediately precede the commission of the crime
Effect is loss of reason and self-control on the part of the offender Same

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.

  • 2 Mitigating Circumstances present:

a)      voluntarily surrendered

b)      voluntarily confessed his guilt

  • If both are present, considered as 2 independent mitigating circumstances. Mitigate penalty to a greater extent
  • Requisites of voluntary surrender:

a)      offender not actually arrested

b)      offender surrendered to a person in authority or the latter’s agent

c)      surrender was voluntary

  • Surrender must be spontaneous – shows his interest to surrender unconditionally to the authorities
  • Spontaneous – emphasizes the idea of inner impulse, acting without external stimulus. The conduct of the accused, not his intention alone, after the commission of the offense, determines the spontaneity of the surrender.

Example: Surrendered after 5 years, not spontaneous anymore.

Example: Surrendered after talking to town councilor. Not V.S. because there’s an external stimulus

  • Conduct must indicate a desire to own the responsibility
  • Not mitigating when warrant already served. Surrender may be considered mitigating if warrant not served or returned unserved because accused can’t be located.
  • Surrender of person required. Not just of weapon.
  • Person in authority – one directly vested with jurisdiction, whether as an individual or as a member of some court/government/corporation/board/commission. Barrio captain/chairman included.
  • Agent of person in authority – person who by direct provision of law, or be election, or by appointment by competent authority is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority.
  • RPC does not make distinction among the various moments when surrender may occur.
  • Surrender must be by reason of the commission of the crime for which defendant is charged
  • Requisites for plea of guilty

a)      offender spontaneously confessed his guilt

b)      confession of guilt was made in open court (competent court)

c)      confession of guilt was made prior to the presentation of evidence for the prosecution

  • plea made after arraignment and after trial has begun does not entitle accused to have plea considered as Mitigating Circumstance
  • plea in the RTC in a case appealed from the MTC is not mitigating  – must make plea at the first opportunity
  • plea during the preliminary investigation is no plea at all
  • even if during arraignment, accused pleaded not guilty, he is entitled to Mitigating Circumstance as long as withdraws his plea of not guilty to the charge before the fiscal could present his evidence
  • plea to a lesser charge is not Mitigating Circumstance because to be voluntary plea of guilty, must be to the offense charged
  • plea to the offense charged in the amended info, lesser than that charged in the original info, is Mitigating Circumstance
  • present Rules of Court require that even if accused pleaded guilty to a capital offense, its mandatory for court to require the prosecution to prove the guilt of the accused being likewise entitled to present evidence to prove, inter alia, Mitigating Circumstance

8. That the offender is deaf and dumb, blind or otherwise suffering from some physical defect w/c thus restricts his means of action, defense or communication w/ his fellow beings.

  • Basis: one suffering from physical defect which restricts him does not have complete freedom of action and therefore, there is diminution of that element of voluntariness.
  • No distinction between educated and uneducated deaf-mute or blind persons
  • The physical defect of the offender should restrict his means of action, defense or communication with fellow beings,  this has been extended to cover cripples, armless people even stutterers.
  • The circumstance assumes that with their physical defect, the offenders do not have a complete freedom of action therefore diminishing the element of voluntariness in the commission of a crime.

9. Such illness of the offender as would diminish the exercise of the will-power of the offender w/o depriving him of consciousness of his acts.

  • Basis: diminution of intelligence and intent
  • Requisites:

a)      illness of the offender must diminish the exercise of his will-power

b)      such illness should not deprive the offender of consciousness of his acts

  • when the offender completely lost the exercise of will-power, it may be an exempting circumstance
  • deceased mind, not amounting to insanity, may give place to mitigation

10. And any other circumstance of a similar nature and analogous to those above-mentioned

  • Examples of “any other circumstance”:

a)      defendant who is 60 years old with failing eyesight is similar to a case of one over 70 years old

b)      outraged feeling of owner of animal taken for ransom is analogous to vindication of grave offense

c)      impulse of jealous feeling, similar to PASSION AND OBFUSCATION

d)      voluntary restitution of property, similar to voluntary surrender

e)      extreme poverty, similar to incomplete justification based on state of necessity

  • NOT analogous:

a)      killing wrong person

b)      not resisting arrest not the same as voluntary surrender

c)      running amuck is not mitigating

  • MITIGATING CIRCUMSTANCE which arise from:

a)      moral attributes of the offender

Example: Juan and Tomas killed Pedro. Juan acted w/ PASSION AND OBFUSCATION. Only Juan will be entitled to Mitigating Circumstance

      b)   private relations with the offended party

Example: Juan stole his brother’s watch. Juan sold it to Pedro, who knew it was stolen. The circumstance of relation arose from private relation of Juan and the brother. Does not mitigate Pedro.

      c)   other personal cause

Example: Minor, acting with discernment robbed Juan. Pedro, passing by, helped the minor. Circumstance of minority, mitigates liability of minor only.

