Monthly Archives: December 2011
Art. 61. Rules for graduating penalties. — For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code.
2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be impose to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale.
4. when the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale.
5. When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories.
- The rules provided in this Art should also apply in determining the minimum of the Indeterminate Sentence Law (ISL). It also applies in lowering the penalty by one or two degrees by reason of the presence of the privileged mitigating circumstance or when the penalty is divisible and there are two or more mitigating circumstances.
Graduated Scale in Art 71
- Indivisible Penalties:
b) Reclusion Perpetua
- Divisible Penalties:
a) Reclusion Temporal
b) Prision Mayor
c) Prision Correccional
d) Arresto Mayor
f) Arresto Menor
g) Public Censure
- Rule No. 1:
When the penalty is single and indivisible (ex. RP), the penalty next lower shall be reclusion temporal.
- Rule No. 2:
a) when the penalty is composed of two indivisible penalties
Ex. penalty for parricide is reclusion perpetua to death, the next lower penalty is reclusion temporal
b) when the penalty is composed of one or more divisible penalties to be imposed to their full extent
Ex. one divisible penalty is reclusion temporal. The penalty immediately following RT is prision mayor. 2 divisible penalties are prision correccional to prision mayor. The penalty immediately preceding the lesser of the penalties of prision correccional to prision mayor is arresto mayor.
- Rule No. 3:
When the penalty is composed of 2 indivisible penalties and the maximum period of a divisible penalty/ or when composed of one divisible penalty the maximum of one divisible penalty
Ex. penalty for murder is reclusion temporal to death. The point of reference will be on the proper divisible penalty which is reclusion temporal. Under the 3rd rule, the penalty next lower to reclusion temporal is composed of the medium and minimum periods of reclusion temporal and the maximum of prision mayor.
- Rule No.4:
When the penalty is composed of several periods
Ex. the “several” periods contemplated in this rule correspond to different divisible penalties. A penalty of prision mayor in its medium period to reclusion temporal in its minimum period is an example of such. The penalty immediately following the minimum of the entire sentence, which is prision mayor medium, is prision mayor in its minimum and the 2 periods next following, which are prision correccional max and medium.
- Rule No.5:
When the penalty has only 2 periods
Ex. Abduction punishable by prision correccional in its medium and minimum. The next penalty following is formed by 2 periods to be taken from the same penalty if possible or from the periods of the penalty numerically following the lesser of the penalties prescribed. The penalty next following prision correccional in its med and min shall be arresto mayor in its med and max.
- Mitigating and Aggravating circumstances are first disregarded in the application of the rules for graduating penalties. It is only after the penalty next lower in degree is already determined that the mitigating and aggravating circumstances should be considered.
Art. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency. — Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules:
1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.
2. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant.
4. The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects.
(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years.
For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto estafa or falsification, he is found guilty of any of said crimes a third time or oftener.
- Par 1: Aggravating circumstances are not to be taken into account when:
a) they themselves constitute a crime
Ex. by “means of fire” – arson
b) they are included by law in the definition of a crime
- Par 2: Same rules applies when the aggravating circumstance is inherent in the crime
- Par 3. Aggravating or mitigating circumstances arising from any of the ff affect only those to whom such circumstances are attendant:
a) from the moral attributes of the offender
b) from his private relations w/ the offended party
c) from any other personal cause
- Par 4: the circumstances w/c consist of the ff shall serve to aggravate and mitigate the liability only of those who had knowledge of them at the time of the commission of the offense
a) material execution of the act
b) means employed to accomplish the crime
- Par 5: Habitual Delinquent is a person who within the period of 10 years from the date of his (last) release or last conviction of the crimes of:
a) serious or less serious physical injuries
is found guilty of any of the said crimes a third time or oftener.
- Ten year period to be computed from the time of last release or conviction
- Subsequent crime must be committed after conviction of the former crime. Cases still pending are not to be taken into consideration.
|Crimes to be committed are specified||Same title|
|W/ in 10 years||No time fixed by law|
|Must be found guilty 3rd time or oftener||Second conviction|
|Additional penalty is imposed||Is not offset by MC, increases penalty to maximum|
- Rulings on Habitual Delinquency:
a) the law on habitual delinquency does not contemplate the exclusion from the computation of prior conviction those falling outside the 10 yr pd immediately preceding the crime for w/c the defendant is being tried
b) ten yr pd is counted not from the date of commission of the subsequent offense but to the date of conviction thereof in relation to the date of his last release or last conviction
c) when an offender has committed several crimes mentioned in the definition of habitual delinquent, without being first convicted of any of them before committing the others, he is not a habitual delinquent
d) convictions on the same day or at about the same time are considered as one only (days, weeks..)
e) crimes committed on the same date, although convictions on different dates are considered as one
f) previous convictions are considered every time a new offense is committed
g) commissions of those crimes need not be consummated
h) habitual delinquency applies to accomplice and accessories as long as in the crimes specified
i) a crime committed in the minority of the offender is not counted
j) imposition of additional penalty is mandatory and constitutional
k) modifying circumstances applicable to additional penalty
l) habitual delinquency is not a crime, it is simply a fact or circumstance which if present gives rise to the imposition of additional penalty
m) penalty for habitual delinquency is a real penalty that determines jurisdiction
n) a habitual delinquent is necessarily a recidivist
- o) in imposing the additional penalty, recidivism is not aggravating. The additional penalty must be imposed in its minimum
p) an offender can be a habitual delinquent w/o being a recidivist
- In no case shall be the total penalties imposed upon the offender exceed 30 years
- The law does not apply to crimes described in Art. 155
- The imposition of the additional penalties on habitual delinquents are constitutional, it is simply a punishment on future crimes on account of the criminal propensities of the accused.
- The imposition of such additional penalties are mandatory.
- Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime.
- Habitual delinquency applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime.
- Cases where the attending aggravating or mitigating circumstances are not considered in the imposition of penalties.
- Penalty that is single and indivisible
- Felonies through negligence
- Penalty is a fine
- Penalty is prescribed by a special law
Art. 63. Rules for the application of indivisible penalties. — In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation.
- Art 63 applies only when the penalty prescribed by the Code is either one indivisible penalty or 2 indivisible penalties
- When the penalty is composed of 2 indivisible penalties, the penalty cannot be lowered by one degree no matter how many mitigating circumstances are present
- Exception: in cases of privileged mitigating circumstances
- Par.4: the moral value rather than the numerical weight shall be taken into account
- Rules for the application of indivisible penalties
- Penalty is single and indivisible – applied regardless of the presence of aggravating and mitigating circumstances
- Penalty composed of two indivisible penalties
- One aggravating circumstance present – higher penalty
- One mitigating circumstance present – lower penalty
- Some mitigating circumstances present and no aggravating – lower penalty
- Mitigating and Aggravating Circumstance are present – basis in number and importance
Art. 64. Rules for the application of penalties which contain three periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period.
3. When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight.
5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period.
7. Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime.
- Art 64 applies when the penalty has 3 periods because they are divisible. If the penalty is composed of 3 different penalties, each forms a period according to Art 77
- Par 4: the mitigating circumstances must be ordinary, not privileged. The aggravating circumstances must be generic or specific, not qualifying or inherent.
Example: a qualifying circumstance (treachery) cannot be offset by a generic mitigating circumstance (voluntary circumstance)
- The court has discretion to impose the penalty within the limits fixed by law
- Art 64 not applicable when the penalty is indivisible or prescribed by special law or a fine
- Rules for the application of divisible penalties
- No aggravating and no mitigating circumstances – medium period
- One mitigating circumstance – minimum period
- One aggravating circumstance – maximum period
- Mitigating and aggravating circumstance o offset each other and according to relative weight
- 2 or more mitigating without any aggravating circumstance – on degree lower
Art. 65. Rule in cases in which the penalty is not composed of three periods. — In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions.
A. Example: Prision Mayor (6 yrs, 1 day to 12 yrs)
1) subtract the minimum (disregard 1 day) from the maximum
12yrs – 6yrs = 6 yrs
2) divide the difference by 3
6 yrs / 3 = 2 yrs
3) use the minimum (6 yrs and 1 day) as the minimum of the minimum period. Then add the 2 yrs (disregarding the 1 day) to the minimum to get the maximum of the minimum
6 yrs (minimum of the minimum)
+ 2 yrs (difference)
8 yrs (maximum of the minimum).
Therefore, minimum period of prision mayor; 6 yrs 1 day to 8 yrs
4) use the maximum of the minimum period as the minimum of the medium period and add 1 day to distinguish from the minimum period. Then add 2 years to the minimum of the medium (disregarding the 1 day) to get the maximum of the medium period.
8 yrs (minimum of the medium)
+ 2 yrs (difference)
10 yrs (maximum of the medium)
Therefore, medium period of prision mayor; 8 yrs 1 day to 10 yrs
5) use the maximum of the medium period as the minimum of the maximum pd, add 1 day to distinguish it from the medium period. Then add 2 yrs to the minimum of the maximum pd (disregarding the 1 day) to get the maximum of the maximum period)
10 yrs (maximum of the medium)
+ 2 yrs (difference)
12 yrs (maximum of the maximum)
Therefore, maximum period of prision mayor; 10 yrs 1 day to 12 yrs
- Computation above applicable to all others except arresto mayor
B. Example: Prision Mayor minimum (6 yrs 1 day to 8 yrs) only
1) Subtract minimum from the maximum
8yrs – 6yrs = 2 yrs
2) Divide the difference by 3
2yrs / 3 = 8 months
3) Use the minimum of the given example as the minimum period. Then to get to get the maximum of the minimum, add the 8 months
6 yrs + 8 months = 6 yrs and 8 months
Therefore, minimum of prision mayor minimum; 6 yrs 1 day to 6 yrs 8 months
4) Use the maximum of the minimum as the minimum of the medium period. Add 1 day to distinguish it from the maximum of the minimum. Add the 8 months and this becomes the maximum of the medium
6 yrs 8 months + 8 months = 7 yrs 4 months
Therefore, the medium period of prision mayor minimum; 6 yrs 8 mos 1 day to 7 yrs 4 mos
5) Use the maximum of the medium as the minimum period of the maximum period and add 1 day to distinguish. Add the 8 months to get the maximum of this maximum
7 yrs 4 mos + 8 mos = 8 yrs
Therefore, maximum of prision mayor; 7 yrs 4 mos 1 day to 8 yrs
Art. 66. Imposition of fines. — In imposing fines the courts may fix any amount within the limits established by law; in fixing the amount in each case attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit.
- Court must consider the following in imposing the fine:
a) mitigating and aggravating circumstances
b) the wealth and means of the culprit
- When the minimum of the fine is not fixed, the court shall have the discretion provided it does not exceed the amount authorized by law
Art. 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 are present.— When all the conditions required in circumstances Number 4 of Article 12 of this Code to exempt from criminal liability are not present, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon the culprit if he shall have been guilty of a grave felony, and arresto mayor in its minimum and medium periods, if of a less grave felony.
- Requisites of Art 12 par 4
a) act causing the injury must be lawful
b) act performed w/ due care
c) injury was caused by mere accident
d) no fault or intention to cause injury
- if these conditions are not all present, then the ff penalties shall be imposed:
a) grave felony – arresto mayor max to prision correccional min
b) less grave felony – arresto mayor min to arresto mayor med
Art. 68. Penalty to be imposed upon a person under eighteen years of age. — When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed.
2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.
- Art. 68 applies to such minor if his application for suspension of sentence is disapproved or if while in the reformatory institution he becomes incorrigible in which case he shall be returned to the court for the imposition of the proper penalty.
- Art. 68 provides for 2 privileged mitigating circumstances
If the act is attended by two or more mitigating circumstance and no aggravating circumstance, the penalty being divisible a minor over 15 but under 18 may still get a penalty two degrees lower.
- under 15 but over 9 and has acted w/ discretion: 2 degrees lower
- under 18 but over 15: 1 degree lower
Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.
- Penalty to be imposed when the crime committed is not wholly excusable
- 1 or 2 degrees lower if the majority of the conditions for justification or exemption in the cases provided in Arts. 11 and 12 are present.
Art. 70. Successive service of sentence. — When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out.
For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale:
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict’s sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual penalties ( pena perpetua) shall be computed at thirty years. (As amended).
- Maximum duration of the convict’s sentence: 3 times the most severe penalty
- Max period shall not exceed 40 years
- Subsidiary imprisonment – this shall be excluded in computing for the maximum duration
Example: Juan has 10 sentences of 6 months and 1 day each and a fine of 1000. He was not able to pay the fine. Therefore, he must serve subsidiary penalty after 18 months and 3 days in jail.
Criminal Law Book 1 Reviewer
Ateneo Central Bar Operations 2001
Art. 51. Penalty to be imposed upon principals of attempted crimes. — A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony.
Art. 52. Penalty to be imposed upon accomplices in consummated
crime. — The penalty next lower in degree than that prescribed by law for the consummated shall be imposed upon the accomplices in the commission of a consummated felony.
Art. 53. Penalty to be imposed upon accessories to the commission of a consummated felony. — The penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the accessories to the commission of a consummated felony.
Art. 54. Penalty to imposed upon accomplices in a frustrated
crime. — The penalty next lower in degree than prescribed by law for the frustrated felony shall be imposed upon the accomplices in the commission of a frustrated felony.
Art. 55. Penalty to be imposed upon accessories of a frustrated
crime. — The penalty lower by two degrees than that prescribed by law for the frustrated felony shall be imposed upon the accessories to the commission of a frustrated felony.
