PAR 6 – COMPULSION IS BY MEANS OF INTIMIDATION, OR - His defense is that he acted under the influence of uncontrollable

THREAT AND NOT FORCE OR VIOLENCE (PAR 5) fear

Elements: HELD

1. That the threat (which causes the fear) is of an evil which is greater than or - The defense is clearly untenable because the circumstances under
at least equal to that which he is required to commit; which the accused participated in the torture and liquidation of the
victim (without pity and compunction and in Kempeitai fashion) shows
2. That it promises an evil of such gravity and imminence that the ordinary man that he acted voluntarily thus he cannot in any way justify his claim
would have succumbed to it. that he acted under an uncontrollable fear of being punished by his
superiors if he disobeyed.
Requisites:
- He was armed with a carbine which he could have used to protect
1. Existence of an uncontrollable fear himself from the retaliation of such superiors
- Evidence also shows that he took the victim to a secluded place that
2. That the fear be real and imminent is far from his superior, in such a predicament, he could have escaped
to avoid the ire of his superiors.
3. That the fear of injury be greater or at least equal to that committed
TIMOTEO MONTEMAYOR
Illustration:
- Accused of murder for having told his two companions to fetch
Liberato Exaltacion and Buenaventura Tanchinco were compelled under fear of death shovels and to dig a grave and for having walked behind the
to swear allegiance to the Katipunan whose purpose was to overthrow the Hukbalahap killers to the place of the execution of the victim. It
government by force of arms. appears that the two Hukbalahaps were ruthless killers and were
then in a mood to inflict extreme and summary punishment for
HELD: disobedience to the command. The place was isolated, escape was at
least risky, and protection by lawfully constituted authorities was out
Accused cannot be held C.L. for the crime of rebellion because they joined the
of reach. The accused was acquitted, for having acted under the
rebels under the impulse of an uncontrollable fear (of death) of an equal or
impulse of uncontrollable fear of an equal or greater injury.
greater injury (crime of rebellion which punished by prision mayor or 6y and 1d to
REAL, IMMINENT OR REASONABLE FEAR
12y and fine). Death, in this situation, is a much greater injury than the
imprisonment of 12y).
The case of U.S. vs. Exaltacion, 3 Phil. 339, is the example.
Nature of DURESS as a VALID DEFENSE - There is here fear of immediate death.
- A threat of future injury is not enough.
-should be based on real, imminent or reasonable fear for one’s life or limb - To appreciate duress as a valid defense, a threat of future injury is
not enough. It must be clearly shown that the compulsion must be of
-should NOT ONLY BE speculative, fanciful or remote fear (such threat is not such character as to leave no opportunity for the accused to escape.
of such a serious character and imminence as to create in the mind of the defendant - Distinction between irresistible force and uncontrollable fear.
an uncontrollable fear that an equal or greater evil or injury would be inflicted In irresistible force (par. 5), the offender uses violence or physical
upon him if he did not comply with the alleged order to kill the deceased). force to compel another person to commit a crime; in uncontrollable
fear (par. 6), the offender employs intimidation or threat in
- Duress is unavailing unless ACCUSED must NOT HAVE the opportunity for
compelling another to commit a crime.
escape (run away) or self defense
BASIS OF PARAGRAPH 6
- The exempting circumstance in paragraph 6 of Art. 12 is also based
on the complete absence of freedom.
"Actus me invito factus non est meus actus." ("An act done by me
against my will is not my act.")

CASE OF DOMINGO GOLFEO

- He was the first to strike Areza with the butt of his gun and gave
latter fist blow on stomach
- It was also he who ordered Areza to lie down, Kempeitai fashion, and
gave the blow to the back of the neck that killed the victim
- Kempeitai, also called the Gestapo of the Imperial Japan, is the
military police arm of the Imperial Japanese Army from 1881 to
1945. It was both a conventional military police and a secret police
force.

HIS DEFENSE
 is NOT LIABLE FOR INFANTICIDE, because it was physically impossible for
her to take home the child. (People vs. Bandian, 63 Phil. 530, 534-535)

- The severe dizziness and extreme debility of the woman constitute an insuperable
cause.

BASIS OF PARAGRAPH 7

- The circumstance in paragraph 7 of Art. 12 exempts the accused

from criminal liability, because he acts without intent, the third
condition of voluntariness in intentional felony.

IN ALL THE EXEMPTING CIRCUMSTANCES, INTENT IS WANTING

IN THE AGENT OF THE CRIME.

- Intent presupposes the exercise of freedom and the use of

intelligence.