  • Shall serve to mitigate the liability of the principals, accomplices and accessories to whom the circumstances are attendant.
  • Circumstances which are neither exempting nor mitigating

a)      mistake in the blow

b)      mistake in the identity of the victim

c)      entrapment of the accused

d)      accused is over 18 years old

e)      performance of a righteous action

Example: Juan saved the lives of 99 people but caused the death of the last person, he is still criminally liable

AGGRAVATING CIRCUMSTANCES

  • Definition – Those circumstance which raise the penalty for a crime without exceeding the maximum applicable to that crime.
  • Basis: The greater perversity of the offense as shown by:

a)      the motivating power behind the act

b)      the place where the act was committed

c)      the means and ways used

d)      the time

e)      the personal circumstance of the offender

f)       the personal circumstance of the victim

  • Kinds:

a)      Generic – generally applicable to all crimes

b)      Specific – apply only to specific crimes (ignominy – for chastity crimes; treachery – for persons crimes)

c)      Qualifying – those that change the nature of the crime (evident premeditation – becomes murder)

d)      Inherent – necessarily accompanies the commission of the crime (evident premeditation in theft, estafa)

QUALIFYING AGGRAVATING CIRCUMSTANCE

GENERIC AGGRAVATING CIRCUMSTANCE

Gives the proper and exclusive name, places the author thereof in such a situation as to deserve no other penalty than that specifically prescribed by law Increase penalty to the maximum, without exceeding limit prescribed by law
Can’t be offset by Mitigating Circumstance May be compensated by Mitigating Circumstance
Must be alleged in the information. Integral part of the offense Need not be alleged. May be proved over the objection of the defense. Qualifying if not alleged will make it generic
  • Aggravating Circumstances which DO NOT have the effect of increasing the penalty:

1)      which themselves constitute a crime specifically punishable by law or which are included in the law defining a crime and prescribing the penalty thereof

Example: breaking a window to get inside the house and rob it

2)      aggravating circumstance inherent in the crime to such degree that it must of necessity accompany the commission thereof

Example: evident premeditation inherent in theft, robbery, estafa, adultery and concubinage

  • Aggravating circumstances are not presumed. Must be proved as fully as the crime itself in order to increase the penalty.

Art 14. Aggravating circumstances. — The following are aggravating circumstances:

  1. 1.      That advantage be taken by the offender of his public position
  • Requisites:
  1. The offender is a public officer
  2. The commission of the crime would not have been possible without the powers, resources and influence of the office he holds.
  • Essential – Public officer used the influence, prestige or ascendancy which his office gives him as the means by which he realized his purpose.
  • Failure in official is tantamount to abusing of office
  • Wearing of uniform is immaterial – what matters is the proof that he indeed took advantage of his position
  1. 2.      That the crime be committed in contempt of or with insult to the public authorities
  • Requisites:
  1. The offender knows that a public authority is present
  2. The public authority is engaged in the exercise of his functions
  3. The public authority is not the victim of the crime
  4. The public authority’s presence did not prevent the criminal act
  • Example: Juan and Pedro are quarrelling and the municipal mayor, upon passing by, attempts to stop them. Notwithstanding the intervention and the presence of the mayor, Juan and Pedro continue to quarrel until Juan succeeds in killing Pedro.
  • Person in authority – public authority who is directly vested with jurisdiction, has the power to govern and execute the laws
  • Examples of Persons in Authority
  1. Governor
  2. Mayor
  3. Barangay captain
  4. Councilors
  5. Government agents
  6. Chief of Police
  • Rule not applicable when committed in the presence of a mere agent.
  • Agent – subordinate public officer charged with the maintenance of public order and protection and security of life and property

Example: barrio vice lieutenant, barrio councilman

  1. 3.      That the act be committed:

(1)   with insult or in disregard of the respect due to the offended party on account of his (a) rank, (b) age, (c) sex or

(2)   that it be committed in the dwelling of the offended party, if the latter has not given provocation.