Art. 56. Penalty to be imposed upon accomplices in an attempted
crime. — The penalty next lower in degree than that prescribed by law for an attempt to commit a felony shall be imposed upon the accomplices in an attempt to commit the felony.
Art. 57. Penalty to be imposed upon accessories of an attempted
crime. — The penalty lower by two degrees than that prescribed by law for the attempted felony shall be imposed upon the accessories to the attempt to commit a felony.
Application of Article 50 to 57
|Principal||Penalty imposed by law||1° less||2° less|
|Accomplice||1° less||2° less||3° less|
|Accessory||2° less||3° less||4° less|
Art 50-57 not applicable when the law specifically prescribes the penalty for the frustrated and attempted felony or that to be imposed upon the accomplices and accessories.
Degree – one whole penalty, one entire penalty or one unit of the penalties enumerated in the graduated scales provided for in Art 71
Period – one of 3 equal portions, min/med/max of a divisible penalty. A period of a divisible penalty when prescribed by the Code as a penalty for a felony, is in itself a degree.
Distinctions between Degree and Period
|Refers to the penalty imposable for a felony committed considering the stages of execution and the degree of participation of the offender||Refers to the duration of the penalty consisting of the maximum, medium, and minimum, after considering the presence or absence of aggravating circumstances|
|May refer to both divisible and indivisible penalties||Refers only to divisible penalties|
- The rules provided in Arts. 53, 55 and 57 do not apply if the felony is light because accessories are not liable for the same
- Bases for imposition of the penalty under the RPC
- Stage of the commission of the crime
- Participation of the persons liable
- Presence of aggravating or mitigating circumstances
Art. 58. Additional penalty to be imposed upon certain
accessories. — Those accessories falling within the terms of paragraphs 3 of Article 19 of this Code who should act with abuse of their public functions, shall suffer the additional penalty of absolute perpetual disqualification if the principal offender shall be guilty of a grave felony, and that of absolute temporary disqualification if he shall be guilty of a less grave felony.
- Art is limited only to grave and less grave felonies since it is not possible to have accessories liable for light felonies. It is further limited to those whose participation in the crime is characterized by the misuse of public office or authority.
Example: a) A mayor aided in friend, a wanted criminal, in escaping
b) A senator gives protection to his jueteng lord friend
- Additional Penalties for Public Officers who are accessories
- Absolute perpetual disqualification, if the principal offender is guilty of a grave felony.
- Absolute temporary disqualification if the principal offender is guilty of less grave felony
Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. — When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.
- Basis for the imposition of proper penalty in impossible crimes: sopcial danger and degree of criminality shown by the offender.
Example: Juan fired a revolver at Pedro at the distance of 2 kilometers. This shoes stupidity rather than danger. Juan should not be punished as there is no social danger nor degree of criminality.
But if Juan was a convicted felon, act may be punished.
- Article limited to those cases of grave and less grave felonies.
Art. 60. Exception to the rules established in Articles 50 to 57. — The provisions contained in Articles 50 to 57, inclusive, of this Code shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories.
- 2 cases wherein the accomplice is punished w/ the same penalty imposed upon the principal
a) ascendants, guardians, curators, teachers and any person who by abuse of authority or confidential relationship shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slave trade or abduction.
b) one who furnished the place for the perpetration of the crime of slight illegal detention.
- Accessory punished as principal: Art 142 – punishes an accessory for knowingly concealed certain evil practices.
- Cases when instead of a penalty 2 degrees lower, one degree for accessory:
a) knowingly using counterfeited seal or forged signature or stamp of the President
b) illegal possession and use of false treasury or bank note
c) using a falsified document
d) using a falsified dispatch
Criminal Law Book 1 Reviewer
Ateneo Central Bar Operations 2001
Art. 41. Reclusion perpetua and reclusion temporal. — Their accessory penalties. — The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 42. Prision mayor — Its accessory penalties. — The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 43. Prision correccional — Its accessory penalties. — The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 44. Arresto — Its accessory penalties. — The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence.
- Outline of accessory penalties inherent in principal penalties
- death – if not executed because of commutation or pardon
- perpetual absolute disqualification
- civil interdiction during 30 years (if not expressly remitted in the pardon)
- civil interdiction for life or during the sentence
- perpetual absolute disqualification (unless expressly remitted in the pardon)
- temporary absolute disqualification
- perpetual absolute disqualification from suffrage (unless expressly remitted in the pardon)
- suspension from public office, profession or calling
- perpetual special disqualification from suffrage if the duration of the imprisonment exceeds 18 months (unless expressly remitted in the pardon)
- RP and RT
- The accessory penalties in Art 40-44 must be suffered by the offender, although pardoned as to the principal penalties. To be relieved of these penalties, they must be expressly remitted in the pardon.
- No accessory penalty for destierro
- Persons who served out the penalty may not have the right to exercise the right of suffrage. For a prisoner who has been sentenced to one year of imprisonment or more for any crime, absolute pardon restores to him his political rights. If the penalty is less than one year, disqualification does not attach except if the crime done was against property.
- The nature of the crime is immaterial when the penalty imposed is one year imprisonment or more.
- The accessory penalties are understood to be always imposed upon the offender by the mere fact that the law fixes a certain penalty for the crime. Whenever the courts impose a penalty which by provision of law, carries with it other penalties, it’s understood that the accessory penalties are also imposed.
- the accessory penalties do not affect the jurisdiction of the court in which the information is filed because they don’t modify or alter the nature of the penalty provided by law. What determines jurisdiction in criminal cases is the extent of the principal penalty w/c the law imposes of the crime charged.
- the MTC has exclusive jurisdiction over offenses punishable with imprisonment of not exceeding 4 years and 2 months or a fine of not more than 4000 or both regardless of other imposable accessory or other penalties.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
- every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools used in the commission of the crime
- proceeds and instruments/tools of the crime are confiscated in favor of the government
- 3rd persons’ (not liable for the offense) property is not subject to confiscation and forfeiture
- property not subject of lawful commerce (whether it belongs to accused or 3rd person) shall be destroyed.
- can’t confiscate/forfeit unless there’s a criminal case filed and tried, and accused is acquitted.
- must indict 3rd person to order confiscation of his property
- instruments of the crime belonging to innocent 3rd person may be recovered
- confiscation can be ordered only if the property is submitted in evidence or placed at the disposal of the court
- articles which are forfeited – when the order of forfeiture is already final, can’t be returned even in case of an acquittal
- confiscation and acquittal are additional penalties. Where the penalty imposed did not include the confiscation of the goods involved, the confiscation & forfeiture of said goods would be an additional penalty and would amount to an increase of the penalty already imposed, thereby placing the accused in double jeopardy.
- when the accused has appealed, confiscation and forfeiture not ordered by the trial court may be imposed by the appellate court
- the government can’t appeal the modification of a sentence if the defendant did not appeal. But if the defendant appeals, it removes all bars to the review and correction of the penalty imposed by the court below, even if an increase thereof should be the result.
Art. 46. Penalty to be imposed upon principals in general. — The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony.
- The penalty prescribed by law in general terms shall be imposed:
a upon the principals
b for consummated felony
- Exception: when the law fixes a penalty for the frustrated or attempted felony. Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not proportionate to the wrong done, the law fixes a distinct penalty for the principal in the frustrated or attempted felony.
- The graduation of penalties refers to:
a stages of execution (consummated, frustrated, attempted)
b degree of the criminal participation of the offender (principal, accomplice, accessory)
- the division of a divisible penalty (min, med, max) refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime.
Art. 47. In what cases the death penalty shall not be imposed. — The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except in the following cases:
1. When the guilty person be more than seventy years of age.
2. When upon appeal or revision of the case by the Supreme court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty. For the imposition of said penalty or for the confirmation of a judgment of the inferior court imposing the death sentence, the Supreme Court shall render its decision per curiam, which shall be signed by all justices of said court, unless some member or members thereof shall have been disqualified from taking part in the consideration of the case, in which even the unanimous vote and signature of only the remaining justices shall be required.
- whenever the judgment of the lower court imposes the death penalty, the case shall be determined by 10 justices of the court. When 10 justices fail to reach a decision (as to the propriety of the imposition of the death penalty), the penalty next lower in degree than the death penalty shall be imposed.
- Death penalty not imposed in the ff cases:
a) when the person is more than 70 years old at time RTC sentenced him
b) when upon appeal or revision of the case by the SC, 10 justices are not unanimous in their voting
c) when the offender is a minor under 18 yrs of age. Why? Because minority is always a mitigating circumstance
- Justification for the death penalty: social defense and exemplarity. Not considered cruel and unusual because does not involve torture or lingering death.
- Crimes where death penalty is imposed:
b) certain acts of espionage under Commonwealth Act 616
c) correspondence w/ hostile country when it contains notice or information and the intention of the offender is to aid the enemy
d) qualified piracy
e) certain violations of the Anti-subversion act
h) kidnapping and serious illegal detention
i) robbery w/ homicide
j) rape w/ homicide
k) when death resulted from the commission of arson or other crime involving destruction
- trial court must require the prosecution to present evidence, despite plea of guilty, when the crime charged is punished by death. A sentence of death is valid only if it is susceptible of a fair and reasonable examination by the court. This is impossible if no evidence of guilt was taken after a plea of guilty.
Art. 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.
- The 2 or more grave or less grave felonies must be the result of a single act, or an offense must be a necessary means to commit the crime.
- Complex crime – one crime only as there is only one criminal intent – only one information need be filed
- 2 kinds of complex crimes:
a) compound crime – single act constitutes 2 or more grave or less grave felonies
1) that only one single act is committed by the offender
2) that the single act produces
a) 2 or more grave felonies
b) one or more grave and one or more less grave felonies
c) 2 or more less grave felonies
b) complex crime proper – when an offense is a necessary means for committing another
1) that at least 2 offenses are committed
2) that one or some of the offenses must be necessary to commit the other
3) that both or all the offenses must be punished under the same statute
- No single act in the following cases:
a) When 2 persons are killed one after the other, by different acts, although these 2 killings were the result of a single criminal impulse, the different acts must be considered as distinct crimes.
b) When the acts are wholly different, not only in themselves, but also because they are directed against 2 different persons, as when one fires his gun twice in succession, killing one and injuring the other.
- Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by the grave felony.
a) several light felonies resulting from one single act – not complex
Juan hit Pedro’s car, resulting in several light injuries and light felony of damage to property. No complex crime because the crime of slight physical injuries and damage to property are light felonies. There are as many crimes as there are persons injured w/ light physical injuries and as many penalties as there are light felonies committed, even though they are produced by a single act of the offender.
b) when the crime is committed by force or violence, slight physical injuries are absorbed.
- Examples of complex crimes:
a) Juan was a barangay captain who was killed while discharging his duty, the crime is a complex crime of homicide w/ assault upon a person of authority.
b) Juan raped Petra, causing her physical injuries w/c required a month’s worth of medical attention. This is a complex crime of rape w/ less serious physical injuries. The injuries were necessary to the commission of the rape.
- when in obedience to an order, several accused simultaneously shot many persons, without evidence how many each killed, there is only a single offense, there being a single criminal impulse.
- when various acts are executed for the attainment of a single purpose w/c constitutes an offense, such acts must be considered only as one offense.
Example: Juan falsified 100 warehouse receipts from April to June which enabled him to swindle the bank of 100 million. There’s only one complex crime of estafa through multiple falsification of documents.
- There is no complex crime of arson w/ homicide
- Art 48 is applicable to crimes through negligence
Example: Juan lit a cigarette as he poured gas in the tank of his car in his garage. The gas caught fire and the house burned. His sister died and the maid suffered serious physical injuries. The crimes of arson, homicide, serious physical injuries and damage to property constitute a complex crime. There is only one penalty but there are 3 civil liabilities.
- No complex crime when one of the offenses is penalized by a special law
- Example of complex crime proper (at least 2 crimes must be committed):
Kidnapping the victim to murder him in a secluded place – ransom wasn’t paid so victim was killed. Kidnapping was a necessary means to commit murder. But where the victim was taken from his home for the sole purpose of killing him and not for detaining him illegally or for the purpose of ransom, the crime is simple murder.
- “Necessary means” does not mean “indispensable means”. Indispensable would mean it is an element of the crime. The crime can be committed by another mean. The means actually employed (another crime) was merely to facilitate and insure the consummation of the crime.
- When in the definition of a felony, one offense is a means to commit the other, there is no complex crime.
Ex. Murder committed by means of fire. Murder can be qualified by the circumstance of fire so no complex crime even if Art 321 and 324 punishes arson. It’s plain and simple murder.
- Not complex crime when trespass to dwelling is a direct means to commit a grave offense. Like rape, there is no complex crime of trespass to dwelling with rape. Trespass will be considered as aggravating (unlawful entry or breaking part of a dwelling)
- No complex crime when one offense is committed to conceal another
Example: Juan set the school on fire after committing homicide. 2 crimes.
- When the offender had in his possession the funds w/c he misappropriated, the falsification of a public or official document involving said funds is a separate offense. But when the offender had to falsify a public or official document to obtain possession of the funds w/c he misappropriated, the falsification is a necessary means to commit the malversation.
- There is no complex crime of rebellion with murder, arson, robbery or other common crimes. They are mere ingredients of the crime of rebellion – absorbed already.
- When 2 crimes produced by a single act are respectively within the exclusive jurisdiction of 2 courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime.