- Hence, in paragraphs 1, 2 and 3 of Art. 12, the imbecile, insane, or

minor, not having intelligence, does not act with intent.
Par. 7. — Any person who fails to perform an act required by law,
when prevented by some lawful or insuperable cause. - The person acting under any of the circumstances mentioned in
paragraphs 5 and 6 of Art. 12, not having freedom of action, does
Elements: not act with intent. In paragraph 4 of Art. 12, it is specifically
1. That an act is required by law to be done; stated that the actor causes an injury by mere accident without
2. That a person fails to perform such act; intention of causing it.
3. That his failure to perform such act was due to some lawful
or insuperable cause.

WHEN PREVENTED BY SOME LAWFUL CAUSE.

Example:
- “A” confessed to a Filipino priest that he and several other persons
were in conspiracy against the Government.

- Under Art. 116, a Filipino citizen who knows of such conspiracy

must report the same to the governor or fiscal of the province where
he resides.

- The priest is exempt from criminal liability, because under the law,
the priest cannot be compelled to reveal any information which he
came to know by reason of the confession made to him in his
professional capacity.

WHEN PREVENTED BY SOME INSUPERABLE CAUSE

Examples:

1. The municipal president detained the offended party for three

days because to take him to the nearest justice of the peace required
a journey for three days by boat as there was no other means of
transportation. (U.S. vs. Vicentillo,
19 Phil. 118, 119)
- Under the law, the person arrested must be delivered to the nearest
judicial authority at most within eighteen hours (now thirty-six DISTINCTION BETWEEN JUSTIFYING AND EXEMPTING
hours, Art. 125, Rev. Penal Code, as amended); otherwise, the CIRCUMSTANCES
public officer will be liable for arbitrary detention.
(1) In a justifying circumstance, a person does not transgress the law, that is, he
- The DISTANCE which required a journey for three days was does not commit any crime in the eyes of the law, because there is nothing unlawful
considered an INSUPERABLE CAUSE. Hence, it was held that in the act and in the intention of the actor.
the accused was exempt from criminal liability.
- The act of such person is in itself both just and lawful.
WHEN PREVENTED BY SOME INSUPERABLE CAUSE, continued…
- In justifying circumstances, there is neither a crime nor a criminal.
2. - A mother who at the time of childbirth was overcome by severe dizziness and
extreme debility (weakness), and left the child in a thicket where said child died,
- No civil liability, except in par. 4 (causing damage to another in state of Art. 344, par. 4. — In cases of SEDUCTION, ABDUCTION, ACTS OF
necessity). LASCIVIOUSNESS AND RAPE, the MARRIAGE of the offender with the
offended party SHALL EXTINGUISH THE CRIMINAL ACTION or remit the
(2) In exempting circumstances, there is a crime but no criminal liability. penalty already imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after the fact of the
- The act is not justified, but the actor is not criminally liable. above-mentioned crimes.
- There is civil liability, except in pars. 4 and 7 (causing an injury by mere INSTIGATION IS AN ABSOLUTORY CAUSE
accident; failing to perform an act required by law when prevented by some lawful
or insuperable cause) of Art. 12. Example:
ABSOLUTORY CAUSES, DEFINED - An internal revenue agent, representing himself as a private individual
engaged in gambling, approached the accused and induced the latter to
Absolutory causes are those where the act committed is a crime but for reasons of look for an opium den where he said he could smoke opium.
public policy and sentiment there is no penalty imposed.

Other absolutory causes. - The agent went to the accused three times to convince the latter of
his desire to smoke opium and because of his insistence, the accused
In addition to the justifying circumstances (Art. 11) and the exempting made efforts to look for a place where both of them could smoke
circumstances (Art. 12), there are other absolutory causes in the following opium until finally he found one.
articles, to wit:
- The agent and the accused went to the place which turned out to be
Art. 6. — THE SPONTANEOUS DESISTANCE of the person who commenced the house of a Chinaman, and there the agent received an opium pipe
the commission of a felony before he could perform all the acts of execution. and paid f*2.00 for the service to both of them. After a while, the
agent left. He returned later to arrest the accused allegedly for
Art. 20. — Accessories who are exempt from criminal liability. smoking opium.