  • circumstances (rank, age, sex) may be taken into account only in crimes against persons or honor, it cannot be invoked in crimes against property
  • Rank – refers to a high social position or standing by which to determine one’s pay and emoluments in any scale of comparison within a position
  • Age – the circumstance of lack of respect due to age applies in case where the victim is of tender age as well as of old age
  • Sex – refers to the female sex, not to the male sex; not applicable when
  1. The offender acted w/ PASSION AND OBFUSCATION
  2. there exists a relation between the offender and the victim (but in cases of divorce decrees where there is a direct bearing on their child, it is applicable)
  3. the condition of being a woman is indispensable in the commission of the crime (Ex. Parricide, rape, abduction)
  • Requisite of disregard to rank, age, or sex
  1. Crimes must be against the victim’s person or his honor
  2. There is deliberate intent to offend or insult the respect due to the victim’s rank, age, or sex
  • Disregard to rank, age, or sex is absorbed by treachery or abuse of strength
  • Dwelling – must be a building or structure exclusively used for rest and comfort (combination house and store not included)
  1. may be temporary as in the case of guests in a house or bedspacers
  2. basis for this is the sanctity of privacy the law accords to human abode
  • dwelling includes dependencies, the foot of the staircase and the enclosure under the house
  • Elements of the aggravating circumstance of dwelling
  1. Crime occurred in the dwelling of the victim
  2. No provocation on the part of the victim
  • Requisites for Provocation: ALL MUST CONCUR
  1. given by the owner of the dwelling
  2. sufficient
  3. immediate to the commission of the crime

When dwelling may and may not be considered

When it may be considered

When it may not be considered

  • although the offender fired the shot from outside the house, as long as his victim was inside
  • even if the killing took place outside the dwelling, so long as the commission began inside the dwelling
  • when adultery is committed in the dwelling of the husband, even if it is also the dwelling of the wife, it is still aggravating because she and her paramour committed a grave offense to the head of the house
  • In robbery with violence against persons, robbery with homicide, abduction, or illegal detention
  • If the offended party has given provocation
  • If both the offender and the offended party are occupants of the same dwelling
  • In robbery with force upon things, it is inherent

4. That the act be committed with (1) abuse of confidence or (2) obvious ungratefulness

Requisites of Abuse of Confidence Requisite of Obvious Ungratefulness
a)      Offended party has trusted the offender

b)      Offender abused such trust

c)      Abuse of confidence facilitated the commission of the crime

a)      ungratefulness must be obvious, that is, there must be something which the offender should owe the victim a debt of gratitude for

Note: robbery or theft committed by a visitor in the house of the offended party is aggravated by obvious ungratefulness

  • Example: A jealous lover, already determined to kill his sweetheart, invited her for a ride and during that ride, he stabbed her
  • Abuse of confidence is inherent in:
  1. malversation
  2. qualified theft
  3. estafa by conversion
  4. misappropriation
  5. qualified seduction

5. That the crime be committed in the palace of the Chief Executive, or in his presence, or when public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.

  • Requirements of the aggravating circumstance of public office:
  • A polling precinct is a public office during election day
  • Nature of public office should be taken into account, like a police station which is on duty 24 hrs. a day
  • place of the commission of the felony (par 5): if it is Malacañang palace or a church is aggravating, regardless of whether State or official; functions are being held.
  • as regards other places where public authorities are engaged in the discharge of their duties, there must be some performance of public functions
  • the offender must have intention to commit a crime when he entered the place
  • Requisites for aggravating circumstances for place of worship:
  1. The crime occurred in the public office
  2. Public authorities are actually performing their public duties
  1. The crime occurred in a place dedicated to the worship of God regardless of religion
  2. Offender must have decided to commit the crime when he entered the place of worship

When Paragraph 2 and 5 of Article 14 are applicable

Committed in the presence of the Chief Executive, in the Presidential Palace or a place of worship(Par. 5, Art. 14) Committed in contempt of Public Authority

(Par. 2, Art 14)

Public authorities are performing of their duties when the crime is committed Same
When crime is committed in the public office, the officer must be performing his duties, except in the Presidential Palace Outside the office (still performing duty)
Public authority may be the offended party Public authority is not be the offended party

6a. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place (3) by a band, whenever such circumstances may facilitate the commission of the offense.

  • Nighttime, Uninhabited Place or By a Bang Aggravating when:
    • Impunity – means to prevent the accused’s being recognized or to secure himself against detection or punishment
  • Nighttime begins at the end of dusk and ending at dawn; from sunset to sunrise
  • Uninhabited Place – one where there are no houses at all, a place at a considerable distance from town, where the houses are scattered at a great distance from each other
  1. it facilitated the commission of the crime
  2. especially sought for by the offender to insure the commission of the crime or for the purpose of impunity
  1. when the offender took the advantage thereof for the purpose of impunity
  2. commission of the crime must have began and accomplished at nighttime
  1. commission of the crime must begin and be accomplished in the nighttime
  2. when the place of the crime is illuminated by light, nighttime is not aggravating
  3. absorbed by Treachery

Requisites:

  1. The place facilitated the commission or omission of the crime
  2. Deliberately sought and not incidental to the commission or omission of the crime
  3. Taken advantage of for the purpose of impunity
  • what should be considered here is whether in the place of the commission of the offense, there was a reasonable possibility of the victim receiving some help

6b. – Whenever more than 3 armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band.