Example: Although the forcible abduction which was supposedly commenced in Manila was not proven, and although the rape which was proven was actually committed in Cavite, still the RTC of Manila had jurisdiction to convict the accused of rape. The complex crime of forcible abduction with rape was charged in the complaint on the basis of which the case was tried.
- Art. 48 is intended to favor the culprit.
- The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period. If the different crimes resulting from one single act are punished with the same penalty, the penalty for any one of them shall be imposed, the same to be applied in the maximum period. The same rule shall be observed when an offense is a necessary means to commit the other.
- A complex crime of the second form may be committed by two persons.
- But when one of the offenses, as a means to commit the other, was committed by one of the accused by reckless imprudence, the accused who committed the crime by reckless imprudence is liable for his acts only.
Example: Juan cooperated in the commission of the complex offense of estafa through falsification by reckless imprudence by acts without which it could not have been accomplished, and this being a fact, there would be no reason to exculpate him from liability. Even assuming he had no intention to defraud Tomas if his co-defendants succeeded in attaining the purpose sought by the culprits, Juan’s participation together w/ the participation of his co-defendants in the commission of the offense completed all the elements necessary for the perpetration of the complex crime of estafa through falsification of documents.
- When two felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment shall be imposed.
- When a single act constitutes two grave or less grave or one grave and another less grave, and the penalty for one is imprisonment while that for the other is fine, the severity of the penalty for the more serious crime should not be judged by the classification of each of the penalties involved, but by the nature of the penalties.
Example: Even if the fine for damage to property through reckless imprudence is P40,000, an afflictive penalty, and the penalty for the physical injuries resulting from the same act is only 4 mos of arresto mayor, a correccional penalty may be imposed.
- In the order of severity of the penalties, arresto mayor and arresto menor are considered more severe than destierro and arresto menor is higher in degree than destierro.
- Fine is not included in the list of penalties in the order of severity and it is the last in the order.
- Art 48 applies only to cases where the Code doesn’t provide a specific penalty for a complex crime.
- Art 48 doesn’t apply when the law provides one single penalty for single complex crimes like the ff:
a) robbery w/ homicide
b) robbery w/ rape
c) kidnapping w/ serious physical injuries
d) rape w/ homicide
- When a complex crime is charged and one offense is not proven, the accused can be convicted of the other.
- Plurality of crimes – consists in the successive execution by the same individual of different criminal acts upon any of w/c no conviction has yet been declared.
- Kinds of plurality of crimes:
a) formal or ideal – only one criminal liability
b) real or material – there are different crimes in law as well as in the conscience of the offender, in such cases, the offender shall be punished for each and every offense that he committed.
Example: Juan stabbed Pedro, then Juan stabbed Tomas too. There are 2 committed as 2 acts were performed.
|PLURALITY OF CRIMES||RECIDIVISM|
|No conviction of the crimes committed||There must be conviction by final judgment of the first prior offense|
- Formal/ideal plural crimes are divided into 3 groups: (a person committing multiple crimes is punished w/ one penalty in the ff cases)
a) when the offender commits any of the complex crimes defined in art 48
b) when the law specifically fixes a single penalty for 2 or more offenses committed: robbery w/ homicide, kidnapping w/ serious physical injuires
c) when the offender commits continued crimes
- Continued crimes – refers to a single crime consisting of a series of acts but all arising from one criminal resolution. Although there is a series of acts, there is only one crime committed, so only one penalty shall be imposed.
- Examples of continued crimes:
a) a collector of a commercial firm misappropriates for his personal use several amounts collected by him from different persons. There is only one crime because the different and successive appropriations are but the different moments during which one criminal resolution arises.
b) Juan stole 2 books belonging to 2 different persons. He commits only one crime because there is unity of thought in the criminal purpose of the offender.
- A continued crime is not a complex crime as offender does not perform a single act but a series of acts. Therefore:
a) penalty not to be imposed in the maximum
b) no actual provision punishing a continued crime – it’s a principle applied in connection w/ 2 or more crimes committed w/ a single intention.
- Continued crime is different from a transitory crime. Transitory crime is “moving crime”.
Example: kidnapping someone for ransom and moving him to another venue. The offenders can be prosecuted and tried in either of the 2 areas.
|REAL/MATERAIAL PLURALITY||CONTINUED CRIME|
|There is a series of acts performed by the offender||Same|
|Each act performed constitutes a separate crime because each act is generated by a criminal impulse||Different acts constitute only one crime because all of the acts performed arise from one criminal resolution.|
Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. — In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed:
1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period.
2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period.
- Art 49 has reference to the provision in the 1st par of Art 4 which provides that criminal liability shall be incurred “by any person committing a felony although the wrongful act done be different from that which he intended”
- Art 49 applicable only in cases when there is a mistake in identity of the victim of the crime and the penalty for the crime committed is different from that for the crime intended to be committed.
- Art 49 also has no application where a more serious consequence not intended by the offender befalls the same person.
Example: Juan only wanted to inflict a wound upon Pedro but because he lost control of his right arm, he killed Pedro. Art 49 not applicable.
|ART 49||ART 48|
|Lesser penalty to be imposed in its maximum pd||Penalty for the more serious crime shall be imposed in its maximum pd|
- Art. 49 has reference to Art. 4(1). It applies only when there is error in personae.
- In Art. 49 (Paragraphs 1 and 2) the lower penalty in its maximum period is always imposed.
- In Par. 3 the penalty for the attempted or frustrated crime shall be imposed in its maximum period. This rule is not necessary and may well be covered by Art. 48, in view of the fact that the same act also constitutes an attempt or a frustration of another crime.
Art. 50. Penalty to be imposed upon principals of a frustrated
crime. — The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony.
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Art. 31. Effect of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporal special disqualification for public office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected;
2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification.
Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.
- Temporary disqualification if imposed is an accessory penalty, its duration is that of the principal penalty
- Effects of Perpetual and Temporary Special Disqualification
a. For public office, profession, or calling
- Deprivation of the office, employment, profession or calling affected
- Disqualification for holding similar offices or employment during the period of disqualification
b. For the exercise of the right of suffrage
- Deprivation of the right to vote or to be elected in an office.
- Cannot hold any public office during the period of disqualification.
Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. — The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another having similar functions during the period of his suspension.
a Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence.
b Cannot hold another office having similar functions during the period of suspension.
Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.
a. Deprivation of the following rights:
- Parental rights
- Guardianship over the ward
- Martial authority
- Right to manage property and to dispose of the same by acts inter vivos
b. Civil Interdiction is an accessory penalty to the following principal penalties
- If death penalty is commuted to life imprisonment
- Reclusion perpetua
- Reclusion temporal
- He can dispose of such property by will or donation mortis causa
Art. 35. Effects of bond to keep the peace. — It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking.
The court shall determine, according to its discretion, the period of duration of the bond.
Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony.
- Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime. Bond to keep the peace or for good behavior is imposed as a penalty in threats.
Art. 36. Pardon; its effect. — A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.
- Pardon by the President does not restore the right to public office or suffrage except when both are expressly restored in the pardon. Nor does it exempt from civil liability/from payment of civil indemnity.
- Limitations to President’s power to pardon:
a can be exercised only after final judgment
b does not extend to cases of impeachment
c does not extinguish civil liability – only criminal liability
- Pardon granted in general terms does not include accessory penalties.
- Pardon by the offended party – does not extinguish criminal liability, may include offended party waiving civil indemnity and it is done before the institution of the criminal prosecution and extended to both offenders.
- if the absolute pardon us granted after the term of imprisonment has expire, it removes all that is left of the consequences of conviction. However, if the penalty is life imprisonment and after the service of 30 years, a pardon is granted, the pardon does not remove the accessory penalty of absolute perpetual disqualification
- if the facts and circumstances of the case show that the purpose of the President is to precisely restore the rights i.e., granting absolute pardon after election to a post (mayor) but before the date fixed by law for assuming office to enable him to assume the position in deference to the popular will.
Art. 37. Cost. — What are included. — Costs shall include fees and indemnities in the course of the judicial proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule.
- Costs include:
- Costs (expenses of the litigation) are chargeable to the accused in vase of conviction.
- In case of acquittal, the costs are de oficio, each party bearing is own expense
- No costs allowed against the Republic of the Philippines until law provides the contrary
- indemnities in the course of judicial proceedings
Art. 38. Pecuniary liabilities. — Order of payment. — In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The cost of the proceedings.
- Applicable “in case property of the offender should not be sufficient for the payment of all his pecuniary liabilities.” Hence, if the offender has insufficient or no property, there is no use for Art 38.
- Order of payment is mandatory
- Example: Juan inflicted serious physical injuries against Pedro and took the latter’s watch and ring. He incurred 500 worth of hospital bills and failed to earn 300 worth of salary. Given that Juan only has 1000 pesos worth of property not exempt from execution, it shall be first applied to the payment of the watch and ring which cannot be returned as such is covered by “reparation of the damage caused” thus, no. 1 in the order of payment. The 500 and 300 are covered by “indemnification of the consequential damage” thus, no. 2 in the order of payment.
Art. 39. Subsidiary penalty. — If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony.
3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969.)
- There is no subsidiary penalty for non-payment of reparation, indemnification and costs in par 1, 2 and 4 of Art 38. It is only for fines.
- Art 39 applies only when the convict has no property with which to meet the fine in par 3 of art 38. Thus, a convict who has property enough to meet the fine and not exempted from execution cannot choose to serve the subsidiary penalty instead of the payment of the fine.
- Subsidiary imprisonment is not an accessory penalty. It is covered by Art 40-45 of this Code. Accessory penalties are deemed imposed even when not mentioned while subsidiary imprisonment must be expressly imposed.
LENGTH OF SUBSIDIARY PENALTY
|Prision correccional or arresto and fine||Not exceed 1/3 of term of sentence, in no case more than 1 year fraction or part of a day not counted.|
|Fine only||Not to exceed 6 months if prosecuted for grave or less grave felony, not to exceed 15 days if prosecuted for light felony|
|Higher than prision correccional||No subsidiary imprisonment|
|Not to be executed by confinement but of fixed duration||Same deprivations as those of the principal penalty under rules 1, 2 and 3 above|
- If financial circumstances improve, convict still to pay the fine even if he has suffered subsidiary personal liability.
- the penalty imposed must be PC, AM, Am, suspension, destierro and fine only. – other than these (PM, RT, RP) court cannot impose subsidiary penalty.
- Even if the penalty imposed is not higher than PC, if the accused is a habitual delinquent who deserves an additional penalty of 12 yrs and 1 day of RT, there is no subsidiary imprisonment.
Art. 40. Death — Its accessory penalties. — The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date sentence, unless such accessory penalties have been expressly remitted in the pardon.
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Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission.
- Guarantees that no act of a citizen will be considered criminal unless the State has made it so by law and provided a penalty
- Except: When the penalty is favorable to the criminal
Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.
- General Rule: Criminal laws are given prospective effects
- Exception: Give retroactive effect when favorable to the accused. Ex. Special law made the penalty less severe – but must refer to the same deed or omission penalized by the former statute
- New law may provide that its provisions not to be applied to cases already filed in court at the time of the approval of such law.
- The favorable retroactive effect of a new law may find the defendant in one of the 3 situations
- Habitual criminal (person who within the pd of 10 years from date of release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification, he is found guilty of any said crimes a third time or oftener) is NOT entitled to the benefit of the provisions of the new favorable law.
- Civil liabilities not covered by Art 22 because rights of offended persons are not within the gift of arbitrary disposal of the State.
- But new law increasing civil liability cannot be given retroactive effect.
- Retroactivity applicable also to special laws
- The right to punish offenses committed under an old penal law is not extinguished if the offenses are still punished in the repealing penal law. However, if by re-enactment of the provisions of the former law, the repeal is by implication and there is a saving clause, criminal liability under the repealed law subsists.
- No retroactive effect of penal laws as regards jurisdiction of the court. Jurisdiction of the court is determined by the law in force at the time of the institution of the action, not at the time of the commission of the crime.
- Jurisdiction of courts in criminal cases is determined by the allegations of the complaint or information, and not by the findings the court may make after trial.
- When a law is ex post facto
- crime has been committed and the prosecution begins
- sentence has been passed but service has not begun
- sentence is being carried out.
a Makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act.
b Aggravates the crime or makes it greater than it was when committed.
c Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed.
d Alters the legal rules of evidence and authorizes conviction upon less or different testimony than the law required at the time of the commission of the crime.
e Assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful.
f Deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal or a proclamation of amnesty.
- Bill of Attainder – a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial determination of guilt.
- Effect of change of Penal Law
a With enactment of a penal law punishing the offense – the action is not dismissed. The penalty in the new law if favorable to the accused.
b Without enactment of a penal law punishing the offense – the previous offense is obliterated and the action is dismissed.
Art. 23. Effect of pardon by the offended party. — A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver.
- Even if injured party already pardoned the offender – fiscal can still prosecute. Not even considered a ground for dismissal of the information. Exception: Art 344 – crimes of seduction, abduction, rape or acts of lasciviousness – pardon must be expressed.
- Basis: crime is an offense against the State. Aggrieved party only a witness.
- Only Chief Executive can pardon the offenders
- Can’t compromise criminal liability, only civil liability – but it still shall not extinguish the public action for the imposition of the legal penalty.
- Offended party in the crimes of adultery and concubinage can’t institute criminal prosecution if he shall have consented or pardoned the offenders.
- Pardon in adultery and concubinage may be implied – continued inaction after learning of the offense. Must pardon both offenders.