— The penalties prescribed for accessories shall not be imposed upon those who are Held: The accused was not criminally liable. He was instigated to commit the crime
such with respect to their spouses, ascendants, escendants, legitimate, natural, and of smoking opium. (U.S. vs.Phelps, 16 Phil. 440)
adopted brothers and sisters, or relatives by affinity within the same degrees,
with the single exception of accessories who “by profiting themselves or assisting Suppose that the agent in that case induced the accused to sell opium to him and
the offenders to profit by the effects of the crime." the accused sold opium, could the accused be held liable for illegal possession of
opium?
Art. 124, last paragraph. — The commission of a crime, or violent insanity or any
OTHER AILMENT REQUIRING THE COMPULSORY CONFINEMENT of Yes, because the accused was then in possession of opium and the mere possession of
the patient in a hospital, shall be considered legal grounds for the detention of any opium is a violation of the law within itself.
person.
BASIS OF EXEMPTION FROM CRIMINAL LIABILITY
Art. 247, pars. 1 and 2. — Death or physical injuries inflicted under exceptional
circumstances. — Any legally married person who, having surprised his spouse in A sound public policy requires that the courts shall condemn this practice
the act of committing sexual intercourse with another person, SHALL KILL any of (instigation) by directing the acquittal of the accused.
them or both of them in the act or immediately thereafter, or shall inflict upon
them any serious physical injury, shall suffer the penalty of destierro (either a ENTRAPMENT IS NOT AN ABSOLUTORY CAUSE
restraining order or 6 months to 6 years imprisonment).
Example: The accused wrote to his correspondent in Hongkong to send to him a
If he shall inflict upon them physical injuries of any other kind, he shall be shipment of opium. This opium had been inHongkong for sometime, awaiting a ship
exempt from punishment. that would go direct to Cebu.

Art. 280, par. 3. — The provisions of this article (on trespass to dwelling) shall The Collector of Customs of Cebu received information that the accused was
not be applicable to any person who shall enter another's dwelling for the purpose intending to land opium in the port. The Collector promised the accused that he
of preventing some serious harm to himself, the occupants of the dwelling or a would remove all the difficulties in the way, and for this purpose agreed to receive
third person, nor shall it be applicable to any person who shall enter a dwelling P2.000.00. Juan Samson, a secret serviceman, pretended to smooth the way for
for the purpose of rendering some service to humanity or justice, nor to anyone who the introduction of the prohibited drug.
shall enter cafes, taverns, inns and other public houses, while the same are open.
The accused started landing the opium. At this time, the agents of the law seized
Art. 332. — Persons exempt from criminal liability. — No criminal, but only civil, the opium and had the accused prosecuted.
liability shall result from the commission of the crime of THEFT, SWINDLING
HELD: It is true that Juan Samson smoothed the way for the introduction of the
OR MALICIOUS MISCHIEF committed or caused mutually by the following
prohibited drug, but that was after the accused had already planned its importation
persons:
and ordered for said drug.
1. Spouses, ascendants and descendants, or relatives by affinity in the same line;
This is not a case where an innocent person is induced to commit a crime merely to
2. The widowed spouse with respect to the property which belonged to the prosecute him, but it is simply a trap set to catch a criminal.
deceased spouse before the same shall have passed into the possession of another;
Suppose, the accused had not yet ordered for opium in Hongkong when he talked
and
with the Collector of Customs but that on the strength of the assurance of the
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together. Collector of Customs, he later ordered for opium in Hongkong, would it be
instigation?
ENTRAPMENT
 - Yes, it would be instigation, not entrapment, because the accused was In instigation, the law enforcer conceives the commission of the crime and suggests
instigated to import a prohibited drug, a crime punished by Art. 192. to the accused who adopts the idea and carries it into execution.

The doctrines referring to the entrapment of offenders and instigation to commit The legal effects of entrapment do not exempt the criminal from liability.
crime, as laid down by the courts of the United States, are summarized in 16
Corpus Juris, page 88, Section 57, as follows: Instigation does. (People vs. Marcos, G.R. No. 83325,