  • Requisites:
  • if one of the four-armed malefactors is a principal by inducement, they do not form a band because it is undoubtedly connoted that he had no direct participation,
  • Band is inherent in robbery committed in band and brigandage
  • It is not considered in the crime of rape
  • It has been applied in treason and in robbery with homicide
  1. Facilitated the commission of the crime
  2. Deliberately sought
  3. Taken advantage of for the purposes of impunity
  4. There must be four or more armed men

7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune

  • Requisites:
  1. Committed when there is a calamity or misfortune
  1. Conflagration
  2. Shipwreck
  3. Epidemic
  1. Offender took advantage of the state of confusion or chaotic condition from such misfortune
  • Basis: Commission of the crime adds to the suffering by taking advantage of the misfortune.
  • based on time
  • offender must take advantage of the calamity or misfortune

Distinction between Paragraphs 7 and 12 of Article 14

Committed during a calamity or misfortune Committed with the use of wasteful means
Crime is committed DURING any of the calamities Crime is committed BY using fire, inundation, explosion or other wasteful means

8. That the crime be committed with the aid of (1) armed men or (2) persons who insure or afford impunity

  • based on the means and ways
  • Requisites:
  • Exceptions:
  1. that armed men or persons took part in the commission of the crime, directly or indirectly
  2. that the accused availed himself of their aid or relied upon them when the crime was committed
  1. when both the attacking party and the party attacked were equally armed
  2. not present when the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.
  3. Casual presence, or when the offender did not avail himself of any of their aid nor did not knowingly count upon their assistance in the commission of the crime

WITH THE AID OF ARMED MEN

BY A BAND

Present even if one of the offenders merely relied on their aid. Actual aid is not necessary Requires more than 3 armed malefactors who all acted together in the commission of an offense
  • if there are more than 3 armed men, aid of armed men is absorbed in the employment of a band.

9. That the accused is a recidivist

  • Recidivist – 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 the RPC
  • Basis: Greater perversity of the offender as shown by his inclination to commit crimes
  • Requisites:
  • What is controlling is the time of the trial, not the time of the commission of the offense. At the time of the trial means from the arraignment until after sentence is announced by the judge in open court.
  • When does judgment become final? (Rules of Court)
  • Example of Crimes embraced in the Same title of the RPC
  • Q: The accused was prosecuted and tried for theft, robbery and estafa. Judgments were read on the same day. Is he a recidivist?
  1. offender is on trial for an offense
  2. he was previously convicted by final judgment of another crime
  3. that both the first and the second offenses are embraced in the same title of the RPC
  4. the offender is convicted of the new offense
  1. after the lapse of a period for perfecting an appeal
  2. when the sentence has been partially or totally satisfied or served
  3. defendant has expressly waived in writing his right to appeal
  4. the accused has applied for probation
  1. robbery and theft – title 10
  2. homicide and physical injuries – title 8

A: No. Because the judgment in any of the first two offenses was not yet final when he was tried for the third offense

  • Recidivism must be taken into account no matter how many years have intervened between the first and second felonies
  • Pardon does not obliterate the fact that the accused was a recidivist, but amnesty extinguishes the penalty and its effects
  • To prove recidivism, it must be alleged in the information and with attached certified copies of the sentences rendered against the accused
  • Exceptions: if the accused does not object and when he admits in his confession and on the witness stand.

10. That 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

  • Reiteracion or Habituality – it is essential that the offender be previously punished; that is, he has served sentence.
  • Par. 10 speaks of penalty attached to the offense, not the penalty actually imposed

REITERACION

RECIDIVISM

Necessary that offender shall have served out his sentence for the first sentence Enough that final judgment has been rendered in the first offense
Previous and subsequent offenses must not be embraced in the same title of the Code Same title
Not always an aggravating circumstance Always aggravating
  • 4 Forms of Repetition
  • Habitual Delinquency – when a person within a period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification is found guilty of any of said crimes a third time or oftener.
  • Quasi-Recidivism – any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony
  1. Recidivism – generic
  2. Reiteracion or Habituality – generic
  3. Multiple recidivism or Habitual delinquency – extraordinary aggravating
  4. Quasi-Recidivism – special aggravating

11. That the crime be committed in consideration of a price, reward or promise.

  • Requisites:
  1. At least 2 principals

1. The principal by inducement

2. The principal by direct participation

  1. the price, reward, or promise should be previous to and in consideration of the commission of the criminal act
  • Applicable to both principals.