- The pardon afforded the offenders must come BEFORE the institution of the criminal proceedings. Complaint for any of the above-mentioned crimes in Art 344 will still be prosecuted by the court on the ground that the pardon (basis for the motion to dismiss) was given after the filing of the complaint.
- The only act that extinguishes the penal action, after the institution of criminal action, is the marriage between the offender and the offended party
- Pardon under Art 344 is only a bar to criminal prosecution. It DOES NOT extinguish criminal liability. It is not one of the causes that totally extinguish criminal liability in Art 89.
- Civil liability with regard to the interest of the injured party is extinguished by his express waiver because personal injury may be repaired through indemnity anyway. State has no reason to insist on its payment.
- Waiver must be express.
Art. 24. Measures of prevention or safety which are nor considered penalties. — The following shall not be considered as penalties:
1. The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital.
2. The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein.
3. Suspension from the employment of public office during the trial or in order to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates.
5. Deprivation of rights and the reparations which the civil laws may establish in penal form.
- Par 1 refers to the “accused persons” who are detained “by reason of insanity or imbecility” not an insane or imbecile who has not been arrested for a crime.
- They are not considered penalties because they are not imposed as a result of judicial proceedings. Those in par 1, 3 and 4 are merely preventive measures before the conviction of offenders.
- Commitment of a minor is not a penalty because it is not imposed by the court in a judgment. The imposition of the sentence in such a case is suspended.
- Fines in par 4 are not imposed by the court because otherwise, they constitute a penalty.
Art. 25. Penalties which may be imposed. — The penalties which may be imposed according to this Code, and their different classes, are those included in the following:
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Penalties common to the three preceding classes:
Bond to keep the peace.
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be voted for, the
profession or calling.
Forfeiture or confiscation of instruments and proceeds of the offense,
Payment of costs.
- Classification of penalties:
a Principal – art 25
b Accessory – deemed included in the imposition of the principal penalties
- According to divisibility (principal)
a divisible – those that have fixed duration and are divisible into 3 periods
b indivisible – no fixed duration (death, RP, perpetual or absolute disqualification)
- According to subject matter
a corporal – death
b deprivation of freedom – reclusion, prision, arresto
c restriction of freedom – destierro
d deprivation of rights – disqualification and suspension
e pecuniary – fine
- According to gravity
- Public censure is a penalty, and being such, is not proper in acquittal. But a competent court, while acquitting an accused may, with unquestionable propriety express its disapproval or reprehension of those acts to avoid the impression that by acquitting the accused it approves or admires his conduct.
- Permanent and temporary absolute and permanent and temporary special disqualification and suspension may be principal or accessory penalties because they are found in 2 general classes.
Art. 26. When afflictive, correctional, or light penalty. — A fine, whether imposed as a single of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it less than 200 pesos.
- Fines are imposed either as alternative (Art 144 punishing disturbance of proceedings with arresto mayor or fine from 200 pesos to 1000 pesos) or single (fine of 200 to 6000 pesos)
- Penalty cannot be imposed in the alternative since it’s the duty of the court to indicate the penalty imposed definitely and positively. Thus, the court cannot sentence the guilty person in a manner as such as “to pay fine of 1000 pesos, or to suffer an imprisonment of 2 years, and to pay the costs.”
- If the fine imposed by the law for the felony is exactly 200 pesos, it is a light felony.
a Afflictive – over 6000
b Correctional – 201 to 6000
c Light – 200 and less
- Note: The classification applies if the fine is imposed as a single or alternative penalty. Hence, it does not apply if the fine imposed together with another penalty.
- Bond to keep the peace is by analogy:
a Afflictive – over 6000
b Correctional – 201 to 6000
c Light – 200 and less
Distinction between classification of Penalties in Art. 9 and Art. 26
|Applicable in determining the prescriptive period of felonies||Applicable in determining the prescriptive period of penalties|
DURATION AND EFFECT OF PENALTIES
Art. 27. Reclusion perpetua. — Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon.
Reclusion temporal. — The penalty of reclusion temporal shall be from twelve years and one day to twenty years.
Prision mayor and temporary disqualification. — The duration of the penalties of prision mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the principal penalty.
Prision correccional, suspension, and destierro. — The duration of the penalties of prision correccional, suspension and destierro shall be from six months and one day to six years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty.
Arresto mayor. — The duration of the penalty of arresto mayor shall be from one month and one day to six months.
Arresto menor. — The duration of the penalty of arresto menor shall be from one day to thirty days.
Bond to keep the peace. — The bond to keep the peace shall be required to cover such period of time as the court may determine.
- 3 fold rule: the maximum duration of the convict’s sentence shall not be more than 3 times the length of time corresponding to the most severe of the penalties imposed upon him.
- the maximum duration of the convict’s sentence shall in no case exceed 40 years
- Temporary disqualification and suspension, when imposed as accessory penalties, have different durations – they follow the duration of the principal penalty
- Destierro is imposed in the following circumstances:
a serious physical injuries or death under exceptional circumstances (spouse finding other spouse in pari delicto)
b failure to give bond for good behavior ( a person making threat may be required to give bond not to molest the person threatened, if not destierro)
c penalty for the concubine
d in cases where the reduction of the penalty by one or more degrees results in destierro
- Bond to keep the peace is not specifically provided as a penalty for any felony and therefore cannot be imposed by the court. It is required in Art 284 and not to be given in cases involving other crimes.
a Perpetual penalties – after 30 years, can be pardoned, except when he is unworthy of pardon by reason of his conduct and some other serious cause, it won’t exceed 40 years.
b Reclusion Temporal – 12 yrs and 1 day to 20 yrs
c Prision Mayor and temporary disqualification – 6 yrs and 1 day to 12 yrs; disqualification if accessory follows the duration of the principal penalty
d Prision Correccional, suspension and destierro – 6 mos and 1 day to 12 yrs; disqualification if accessory follows the duration of the principal penalty
e Arresto Mayor – 1 month and 1 day to 6 months
f Arresto Menor – 1 day to 30 days
g Bond to keep the peace – the period during which the bond shall be effective is discretionary to the court
Capital and Afflictive Penalties
|Term of Imprison-ment||None||20 days and 1 day to 40 years||12 years and 1 day to 20 years||6 years and 1 day to 12 years|
|Accessory Penalties||None, unless pardoned:
-Perpetual absolute disqualification
-Civil interdiction for 30 years
|-Civil Interdiction or during his sentence
-Perpetual absolute disqualification
|-Civil Interdiction or during his sentence
-Perpetual absolute disqualification
|-Temporary absolute disqualification
-Perpetual special disqualification from the right of suffrage which the offender suffers although pardoned
Correctional and Light Penalties
|Imprison-ment||6 months and 1 day to 6 years||1 month and 1 day to 6 months||1 day to 30 days|
|Accessory Penalties||-Suspension from public office
-Suspension from the right to follow a profession or calling
-Perpetual special disqualification on the right of suffrage
|-Suspension of right to hold office
-Suspension of the right of suffrage during the term of the sentence
|-Suspension of right to hold office
-Suspension of the right of suffrage during the term of the sentence
Art. 28. Computation of penalties. — If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final.
If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. The duration of the other penalties shall be computed only from the day on which the defendant commences to serve his sentence.
- Director of Prisons/warden to compute based on Art 28:
a When the offender is in prison – the duration of the temporary penalties (PAD, TAD, detention, suspension) is from the day on which the judgment of conviction becomes final.
b When the offender is not in prison – the duration of the penalty in deprivation of liberty is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty
c The duration of the other penalties – the duration is from the day on which the offender commences to serve his sentence
- Reason for rule (a) – because under Art 24, the arrest and temporary detention of the accused is not considered a penalty
- if in custody, the accused appealed, the service of the sentence should commence from the date of the promulgation of the decision of the appellate court, not from the date of the judgment of the trial court was promulgated.
- service of one in prison begins only on the day the judgment of conviction becomes final.
- In cases if temporary penalties, if the offender is under detention, as when undergoing preventive imprisonment, rule (a) applies.
- If not under detention (released on bail) rule (c) applies
- Offender under preventive imprisonment, rule (c) applies not rule (a)
- The offender is entitled to a deduction of full-time or 4/5 of the time of his detention.
Art. 29. Period of preventive imprisonment deducted from term of imprisonment. — Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:
1. When they are recidivists or have been convicted previously twice or more times of any crime; and
2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). cd i
Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988).
- Accused undergoes preventive suspension if:
a offense is non-bailable
b bailable but can’t furnish bail
- the full time or 4/5 of the time during which the offenders have undergone preventive suspension shall be deducted from the penalty imposed
- preventive imprisonment must also be considered in perpetual penalties. Article does not make any distinction between temporal and perpetual penalties.
- duration of RP is to be computed at 30 years, thus, even if the accused is sentenced to life imprisonment, he is entitled to the full time or 4/5 of the time of preventive suspension
- Credit is given in the service of sentences “consisting of deprivation of liberty” (imprisonment and destierro). Thus, persons who had undergone preventive imprisonment but the offense is punishable by a fine only would not be given credit.
- Destierro is considered a “deprivation of liberty”
- If the penalty imposed is arresto menor to destierro, the accused who has been in prison for 30 days (arresto menor to 30 days) should be released because although the maximum penalty is destierro (6 mos 1 day to 6 yrs), the accused sentenced to such penalty does not serve it in prison.
- Habitual Delinquents not entitled to the full time or 4/5 credit of time under preventive imprisonment since he is necessarily a recidivist or has been convicted previously twice or more times of any crime.
- Example: X who was arrested for serious physical injuries, detained for 1 year and went out on bail but was later on found guilty. He was consequently summoned for the execution of the sentence, but having failed to appear, X will not be credited in the service of his sentence for serious physical injuries w/ one year or 4/5 of one year preventive imprisonment.
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election.
2.The deprivation of the right to vote in any election for any popular office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
- The exclusion is a mere disqualification for protection and not for punishment – the withholding of a privilege, not a denial of a right.
- Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence.
- Temporary absolute disqualification is effective during the term of sentence and is removed after the service of the same. Exception: (1) deprivation of the public office or employment; (2) loss of all rights to retirement pay or other pension for any office formerly held.
- Effects of Perpetual and temporary absolute disqualification:
a Deprivation of any public office or employment of offender
b Deprivation of the right to vote in any election or to be voted upon
c Loss of rights to retirement pay or pension
d All these effects last during the lifetime of the convict and even after the service of the sentence except as regards paragraphs 2 and 3 of the above in connection with Temporary Absolute Disqualification.
Criminal Law Book 1 Reviewer
Ateneo Central Bar Operations 2001
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.
- 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.
- Rights included in self-defense:
1. Defense of person
2. Defense of rights protected by law
- 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. Unlawful Aggression– is a physical act manifesting danger to life or limb; it is either actual or imminent.
- 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.
- 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.
- 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.
- 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;
- 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.
- 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.
- The rule is more liberal when the accused is a peace officer who, unlike a private person, cannot run away.
- 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.
- When no provocation at all was given to the aggressor by the person defending himself.
- 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.
- When even if the provocation were sufficient, it was not given by the person defending himself.
- When even if provocation was given by the person defending himself, the attack was not proximate or immediate to the act of provocation.
- Sufficient means proportionate to the damage caused by the act, and adequate to stir one to its commission.
- Kinds of Self-Defense
- 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.
- 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.
- 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
- unlawful aggression
- reasonable necessity of the means employed to prevent or repel the attack;
- 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:
- legitimate, natural or adopted brothers or sisters
- relatives by affinity in the same degree
- 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
- unlawful aggression
- reasonable necessity of the means employed to prevent or repel the attack;
- the person defending be not induced by revenge, resentment or other evil motive.
- A relative not included in defense of relative is included in defense of stranger.
- 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
- 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.
- 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.
- 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
- that the accused acted in the performance of a duty, or in the lawful exercise of a right or office;
- 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.
- 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.
- 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.
- 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
- there is an order;
- the order is for a legal purpose;
- the means used to carry out said order is lawful.
- 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.
- 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.
- The reason for this justifying circumstance is the subordinate’s mistake of fact in good faith.
- 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 (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.
- Offender is an imbecile
- 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.
- Basis: complete absence of intelligence, and element of voluntariness.
- 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.
- 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.
- 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.
- 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.
- 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:
- 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.
- Basis: complete absence of intelligence.
|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.
- 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.
- A person is performing a lawful act
- Exercise of due dare
- He causes injury to another by mere accident
- 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
- 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.
- That the compulsion is by means of physical force
- That the physical force must be irresistible.
- 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
- 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
- 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
- That an act is required by law to be done
- That a person fails to perform such act
- 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:
- Priest can’t be compelled to reveal what was confessed to him
- No available transportation – officer not liable for arbitrary detention
- Mother who was overcome by severe dizziness and extreme debility, leaving child to die – not liable for infanticide
- 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
|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
|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|
- 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:
|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|
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
- 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
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
- 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.
- 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.