"ENTRAPMENT AND INSTIGATION. - While it has been said that the In instigation, a public officer or a private detective induces an innocent person to
practice of entrapping persons into crime for the purposeof instituting criminal commit a crime and would arrest him upon or after the commission of the crime by
prosecutions is to be deplored, and while instigation, as distinguished from mere the latter. It is an absolutory cause.
ntrapment, has often been condemned and has sometimes been held to prevent the
act from being criminal or punishable, the general rule is that it is no defense to In entrapment, a person has planned, or is about to commit, a crime and ways and
the perpetrator of a crime that facilities for its commission were purposely placed means are resorted to by a public officer to trap and catch the criminal.
in his way, or that the criminal act was done at the 'decoy solicitation' of persons
Entrapment is not a defense.
seeking to expose the criminal, or that detectives feigning complicity in the act
were present and apparently assisting its commission. Especially is this true in that If the one who made the instigation is a private individual, not performing public
class of cases where the offense is one of a kind habitually committed, and the function, both he and the one induced are criminally liable for the crime committed:
solicitation merely furnishes evidence of a course of conduct. the former, as principal by induction; and the latter, as principal by direct
participation.
- Mere deception by the detective will not shield defendant, if the offense
was committed by him free from the influence or the instigation of the There is neither instigation nor entrapment when the violation of the law is simply
detective. The fact that an agent of an owner acts as a supposed discovered. Charged with and prosecuted for a violation of Executive Order No.
confederate of a thief is no defense to the latter in a prosecution for 62, series of 1945, the accused having sold a can of Mennen Talcum Powder for
larceny, provided the original design was formed independently of such PI.00 when the ceiling price for said article was only P0.86, the defense
agent; and where a person approached by the thief as his confederate contended that the government agent induced the accused to violate the law by
notifies the owner or the public authorities, and being authorized by them purchasing from him the article and paying for it in an amount above the ceiling
to do so, assists the thief in carrying out the plan, the larceny is price.
nevertheless committed."
Held: The agent did not induce the accused to violate the law. He simply
- A detective representing to be a private individual, jobless, and in need of discovered the violation committed by the accused when he (the agent) purchased
money, befriended a well-known thief. The thief told him that there was the article from him. It was the accused who charged and collected the price.
easy money around if he would take a chance. The detective asked the There was not even an entrapment.
thief what it was and the latter told him that he was going to break into
the house of a rich man to steal some jewels and money. The detective ASSURANCE OF IMMUNITY BY A PUBLIC OFFICER DOES NOT
pretended to have agreed with him and the two went to the house, entered EXEMPT A PERSON FROM CRIMINAL LIABILITY.
it through the window, and once
Thus, the accused who delivered to the barrio lieutenant a gun and ammunition when
inside, the thief opened with a false key the wardrobe in the house and took jewels the latter announced "that anyone who is concealing firearms should surrender them
and money. Then and there the detective arrested the thief. so that he will not be penalized" is not exempt from criminal responsibility arising
from the possession of the unlicensed firearm and ammunition.
Is the thief criminally liable for the robbery committed?
In fact, not even the President could give such assurance of immunity to any
Yes, it was entrapment. The fact that an agent of the law acted as a supposed violator of the firearm law.
confederate of a thief is no defense to the latter, provided that the original design
was formed by the thief independently of such agent. His constitutional power of clemency can be exercised only after conviction.

Entrapment and instigation distinguished. COMPLETE DEFENSES IN CRIMINAL CASES.

There is a wide difference between entrapment and instigation, 1. Any of the essential elements of the crime charged is not proved by the
prosecution and the elements proved do not constitute any crime.
- for while in INSTIGATION, the instigator practically induces the
would be accused into the commission of the offense and himself 2. The act of the accused falls under any of the justifying circumstances. (Art.
becomes a co-principal, in entrapment, ways and means are resorted to 11)
for the purpose of trapping and capturing the lawbreaker in the
execution of his criminal plan. 3. The case of the accused falls under any of the exempting circumstances. (Art.
12)
- Entrapment is no bar to the prosecution and conviction of the
lawbreaker. 4. The case is covered by any of the absolutory causes:
- But when there is instigation, the accused must be acquitted.
a. Spontaneous desistance during attempted stage (Art. 6), and no
In entrapment, the entrapper resorts to ways and means to trap and capture a crime under another provision of the Code or other penal law is
lawbreaker while executing his criminal plan. committed.
In instigation, the instigator practically induces the would-be defendant into b. Light felony is only attempted or frustrated, and is not against persons or
committing the offense, and himself becomes a co-principal. property. (Art. 7)
In entrapment, the means originates from the mind of the criminal. The idea and the c. The accessory is a relative of the principal. (Art. 20)
resolve to commit the crime come from him.
d. Legal grounds for arbitrary detention. (Art. 124)
e. Legal grounds for trespass. (Art. 280)

f. The crime of theft, swindling or malicious mischief is committed against a

relative. (Art. 332)

g. When only slight or less serious physical injuries are inflicted by the person
who surprised his spouse or daughter in the act of sexual intercourse with another
person. (Art. 247)

h. Marriage of the offender with the offended party when the crime committed is
rape, abduction, seduction, or acts of lasciviousness. (Art. 344)

i. Instigation.

5. Guilt of the accused not established beyond reasonable doubt.

6. Prescription of crimes. (Art. 89)

7. Pardon by the offended party before the institution of criminal action in crime
against chastity. (Art. 344)