12. That the crime be committed by means of inundation, fire, poison, explosion, stranding a vessel or intentional damage thereto, or derailment of a locomotive, or by use of any other artifice involving great waste or ruin.

  • Requisite: The wasteful means were used by the offender to accomplish a criminal purpose

13. That the act be committed with evident premeditation

  • Essence of premeditation: the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment
  • Requisites:
  • Conspiracy generally presupposes premeditation
  • When victim is different from that intended, premeditation is not aggravating. Although it is not necessary that there is a plan to kill a particular person for premeditation to exist (e.g. plan to kill first 2 persons one meets, general attack on a village…for as long as it was planned)
  • The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning
  • Evident premeditation is inherent in robbery, adultery, theft, estafa, falsification, and etc.
  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. a sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will

14. That (1) craft, (2) fraud, or (3) disguise be employed

  • Craft – involves intellectual trickery and cunning on the part of the accused.

It is employed as a scheme in the execution of the crime (e.g. accused pretended to be members of the constabulary, accused in order to perpetrate rape, used chocolates containing drugs)

  • Fraud –involves insidious words or machinations used to induce victim to act in a manner which would enable the offender to carry out his design.
  • as distinguished from craft which involves acts done in order not to arouse the suspicion of the victim, fraud involves a direct inducement through entrapping or beguiling language or machinations
  • Disguise – resorting to any device to conceal identity. Purpose of concealing identity is a must.

Distinction between Craft, Fraud, and Disguise

Craft

Fraud

Disguise

Involves the use of intellectual trickery and cunning to arouse suspicion of the victim Involves the use of direct inducement by insidious words or machinations Involves the use of devise to conceal identity
  • Requisite: The offender must have actually taken advantage of craft, fraud, or disguise to facilitate the commission of the crime.
  • Inherent in: estafa and falsification.

15. That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense

  • To purposely use excessive force out of the proportion to the means of defense available to the person attacked.
  • Requisite of Means to Weaken Defense
  • To weaken the defense – illustrated in the case where one struggling with another suddenly throws a cloak over the head of his opponent and while in the said situation, he wounds or kills him. Other means of weakening the defense would be intoxication or disabling thru the senses (casting dirt of sand upon another’s eyes)
  1. Superiority may arise from aggressor’s sex, weapon or number as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim).
  2. No advantage of superior strength when one who attacks is overcome with passion and obfuscation or when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling.
  3. Vs. by a band : circumstance of abuse of superior strength, what is taken into account is not the number of aggressors nor the fact that they are armed but their relative physical might vis-à-vis the offended party
  1. Means were purposely sought to weaken the defense of the victim to resist the assault
  2. The means used must not totally eliminate possible defense of the victim, otherwise it will fall under treachery

16. That the act be committed with treachery (alevosia)

  • TREACHERY: when the offender commits any of the crime 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.
  • Requisites:
  • Treachery – can’t be considered when there is no evidence that the accused, prior to the moment of the killing, resolved to commit to crime, or there is no proof that the death of the victim was the result of meditation, calculation or reflection.
  • Examples: victim asleep, half-awake or just awakened, victim grappling or being held, stacks from behind
  • But treachery may exist even if attack is face-to-face – as long as victim was not given any chance to prepare defense
  1. that at the time of the attack, the victim was not in the position to defend himself
  2. that the offender consciously adopted the particular means, method or form of attack employed by him
  1. does not exist if the accused gave the deceased chance to prepare or there was warning given or that it was preceded by a heated argument
  2. there is always treachery in the killing of child
  3. generally characterized by the deliberate and sudden and unexpected attack of the victim from behind, without any warning and without giving the victim an opportunity to defend himself

TREACHERY

ABUSE OF SUPERIOR STRENGTH

MEANS EMPLOYED TO WEAKEN DEFENSE

Means, methods or forms are employed by the offender to make it impossible or hard for the offended party to put any sort of resistance Offender does not employ means, methods or forms of attack, he only takes advantage of his superior strength Means are employed but it only materially weakens the resisting power of the offended party
  • Where there is conspiracy, treachery is considered against all the offenders
  • Treachery absorbs abuse of strength, aid of armed men, by a band and means to weaken the defense

17. That the means be employed or circumstances brought about which add ignominy to the natural effects of the acts

  • IGNOMINY – is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime

Applicable to crimes against chastity (rape included), less serious physical injuries, light or grave coercion and murder