- 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.
|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|
|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
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
- 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
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. That advantage be taken by the offender of his public position
- The offender is a public officer
- 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
- 2. That the crime be committed in contempt of or with insult to the public authorities
- The offender knows that a public authority is present
- The public authority is engaged in the exercise of his functions
- The public authority is not the victim of the crime
- 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
- Barangay captain
- Government agents
- 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
- 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
- The offender acted w/ PASSION AND OBFUSCATION
- 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)
- 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
- Crimes must be against the victim’s person or his honor
- 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)
- may be temporary as in the case of guests in a house or bedspacers
- 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
- Crime occurred in the dwelling of the victim
- No provocation on the part of the victim
- Requisites for Provocation: ALL MUST CONCUR
- given by the owner of the dwelling
- 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
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:
- qualified theft
- estafa by conversion
- 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:
- The crime occurred in the public office
- Public authorities are actually performing their public duties
- The crime occurred in a place dedicated to the worship of God regardless of religion
- 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
- it facilitated the commission of the crime
- especially sought for by the offender to insure the commission of the crime or for the purpose of impunity
- when the offender took the advantage thereof for the purpose of impunity
- commission of the crime must have began and accomplished at nighttime
- commission of the crime must begin and be accomplished in the nighttime
- when the place of the crime is illuminated by light, nighttime is not aggravating
- absorbed by Treachery
- The place facilitated the commission or omission of the crime
- Deliberately sought and not incidental to the commission or omission of the crime
- 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.
- 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
- Facilitated the commission of the crime
- Deliberately sought
- Taken advantage of for the purposes of impunity
- 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
- Committed when there is a calamity or misfortune
- 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
- that armed men or persons took part in the commission of the crime, directly or indirectly
- that the accused availed himself of their aid or relied upon them when the crime was committed
- when both the attacking party and the party attacked were equally armed
- 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.
- 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
- 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?
- offender is on trial for an offense
- he was previously convicted by final judgment of another crime
- that both the first and the second offenses are embraced in the same title of the RPC
- the offender is convicted of the new offense
- after the lapse of a period for perfecting an appeal
- when the sentence has been partially or totally satisfied or served
- defendant has expressly waived in writing his right to appeal
- the accused has applied for probation
- robbery and theft – title 10
- 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
|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
- Recidivism – generic
- Reiteracion or Habituality – generic
- Multiple recidivism or Habitual delinquency – extraordinary aggravating
- Quasi-Recidivism – special aggravating
11. That the crime be committed in consideration of a price, reward or promise.
- At least 2 principals
1. The principal by inducement
2. The principal by direct participation
- 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
- 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.
- the time when the offender determined to commit the crime
- an act manifestly indicating that the culprit has clung to his determination
- 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
|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)
- 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).
- 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.
- 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
- Means were purposely sought to weaken the defense of the victim to resist the assault
- 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.
- 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
- that at the time of the attack, the victim was not in the position to defend himself
- that the offender consciously adopted the particular means, method or form of attack employed by him
- 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
- there is always treachery in the killing of child
- 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
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
- 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
- Crime must be against chastity, less serious physical injuries, light or grave coercion, and murder
- 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
- Applicable only if such acts were done by the offender to effect entrance.
- Breaking is lawful in the following instances:
- A wall, roof, window, or door was broken
- They were broken to effect entrance
- 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;
- 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.
- mere plurality of words do not show cruelty
- no cruelty when the other wrong was done after the victim was dead
- that the injury caused be deliberately increased by causing other wrong
- that the other wrong be unnecessary for the execution of the purpose of the offender
|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:
- 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
- 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
- degree of instruction and education of the offender
|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.
|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
|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):
- crimes against property
- crimes against chastity (rape included)
- crime of treason
Art 16. Who are criminally liable. — The following are criminally liable for grave and less grave felonies:
The following are criminally liable for light felonies:
- 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. Those who take a direct part in the execution of the act;
- 2. Those who directly force or induce others to commit it;
- 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.
Principals by Direct Participation
Requisites for 2 or more to be principals by direct participation:
- participated in the criminal resolution (conspiracy)
- 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
- proven by overt act
- Not mere knowledge or approval
- It is not necessary that there be formal agreement.
- Must prove beyond reasonable doubt
- Conspiracy is implied when the accused had a common purpose and were united in execution.
- Unity of purpose and intention in the commission of the crime may be shown in the following cases:
- Spontaneous agreement at the moment of the commission of the crime
- Active Cooperation by all the offenders in the perpetration of the crime
- Contributing by positive acts to the realization of a common criminal intent
- Presence during the commission of the crime by a band and lending moral support thereto.
- 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”:
- 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.
- 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”
- Principal by induction liable only when principal by direct participation committed the act induced
- inducement be made directly with the intention of procuring the commission of the crime
- such inducement be the determining cause of the commission of the crime by the material executor
d. Forms of Inducements
- By Price, reward or promise
- By irresistible force or uncontrollable fear
- Commander has the intention of procuring the commission of the crime
- Commander has ascendancy or influence
- Words used be so direct, so efficacious, so powerful
- Command be uttered prior to the commission
- Executor had no personal reason
- Imprudent advice does not constitute sufficient inducement
- Requisites for words of command to be considered inducement:
- 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.
PROPOSES TO COMMIT A FELONY
|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
- Conspiracy is negated by the acquittal of the co-defendant.
- 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
- “Those who cooperate in the commission of the offense by another act without which it would not have been accomplished”
- Participation in the criminal resolution
- 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.
- 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.
- there be a community of design (principal originates the design, accomplice only concurs)
- 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
- 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:
- Accessory does not take direct part or cooperate in, or induce the commission of the crime
- Accessory does not cooperate in the commission of the offense by acts either prior thereto or simultaneous therewith
- Participation of the accessory in all cases always takes place after the commission of the crime
- 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
- retribution or expiation – penalty commensurate with the gravity of the offense
- correction or reformation – rules which regulate the execution of penalties consisting of deprivation of liberty
- 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
Criminal Law Book 1 Reviewer
Ateneo Central Bar Operations 2001
Criminal Law – A branch of municipal law which defines crimes, treats of their nature and provides for their punishment.
Limitations on the power of Congress to enact penal laws (ON)
1. Must be general in application.
2. Must not partake of the nature of an ex post facto law.
3. Must not partake of the nature of a bill of attainder.
4. Must not impose cruel and unusual punishment or excessive fines.
Characteristics of Criminal Law:
- General – the law is binding to all persons who reside in the Philippines
- Territorial – the law is binding to all crimes committed within the National Territory of the Philippines
Exception to Territorial Application: Instances enumerated under Article 2.
3. Prospective – the law does not have any retroactive effect.
Exception to Prospective Application: when new statute is favorable to the accused.
Effect of repeal of penal law to liability of offender
Total or absolute, or partial or relative repeal. — As to the effect of repeal of penal law to the liability of offender, qualify your answer by saying whether the repeal is absolute or total or whether the repeal is partial or relative only.
A repeal is absolute or total when the crime punished under the repealed law has been decriminalized by the repeal. Because of the repeal, the act or omission which used to be a crime is no longer a crime. An example is Republic Act No. 7363, which decriminalized subversion.
A repeal is partial or relative when the crime punished under the repealed law continues to be a crime inspite of the repeal. This means that the repeal merely modified the conditions affecting the crime under the repealed law. The modification may be prejudicial or beneficial to the offender. Hence, the following rule:
Consequences if repeal of penal law is total or absolute
(1) If a case is pending in court involving the violation of the repealed law, the same shall be dismissed, even though the accused may be a habitual delinquent.
(2) If a case is already decided and the accused is already serving sentence by final judgment, if the convict is not a habitual delinquent, then he will be entitled to a release unless there is a reservation clause in the penal law that it will not apply to those serving sentence at the time of the repeal. But if there is no reservation, those who are not habitual delinquents even if they are already serving their sentence will receive the benefit of the repealing law. They are entitled to release.
If they are not discharged from confinement, a petition for habeas corpus should be filed to test the legality of their continued confinement in jail.
If the convict, on the other hand, is a habitual delinquent, he will continue serving the sentence in spite of the fact that the law under which he was convicted has already been absolutely repealed. This is so because penal laws should be given retroactive application to favor only those who are not habitual delinquents.
Consequences if repeal of penal law is partial or relative
(1) If a case is pending in court involving the violation of the repealed law, and the repealing law is more favorable to the accused, it shall be the one applied to him. So whether he is a habitual delinquent or not, if the case is still pending in court, the repealing law will be the one to apply unless there is a saving clause in the repealing law that it shall not apply to pending causes of action.
(2) If a case is already decided and the accused is already serving sentence by final judgment, even if the repealing law is partial or relative, the crime still remains to be a crime. Those who are not habitual delinquents will benefit on the effect of that repeal, so that if the repeal is more lenient to them, it will be the repealing law that will henceforth apply to them.
Under Article 22, even if the offender is already convicted and serving sentence, a law which is beneficial shall be applied to him unless he is a habitual delinquent in accordance with Rule 5 of Article 62.
Consequences if repeal of penal law is express or implied
(1) If a penal law is impliedly repealed, the subsequent repeal of the repealing law will revive the original law. So the act or omission which was punished as a crime under the original law will be revived and the same shall again be crimes although during the implied repeal they may not be punishable.
(2) If the repeal is express, the repeal of the repealing law will not revive the first law, so the act or omission will no longer be penalized.
These effects of repeal do not apply to self-repealing laws or those which have automatic termination. An example is the Rent Control Law which is revived by Congress every two years.
Theories of Criminal Law
- Classical Theory – Man is essentially a moral creature with an absolute free will to choose between good and evil and therefore more stress is placed upon the result of the felonious act than upon the criminal himself.
- Positivist Theory – Man is subdued occasionally by a strange and morbid phenomenon which conditions him to do wrong in spite of or contrary to his volition.
Eclectic or Mixed Philosophy
This combines both positivist and classical thinking. Crimes that are economic and social and nature should be dealt with in a positivist manner; thus, the law is more compassionate. Heinous crimes should be dealt with in a classical manner; thus, capital punishmen
BASIC MAXIMS IN CRIMINAL LAW
Doctrine of Pro Reo
Whenever a penal law is to be construed or applied and the law admits of two interpretations – one lenient to the offender and one strict to the offender – that interpretation which is lenient or favorable to the offender will be adopted.
Nullum crimen, nulla poena sine lege
There is no crime when there is no law punishing the same. This is true to civil law countries, but not to common law countries.
Because of this maxim, there is no common law crime in the Philippines. No matter how wrongful, evil or bad the act is, if there is no law defining the act, the same is not considered a crime.
Actus non facit reum, nisi mens sit rea
The act cannot be criminal where the mind is not criminal. This is true to a felony characterized by dolo, but not a felony resulting from culpa. This maxim is not an absolute one because it is not applied to culpable felonies, or those that result from negligence.
Utilitarian Theory or Protective Theory
The primary purpose of the punishment under criminal law is the protection of society from actual and potential wrongdoers. The courts, therefore, in exacting retribution for the wronged society, should direct the punishment to potential or actual wrongdoers, since criminal law is directed against acts and omissions which the society does not approve. Consistent with this theory, the mala prohibita principle which punishes an offense regardless of malice or criminal intent, should not be utilized to apply the full harshness of the special law.
Sources of Criminal Law
- The Revised Penal Code
- Special Penal Laws – Acts enacted of the Philippine Legislature punishing offenses or omissions.
Construction of Penal Laws
- Criminal Statutes are liberally construed in favor of the offender. This means that no person shall be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so by statute.
- The original text in which a penal law is approved in case of a conflict with an official translation.
- Interpretation by analogy has no place in criminal law
MALA IN SE AND MALA PROHIBITA
Violations of the Revised Penal Code are referred to as malum in se, which literally means, that the act is inherently evil or bad or per se wrongful. On the other hand, violations of special laws are generally referred to as malum prohibitum.
Note, however, that not all violations of special laws are mala prohibita. While intentional felonies are always mala in se, it does not follow that prohibited acts done in violation of special laws are always mala prohibita. Even if the crime is punished under a special law, if the act punished is one which is inherently wrong, the same is malum in se, and, therefore, good faith and the lack of criminal intent is a valid defense; unless it is the product of criminal negligence or culpa.
Likewise when the special laws requires that the punished act be committed knowingly and willfully, criminal intent is required to be proved before criminal liability may arise.
When the act penalized is not inherently wrong, it is wrong only because a law punishes the same.
Distinction between crimes punished under the Revised Penal Code and crimes punished under special laws
1. As to moral trait of the offender
In crimes punished under the Revised Penal Code, the moral trait of the offender is considered. This is why liability would only arise when there is dolo or culpa in the commission of the punishable act.
In crimes punished under special laws, the moral trait of the offender is not considered; it is enough that the prohibited act was voluntarily done.
2. As to use of good faith as defense
In crimes punished under the Revised Penal Code, good faith or lack of criminal intent is a valid defense; unless the crime is the result of culpa
In crimes punished under special laws, good faith is not a defense
3. As to degree of accomplishment of the crime
In crimes punished under the Revised Penal Code, the degree of accomplishment of the crime is taken into account in punishing the offender; thus, there are attempted, frustrated, and consummated stages in the commission of the crime.
In crimes punished under special laws, the act gives rise to a crime only when it is consummated; there are no attempted or frustrated stages, unless the special law expressly penalize the mere attempt or frustration of the crime.
4. As to mitigating and aggravating circumstances
In crimes punished under the Revised Penal Code, mitigating and aggravating circumstances are taken into account in imposing the penalty since the moral trait of the offender is considered.
In crimes punished under special laws, mitigating and aggravating circumstances are not taken into account in imposing the penalty.
5. As to degree of participation
In crimes punished under the Revised Penal Code, when there is more than one offender, the degree of participation of each in the commission of the crime is taken into account in imposing the penalty; thus, offenders are classified as principal, accomplice and accessory.
In crimes punished under special laws, the degree of participation of the offenders is not considered. All who perpetrated the prohibited act are penalized to the same extent. There is no principal or accomplice or accessory to consider.
Test to determine if violation of special law is malum prohibitum or malum in se
Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as such? If you remove the law, will the act still be wrong?
