Criminal Law Book 1 Articles 61 – 70
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