  • Requisites:
  • Examples: accused embraced and kissed the offended party not out of lust but out of anger in front of many people, raped in front of the husband, raped successively by five men
  • tend to make the effects of the crime more humiliating
  • Ignominy not present where the victim was already dead when such acts were committed against his body or person
  1. Crime must be against chastity, less serious physical injuries, light or grave coercion, and murder
  2. The circumstance made the crime more humiliating and shameful for the victim

18. That the crime be committed after an unlawful entry

  • Unlawful entry – when an entrance is effected by a way not intended for the purpose.  Meant to effect entrance and NOT exit.
  • Why aggravating? One who acts, not respecting the walls erected by men to guard their property and provide for their personal safety, shows greater perversity, a greater audacity and hence the law punishes him with more severity
  • Example: Rapist gains entrance thru the window
  • Inherent in: Trespass to dwelling, robbery with force upon things, and robbery with violence or intimidation against persons.

19. That as a means to the commission of the crime, a wall, roof, door or window be broken

  • Requisites:
  • Applicable only if such acts were done by the offender to effect entrance.
  • Breaking is lawful in the following instances:
  1. A wall, roof, window, or door was broken
  2. They were broken to effect entrance
  1. an officer in order to make an arrest may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be;
  2. an officer if refused admittance may break open any door or window to execute the search warrant or liberate himself,

20. That the crime be committed (1) with the aid of persons under 15 years of age, or (2) by means of motor vehicles, airships or other similar means.

  • Reason for #1: to repress, so far as possible, the frequent practice resorted to by professional criminals to avail themselves of minors taking advantage of their responsibility (remember that minors are given leniency when they commit a crime)

Example: Juan instructed a 14-year old to climb up the fence and open the gate for him so that he may rob the house

  • Reason for #2: to counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed. Necessary that the motor vehicle be an important tool to the consummation of the crime (bicycles not included)

Example: Juan and Pedro, in committing theft, used a truck to haul the appliances from the mansion.

21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission

 

  • Cruelty: when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act. Cruelty cannot be presumed nor merely inferred from the body of the deceased. Has to be proven.
  1. mere plurality of words do not show cruelty
  2. no cruelty when the other wrong was done after the victim was dead
  • Requisites:
  1. that the injury caused be deliberately increased by causing other wrong
  2. that the other wrong be unnecessary for the execution of the purpose of the offender
IGNOMINY CRUELTY
Moral suffering – subjected to humiliation Physical suffering

Art 15. ALTERNATIVE CIRCUMSTANCES. Their concept. — Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender.

The alternative circumstance of relationship shall be taken into consideration when the offended party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.

            The intoxication of the offender shall be taken into consideration as a mitigating circumstances when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.

  • Alternative Circumstances – those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission.
  • They are:
  1. relationship – taken into consideration when offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister, or relative by affinity in the same degree of the offender
  2. intoxication – mitigating when the offender has committed a felony in the state of intoxication, if the same is not habitual or subsequent to the plan to commit the said felony. Aggravating if habitual or intentional
  3. degree of instruction and education of the offender

RELATIONSHIP

Mitigating Circumstance

Aggravating Circumstance

In crimes against property (robbery, usurpation, fraudulent insolvency, arson)  In crimes against persons – in cases where the offender, or when the offender and the offended party are relatives of the same level, as killing a brother, adopted brother or half-brother.

Always aggravating in crimes against chastity.

Exception: Art 332 of CC – no criminal liability, civil liability only for the crimes of theft, swindling or malicious mischief committed or caused mutually by spouses, ascendants, descendants or relatives by affinity (also brothers, sisters, brothers-in-law or sisters-in-law if living together). It becomes an EXEMPTING circumstance.
  • Relationship neither mitigating nor aggravating when relationship is an element of the offense.

Example: parricide, adultery, concubinage.

INTOXICATION

MITIGATING CIRCUMSTANCE

AGGRAVATING CIRCUMSTANCE

a)      if intoxication is not habitual

b)      if intoxication is not subsequent to the plan to commit a felony

a)      if intoxication is habitual – such habit must be actual and confirmed

b)      if its intentional (subsequent to the plan to commit a felony)

  • Must show that he has taken such quantity so as to blur his reason and deprive him of a certain degree of control
  • A habitual drunkard is given to inebriety or the excessive use of intoxicating drinks.
  • Habitual drunkenness must be shown to be an actual and confirmed habit of the offender, but not necessarily of daily occurrence.