If the wording of the law punishing the crime uses the word “willfully”, then malice must be proven. Where malice is a factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act. Therefore culpa is not a basis of liability, unless the special law punishes an omission.
When given a problem, take note if the crime is a violation of the Revised Penal Code or a special law.
Art. 1. This Code shall take effect on January 1, 1932.
Art. 2. Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago including its atmosphere, its interior waters and Maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the exercise of their functions; or (Some of these crimes are bribery, fraud against national treasury, malversation of public funds or property, and illegal use of public funds; e.g., A judge who accepts a bribe while in Japan.)
5. Should commit any crimes against the national security and the law of nations, defined in Title One of Book Two of this Code. (These crimes include treason, espionage, piracy, mutiny, and violation of neutrality)
- Rules as to crimes committed aboard foreign merchant vessels:
- French Rule – Such crimes are not triable in the courts of that country, unless their commission affects the peace and security of the territory or the safety of the state is endangered.
- English Rule – Such crimes are triable in that country, unless they merely affect things within the vessel or they refer to the internal management thereof. (This is applicable in the Philippines)
two situations where the foreign country may not apply its criminal law even if a crime was committed on board a vessel within its territorial waters and these are:
(1) When the crime is committed in a war vessel of a foreign country, because war vessels are part of the sovereignty of the country to whose naval force they belong;
(2) When the foreign country in whose territorial waters the crime was committed adopts the French Rule, which applies only to merchant vessels, except when the crime committed affects the national security or public order of such foreign country.
- Requirements of “an offense committed while on a Philippine Ship or Airship”
- Registered with the Philippine Bureau of Customs
- Ship must be in the high seas or the airship must be in international airspace.
Under international law rule, a vessel which is not registered in accordance with the laws of any country is considered a pirate vessel and piracy is a crime against humanity in general, such that wherever the pirates may go, they can be prosecuted.
US v. Bull
A crime which occurred on board of a foreign vessel, which began when the ship was in a foreign territory and continued when it entered into Philippine waters, is considered a continuing crime. Hence within the jurisdiction of the local courts.
As a general rule, the Revised Penal Code governs only when the crime committed pertains to the exercise of the public official’s functions, those having to do with the discharge of their duties in a foreign country. The functions contemplated are those, which are, under the law, to be performed by the public officer in the Foreign Service of the Philippine government in a foreign country.
Exception: The Revised Penal Code governs if the crime was committed within the Philippine Embassy or within the embassy grounds in a foreign country. This is because embassy grounds are considered an extension of sovereignty.
Paragraph 5 of Article 2, use the phrase “as defined in Title One of Book Two of this Code.”
This is a very important part of the exception, because Title I of Book 2 (crimes against national security) does not include rebellion.
Art 3. Acts and omissions punishable by law are felonies.
- Acts – an overt or external act
- Omission – failure to perform a duty required by law. Example of an omission: failure to render assistance to anyone who is in danger of dying or is in an uninhabited place or is wounded – abandonment.
- Felonies – acts and omissions punishable by the Revised Penal Code
- Crime – acts and omissions punishable by any law
What requisites must concur before a felony may be committed?
There must be (1) an act or omission; (2) punishable by the Revised Penal Code; and (3) the act is performed or the omission incurred by means of dolo or culpa.
- How felonies are committed:
- by means of deceit (dolo) – There is deceit when the act is performed with deliberate intent.
Examples: murder, treason, and robbery
Criminal intent is not necessary in these cases:
(1) When the crime is the product of culpa or negligence, reckless imprudence, lack of foresight or lack of skill;
(2) When the crime is a prohibited act under a special law or what is called malum prohibitum.
In criminal law, intent is categorized into two:
(1) General criminal intent; and
(2) Specific criminal intent.
General criminal intent is presumed from the mere doing of a wrong act. This does not require proof. The burden is upon the wrong doer to prove that he acted without such criminal intent.
Specific criminal intent is not presumed because it is an ingredient or element of a crime, like intent to kill in the crimes of attempted or frustrated homicide/parricide/murder. The prosecution has the burden of proving the same.
Distinction between intent and discernment
Intent is the determination to do a certain thing, an aim or purpose of the mind. It is the design to resolve or determination by which a person acts.
On the other hand, discernment is the mental capacity to tell right from wrong. It relates to the moral significance that a person ascribes to his act and relates to the intelligence as an element of dolo, distinct from intent.
Distinction between intent and motive
Intent is demonstrated by the use of a particular means to bring about a desired result – it is not a state of mind or a reason for committing a crime.
On the other hand, motive implies motion. It is the moving power which impels one to do an act. When there is motive in the commission of a crime, it always comes before the intent. But a crime may be committed without motive.
If the crime is intentional, it cannot be committed without intent. Intent is manifested by the instrument used by the offender. The specific criminal intent becomes material if the crime is to be distinguished from the attempted or frustrated stage.
- by means of fault (culpa) – There is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.
- Imprudence – deficiency of action; e.g. A was driving a truck along a road. He hit B because it was raining – reckless imprudence.
- Negligence – deficiency of perception; failure to foresee impending danger, usually involves lack of foresight
- c. Requisites:
- Imprudence, negligence, lack of skill or foresight
- Lack of intent
The concept of criminal negligence is the inexcusable lack of precaution on the part of the person performing or failing to perform an act. If the danger impending from that situation is clearly manifest, you have a case of reckless imprudence. But if the danger that would result from such imprudence is not clear, not manifest nor immediate you have only a case of simple negligence.
- Mistake of fact – is a misapprehension of fact on the part of the person who caused injury to another. He is not criminally liable.
- that the act done would have been lawful had the facts been as the accused believed them to be;
- intention of the accused is lawful;
- mistake must be without fault of carelessness.
Example: United States v. Ah Chong.
Ah Chong being afraid of bad elements, locked himself in his room by placing a chair against the door. After having gone to bed, he was awakened by somebody who was trying to open the door. He asked the identity of the person, but he did not receive a response. Fearing that this intruder was a robber, he leaped out of bed and said that he will kill the intruder should he attempt to enter. At that moment, the chair struck him. Believing that he was attacked, he seized a knife and fatally wounded the intruder.
Mistake of fact would be relevant only when the felony would have been intentional or through dolo, but not when the felony is a result of culpa. When the felony is a product of culpa, do not discuss mistake of fact.
Art. 4. Criminal liability shall be incurred:
1. By any person committing a felony, although the wrongful act done be different from that which he intended.
Article 4, paragraph 1 presupposes that the act done is the proximate cause of the resulting felony. It must be the direct, natural, and logical consequence of the felonious act.
- Causes which produce a different result:
- Mistake in identity of the victim – injuring one person who is mistaken for another (this is a complex crime under Art. 48) e.g., A intended to shoot B, but he instead shot C because he (A) mistook C for B.
In error in personae, the intended victim was not at the scene of the crime. It was the actual victim upon whom the blow was directed, but he was not really the intended victim.
How does error in personae affect criminal liability of the offender?
Error in personae is mitigating if the crime committed is different from that which was intended. If the crime committed is the same as that which was intended, error in personae does not affect the criminal liability of the offender.
In mistake of identity, if the crime committed was the same as the crime intended, but on a different victim, error in persona does not affect the criminal liability of the offender. But if the crime committed was different from the crime intended, Article 49 will apply and the penalty for the lesser crime will be applied. In a way, mistake in identity is a mitigating circumstance where Article 49 applies. Where the crime intended is more serious than the crime committed, the error in persona is not a mitigating circumstance
- Mistake in blow – hitting somebody other than the target due to lack of skill or fortuitous instances (this is a complex crime under Art. 48) e.g., B and C were walking together. A wanted to shoot B, but he instead injured C.
In aberratio ictus, a person directed the blow at an intended victim, but because of poor aim, that blow landed on somebody else. In aberratio ictus, the intended victim as well as the actual victim are both at the scene of the crime.
aberratio ictus, generally gives rise to a complex crime. This being so, the penalty for the more serious crime is imposed in the maximum period.
- Injurious result is greater than that intended – causing injury graver than intended or expected (this is a mitigating circumstance due to lack of intent to commit so grave a wrong under Art. 13) e.g., A wanted to injure B. However, B died.
praeter intentionem is mitigating, particularly covered by paragraph 3 of Article 13. In order however, that the situation may qualify as praeter intentionem, there must be a notable disparity between the means employed and the resulting felony
- In all these instances the offender can still be held criminally liable, since he is motivated by criminal intent.
- the felony was intentionally committed
- the felony is the proximate cause of the wrong done
- Doctrine of Proximate Cause – such adequate and efficient cause as, in the natural order of events, and under the particular circumstances surrounding the case, which would necessarily produce the event.
- the direct, natural, and logical cause
- produces the injury or damage
- unbroken by any sufficient intervening cause
- without which the result would not have occurred
- Proximate Cause is negated by:
- Active force, distinct act, or fact absolutely foreign from the felonious act of the accused, which serves as a sufficient intervening cause.
- Resulting injury or damage is due to the intentional act of the victim.
proximate cause does not require that the offender needs to actually touch the body of the offended party. It is enough that the offender generated in the mind of the offended party the belief that made him risk himself.
- Requisite for Presumption blow was cause of the death – Where there has been an injury inflicted sufficient to produce death followed by the demise of the person, the presumption arises that the injury was the cause of the death. Provided:
- victim was in normal health
- death ensued within a reasonable time
The one who caused the proximate cause is the one liable. The one who caused the immediate cause is also liable, but merely contributory or sometimes totally not liable.
2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
- Requisites: (IMPOSSIBLE CRIME)
- Act would have been an offense against persons or property
- Act is not an actual violation of another provision of the Code or of a special penal law
- There was criminal intent
- Accomplishment was inherently impossible; or inadequate or ineffectual means were employed.
- Offender must believe that he can consummate the intended crime, a man stabbing another who he knew was already dead cannot be liable for an impossible crime.
- The law intends to punish the criminal intent.
- There is no attempted or frustrated impossible crime.
- Felonies against persons: parricide, murder, homicide, infanticide, physical injuries, etc.
- Felonies against property: robbery, theft, usurpation, swindling, etc.
- Inherent impossibility: A thought that B was just sleeping. B was already dead. A shot B. A is liable. If A knew that B is dead and he still shot him, then A is not liable.
When we say inherent impossibility, this means that under any and all circumstances, the crime could not have materialized. If the crime could have materialized under a different set of facts, employing the same mean or the same act, it is not an impossible crime; it would be an attempted felony.
- Employment of inadequate means: A used poison to kill B. However, B survived because A used small quantities of poison – frustrated murder.
- Ineffectual means: A aimed his gun at B. When he fired the gun, no bullet came out because the gun was empty. A is liable.
Whenever you are confronted with a problem where the facts suggest that an impossible crime was committed, be careful about the question asked. If the question asked is: “Is an impossible crime committed?”, then you judge that question on the basis of the facts. If really the facts constitute an impossible crime, then you suggest than an impossible crime is committed, then you state the reason for the inherent impossibility.
If the question asked is “Is he liable for an impossible crime?”, this is a catching question. Even though the facts constitute an impossible crime, if the act done by the offender constitutes some other crimes under the Revised Penal Code, he will not be liable for an impossible crime. He will be prosecuted for the crime constituted so far by the act done by him.
this idea of an impossible crime is a one of last resort, just to teach the offender a lesson because of his criminal perversity. If he could be taught of the same lesson by charging him with some other crime constituted by his act, then that will be the proper way. If you want to play safe, you state there that although an impossible crime is constituted, yet it is a principle of criminal law that he will only be penalized for an impossible crime if he cannot be punished under some other provision of the Revised Penal Code.
Art 5. Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made subject of legislation.
In the same way the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.
When a person is charged in court, and the court finds that there is no law applicable, the court will acquit the accused and the judge will give his opinion that the said act should be punished.
- Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and illegal possession of firearms or drugs. There can be no executive clemency for these crimes.
Art. 6. Consummated felonies, as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
- Development of a crime
- Internal acts – intent and plans; usually not punishable
- External acts
- Preparatory Acts – acts tending toward the crime
- Acts of Execution – acts directly connected the crime
Stages of Commission of a Crime
- Stages of a Crime does not apply in:
- Offenses punishable by Special Penal Laws, unless the otherwise is provided for.
- Formal crimes (e.g., slander, adultery, etc.)
- Impossible Crimes
- Crimes consummated by mere attempt. Examples: attempt to flee to an enemy country, treason, corruption of minors.
- Felonies by omission
- Crimes committed by mere agreement. Examples: betting in sports (endings in basketball), corruption of public officers.
Desistance on the part of the offender negates criminal liability in the attempted stage. Desistance is true only in the attempted stage of the felony. If under the definition of the felony, the act done is already in the frustrated stage, no amount of desistance will negate criminal liability.
The spontaneous desistance of the offender negates only the attempted stage but not necessarily all criminal liability. Even though there was desistance on the part of the offender, if the desistance was made when acts done by him already resulted to a felony, that offender will still be criminally liable for the felony brought about his act
In deciding whether a felony is attempted or frustrated or consummated, there are three criteria involved:
(1) The manner of committing the crime;
(2) The elements of the crime; and
(3) The nature of the crime itself.
- A put poison in B’s food. B threw away his food. A is liable – attempted murder.
- A stole B’s car, but he returned it. A is liable – (consummated) theft.
- A aimed his gun at B. C held A’s hand and prevented him from shooting B – attempted murder.
- A inflicted a mortal wound on B. B managed to survive – frustrated murder.
- A intended to kill B by shooting him. A missed – attempted murder.