DEGREE OF INSTRUCTION AND EDUCATION

MITIGATING CIRCUMSTANCE

AGGRAVATING CIRCUMSTANCE

Low degree of instruction education or the lack of it. Because he does not fully realize the consequences of his criminal act. Not just mere illiteracy but lack of intelligence. High degree of instruction and education – offender avails himself of his learning in committing the offense.
  • Determined by: the court must consider the circumstance of lack of instruction
  • Exceptions (not mitigating):
  1. crimes against property
  2. crimes against chastity (rape included)
  3. crime of treason

Art 16.  Who are criminally liable. — The following are criminally liable for grave and less grave felonies:

1.   Principals.

2. Accomplices.

3. Accessories.

 

The following are criminally liable for light felonies:

      1.   Principals

      2.   Accomplices.

  • Accessories – not liable for light felonies because the individual prejudice is so small that penal sanction is not necessary
  • Only natural persons can be criminals as only they can act with malice or negligence and can be subsequently deprived of liberty. Juridical persons are liable under special laws.
  • Manager of a partnership is liable even if there is no evidence of his direct participation in the crime.
  • Corporations may be the injured party
  • General Rule: Corpses and animals have no rights that may be injured.
  • Exception: defamation of the dead is punishable when it blackens the memory of one who is dead.

Art 17. Principals. — The following are considered principals:

  1. 1.      Those who take a direct part in the execution of the act;
  2. 2.      Those who directly force or induce others to commit it;
  3. 3.      Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

Principals by Direct Participation

Requisites for 2 or more to be principals by direct participation:

  1. participated in the criminal resolution (conspiracy)
  2. carried out their plan and personally took part in its execution by acts which directly tended to the same end
  • Conspiracy –  Is unity of purpose and intention.

Establishment of Conspiracy

  1. proven by overt act
  2. Not mere knowledge or approval
  3. It is not necessary that there be formal agreement.
  4. Must prove beyond reasonable doubt
  5. Conspiracy is implied when the accused had a common purpose and were united in execution.
  6. Unity of purpose and intention in the commission of the crime may be shown in the following cases:
    1. Spontaneous agreement at the moment of the commission of the crime
    2. Active Cooperation by all the offenders in the perpetration of the crime
    3. Contributing by positive acts to the realization of a common criminal intent
    4. Presence during the commission of the crime by a band and lending moral support thereto.
    5. While conspiracy may be implied from the circumstances attending the commission of the crime, it is nevertheless a rule that conspiracy must be established by positive and conclusive evidence.
  • Conspirator not liable for the crimes of the other which is not the object of the conspiracy or is not a logical or necessary consequence thereof
  • Multiple rape – each rapist is liable for another’s crime because each cooperated in the commission of the rapes perpetrated by the others
  • Exception: in the crime of murder with treachery – all the offenders must at least know that there will be treachery in executing the crime or cooperate therein.

Example: Juan and Pedro conspired to kill Tomas without the previous plan of treachery. In the crime scene, Juan used treachery in the presence of Pedro and Pedro knew such. Both are liable for murder. But if Pedro stayed by the gate while Juan alone killed Tomas with treachery, so that Pedro didn’t know how it was carried out, Juan is liable for murder while Pedro for homicide.

  • No such thing as conspiracy to commit an offense through negligence. However, special laws may make one a co-principal. Example: Under the Pure Food and Drug Act, a storeowner is liable for the act of his employees of selling adulterated coffee, although he didn’t know that coffee was being sold.
  • Conspiracy is negatived by the acquittal of co-defendant.
  • That the culprits “carried out the plan and personally took part in the execution, by acts which directly tended to the same end”:
  1. The principals by direct participation must be at the scene of the crime, personally taking part, although he was not present in the scene of the crime, he is equally liable as a principal by direct participation.
  2. One serving as guard pursuant to the conspiracy is a principal direct participation.
  • If the second element is missing, those who did not participate in the commission of the acts of execution cannot be held criminally liable, unless the crime agreed to be committed is treason, sedition, or rebellion.

Principals by Induction

a.    “Those who directly force or induce others to commit it”

  1. Principal by induction liable only when principal by direct participation committed the act induced
  2. Requisites:
  1. inducement be made directly with the intention of procuring the commission of the crime
  2. such inducement be the determining cause of the commission of the crime by the material executor

d. Forms of Inducements

  1. By Price, reward or promise
  2. By irresistible force or uncontrollable fear
  3. Commander has the intention of procuring the commission of the crime
  4. Commander has ascendancy or influence
  5. Words used be so direct, so efficacious, so powerful
  6. Command be uttered prior to the commission
  7. Executor had no personal reason
  1. Imprudent advice does not constitute sufficient inducement
  2. Requisites for words of command to be considered inducement:
  1. Words uttered in the heat of anger and in the nature of the command that had to be obeyed do not make one an inductor.

INDUCTOR

PROPOSES TO COMMIT A FELONY

Induce others

Same

Liable only when the crime is executed Punishable at once when proposes to commit rebellion or treason. The person to whom one proposed should not commit the crime, otherwise the latter becomes an inductor

Covers any crime

Covers only treason and rebelli

 Effects of Acquittal of Principal by direct participation on liability of principal by inducement

  1. Conspiracy is negated by the acquittal of the co-defendant.
  2. One can not be held guilty of instigating the commission of the crime without first showing that the crime has been actually committed by another. But if the one charged as principal by direct participation be acquitted because he acted without criminal intent or malice, it is not a ground for the acquittal of the principal by inducement.

Principals by Indispensable Cooperation

  1. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished”
  2. Requisites:
  1. Participation in the criminal resolution
  2. Cooperation through another act (includes negligence)
  • *there is collective criminal responsibility when the offenders are criminally liable in the same manner and to the same extent. The penalty is the same for all.
  • there is individual criminal responsibility when there is no conspiracy.

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.

  • Requisites:
  • Examples: a) Juan was choking Pedro. Then Tomas ran up and hit Pedro with a bamboo stick. Juan continued to choke Pedro until he was dead. Tomas is only an accomplice because the fatal blow came from Juan. b) Lending a dagger to a killer, knowing the latter’s purpose.
  • An accomplice has knowledge of the criminal design of the principal and all he does is concur with his purpose.
  • There must be a relation between the acts done by the principal and those attributed to the person charges as accomplice
  • In homicide or murder, the accomplice must not have inflicted the mortal wound.
  1. there be a community of design (principal originates the design, accomplice only concurs)
  2. he cooperates in the execution by previous or simultaneous acts, intending to give material and moral aid (cooperation must be knowingly done, it must also be necessary and not indispensable
  3. There be a relation between the acts of the principal and the alleged accomplice

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

1. By profiting themselves or assisting the offender to profit by the effects of the crime.

2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.

3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

  • Example of Par 1: person received and used property from another, knowing it was stolen
  • Example of Par 2: placing a weapon in the hand of the dead who was unlawfully killed to plant evidence, or burying the deceased who was killed by the principals
  • Example of Par 3: a) public officers who harbor, conceal or assist in the escape of the principal of any crime (not light felony) with abuse of his public functions, b) private persons who harbor, conceal or assist in the escape of the author of the crime – guilty of treason, parricide, murder or an attempt against the life of the President, or who is known to be habitually guilty of some crime.
  • General Rule: Principal acquitted, Accessory also acquitted
  • Exception: when the crime was in fact committed but the principal is covered by exempting circumstances.

Example: Minor stole a ring and Juan, knowing it was stolen, bought it. Minor is exempt. Juan liable as accessory

  • Trial of accessory may proceed without awaiting the result of the separate charge against the principal because the criminal responsibilities are distinct from each other
  • Liability of the accessory – the responsibility of the accessory is subordinate to that of a principal in a crime because the accessory’s  participation therein is subsequent to its commission, and his guilt is directly related to the principal. If the principal was acquitted by an exempting circumstance the accessory may still be held liable.
  • Difference of accessory from principal and accomplice:
  1. Accessory does not take direct part or cooperate in, or induce the commission of the crime
  2. Accessory does not cooperate in the commission of the offense by acts either prior thereto or simultaneous therewith
  3. Participation of the accessory in all cases always takes place after the commission of the crime
  4. Takes part in the crime through his knowledge of the commission of the offense.

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.

  • Basis: Ties of blood and the preservation of the cleanliness of one’s name which compels one to conceal crimes committed by relatives so near as those mentioned.
  • Nephew and Niece not included
  • Accessory not exempt when helped a relative-principal by profiting from the effects of the crime, or assisted the offender to profit from the effects of the crime.
  • Only accessories covered by par 2 and 3 are exempted.
  • Public officer who helped his guilty brother escape does not incur criminal liability as ties of blood constitutes a more powerful incentive than the call of duty.
  • PENALTY – suffering inflicted by the State for the transgression of a law.
  • 3 fold purpose:
  • Juridical Conditions of Penalty
  1. retribution or expiation – penalty commensurate with the gravity of the offense
  2. correction or reformation – rules which regulate the execution of penalties consisting of deprivation of liberty
  3. social defense – inflexible severity to recidivists and habitual delinquents

a. Must be productive of suffering – limited by the integrity of human personality

b. Must be proportionate to the crime

c. Must be personal – imposed only upon the criminal

d. Must be legal – according to a judgment of fact and law

e. Must be equal – applies to everyone regardless of the circumstance

f.  Must bee correctional – to rehabilitate the offender

 

Reference:

Criminal Law Book 1 Reviewer

Ateneo Central Bar Operations 2001

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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on December 20, 2011, in Criminal Law and tagged . Bookmark the permalink. Leave a comment.

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