- A doused B’s house with kerosene. But before he could light the match, he was caught – attempted arson.
- A cause a blaze, but did not burn the house of B – frustrated arson.
- B’s house was set on fire by A – (consummated) arson.
- A tried to rape B. B managed to escape. There was no penetration – attempted rape.
- A got hold of B’s painting. A was caught before he could leave B’s house – frustrated robbery.
The attempted stage is said to be within the subjective phase of execution of a felony. On the subjective phase, it is that point in time when the offender begins the commission of an overt act until that point where he loses control of the commission of the crime already. If he has reached that point where he can no longer control the ensuing consequence, the crime has already passed the subjective phase and, therefore, it is no longer attempted. The moment the execution of the crime has already gone to that point where the felony should follow as a consequence, it is either already frustrated or consummated. If the felony does not follow as a consequence, it is already frustrated. If the felony follows as a consequence, it is consummated.
although the offender may not have done the act to bring about the felony as a consequence, if he could have continued committing those acts but he himself did not proceed because he believed that he had done enough to consummate the crime, Supreme Court said the subjective phase has passed
NOTES ON ARSON;
The weight of the authority is that the crime of arson cannot be committed in the frustrated stage. The reason is because we can hardly determine whether the offender has performed all the acts of execution that would result in arson, as a consequence, unless a part of the premises has started to burn. On the other hand, the moment a particle or a molecule of the premises has blackened, in law, arson is consummated. This is because consummated arson does not require that the whole of the premises be burned. It is enough that any part of the premises, no matter how small, has begun to burn.
ESTAFA VS. THEFT
In estafa, the offender receives the property; he does not take it. But in receiving the property, the recipient may be committing theft, not estafa, if what was transferred to him was only the physical or material possession of the object. It can only be estafa if what was transferred to him is not only material or physical possession but juridical possession as well.
When you are discussing estafa, do not talk about intent to gain. In the same manner that when you are discussing the crime of theft, do not talk of damage.
Nature of the crime itself
In crimes involving the taking of human life – parricide, homicide, and murder – in the definition of the frustrated stage, it is indispensable that the victim be mortally wounded. Under the definition of the frustrated stage, to consider the offender as having performed all the acts of execution, the acts already done by him must produce or be capable of producing a felony as a consequence. The general rule is that there must be a fatal injury inflicted, because it is only then that death will follow.
If the wound is not mortal, the crime is only attempted. The reason is that the wound inflicted is not capable of bringing about the desired felony of parricide, murder or homicide as a consequence; it cannot be said that the offender has performed all the acts of execution which would produce parricide, homicide or murder as a result.
An exception to the general rule is the so-called subjective phase. The Supreme Court has decided cases which applied the subjective standard that when the offender himself believed that he had performed all the acts of execution, even though no mortal wound was inflicted, the act is already in the frustrated stage.
The common notion is that when there is conspiracy involved, the participants are punished as principals. This notion is no longer absolute. In the case of People v. Nierra, the Supreme Court ruled that even though there was conspiracy, if a co-conspirator merely cooperated in the commission of the crime with insignificant or minimal acts, such that even without his cooperation, the crime could be carried out as well, such co-conspirator should be punished as an accomplice only.
Art. 7. Light felonies are punishable only when they have been consummated with the exception of those committed against persons or property.
- Examples of light felonies: slight physical injuries; theft; alteration of boundary marks; malicious mischief; and intriguing against honor.
- In commission of crimes against properties and persons, every stage of execution is punishable but only the principals and accomplices are liable for light felonies, accessories are not.
Art. 8. Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefore.
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons.
- Conspiracy is punishable in the following cases: treason, rebellion or insurrection, sedition, and monopolies and combinations in restraint of trade.
- Conspiracy to commit a crime is not to be confused with conspiracy as a means of committing a crime. In both cases there is an agreement but mere conspiracy to commit a crime is not punished EXCEPT in treason, rebellion, or sedition. Even then, if the treason is actually committed, the conspiracy will be considered as a means of committing it and the accused will all be charged for treason and not for conspiracy to commit treason.
Conspiracy and Proposal to Commit a Crime
- Mere conspiracy in combination in restraint of trade (Art. 186), and brigandage (Art. 306).
Two ways for conspiracy to exist:
(1) There is an agreement.
(2) The participants acted in concert or simultaneously which is indicative of a meeting of the minds towards a common criminal goal or criminal objective. When several offenders act in a synchronized, coordinated manner, the fact that their acts complimented each other is indicative of the meeting of the minds. There is an implied agreement.
Two kinds of conspiracy:
(1) Conspiracy as a crime; and
(2) Conspiracy as a manner of incurring criminal liability
When conspiracy itself is a crime, no overt act is necessary to bring about the criminal liability. The mere conspiracy is the crime itself. This is only true when the law expressly punishes the mere conspiracy; otherwise, the conspiracy does not bring about the commission of the crime because conspiracy is not an overt act but a mere preparatory act. Treason, rebellion, sedition, and coup d’etat are the only crimes where the conspiracy and proposal to commit to them are punishable.
When the conspiracy is only a basis of incurring criminal liability, there must be an overt act done before the co-conspirators become criminally liable. For as long as none of the conspirators has committed an overt act, there is no crime yet. But when one of them commits any overt act, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime.
As a general rule, if there has been a conspiracy to commit a crime in a particular place, anyone who did not appear shall be presumed to have desisted. The exception to this is if such person who did not appear was the mastermind.
For as long as none of the conspirators has committed an overt act, there is no crime yet. But when one of them commits any overt act, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime
As a general rule, if there has been a conspiracy to commit a crime in a particular place, anyone who did not appear shall be presumed to have desisted. The exception to this is if such person who did not appear was the mastermind.
When the conspiracy itself is a crime, this cannot be inferred or deduced because there is no overt act. All that there is the agreement. On the other hand, if the co-conspirator or any of them would execute an overt act, the crime would no longer be the conspiracy but the overt act itself.
conspiracy as a crime, must have a clear and convincing evidence of its existence. Every crime must be proved beyond reasonable doubt. it must be established by positive and conclusive evidence, not by conjectures or speculations.
When the conspiracy is just a basis of incurring criminal liability, however, the same may be deduced or inferred from the acts of several offenders in carrying out the commission of the crime. The existence of a conspiracy may be reasonably inferred from the acts of the offenders when such acts disclose or show a common pursuit of the criminal objective.
mere knowledge, acquiescence to, or approval of the act, without cooperation or at least, agreement to cooperate, is not enough to constitute a conspiracy. There must be an intentional participation in the crime with a view to further the common felonious objective.
When several persons who do not know each other simultaneously attack the victim, the act of one is the act of all, regardless of the degree of injury inflicted by any one of them. All will be liable for the consequences. A conspiracy is possible even when participants are not known to each other. Do not think that participants are always known to each other.
Conspiracy is a matter of substance which must be alleged in the information, otherwise, the court will not consider the same.
Proposal is true only up to the point where the party to whom the proposal was made has not yet accepted the proposal. Once the proposal was accepted, a conspiracy arises. Proposal is unilateral, one party makes a proposition to the other; conspiracy is bilateral, it requires two parties.
Proposal to commit sedition is not a crime. But if Union B accepts the proposal, there will be conspiracy to commit sedition which is a crime under the Revised Penal Code.
Composite crimes are crimes which, in substance, consist of more than one crime but in the eyes of the law, there is only one crime. For example, the crimes of robbery with homicide, robbery with rape, robbery with physical injuries.
In case the crime committed is a composite crime, the conspirator will be liable for all the acts committed during the commission of the crime agreed upon. This is because, in the eyes of the law, all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime.
As a general rule, when there is conspiracy, the rule is that the act of one is the act of all. This principle applies only to the crime agreed upon.
The exception is if any of the co-conspirator would commit a crime not agreed upon. This happens when the crime agreed upon and the crime committed by one of the co-conspirators are distinct crimes.
Exception to the exception: In acts constituting a single indivisible offense, even though the co-conspirator performed different acts bringing about the composite crime, all will be liable for such crime. They can only evade responsibility for any other crime outside of that agreed upon if it is proved that the particular conspirator had tried to prevent the commission of such other act.
Art. 9. Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their are afflictive, in accordance with Article 25 of this Code.
Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the above-mentioned article.
Light felonies are those infractions of law for the commission of which he penalty of arresto mayor or a fine not exceeding 200 pesos, or both is provided.
- Capital punishment – death penalty.
- Penalties (imprisonment): Grave – six years and one day to reclusion perpetua (life); Less grave – one month and one day to six years; Light – arresto menor (one day to 30 days).
CLASSIFICATION OF FELONIES
This question was asked in the bar examination: How do you classify felonies or how are felonies classified?
What the examiner had in mind was Articles 3, 6 and 9. Do not write the classification of felonies under Book 2 of the Revised Penal Code. That was not what the examiner had in mind because the question does not require the candidate to classify but also to define. Therefore, the examiner was after the classifications under Articles 3, 6 and 9.
Felonies are classified as follows:
(1) According to the manner of their commission
Under Article 3, they are classified as, intentional felonies or those committed with deliberate intent; and culpable felonies or those resulting from negligence, reckless imprudence, lack of foresight or lack of skill.
(2) According to the stages of their execution
Under Article 6., felonies are classified as attempted felony when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance; frustrated felony when the offender commences the commission of a felony as a consequence but which would produce the felony as a consequence but which nevertheless do not produce the felony by reason of causes independent of the perpetrator; and, consummated felony when all the elements necessary for its execution are present.
(3) According to their gravity
Under Article 9, felonies are classified as grave felonies or those to which attaches the capital punishment or penalties which in any of their periods are afflictive; less grave felonies or those to which the law punishes with penalties which in their maximum period was correccional; and light felonies or those infractions of law for the commission of which the penalty is arresto menor.
Why is it necessary to determine whether the crime is grave, less grave or light?
To determine whether these felonies can be complexed or not, and to determine the prescription of the crime and the prescription of the penalty. In other words, these are felonies classified according to their gravity, stages and the penalty attached to them. Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Article 25 of the Revised Penal Code. Do not omit the phrase “In accordance with Article 25” because there is also a classification of penalties under Article 26 that was not applied.
If the penalty is fine and exactly P200.00, it is only considered a light felony under Article 9.
If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is considered a correctional penalty under Article 26.
If the penalty is exactly P200.00, apply Article 26. It is considered as correctional penalty and it prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made to suffer the fine.
This classification of felony according to gravity is important with respect to the question of prescription of crimes.
In the case of light felonies, crimes prescribe in two months. If the crime is correctional, it prescribes in ten years, except arresto mayor, which prescribes in five years.
Art. 10. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.
- For Special Laws: Penalties should be imprisonment, and not reclusion perpetua, etc.
- Offenses that are attempted or frustrated are not punishable, unless otherwise stated.
- Plea of guilty is not mitigating for offenses punishable by special laws.
- No minimum, medium, and maximum periods for penalties.
- No penalty for an accessory or accomplice, unless otherwise stated.
- Provisions of RPC applicable to special laws:
- Art. 16 Participation of Accomplices
- Art. 22 Retroactivity of Penal laws if favorable to the accused
- Art. 45 Confiscation of instruments used in the crime
SUPPLETORY APPLICATION OF THE REVISED PENAL CODE
In Article 10, there is a reservation “provision of the Revised Penal Code may be applied suppletorily to special laws”. You will only apply the provisions of the Revised Penal Code as a supplement to the special law, or simply correlate the violated special law, if needed to avoid an injustice. If no justice would result, do not give suppletorily application of the Revised Penal Code to that of special law.
For example, a special law punishes a certain act as a crime. The special law is silent as to the civil liability of one who violates the same. Here is a person who violated the special law and he was prosecuted. His violation caused damage or injury to a private party. May the court pronounce that he is civilly liable to the offended party, considering that the special law is silent on this point? Yes, because Article 100 of the Revised Penal Code may be given suppletory application to prevent an injustice from being done to the offended party. Article 100 states that every person criminally liable for a felony is also civilly liable. That article shall be applied suppletory to avoid an injustice that would be caused to the private offended party, if he would not be indemnified for the damages or injuries sustained by him.
In People v. Rodriguez, it was held that the use of arms is an element of rebellion, so a rebel cannot be further prosecuted for possession of firearms. A violation of a special law can never absorb a crime punishable under the Revised Penal Code, because violations of the Revised Penal Code are more serious than a violation of a special law. But a crime in the Revised Penal Code can absorb a crime punishable by a special law if it is a necessary ingredient of the crime in the Revised Penal Code
In the crime of sedition, the use of firearms is not an ingredient of the crime. Hence, two prosecutions can be had: (1) sedition; and (2) illegal possession of firearms.
But do not think that when a crime is punished outside of the Revised Penal Code, it is already a special law. For example, the crime of cattle-rustling is not a mala prohibitum but a modification of the crime theft of large cattle. So Presidential Decree No. 533, punishing cattle-rustling, is not a special law. It can absorb the crime of murder. If in the course of cattle rustling, murder was committed, the offender cannot be prosecuted for murder. Murder would be a qualifying circumstance in the crime of qualified cattle rustling. This was the ruling in People v. Martinada.
The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic Act No. 7659, which adopted the scale of penalties in the Revised Penal Code, means that mitigating and aggravating circumstances can now be considered in imposing penalties. Presidential Decree No. 6425 does not expressly prohibit the suppletory application of the Revised Penal Code. The stages of the commission of felonies will also apply since suppletory application is now allowed.
Circumstances affecting criminal liability
There are five circumstances affecting criminal liability:
(1) Justifying circumstances;
(2) Exempting circumstances;
(3) Mitigating circumstances;
(4) Aggravating circumstances; and
(5) Alternative circumstances.
There are two others which are found elsewhere in the provisions of the Revised Penal Code:
(1) Absolutory cause; and
(2) Extenuating circumstances.
In justifying and exempting circumstances, there is no criminal liability. When an accused invokes them, he in effect admits the commission of a crime but tries to avoid the liability thereof. The burden is upon him to establish beyond reasonable doubt the required conditions to justify or exempt his acts from criminal liability. What is shifted is only the burden of evidence, not the burden of proof.
Justifying circumstances contemplate intentional acts and, hence, are incompatible with dolo. Exempting circumstances may be invoked in culpable felonies.
The effect of this is to absolve the offender from criminal liability, although not from civil liability. It has the same effect as an exempting circumstance, but you do not call it as such in order not to confuse it with the circumstances under Article 12.
Article 20 provides that 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 exception of accessories who profited themselves or assisting the offender to profit by the effects of the crime.
Then, Article 89 provides how criminal liability is extinguished:
Death of the convict as to the personal penalties, and as to pecuniary penalties, liability therefor is extinguished if death occurs before final judgment;
Service of the sentence;
Prescription of the crime;
Prescription of the penalty; and
Marriage of the offended woman as provided in Article 344.
Under Article 247, a legally married person who kills or inflicts physical injuries upon his or her spouse whom he surprised having sexual intercourse with his or her paramour or mistress in not criminally liable.
Under Article 219, discovering secrets through seizure of correspondence of the ward by their guardian is not penalized.
Under Article 332, in the case of theft, swindling and malicious mischief, there is no criminal liability but only civil liability, when the offender and the offended party are related as spouse, ascendant, descendant, brother and sister-in-law living together or where in case the widowed spouse and the property involved is that of the deceased spouse, before such property had passed on to the possession of third parties.
Under Article 344, in cases of seduction, abduction, acts of lasciviousness, and rape, the marriage of the offended party shall extinguish the criminal action.
Absolutory cause has the effect of an exempting circumstance and they are predicated on lack of voluntariness like instigation. Instigation is associated with criminal intent. Do not consider culpa in connection with instigation. If the crime is culpable, do not talk of instigation. In instigation, the crime is committed with dolo. It is confused with entrapment.
Entrapment is not an absolutory cause. Entrapment does not exempt the offender or mitigate his criminal liability. But instigation absolves the offender from criminal liability because in instigation, the offender simply acts as a tool of the law enforcers and, therefore, he is acting without criminal intent because without the instigation, he would not have done the criminal act which he did upon instigation of the law enforcers.
Difference between instigation and entrapment
In instigation, the criminal plan or design exists in the mind of the law enforcer with whom the person instigated cooperated so it is said that the person instigated is acting only as a mere instrument or tool of the law enforcer in the performance of his duties.
On the other hand, in entrapment, a criminal design is already in the mind of the person entrapped. It did not emanate from the mind of the law enforcer entrapping him. Entrapment involves only ways and means which are laid down or resorted to facilitate the apprehension of the culprit.
The element which makes instigation an absolutory cause is the lack of criminal intent as an element of voluntariness.
If the instigator is a law enforcer, the person instigated cannot be criminally liable, because it is the law enforcer who planted that criminal mind in him to commit the crime, without which he would not have been a criminal. If the instigator is not a law enforcer, both will be criminally liable, you cannot have a case of instigation. In instigation, the private citizen only cooperates with the law enforcer to a point when the private citizen upon instigation of the law enforcer incriminates himself. It would be contrary to public policy to prosecute a citizen who only cooperated with the law enforcer. The private citizen believes that he is a law enforcer and that is why when the law enforcer tells him, he believes that it is a civil duty to cooperate.
If the person instigated does not know that the person is instigating him is a law enforcer or he knows him to be not a law enforcer, this is not a case of instigation. This is a case of inducement, both will be criminally liable.
In entrapment, the person entrapped should not know that the person trying to entrap him was a law enforcer. The idea is incompatible with each other because in entrapment, the person entrapped is actually committing a crime. The officer who entrapped him only lays down ways and means to have evidence of the commission of the crime, but even without those ways and means, the person entrapped is actually engaged in a violation of the law.
Instigation absolves the person instigated from criminal liability. This is based on the rule that a person cannot be a criminal if his mind is not criminal. On the other hand, entrapment is not an absolutory cause. It is not even mitigating.
In case of somnambulism or one who acts while sleeping, the person involved is definitely acting without freedom and without sufficient intelligence, because he is asleep. He is moving like a robot, unaware of what he is doing. So the element of voluntariness which is necessary in dolo and culpa is not present. Somnambulism is an absolutory cause. If element of voluntariness is absent, there is no criminal liability, although there is civil liability, and if the circumstance is not among those enumerated in Article 12, refer to the circumstance as an absolutory cause.
Mistake of fact is an absolutory cause. The offender is acting without criminal intent. So in mistake of fact, it is necessary that had the facts been true as the accused believed them to be, this act is justified. If not, there is criminal liability, because there is no mistake of fact anymore. The offender must believe he is performing a lawful act.
The effect of this is to mitigate the criminal liability of the offender. In other words, this has the same effect as mitigating circumstances, only you do not call it mitigating because this is not found in Article 13.
An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents is concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance.
The concealment of honor by mother in the crime of infanticide is an extenuating circumstance but not in the case of parricide when the age of the victim is three days old and above.
In the crime of adultery on the part of a married woman abandoned by her husband, at the time she was abandoned by her husband, is it necessary for her to seek the company of another man. Abandonment by the husband does not justify the act of the woman. It only extenuates or reduces criminal liability. When the effect of the circumstance is to lower the penalty there is an extenuating circumstance.
A kleptomaniac is one who cannot resist the temptation of stealing things which appeal to his desire. This is not exempting. One who is a kleptomaniac and who would steal objects of his desire is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will power without, however, depriving him of the consciousness of his act. So this is an extenuating circumstance. The effect is to mitigate the criminal liability.
Distinctions between justifying circumstances and exempting circumstances
In justifying circumstances –
(1) The circumstance affects the act, not the actor;
(2) The act complained of is considered to have been done within the bounds of law; hence, it is legitimate and lawful in the eyes of the law;
(3) Since the act is considered lawful, there is no crime, and because there is no crime, there is no criminal;
(4) Since there is no crime or criminal, there is no criminal liability as well as civil liability.
In exempting circumstances –
(1) The circumstances affect the actor, not the act;
(2) The act complained of is actually wrongful, but the actor acted without voluntariness. He is a mere tool or instrument of the crime;
(3) Since the act complained of is actually wrongful, there is a crime. But because the actor acted without voluntariness, there is absence of dolo or culpa. There is no criminal;
(4) Since there is a crime committed but there is no criminal, there is civil liability for the wrong done. But there is no criminal liability. However, in paragraphs 4 and 7 of Article 12, there is neither criminal nor civil liability.
When you apply for justifying or exempting circumstances, it is confession and avoidance and burden of proof shifts to the accused and he can no longer rely on weakness of prosecution’s evidence.
The difference between murder and homicide will be discussed in Criminal Law II. These crimes are found in Articles 248 and 249, Book II of the Revised Penal Code.
 The difference between theft and robbery will be discussed in Criminal Law II. These crimes are found in Title Ten, Chapters One and Three, Book II of the Revised Penal Code.
Criminal Law Book 1 Reviewer
Ateneo Central Bar Operations 2001
ARTICLE XVIII – TRANSITORY PROVISIONS
Effectivity of the 1987 Constitution
- The 1987 Constitution took effect immediately upon its ratification.
- According to the SC, this took place on February 2, 1987, which was the day the people cast their votes ratifying the Constitution.
Military bases agreements
1) Renewals of military bases agreements must be through a strict treaty.
2) Ratification of the agreement in a plebiscite is necessary only when Congress so requires.
3) Section 25 of Article XVIII allows possible local deployment of only AMERICAN forces.
Political Law (Constitutional Law) Reviewer & Memory Aid
Ateneo Central Bar Operations 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
ARTICLE XVII- AMENDMENTS OR REVISIONS
1) Amendment: an alteration of one or a few specific provisions of the Constitution. Its main purpose is to improve specific provisions of the Constitution. The changes brought about by amendments will not affect the other provisions of the Constitution.
2) Revision: An examination of the entire Constitution to determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole.
Constituent power v. Legislative power
1) Constituent power is the power to formulate a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal. Legislative power is the power to pass, repeal or amend or ordinary laws or statutes (as opposed to organic law).
2) Constituent power is exercised by Congress (by special constitutional conferment), by a Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately by sovereign electorate, whereas legislative power is an ordinary power of Congress and of the people, also through initiative and referendum.
3) The exercise of constituent power does not need the approval of the Chief Executive, whereas the exercise of legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and referendum.
Three (3) steps necessary to give effect to amendments and revisions:
1) Proposal of amendments or revisions by the proper constituent assembly;
2) Submission of the proposed amendments or revisions; and
Proposal of amendments:
Amendments may be proposed by:
A. Congress, acting as a constituent assembly, by a 3/4 vote of all its members.
- The power of Congress to propose amendments is NOT part of its ordinary legislative power.
- The only reason Congress can exercise such power is that the Constitution has granted it such power.
B. Constitutional Convention:
1) How a Constitutional Convention may be called
a). Congress may call a ConCon by a 2/3 vote of all its members; or
b). By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not.
2) Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress. In other words, it is a political question.
3) BUT: The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for vote requirements.
4) If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress – exercising its ordinary legislative power – may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assemble.
5) Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses. Money may be spent from the treasury only to pursuant to an appropriation made by law.
C. People’s Initiative
1) Petition to propose such amendments must be signed be at least 12% of ALL registered voters.
2) Every legislative district represented by at least 3% of the registered voters therein.
It cannot be exercised oftener than once every 5 years.
1) While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review.
2) Since these constituent assemblies owe their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution.
3) Examples of justiciable issues:
a) Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly).
b) Whether the approved proposals were properly submitted to the people for ratification.
Proposal of Revisions
1) By Congress, upon a vote of 3/4 of its members
2) By a constitutional convention
1) Amendments and revisions proposed by Congress and/or by a ConCon:
a) Valid when ratified by a MAJORITY of votes cast in a plebiscite.
b) Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.
2) Amendments proposed by the people via initiative:
a) Valid when ratified by a MAJORITY of votes cast in a plebiscite.
b) Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition’s sufficiency
3) Requisites of a valid ratification:
a) Held in a plebiscite conducted under the election law;
b) Supervised by the COMELEC; and
c) Where only franchised voters (registered) voters take part.
4) Issues regarding ratification:
a) The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.
b) The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional.
c) All the proposed amendments/revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions.
d) Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide.
Political Law (Constitutional Law) Reviewer & Memory Aid
Ateneo Central Bar Operations 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
ARTICLE XVI – GENERAL PROVISIONS
Sections 1-2. Symbols of Nationality
- Red, white, and blue.
- With a sun and 3 stars
- The design may be changed by constitutional amendment.
2) Congress may, by law, adopt a new:
(a) Name for the country,
(b) National anthem, or
(c) National seal.
Note: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM.
Section 3. State Immunity
Suability of State
1) The State cannot be sued without its consent.
2) When considered a suit against the State
a). The Republic is sued by name;
b). Suits against an un-incorporated government agency;
c). Suit is against a government official, but is such that ultimate liability shall devolve on the government
i. When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages.
ii. BUT: If he acted pursuant to his official duties, without malice, negligence, or bad faith, they are not personally liable, and the suit is really one against the State.
3) This rule applies not only in favor of the Philippines but also in favor of foreign states.
4) The rule likewise prohibits a person from filing for interpleader, with the State as one of the defendants being compelled to interplead.
Consent to be sued
A. Express consent:
1). The law expressly grants the authority to sue the State or any of its agencies.
a). A law creating a government body expressly providing that such body “may sue or be sued.”
b). Art. 2180 of the Civil Code, which creates liability against the State when it acts through a special agent.
B. Implied consent:
1). The State enters into a private contract.
a). The contract must be entered into by the proper officer and within the scope of his authority.
b). UNLESS: The contract is merely incidental to the performance of a governmental function.
2). The State enters into an operation that is essentially a business operation.
a). UNLESS: The operation is incidental to the performance of a governmental function (e.g. arrastre services)
b). Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even if its charter contains no express “sue or be sued” clause.
3). Suit against an incorporated government agency.
a) This is because they generally conduct propriety business operations and have charters which grant them a separate juridical personality.
4). The State files suit against a private party.
UNLESS: The suit is entered into only to resist a claim.
Garnishment of government funds:
1) GENERAL RULE: NO. Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment.
2) EXCEPTION: A law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished.
Consent to be sued is not equivalent to consent to liability:
1) The Fact that the State consented to being sued does not mean that the State will ultimately be held liable.
2) Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds. Reason: No money shall be paid out of the public treasury unless pursuant to an appropriation made by law.
Section 4. THE ARMED FORCES OF THE PHILIPPINES
A citizen armed force
Prohibitions and disqualifications:
1) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote.
2) Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries.
The Chief of Staff:
1) Tour of duty: Not exceed to three years
2) EXCEPTION: In times of war or other national emergency as declared by Congress, the President may extend such tour of duty.
Political Law (Constitutional Law) Reviewer & Memory Aid
Ateneo Central Bar Operations 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald