LECTURE NOTES ON CRIMINAL LAW 1

by atty. Jonathan a. cristobal, cpa

INTRODUCTION: Under the 1987 Constitution, specifically in Article II,

DECLARATION OF PRINIPLES AND STATE POLICY: It is the prime duty of
the GOVERNMENT TO SERVE AND PROTECT THE PEOPLE. 1 The
maintenance or peace and order, the protection of life, liberty and property, and
the promotion of the general welfare are essential for the enjoyment by all the
people of the blessing of democracy.

Due to this duty to protect the people; to maintain peace and order and to
protect life, liberty and property, any person who commits a CRIME shall be first
be charged as an ACCUSED, the criminal case is entitled: PEOPLE OF THE
PHILIPPINES VS. JUAN DELA CRUZ. It is the State thru the PEOPLE OF THE
PHILIPPINES who is the complainant because it is the STATE who is wronged
by the accused.

CRIMINAL LAW: Criminal law is that branch of municipal law which defines
crimes, treats of their nature, and provides for their punishment.

It is that branch of public substantive law which defines offenses and prescribes
their penalties. It is substantive because it defines the state’s right to inflict
punishment and the liability of the offenders. It is public law because it deals
with the relation of the individual with the state.

CRIME: Crime is an act committed or omitted in violation of a law forbidding it

or commanding it.

If the crime is punished by the Revised Penal Code, it is called a felony. If

it is punished by special law, it is called an offense. If the crime is punished by an
ordinance, it is called an infraction of an ordinance.

The State acts thru its GOVERNMENT. Our government has three (3)
branches:

GOVERNMENT

LEGISLATURE EXECUTIVE JUDICIARY

It is the legislature that passes It is the executive who It is the judiciary

the penal law. implements/enforces who tries the
the law. the accused, who
interprets the law
and imposes the

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Article ii, Sec. 4.

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 punishment.

POWER TO DEFINE AND PUNISH AN ACT AS A CRIME: In the realm of

law-making, the Legislature is supreme. Only the Legislative Department where
the legislative power is vested by the Constitution has the power to define and
punish an act or an omission as a crime.

Exceptions:
1. Under the Constitution, the Chief Executive by an executive order
may perform this prerogative in the exercise of his EMERGENCY
POWERS properly designated by law.
2. When the Philippines was under Martial Law, legislative power was
lodged in the Chief Executive. Examples are various Presidential
Decrees issued by then President Ferdinand E. Marcos.
3. During the Freedom Constitution of Pres. Cory Aquino, the transition
government vested the legislative power on the President.

SOURCES OF CRIMINAL LAWS: Since criminal laws are generally passed by

the Legislature, our criminal laws are found on:

1. The Revised Penal Code and its amendments.

2. Special Laws passed by the Philippine Commission, Philippines
Assembly, Philippine Legislature, National Assembly, Congress of the
Philippines and Batasang Pambansa.
3. Penal Presidential Decrees issued during Martial Law.

Since a law must be passed in order that an act or omission shall be categorized
as a crime, THERE ARE NO COMMON CRIMES IN THE PHILIPPINES.

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.

Common law crimes are wrongful acts which the community/society condemns
as contemptible, even though there is no law declaring the act criminal.

The so-called common law crime, known in the United States and England as the
body of principles, usages and rules of action which do not rest on their
authority upon any express and positive declaration of the will of the legislature,
are NOT RECOGNIZED in this country.

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LIMITATIONS ON THE POWER OF THE LEGISLATURE TO ENACT
PENAL LAWS: Even if the power to make and passed CRIMINAL LAWS are
lodged to our LEGISLATURE, such power has also limitations. The 1987
Constitution provides the following LIMITATIONS:

1. It cannot enact an ex-post facto law or bill of attainder.

2. A penal law must be of general application.
3. No person shall be deprived of life, liberty, or property without due
process of law.
4. It cannot provide for a cruel, degrading, or inhuman punishment nor
can it impose excessive fines.

WHAT IS AN EX-POST FACTO LAW? An ex-post facto law is one which:

(a) Makes criminal an act done before the passage of the law, and which
was innocent when done and punishes such an act. In short, the
RETRO-ACTIVE APPLICATION OF A LAW.
(b) Aggravates a crime, or makes it greater than it was, when committed.
(c) Changes the punishment and inflicts a greater punishment than the
law applicable 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 commission
of offense.
(e) Assumes to regulate civil right and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was
lawful, and
(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 of
acquittal or a proclamation of amnesty.

WHAT IS A BILL OF ATTAINDER? Congress is prohibited from passing a law

which would inflict punishment without JUDICIAL TRIAL. Bill of attainder is a
law that imposes judgment to an accused by operation of law and not by judicial
action.

CHARACTERISTICS OF CRIMINAL LAW:

GENERALITY- Generality of criminal law means that the criminal law of the
country governs all persons within the country regardless of their race, belief,
sex, or creed. However, it is subject to certain exceptions brought about by
international agreement. Ambassadors, chiefs of states and other diplomatic
officials are immune from the application of penal laws when they are in the
country where they are assigned.

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 Note that consuls are not diplomatic officers. This includes consul-
general, vice-consul or any consul in a foreign country, who are therefore, not
immune to the operation or application of the penal law of the country where
they are assigned. Consuls are subject to the penal laws of the country where
they are assigned.

General Rule: Art. 14, NCC. The penal law of the country is binding on all
persons who live or sojourn in Philippine territory, subject to the principles of
public international law and to treaty stipulations.

Art. 2, RPC. ―Except as provided in the treaties or laws of preferential

application xxx‖

a. Treaty Stipulations Examples:  Bases Agreement entered into by the

Philippines and the US on Mar. 14, 1947 and expired on Sept. 16, 1991.  Visiting
Forces Agreement (VFA)2 signed on Feb. 10, 1998.

b. Laws of Preferential Application Examples:  Members of Congress are

not liable for libel or slander for any speech in Congress or in any committee
thereof. (Sec. 11, Art. VI, 1987 Constitution)  Any ambassador or public minister
of any foreign State, authorized and received as such by the President, or any
domestic or domestic servant of any such ambassador or minister are exempt
from arrest and imprisonment and whose properties are exempt from distraint,
seizure and attachment.3 (R.A. No. 75)  Warship Rule – A warship of another
country, even though docked in the Philippines, is considered an extension of the
territory of its respective country. This also applies to embassies.

c. Principles of Public International Law Art. 14, NCC. ―xxx subject to the
principles of public international law and to treaty stipulations.‖ The following
persons are exempt from the provisions of the RPC: (1) Sovereigns and other
heads of state (2) Ambassadors, ministers, plenipotentiary, minister resident and
charges d‘ affaires. (Article 31, Vienna Convention on Diplomatic Relations)
Note: Consuls and consular officers are NOT exempt from local prosecution. (See
Article 41, Vienna Convention on Consular Relations)

Public vessels of a friendly foreign power are not subject to local

jurisdiction. Note: Generality has NO reference to territoriality.

TERRITORIALITY- Territoriality means that the penal laws of the country have
force and effect only within its territory. It cannot penalize crimes committed
outside the same. The territory of the country is not limited to the land where its
sovereignty resides but includes also its maritime and interior waters as well as
its atmosphere. But this is subject to certain exceptions brought about by
international agreements and practice

DIFFERENT TERRITORIES:

Terrestrial jurisdiction is the jurisdiction exercised over land.

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Fluvial jurisdiction is the jurisdiction exercised over maritime and interior
waters. Before, the maritime zone extends to three (3) miles from the outermost
coastline, but in view of the ARCCHIPELAGIC DOCTRINE adopted in the new
Philippine Constitution and the Conference of the Law of the Sea, this distance is
now twelve 12 nautical miles from the baseline. Beyond the maritime zone is the
high seas, which are outside the territorial waters of the Philippines.

Nature of Rights over Maritime Zones

1. Territorial Sea – sovereignty

2. Contiguous Zone- limited to the control necessary to prevent
infringement of the coastal State customs, fiscal, immigration or sanitary
laws and regulations in its territory or territorial sea and to punish such
infringement
3. EEZ – sovereign rights to exploit, conserve and manage the natural
resources of the zone, and with regard to the establishment of artificial
islands, installation of the marine environment
4. Continental Shelf- sovereign rights to explore and exploit its natural
resources.

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Aerial jurisdiction is the jurisdiction exercised over the atmosphere.

Three international law theories on aerial jurisdiction

(1) Free Zone Theory-The atmosphere over the country is free and not subject
to the jurisdiction of the subjacent state, except for the protection of its
national security and public order.

Under this theory, if a crime is committed on board a foreign aircraft at

the atmosphere of a country, the law of that country does not govern
unless the crime affects the national security.

(2) Relative Theory – The subjacent state exercises jurisdiction over its
atmosphere only to the extent that it can effectively exercise control
thereof.

Under this theory, if a crime was committed on an aircraft which is

already beyond the control of the subjacent state, the criminal law of that
state will not govern anymore. But if the crime is committed in an aircraft
within the atmosphere over a subjacent state which exercises control, then
its criminal law will govern.

(3) Absolute Theory – The subjacent state has complete jurisdiction over the
atmosphere above it subject only to innocent passage by aircraft of foreign
country.

Under this theory, if the crime is committed in an aircraft, no matter how

high, as long as it can establish that it is within the Philippine atmosphere,
Philippine criminal law will govern. This is the theory adopted by the
Philippines.

PROSPECTIVITY- Acts or omissions will only be subject to a penal law if they

are committed after a penal law had already taken effect. Vice-versa, this act or
omission which has been committed before the effectivity of a penal law could
not be penalized by such penal law because penal laws operate only
prospectively.

In some textbooks, an exemption is said to exist when the penal law is favorable
to the offender, in which case it would have retroactive application; provided
that the offender is not a habitual delinquent and there is no provision in the law
against its retroactive application.

The exception where a penal law may be given retroactive application is true
only with a repealing law. If it is an original penal law, that exception can never
operate. What is contemplated by the exception is that there is an original law
and there is a repealing law repealing the original law. It is the repealing law
that may be given retroactive application to those who violated the original law,
if the repealing penal law is more favorable to the offender who violated the

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original law. If there is only one penal law, it can never be given retroactive
effect.

EFFECT OF REPEAL OF PENAL LAW TO THE LIABILITY OF THE

OFFENDER

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 in spite 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:

(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.

RULES OF CONSTRUCTION OF PENAL LAWS: A penal law is liberally

construed in favor of the offender. This means that no person shall be brought if
it is not clearly made by the Statute.

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.

This is in consonance with the fundamental rule that all doubts shall be
construed in favor of the accused and consistent with presumption of innocence
of the accused. This is peculiar only to criminal law.

THEORIES OF CRIMINAL LAW:

1. Classical Theory

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 (a) Man is essentially a moral creature with an absolutely free will to
choose between good and evil and therefore more stressed is placed
upon the result of the felonious act than upon the criminal himself.
(b) Basic criminal liability is human free will and the purpose of the
penalty is retribution. It endeavors to establish a mechanical and direct
proportion between crime and penalty.
(c) Crime is a juridical entity and penalty is evil and a means of juridical
tutelage.

2. Positivist Theory
(a) Man is subdued occasionally by a strange and morbid phenomenon
which conditions him to do wrong in spite of or contrary to his
volitions.
(b) Crime is essentially a social and moral phenomenon, and it cannot be
treated and checked by the imposition of punishment fixed and
determined but thru enforcement of individual measures in such
particular case after a prior investigation conducted by a competent
body of psychiatrist and social scientists.
(c) Basis of criminal responsibility of the criminal is his dreadfulness or
dangerous state

3. Utilitarian Theory- Under this theory, the primary purpose is the

protection of society from actual or potential wrongdoers.

4. 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 punishment.

Since the Revised Penal Code was adopted from the Spanish Codigo
Penal, which in turn was copied from the French Code of 1810, which is
classical in character, it is said that our Code is also classical. This is no
longer true because with the American occupation of the Philippines,
many provisions of common law have been engrafted into our penal laws.
The Revised Penal Code today follows the mixed or eclectic philosophy.
For example, intoxication of the offender is considered to mitigate his
criminal liability, unless it is intentional or habitual; the age of the
offender is considered; and the woman who killed her child to conceal her
dishonor has in her favor a mitigating circumstance

THREE (3) PARTS OF THE REVISED PENAL CODE:

1. Principles AFFECTING CRIMINAL LIABILITY- Articles 1-20.

2. Penalties including liability-Article 21-113.

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 3. Specific Felonies and their penalties- Article 114-36.

DISCUSSION PROPER ON THE RPC:

Article 1- The Revised Penal Code took effect on January 1, 1932.

Article 2- This article lays down the rule on intra-territorial and extra-territorial
application and enforcement of the Revised Penal Code.

The RPC shall be enforced NOT ONLY within the Philippine Archipelago,
including its atmosphere, its interior waters, and maritime zones, but also
OUTSIIDE of its jurisdiction, against those who:

1. Should commit an offense while on a Philippine ship or airship.

2. Should forge and counterfeit any coin or currency note of the Philippine
Islands of obligations and securities issued by the Government of the
Philippine Islands.

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 3. Should be liable for the acts connected with eh 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
5. Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of the RPC.

The Revised Penal Code had territorial and extra-territorial application. The
Philippine territory includes its atmosphere, interior waters, and maritime zone.
Before, the maritime zone extends to three (3) miles from the outermost coastline.
In view of the archipelagic doctrine adopted in the new Constitution and the
Conference of the Law on the Sea, this distance is now twelve (12) nautical miles
from the baselines. Beyond the maritime zone is the “high seas”, which are
outside the territorial waters of the Philippines.

(A) Should commit an offense while on a Philippine ship or airship- The

Philippine ship or airship must be duly registered under Philippine laws.
Such vessel when beyond the maritime zone is considered an extension of
Philippine National Territory. But if said Philippine vessel or aircraft is
within the territory of a foreign country when the crime was committed,
the laws of the foreign country will apply as a rule.

But if the accused in a registered Philippine vessel committed homicide on

board said vessel while in the territorial waters of a foreign country, say
Malaysia, was not prosecuted before the Malaysian court, he could be
tried under Philippine law, this is the English Rule, which is followed in
Philippine jurisdiction, it does not forbid the court of the home country to
try the case.

If the vessel is not registered and a crime is committed therein in the high
seas, Philippine laws wills not apply as the said rule refer to a licensed
vessel only.

JURISDICTION OVER CRIMES COMMITTED ON BOARD FOREIGN VESSELS

WHILE IN PHILIPPINE WATERS:

a. If the foreign vessel is a war ship, our courts have no jurisdiction as

such is an extension of the country to which it belongs and is not
subject to the laws of another state.
b. If the foreign vessel is a merchant vessel, there are two rules of
jurisdiction:

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 THE FRENCH RULE- those crimes committed on board a foreign
merchant vessel while on the waters of another country are not triable
in that country unless those affect the PEACE AND SECURITY OF
THAT COUNTRY, or the SAFETY OF THE STATE IS ENDANGERED.

THE ENGLISH RULE-that such crimes are triable in that country

unless such crimes merely affect the INTERNAL MANAGEMENT OF
THE VESSEL. The English rule is followed in our jurisdiction.

The legal application of the rule is that the crime committed on board a
foreign merchant vessel IN TRANSIT in Philippine waters must affect
a breach of public order to be triable by our courts. Hence, the rule
does not apply to a case involving mere possession of opium on board
a foreign vessel in transit in Philippine waters as such does not involve
a breach of public order unless the opium is landed on Philippine soil.
(US vs. Look Chaw 18 Phil. 573). But the rule applies to a case
regarding smoking opium on board said vessel as such already
involves a breach of public order because it causes such drug to
produce its pernicious effects to our country.

But if the foreign vessel is not in transit and a Philippine port is its
destination, any crime committed on board said vessel, like possession
of opium is triable by our courts except if the crime involves the
internal management of the vessel.

(B) (C) Should forge and counterfeit any coin or currency note of the
Philippine Islands of obligations and securities issued by the Government
of the Philippine Islands and should be liable for the acts connected with
eh introduction into these islands of the obligations and securities
mentioned in the preceding number- The reason for this rule is to
maintain and preserve the financial credit and stability of the state.

The forgery is committed abroad, and this refers only to Philippine coin,
currency note, obligations, and securities or should introduce into the
country the above-mentioned obligations and securities. The reason for
this provision is that the introduction of forged or counterfeited
obligations and securities into the Philippines is as dangerous as the
forging or counterfeiting of the same, to the economic interest of the
country.

(D) While being public officers or employees, should commit an offense in the
exercise of their functions- The Revised Penal Code governs only when the crime

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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.

The crimes which may be committed are: i. Direct bribery (A.210) ii. Qualified
Bribery (A. 211-A) iii. Indirect bribery (A.211) iv. Corruption (A.212) v. Frauds
against the public treasury (A.213) vi. Possession of prohibited interest (A.216)
vii. Malversation of public funds or property (A. 217) viii. Failure to render
accounts (A.218) ix. Illegal use of public funds or property (A.220) x. Failure to
make delivery of public funds or property (A.221) xi. Falsification by a public
officer or employee committed with abuse of his official position (A.171) xii.
Those having to do with the discharge of their duties in a foreign country.

The functions contemplated are those, which are, under the law: i. to be
performed by the public officer; ii. in the foreign service of the Phil. government;
iii. in a foreign country.

(E) Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of the RPC- The reason for the
exception regarding crimes against national security and the law of nations is to
safeguard the existence of the State. Piracy is triable anywhere. Piracy and
mutiny are crimes against the law of nations, while treason and espionage are
crimes against the national security of the State.

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. So, if acts of
rebellion were perpetrated by Filipinos who were in a foreign country, you
cannot give territorial application to the Revised Penal Code, because Title I of
Book 2 does not include rebellion.

Article 3 defines a FELONY as any act or omission punished by the Revised

Penal Code. The elements of a felony are: (1) There must be an act or omission;
(2) It is punished by the Revised Penal Code; and (3) The act or omission is
committed by either by DOLO OR by CULPA.

There is DECEIT OR DOLO when the act is performed with DELIBERATE

INTENT. On the other hand, there is FAULT OR CULPA when the wrongful act
RESULTS from imprudence, negligence, lack of foresight , or lack of skill.

Although the law does not include “voluntary” in the definition of a felony, it is
an element because the above provision is defining dolo or deceit requires that
the act is performed with “deliberate intent”, which means that the act is
voluntary or freely committed. Also, in reckless imprudence cases, Article 365

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defines reckless imprudence as “voluntary but without malice”, doing or failing
to do an act.

DOLO VS. CULPA: The distinction between DOLO AND CULPA is that while
BOTH ARE VOLUNTARY, DOLO IS INTENTIONAL, whereas CULPA is not.
Thus, when there is intent, there can be no negligence. The negligent act must be
VOLUNTARY.

DOLO is deliberate intent while CULPA results from negligence, imprudence,

lack of foresight or lack of skill. Imprudence is deficiency of action while
negligence is deficiency of perception. DOLO is equivalent to MALICE, which is
intent to do injury to another.

Thus, when you encounter the wording “willfully”, it means with evil intent or
with MALICE. The elements of DOLO are FREEDOM, INTELLIGENCE, AND
INTENT while the elements of CULPA are FREEDOM, INTELLIGENCE AND
IMPRUDENCE OR NEGLIGENCE.

a. When a person acts without FREEDOM, he is not a human being but a

tool. Hence, freedom is negated by irresistible force and uncontrollable
fear. (Art. 12, par. 5 and 6).
b. INTELLIGENCE is the capacity of a person to determine what is right
from what is wrong and to realize its consequences. Intelligence is
therefore negated by MINORITY, INSANITY, AND IMBECILITY. In
these cases, the law exempts him from criminal responsibility.
c. INTENT IS PRESUMED from the commission of an UNLAWFUL
ACT. It is negated by MISTAKE OF FACT.
d. PRESUMPTION OF CRIMINAL INTENT. Intent is a mental state, the
existence of which is shown by the overt acts of a person. For example,
when the intent to kill is not manifest, the only way by which the crime
can be determined is the INTENSITY OF THE INJURY INFLICTED.

KINDS OF INTENT: There are two (2) kinds of intent. GENERAL AND
SPECIFIC. General intent is presumed but specific intent must be proved as IT IS
AN ESSENTIAL ELEMENT OF A FELONY. For example, intent to kill in
FRUSTRATED HOMICIDE, intent to GAIN in robbery, etc.

If there is NO INTENT, there is no felony committed by dolo, but a felony

may still exist, if CULPA is present.

INTENT DISTINGUIHSED FROM MOTIVE- Motive is the reason which impels

one to commit an act for a definite result while INTENT is the purpose to use a
PARTICULAR MEANS TO AFFECT SUCH A RESULT. Intent is an element of a
crime, whereas motive is not.

Motive may become necessary to be proved in case there is DOUBT

whether the accused had committed the crime or not.

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 Motive may become also necessary when the evidence on the commission
of the crime is purely circumstantial or inconclusive.

MAY A CRIME BE COMMITTED WITHOUT CRIMINAL INTENT? Yes, in

felonies committed by FAULT OF CUPLA (intent is replaced by imprudence or
negligence; and in OFFENSES punishable as MALA PROHIBITA OR MALUM
PROHIBITUM.

MISTAKE OF FACT- It is an act or omission which is the result of

misapprehension of facts that is VOLUNTARY BUT NOT INTENTIONAL. The
person performed an act which would be lawful had it been true as he believed it
to be. To be exempting, the mistake of facts must be committed in good faith or
under an honest belief.

For case reading: US VS. AH CHONG 15 Phil. 488

Magsumbol vs. People of the Philippines
G.R. No. 207175, November 26, 2014

ERROR IN PERSONAE (MISTAKE OF IDENTITY)- Mistake of facts does not

apply to mistake of identity. Because in the latter, there is INTENT. For example,
Juan shot Pedro, believing him to be PETER, his enemy, the act of shooting Pedro
would be intentional, as the mistake of the identity is a mere consequence of the
intentional act of shooting the unintended victim. Error in personae, or mistake
in identity occurs when the felonious act was directed at the person intended, but
who turned out to be somebody else.

ABERRATIO ICTUS- Aberratio ictus or mistake in the blow occurs when a

felonious act missed the person against whom it was directed and hit instead
somebody who was not the intended victim. The fact that the victims were
different from the one the accused intended to injure cannot save the accused
from conviction. It carries the same gravity as when the accused zeroes in on his
intended victim.

PRAETER INTENTIONEM-- injurious result is greater than that intended (Art.

13 – mitigating circumstance). For example, if A‘s act constitutes sufficient means
to carry out the graver felony, he cannot claim praeter intentionem. “Praeter
intentionem” is defined as having an injurious result that is greater than that
intended. The Revised Penal Code describes it as no intention to commit so grave
a wrong.

MALA IN SE AND MALA PROHIBITA:

(A) An act mala in se is a wrong from its very nature such as those
punished in the Revised Penal Code. Hence, in its commission, intent
is an element and good faith is a defense. The test to determine

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 whether an offense is MALA IN SE is NOT THE LAW PUNISHING IT
BUT THE VERY NATURE OF THE ACT ITSELF.

Although, special laws punish acts that are MALA PROHIBITA, if the
act punished is WRONGFUL BY ITS VERY NATURE OR
INHERENTLY IMMORAL, for example violation of ELECTION
LAWS in excluding the voters in the registry list, SUCH ACT IS A
WRONG PER SE and not a wrong merely because it is prohibited. It is,
therefore, MALA IN SE.

Case for reading: People vs. Garcia, G.R. No. 157171, 2006

(B) An act MALA PROHIBITA is a wrong because it is prohibited by law.

Without the law punishing the act, it cannot be considered a wrong.
Hence the mere commission of the act is what constitutes the offense
punished and criminal intent will be immaterial for reason of public
policy. Thus, for example, mere carrying of a firearm within a polling
place is punishable by the Revised Election Code irrespective of
whether or not the offender had the intention to violate the law. But it
is essential that there must be an intent to perpetrate the act, which
means it must be committed consciously, freely, and voluntarily.
GOOD FAITH AND ABSENCE OF CRIMINAL INTENT ARE NOT
VAID DEFENSES. It is the COMMISSION OF THE ACT not its
character or effect that determines whether the law has been violated.
Examples: The ANTI-GRAFT LAWS, ILLEGAL POSSESSION OF
FIREARMS, BP. 22.

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

15
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 considered 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 penalizes 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 considered 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 considered 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 considered 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.

6. As to nature

MALA IN SE is wrong from its very nature.

MALA PROHIBITA, wrong because it is prohibited by law.

7. As to whether or not criminal intent is an element

MALA IN SE, criminal intent is an element.

MALA PROHIBIYA, criminal intent is immaterial but still require

intelligence and voluntariness.

8. As to what laws are violated

MALA IN SE, generally the Revised Penal Code.

16
 MALA PROHIBITA, generally SPECIAL LAWS.

Art. 4. Criminal liability is incurred by:

A. By any person committing a felony although the wrongful act done be

different from that which is intended.
B. 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.

One is liable for all the direct and natural consequences of his unlawful
act, even if the ultimate result had not been intended. This is expresses in
the famous language “he who is the cause of the cause is the cause of the
evil caused.

Thus, even if the victim is suffering from an internal ailment, liver or heart
disease or tuberculosis, if the blow delivered by the accused is (a) the
efficient cause of his death; (b) accelerated his death; or (c) proximate
cause of death, then there is criminal liability.

TWO (2) ELEMENTS MUST CONCUR: (a) a felony must be committed;

(b) the wrong done must be the direct, natural, and logical consequence of
the felony committed even though different from that intended.

The act committed must be a felony. The rule, however, does not apply to
felonies committed by culpa, because Art. 3 requires criminal intent. But if
the act committed is NOT A FELONY BUT LAWFUL ACT, there is no
criminal liability.

E.g., A fired in self-defense fired a shot at his aggressor but missed and
instead an innocent bystander was hit, who was killed, there is no
criminal liability because the act committed is lawful.

A while robbing the victim stuffed her mouth with paper in order
not to scream but the victim died of asphyxiation, A is criminally liable.
Robbery is a felony while A did not intend to kill her, death was the
natural, direct, and logical consequence of the felonious act.

Other examples of the second element:

(a) The victim jumped into the river and got drowned because he
was chased and threatened by the accused with a knife.
(b) The victim died because he removed the bandage from a would
inflicted by the accused because it produces extreme pain.

17
 (c) The wound inflicted as mortal even though there was an
erroneous, unskillful medical and surgical treatment.
(d) The accused shoots another but missed. The stray bullet hit
another. The crime committed is HOMICIDE not reckless
imprudence resulting to homicide.

It is for this reason that murder or homicide may be committed EVEN

THOUGH there is no intent to kill as the law punishes the direct result of
the felonious act. With respect to crimes of personal violence, the penal
law looks particularly to the MATERIAL RESULT following the unlawful
act and holds the aggressor responsible for the consequence thereof.

EXAMPLES NOT COVERED BY THE SECOND ELEMENT:

(a) If there is an INTERVENING CAUSE, in case the victim who

received slight physical injuries in his arm which became
serious because he deliberately immersed his wounded arm in a
pool of stagnant water.
(b) If the blow is not the direct cause of the death as in case of a boy
who was hit in the mouth and but died two (2) days later of
fever prevalent in the locality.
(c) The accused wounded the victim at the back of his hand and
two (2) weeks later the victim died of tetanus infection when he
returned to work in his farm bare hands exposing the wound to
tetanus germs, the remote cause is the wound inflicted but the
proximate cause is tetanus infection and the accused had
nothing to do and thus, he was not criminally liable.

In all cases wherein the injury IS NOT the direct and logical consequence
of the felony committed, the offender is NOT LIABLE FOR THE SAID
INJURY BUT ONLY FOR THE FELONY COMMITTED. There is still
criminal liability because in the first element, a felony is still committed.

IMPOSSIBLE CRIMES-The elements are: (a) acts are performed which

would be a crime against persons or property; (b) there is criminal intent;
(c) it is not accomplished because of inherent impossibility, or the means
employed is inadequate or ineffectual.

The reason for punishing an impossible crime is that subjectively the

offender is a criminal although objectively no crime is committed. If the
acts performed constitute another distinct felony, an impossible crime is
not committed because objectively a crime is committed.

If the crime is not produced although there is adequate or effectual means

employed, it cannot be an impossible crime but a FRUSTRATED
FELONY.

18
E.g., A administered sufficient quantity of poison to kill another but did
not die, he is also for frustrated homicide or murder not impossible crime.

Case for reading: INTOD VS. COURT OF APPEALS, G.R. No. 103119,
October 21, 1992.

People vs. Jacinto, G.R. No. 162540, July 13, 2009

FACTUAL IMPOSSIBILITY- occurs when extraneous circumstances

unknown to the actor or beyond his control prevents the commission of
the intended crime.

E.g., A puts his hand on the coat pocket of another with the intention to
steal the wallet but finds the pocket empty.

LEGAL IMPOSSIBILITY- occurs where the intended acts, even if

completed, would not amount to a crime.

E.g., Killing a person who already died on his sleep.

DUTY OF THE COURT IN CONNECTION WITH ACTS WHICH

SHOULD BE REPRESSED BUT ARE NOT COVERED BY LAW AND
WHEN THE LAW IMPOSES EXCESSIVE PENALTIES:

(a) The act charged is not punish by law which the Court deems proper to
repress- The Court shall render the proper decision to DISMISS the
case and it should state in its recommendation to Chief Executive, thru
the Secretary of Justice its reason why the act should be made the
subject of a penal legislation.
(b) In case of excessive penalties-The Court should impose the penalty
provided by law when the accused is guilty, but it should also submit
to the Chief Executive, through the Secretary of Justice, recommending
the executive clemency or such recommendation it may deem proper.

Case for reading: People vs. Mendoza, G.R. No. 183891, October 19,
2011

19
STAGES OF EXECUTION OF A FELONY

Article 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 and
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 over 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 his spontaneous desistance.

Consummated- all the elements necessary for its execution and

accomplishment are present.

Frustrated- the offender had performed all the acts of execution to

produce the felony as a consequence, but the crime does not result due to some
causes independent of the will of the offender.

Attempted- the offender begins the commission of the felony by direct

overt acts but does not perform all the acts of execution which should produce
the felony as a consequence by reason of some causes or accident other than his
own spontaneous desistance.

20
 FORMAL CRIMES- are those which are always consummated by a single
act like SLANDER. MATERIAL CRIMES- are those which have three (3) stages
namely: attempted, frustrated, and consummated.

DEVELOPMENT OF A CRIME:

A crime consists of internal and external acts. Internal acts are not
punished. External acts refer to preparatory acts and acts of execution.
Preparatory acts, as a rule, are not punished unless these acts are punished in
themselves as independent crimes. For example, proposal and conspiracy to
commit a crime are not punished except those in cases provided for by law,
under Article 8. Unlawful possession of a picklock is punished as a felony under
Art. 304, although it may be a preparatory act to the commission of robbery.

But Article 6 is not really a hard and fast rule, the nature and elements of
the particular felony concerned as well as the manner of its execution are to be
considered. Thus, acts which may constitute a consummation in one felony may
not be so in another.

For example, in illegal possession of explosives, there can no frustrated or

attempted stage because the RPC is not applicable as the said law is a special law
and said law does not provide for any frustrated or attempted possession of
explosives.

But if the crime is not produced despite the performance by the offender
of ALL the acts of execution necessary to produce it DUE TO THE WILL OF THE
OFFENDER, a frustrated felony does not result.

E.g., A poisoned B and then because of conscience he administered the

cure/antidote to prevent the death of the victim, frustrated murder is not
committed but serious physical injuries if A became ill.

If all the acts of execution are not performed due to an accident or to any
cause, the crime is attempted. But if the offender desisted, no attempted felony is
committed, although the acts so far MAY CONSTITUTE ANOTHER FELONY.

E.g., A prepared a picklock to rob a house and on his way he desisted,

attempted robbery is not committed. But if arrested, he is liable for possession of
a picklock.

E.g., A made an opening on the wall, he got caught before entering. He

cannot be liable for robbery by force upon things but he is liable for attempted
trespass to dwelling.

EXAMPLES OF CONSUMMATED, FRUSTRATED AND ATTEMPTED:

A. MURDER OR HOMICIDE: In crimes against persons like

homicide/murder, which requires the victim’s death to consummate
the felony, it is necessary for the frustration of the same that a mortal

21
 wound be inflicted, because then the wound could produce the felony
as a consequence.

When the wound inflicted is MORTAL but death does result due to
medical intervention, the crime is frustrated. If the wound is not
sufficient to cause death, but intent to kill is evident, the crime is
attempted.

If the victim was not killed by the accused who was aiming his knife at
him with intent to kill because of the timely intervention of a person
who snatched the knife from his hands or the victim was not hit by the
accused who fired shots at him but missed, attempted homicide is
committed.

B. ARSON- Even if only a portion of the building is burned, arson is

consummated. The total burning of the building is not necessary to
consummate arson.

Although the acts necessary to burn the building have already been
performed as setting on fir some rags soaked in gasoline to burn the
building but no portion of the building was burned, the arson is
frustrated.

When a defendant threw a flaming torch at the roof of the house, but
which it did not burn because the torch rolled and felled, the crime is
attempted.

The offender poured gasoline under the house but when he was about
to strike the match he was apprehended, attempted arson is
committed.

C. RAPE- Even if there is only a slight penetration, the rape is

consummated. Penetration of the labia of the pudendum or entry of
the labia or lips of the female organ, is consummated rape even of
there is no rupture of the hymen

If there is intent to lie with the victim as when the accused threw her
on the ground and then placed himself on top of her after raising her
dress but he did not succeed in his intent because of the resistance of
the victim, he rape is attempted.

Is there a crime of frustrated rape? See People vs. Orita, G.R. No.
88724, April 3, 1990, that there is no such thing as frustrated rape.

D. THEFT- When the unlawful taking is complete and the article has
come under the FINAL CONTROL AND DISPOSAL of the offender,
the theft is consummated. The fact determinative of consummation is

22
 the ability to dispose fully the article stolen, even if it more or less
momentary.

Is there a crime of frustrated theft? See Peopl vs. Villanueva, G.R. No.
160188, June 21, 1007

If the offender commenced by overt acts directly connected with the

felony intended to be committed but did not perform all the acts of
execution due to an external cause, as when the lock of a jeep was
already broken by was caught before he succeeded in driving away the
jeep, the theft is attempted.

E. ESTAFA- Unlike the crime of theft, damage is an essential element in

estafa. Thus, when the defendant, a salesman, pocketed part of the
sales amount instead of giving it to the cashier, but who was
discovered it in time, the estafa committed is frustrated.

If the offender has performed all the acts of deceit as by trying to

collect a fee from the offended party but the fraudulent scheme was
not realized because of the inability of the offended party to pay the
said fee, the estafa is attempted.

Art. 7. LIGHT FELONIES are punishable only when they have been
consummated, with the exception of those committed against persons or
property.

Only principals and accomplices are liable in light offenses. The

accessories are not. (Art. 16).

EXAMPLES OF LIGHT FELONIES:

1. Against persons-slight physical injuries. Art. 266

2. Against property- theft of property having a value of not exceeding P
5.00 and the offender is actuated by hunger or poverty.

Although the accessory is not liable if he purchases the proceeds of the

crime knowing it to be stolen, he will be liable for the offense of
fencing.

Art. 8. CONSPIRACY AND PROPOSAL TO COMMIT A CRIME. Conspiracy

and proposal to commit felony are punishable only in the cases in which the law
specially provides a penalty therefor.

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 a proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.

23
GENERAL RULE: Conspiracy and proposal to commit a felony is NOT
PUNISHABLE except when it is specifically provided by law.

Examples of conspiracy punished by the RPC: Conspiracy to commit treason

(Art. 115); Conspiracy to commit rebellion, insurrection, and coup d’etat (Art.
136); and Conspiracy to commit sedition (Art. 141). There is also conspiracy to
commit arson (PD 1613) and conspiracy to maliciously damage any building or
personal or real property by explosives or incendiary device.

In some felonies like combinations in restraint of trade (Art. 186) and in

brigandage (Art. 306), the mere conspiracy constitutes the commission thereof.

Under special laws, conspiracy to violate CA 616 (AN ACT TO PUNISH

ESPIONAGE AND OTHER OFFENSES AGAINST NATIONAL SECURITY;
conspiracy to commit offense under the Dangerous Drugs Act.

CONSPIRACY TO COMMIT A CRIME DISTINGUISHED FROM CONSPIRACY

AS A MEANS TO COMMIT A CRIME- Conspiracy to commit a crime is no e 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, coup d’etat, sedition and arson.

If treason is actually committed, conspiracy will be considered as a means of

committing a crime and all the accused will be liable for treason and not for
conspiracy to commit treason. The rule will be: the act of one is the act of all.

To prove conspiracy, which you will take up in your RULES OF EVIDENCE, it is

not necessary to prove previous agreement to commit a crime, conspiracy can be
inferred from the ACTS OF THE ACCUSED THEMSELVES when such point to a
JOINT PURPOSE AND DESIGN. Their actions must not be judged by what they
say, for what men do is the best index of their intention.

In conspiracy to commit a crime, mere agreement is sufficient, whereas in

conspiracy as a means to commit a crime, OVERT ACTS to realize the criminal
purpose must also be performed by the conspirators.

Be it noted that conspiracy cannot exists in case of negligence. Negligence is the

failure to exercise the necessary precaution required of him under the
circumstances. Conspiracy involves a meeting of minds to commit a crime while
negligence denotes absence of intent.

PROPOSALS TO COMMIT A CRIME- there are only two (2) proposals to

commit a crime that are punished in the RPC: proposal to commit treason (Art.
115); and proposal to commit rebellion, coup d’etat and insurrection (Art. 136);
proposal to maliciously damage or destroy any building by explosives or
incendiary device is also punished

24
In some felonies, proposal as an OVERT ACT, is punished as in the case of a
bribe not accepted by a public official, and which constitutes the crime of
attempted corruption as a public official (Art. 212).

Art. 9. Classifies felonies according to GRAVITY. Grave felonies are those which
the law attaches the capital punishment or penalties which in any of their periods
are afflictive, in accordance with Art. 25 of the RPC.

Less grave felonies are those which the law punishes with penalties which
in their maximum period are correctional, in accordance with Art. 25.

Light felonies are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding 200 pesos or both, is provided

OFFENSES NOT SUBJECT TO THE PROVISIONS OF THE REVISED PENAL

CODE- 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 to the contrary.

Crimes punished by special laws are called offenses. . The Revised Penal Code
shall be merely supplementary to such laws except when the latter specially
provides the contrary.

Article 10 is the consequence of the legal requirement that you have to

distinguish those punished under special laws and those under the Revised
Penal Code. With regard to Article 10, observe the distinction.

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.

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY:

1. JUSTIFYING CIRCUNSTANCES- those wherein the acts of the actor are

in accordance with law and hence, he incurs no criminal and civil liability.
2. EXEMPTING CIRCUSMTANCES- those wherein there is an absence in
the agent of the crime any of all the conditions that would an act

25
 voluntary and hence, although there is no criminal liability, there is civil
liability.
3. MITIGATING CIRCUMTANCES- those that have the effect of reducing
the penalty because there is a diminution of any of the elements of dolo or
culpa, which makes the act voluntary or because of the lesser perversity of
the offender.
4. AGGRAVATING CIRCUMSTANCES- those which serve to increase the
penalty without exceeding the maximum provided by law because of the
greater perversity of the offender as shown by the motivating power of
the commission of the crime, time and place of its commission, the means
employed or the personal circumstance of the offender.
5. ALTERNATIVE CIRCUMSTANCE- those which are either aggravating or
mitigating according to the nature and effects of the crime and other
conditions attending its commission.

Article 11. JUSTIFYING CIRCUMSTANCES- the following do not incur any

criminal liability.

1. Anyone who acts IN DEFENSE of his person or rights, provided that

the following circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or
repel it.
Third. Lack of sufficient provocation on the part of the person
defending himself.
2. Anyone who acts IN DEFENSE of the person or rights of his spouses,
ascendants, descendants, or legitimate, natural, or adopted brothers or
sisters or his relatives by affinity in the same degrees and those by
consanguinity within the fourth civil degree, provided that the first
and second requisites prescribed in the next preceding circumstances
are present and the further requisite, in case the provocation was given
by the person attacked, that the one making defense had no part
therein.
3. Anyone who acts in defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person defending
be not induced by revenge, resentment or other evil motive.
4. Any person who, in order o 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.

26
 Third. That there be no other practical and less harmful means of
preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.
6. Any person who acts in obedience to an order issued by a superior for
some lawful purpose.

Classifying by subjects, the justifying circumstances are:

(a) Self-defense.
(b) Defense of relative.
(c) Defense of Stranger.
(d) State of necessity.
(e) Fulfillment of a duty.
(f) Obedience to superior order.

Since the act committed is in accordance with law, there is no criminal

liability incurred by the actor, nor any civil liability because the crime as the
source of the obligation is not present.

The cardinal principle in criminal law is that the burden of proving the
guilt of the accused lies squarely in the shoulders of the prosecution. Conviction
must rest not on the weakness of the defense but on the strength of the
prosecution. However, in case the accused admits committing the crime but
invokes SELF-DEFENSE to escape liability, the rule is reversed and the onus
probandi to prove the elements of his defense is in him.

The initial crucial point of inquiry is whether there was unlawful

aggression on the part of the victim for absent this essential element, no claim for
self-defense can successfully interposed.

(A) SELF-DEFENSE: To prove self-defense, the accused must show with clear
and convincing evidence that: (a) he was not the unlawful aggressor; (2)
he employed reasonable means to prevent or repel the aggression; (3)
there was lack of sufficient provocation on his part. When all these
requisites are present, the accused to entitle to an acquittal.

The scope includes self-defense not only of life, but also of RIGHTS like
those of chastity, property, and honor.

FIRST ELEMENT- Unlawful aggression is of two (2) kinds: (a) ACTUAL and (b)
IMMINENT.

Real aggression presupposes an act positively strong, showing the

wrongful intent of the aggressor, which is not merely a threatening or
intimidating attitude, but a MATERIAL ATTACK. There must be a REAL
DANGER to life or personal safely.

27
 Actual unlawful aggression means an attack with physical force or with a
weapon. It is a material aggression, an offensive act which positively determines
the intent of the aggressor to cause the injury. An insult without physical assault
is not unlawful aggression but a mere provocation which is mitigating. If the one
insulted retaliated by attacking the one giving the insult, be became an unlawful
aggressor.

IMMINENT unlawful aggression means an attack that is impending or at

the point of happening. It must not consist in a mere threatening attitude, nor
must it be merely imaginary. The intimidating must be offensive and positively
strong.
E.g., aiming a revolver at another with intent to shoot or opening a knife and
making a motion as if to attack

SECOND ELEMENT-Reasonable necessity of the means employed.

The first step to consider is whether there is reasonable necessity on the

part of the person attacked to defend himself and if so, whether the means
employed by his is reasonable. If the unlawful aggression has already
terminated, this element cannot be present, because there is nothing to be
prevented or repelled.

Whether the means employed is reasonable or not, will depend upon the
kind of weapon of the aggressor, his physical condition, character, seize and
other circumstance as well as those of the person attacked and the time and place
of attacked.

The gauge of rational necessity is to be found in the situation as it appears

to the individual who is the object of aggression. The instinct of self-preservation
more often than not is the moving power in man’s action in defending himself.

To determine the reasonableness of the means employed, the following

must be considered:

(a) Whether the means employed was the only one which the defender
could avail of under the circumstances.
(b) That a person attacked does not use his rational mind but acts
according to his instinct of self-preservation.

THIRD ELEMENT: Lack of sufficient provocation on the part of the person

defending himself.

Sufficient means proportionate to the damage caused by the act, and

adequate to stir one to its commission.

The element refers to the person defending himself and is essentially

inseparable and co-existent with the idea of self-defense.

28
REASON FOR SELF-DEFENSE-Under the Classical School, because the State
cannot always come to the aid of a person unlawfully attacked, he has then to
defend himself by following his instinct of self-preservation. Under the Positivist
School, because it is an exercise of a right and anything done to repel an
unlawful attack is an act of social justice.

SELF-DEFENSE OF CHASTITY- To be entitled to a complete self defense of

chastity, there must be an attempt to rape. It is not necessary that the actual act
be committed, as the mere imminence thereof will justify the woman to kill the
offender, if she has no other means to defend herself as when the accused,
suddenly threw his arms around the accused from behind, caught hold of her
breast, touched her private parts and tried to throw her down and then the
accused stabbed him with a fan knife which she took from her pocket when she
felt she could do nothing more against the strength of her aggressor.

But if the unlawful aggression took place inside a chapel which was
lighted and where there were several persons and which act consisted in the
placing by the man of his hand on the upper thigh of the accused, killing the
aggressor would not constitute legitimate self-defense.

SELF DEFENSE OF PROPERTY-It is necessary that there be an attack on the

property coupled with an attack on the person of the one entrusted with said
property.

The act of the victim of ordering and actually fencing off the house and rice mill
of the accused constitute unlawful aggression, not on the person but on his
property rights. The deceased had no right to destroy or cause damage to
appellant’s house or close his accessibility to the highway. There was an actual
invasion of the property of the accused which he had a right to resist under
Article 429 of the Civil Code.

SELF-DEFENSE IN LIBEL- When a person is libelled, he may hit back with

another libel, which if adequate, will be justified. Once the aspersion is cast, its
sting clings and the one thus defamed may avail himself of all necessary means
to shake it off.

(B) DEFENSE OF RELATIVE-The elements are: (a) unlawful aggression; (b)

reasonable necessity of the means employed to prevent or repel it, (c) in
case the provocation was given by the person attacked, the person making
the defense had not part in the provocation.

The relatives entitled to this defense are: spouses, ascendants, descendants,

legitimate, natural or adopted brother and sisters, relatives by affinity in the
same degree and those by consanguinity within the fourth civil degree. “Same
degree” refers to relative already mentioned as brothers or sisters. So a brother-
in-law or a sister-in-law is a relative in the same degree. Consaguinity within the

29
fourth civil degree includes a first cousin. But the wife’s brother-in-law is NOT A
RELATIVE of her husband. A second cousin is not a relative.

Even if two persons agreed to fight, and at the moment when one was about
to stab the other, the brother of the latter arrived and shot him, defense of
relative is present as long as there is an honest belief that the relative being
defended was the victim of unlawful aggression, and the relative defending had
no knowledge of the agreement to fight.

But defense of relative cannot be claimed if the relative defended is the

aggressor. E.g., the accused hit Y, a brother of X, with a lance but missed and so
Y stabbed the father of the accused fatally. Upon seeing his father was stabbed,
the accused then hit Y with a bolo killing him. The accused was liable because he
was the original aggressor. The law is clear that the unlawful aggression must
come from the victim. Thus, of the three (3) requisites of defense of relatives,
unlawful aggression is the most essential and primary, without which any
defense is not possible or justified.

(C) DEFENSE OF STRANGER- a relative who is not included in defense of

relative is entitled in defense of stranger. The elements: (a) Unlawful
aggression, (b) reasonable necessity of the means employed to prevent or
repel it, (c) person defending be not induced by revenge, resentment, or
other evil motive.

The right of a person to take life in his own defense or in defense of another
who bears close relationship is universally recognized. The common law goes
further and permits human life to be taken for the protection of a companion or
other person even a stranger. The rule then is that what one may do so in his
own defense, another may do for him.

E.g., A person who struggled with the husband who was attacking his wife
with a bolo for the possession of a bolo and in the course of the struggle,
wounded the husband, was held to have acted in defense of a stranger.

(D) STATE OF NECESSITY- a state of necessity exists when there is a clash

between two unequal rights, the lesser right giving way to the greater
right. The elements are: (a) The evil sought to be avoided actually exists;
(b) the injury feared be greater than that done to avoid it; (c) there is no
other practical and less harmful means of preventing it.

This is the only justifying circumstance where there is CIVIL LIABILITY, but
this is borne not by the actor but by the person or persons benefitted by his
act.

E.g., The captain of a vessel during a storm jettisons the cargo to prevent the
vessel from sinking, he is not liable not only because of state of necessity but
also because the Code of Commerce so provides.

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E.g., A and B are owners of adjoining lands. A owns the land for planting
certain crops. B owns the land for raising certain goats. C used another land
for a vegetable garden. There was heavy rain and floods. Dam was opened.
C drove all the goats of B to the land of A. The goats rushed to the land of A
to be saved, but the land of A was destroyed. The author of the act is C, but C
is not civilly liable because he did not receive benefits. It was B who was
benefited, although he was not the actor. He cannot claim that it was
fortuitous event. B will answer only to the extent of the benefit derived by
him. If C who drove all the goats is accused of malicious mischief, his
defense would be that he acted out of a state of necessity. He will not be
civilly liable.

(E) FULFILLMENT OF DUTY OR EXERCISE OF RIGHT OR OFFICE-The

elements are: (a) the offender acted in the performance of a duty or lawful
exercise of a right or office; (b) the injury caused or the offense committed
is the necessary consequence of the due performance of such right of
office.

E.g., A policeman who was attacked by an escaped prisoner when he

demanded his surrender, dodged it, and then fired his revolver without
hitting the prisoner; but who, when he ran away was again fired upon by the
policeman, this time hitting and killing him, is exempt from criminal liability
as the deceased was under obligation to surrender and had no right to
commit the assault after evading his sentence.

But under this provision, it does not permit a person in the exercise of a
right or duty to transgress the law for him to be free from criminal liability. It
must appear not only that he acted in the performance of his duty but that the
injury caused or offense committed was the necessary consequence of the
performance of such duty.

On the other hand, the lawful exercise of a right exists if the owner or
possessor of a thing employs reasonable force to repel or prevent n actual or
threatened unlawful invasion of his property, see Art. 429 of the Civil Code.
Said article lays down the doctrine of “self-help”, this can be applied in
relation to Article 11, par. 5 and under these provisions, the law justifies the
act of the owner as lawful possessor of a thing in using such force as is
reasonably necessary for the protection of his proprietary or possessory right.

A policeman who acts in the performance of his duty cannot be

exonerated from OVERDOING his fulfillment of duty.

(F) OBEDIENCE TO SUPERIOR ORDER- The elements are: (a) an order has
been issued by a superior; (b) the order is for a legal purpose; (c) the
means employed to carry out said order is lawful.

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E.g., If a soldier upon order of his sergeant, tortured to death a person for
bringing food different from that ordered, he is liable because the order to
torture is illegal, and the accused was not bound to obey it.

But he is not liable if he obeyed an order in good faith, without being

aware of its illegality, without fault on his part, and which as a military
subordinate, he could not question.

But even if the order it ILLEGAL if it is patently LEGAL and the

subordinate is not aware of its illegality, the subordinate is not liable. This is
due to MISTAKE OF FACT committed in good faith. Even if the order is
illegal, the subordinate may still invoke the EXEMPTIN CIRCUMSTANCES
OF COMPULSION OF IRRESISTIBLE FORCE OR ACTING UNDER THE
IMPULSE OF AN UNCONTROLLBALE FEAR OF AN EQUAL OR
GREATER INJURY under Article 12.

EXEMPTING CIRCUMSTANCES:

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 in
one of the hospitals or asylums established for person thus afflicted,
which he shall not be permitted to leave without first obtaining the
permission of the same court.
(2) A person under nine (9) years of age.
(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.
(4) Any person who, while performing a lawful act with due care, caused
an injury by mere accident without fault or intention of causing it.
(5) Any person who acts under the impulse of an irresistible force.
(6) Any person who acts under the impulse of an uncontrollable fear of an
equal or greater injury.
(7) Any person who fails to perform an act required by law, when
prevented by some lawful and insuperable cause.

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 Aside from the seven (7) exempting circumstances enumerated in Article
12, INSTIGATION AND ABSOLUTORY CAUSES also produce exemption from
criminal liability.

Although there is civil liability in an exempting circumstance because the

source, which is the crime committed, is present, in ACCIDENT AND
INSUPERABLE CAUSE, there is no civil liability because the act is lawfully
committed and also because the RPC does not so provide.

A. IMBECILITY AND INSANITY:

Imbecility is exempting in all cases while insanity is not of the offender

committed the crime during lucid internal.

Mere mental aberration or eccentricity is not exempting but mitigating.

The test of imbecility or insanity is COMPLETE DEPRIVATION OF
INTELLIGENCE in the commission of the act, that it, the accused acted
without the least discernment.

The evidence regarding insanity must refer to the time preceding that act
under prosecution, or the very moment of its execution and that insanity
must be proven by clear and convincing evidence.

The law presumes every man to be sane. If the accused interposes the
defense of mental incapacity, the burden of establishing such facts rests
upon him.

But even if the offender is not an imbecile or insane person, if he is

completely deprived of the consciousness of his acts when he commits the
crime, he is entitled to an exemption for a cause analogous to imbecility or
insanity. Thus, one committing a crime while dreaming during his sleep
or in a state of somnambulism or sleep walking or high fever due to
malignant malaria is not criminally liable as the acts are embraced within
the plea of insanity.

INSANITY developed after the commission of a felony does not exempt

the offender. As to whether the offender is to be held for trial, the test is
whether the offender would have a fair trial with the assistance of counsel.

If the offender is found to be imbecile or insane, the Court shall order his
confinement in a hospital or asylum which he cannot leave without the
order of the Court. But the Court has no power to give a permit to the

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 insane to leave the hospital without the prior opinion of the Director for
Health that he may be released without danger.

B. MINORITY- If the minor at the time of the commission of the crime is 9

years old or under, he is exempt from criminal liability.

Republic Act 9344 otherwise known as the JUVNILE JUSTICE ANS

WELFARE ACT OF 2006 raised the age of absolute irresponsibility from 9 to 15
years.

Under Sec. 6 of the ACT, a child 15 years of age or under at the time of
commission of the offense shall be exempt from criminal liability. However, the
child shall be subject to an intervention program as provided under Sec. 20 of the
said Law.

Paragraph 3 Article 12 of the RPC impliedly repealed by RA 9344

declaring a child 15 years of age or under exempt from criminal liability.

“SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of

age or under at the time of the commission of the offense shall be exempt from
criminal liability. However, the child shall be subjected to an intervention
program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in which case, such child
shall be subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with
existing laws.”

In turn, RA 10630 (AN ACT STRENGTHENING THE JUVENILE JUSTICE

SYSTEM IN THE PHILIPPINES, AMENDING FOR THE
PURPOSE REPUBLIC ACT NO. 9344, OTHERWISE KNOWN AS THE
"JUVENILE JUSTICE AND WELFARE ACT OF 2006" AND
APPROPRIATING FUNDS THEREFOR), amended Section 6, to read as
follows:

Section 3. Section 6 of Republic Act No. 9344 is hereby amended to read as

follows:

"SEC. 6. Minimum Age of Criminal Responsibility. – A child fifteen (15) years

of age or under at the time of the commission of the offense shall be
exempt from criminal liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.

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 "A child is deemed to be fifteen (15) years of age on the day of the fifteenth
anniversary of his/her birthdate.

"A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an
intervention program, unless he/she has acted with discernment, in
which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.

"The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with
existing laws."

Thus, the life of a human being is now divided into four (4) periods:

(a) The age of absolute irresponsibility- 15 years and below (infancy).

(b) The age of conditional responsibility- 15 year and 1 say to 18 years.
(c) The age of full responsibility- 18 years or over (adolescence) to 70
(maturity).
(d) The age of mitigated responsibility- 15 years and 1 day to 18 years, the
offender acted with discernment; over 70 years of age.

CHILD IN CONFLICT WITH THE LAW: A child in conflict with the law is a
person who at the time of commission of the offense is below 18 years old, but
not less than 15 years and one day old.

MEANING OF DISCERNMENT- it means the capacity of the child at the time of

the commission of the offense to understand the difference between right and
wrong and the consequence of the wrongful act.

Discernment means the mental capacity to fully appreciate the

consequences of one’s unlawful act or to determine the difference between right
and wrong. This may be shown and should be determined by considering all the
circumstances afforded by the records of the case, his appearance, his attitude
and his behavior and conduct, not only before and during the commission of the
act but also after and even during trial.

E.g., A minor committed a crime during nighttime to avoid detection or took the
loot to another town to avoid discovery, he manifested discernment.

The accused a minor, shot with a sling shot the right eye of the offended
party causing serious injuries upon the latter, and after hitting him, still uttered
bad remarks, such show that the accused realized the nature of his wrongful act,
he therefore acted with discernment.

Case for reading: People vs. Madali, G.R. No. 180380. August 4, 2009

35
 C. ACCIDENT- The elements are: (a) performance of a lawful act; (b) with
due care; (c) causes injury to another by mere accident; and (d) without any fault
or intention of causing it.

What is an accident? An accident is something that happens outside the sway of

our will, and although it comes about through some act of our will, lies beyond
the bounds of humanly foreseeable consequences. If the consequences are plainly
foreseeable, it will be a case for negligence.

Article 12(4) of the Revised Penal Code, the legal provision pertinent to accident,
contemplates a situation where a person is in fact in the act of doing something
legal, exercising due care, diligence, and prudence, but in the process produces
harm or injury to someone or to something not in the least in the mind of the
actor – an accidental result flowing out of a legal act. Indeed, accident is an event
that happens outside the sway of our will, and although it comes about through
some act of our will, it lies beyond the bounds of humanly foreseeable
consequences.

E.g., The accused while hunting saw wild chickens and fired a shot. The slug
after hitting a wild chicken, recoiled and struck the tenant who was a relative of
the accused. The man who was injured died. HELD: The accused was engaged in
the performance of a lawful act when the accident occurred. He was not
negligent or at fault, because the deceased was not in the direction at which the
accused fired his gun. It was not foreseeable that the slug would recoil after
hitting the wild chicken.

A driver, while driving the vehicle 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. Because it was not physically possible to avid
hitting him, the driver ran over the man with his car. It was held he was not
criminally liable, it being mere accident.

The truck being driven by the accused was passing the slow-moving road roller,
a boy jumped from the step of the sideboard of the road roller directly in front of
the truck, and was knocked down, ran over and instantly killed. The accused was
acquitted of all criminal liability arising out of the unfortunate accident which
resulted in the death of the boy. (US VS. KNIGHT 26 PHIL 216)

ACCIDENT AND NEGLIGENCE IS INTRISICALLY CONTRADICTORY-

Accident and negligence cannot exists with the other. Accident is a fortuitive
circumstance, event or happening, an event or happening without nay human
agency, or if happening wholly or partly through human agency, an event which
under the circumstance is unusual or unexpected by the person to whom it
happens. Negligence on the other hand, is the failure to observe, for the
protection of the interest of another person, that degree of care, precaution, and
vigilance which the circumstance justly demand without which such other
person suffers injury.

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 D. COMPULSION OF IRRESISTIBLE FORCE- A person who acts under the
compulsion of an irresistible force, like one who acts under the impulse of an
uncontrollable fear of equal or greater injury is exempt from criminal liability
because he does not act with freedom. The force must be irresistible to reduce
him to a mere instrument who acts not only without will but against his will.

The duress, force, fear or intimidation must be present, imminent, and

impending and of such a nature as to induce a well-grounded apprehension of
death or serious bodily harm if the act is not done.

A threat of injury is not enough. The irresistible force must be physical

and must come from a third person. It cannot spring primarily from the offender
himself.

E.g., A person was struck with the butts of gun of those who killed another to
compel him to bury their victim, he is not liable as an accessory because he acted
under the impulse of an irresistible force.

If the offender was merely ordered by a Japanese officer to hack the head
of the prisoner and because the officer insisted, otherwise, he had to come along
with the Japanese, there was no compulsion of irresistible force or threat of a
serious character to create in the mind of the offender an uncontrollable fear of
an equal or greater injury that would be inflicted on him if he did not comply
with the order to kill.

F. IMPULSE OF AN UNCONTROLLABLE-The fear must be insuperable

(cannot be overcome) and that he who acts under insuperable fear is
completely deprived of freedom. Its elements are: (a) The threat which
caused the fear was of an evil greater than, or at least equal to, that
which the accused was required to commit and (b) It promised an evil
of such gravity and imminence that the ordinary man would have
succumbed to it.

The threat producing insuperable fear must be grave, actual, serious, and
suck kind that the majority of men would have succumbed to such moral
compulsion.

Duress as a valid defense should be real, imminent, or reasonable fear for

one’s life or limb and not speculative, fanciful or remote fear.

E.g., If one is compelled of death to join the rebels, he is not liable for
rebellion because he acted under the impulse of an uncontrollable fear of an
equal or greater injury.

DIFFERENCE BETWEEN UNCONTROLLABLE FEAR VS. IRRESISTIBLE

FORCE:

37
 (a) Irresistible force is a physical force coming from a stranger while
uncontrollable fear is an impulse coming from within the person of the
actor himself.
(b) In irresistible force, the actor acts without a will, while in
uncontrollable fear, the actor acts not against his will but because he is
endangered by the fear.
(c) Both refer to external influences and not to physiological need.

F. INSUPERABLE CAUSE- This exempting circumstance applied to

felonies committed by omission.

The law imposes a duty on the part of the offender to perform an act. If he
fails to do so, he violates the law. But if the failure is due to a lawful insuperable
cause, he is criminally exempt. In this exempting circumstance, there is also no
civil liability

E.g., A policeman failed to deliver the prisoner lawfully arrested to the

judicial authorities within the prescribed period because it was not possible to do
so with practical dispatch as the prisoner was arrested in a distant place would
constitute non-performance of duty due to an insuperable cause.

INSTIGATION AND ENTRAPMENT:

INSTIGATION takes place when a peace officer induces a person to

commit a crime. Without the inducement, the crime would not be committed.
Hence, it is exempting by reason of public policy. Otherwise, the peace officer
would be a co-principal. The person inducing must not be a private person as he
will be liable as principal by inducement. (Art. 17, par. 2)

E.g., If a policeman induced a person to import opium which made him

believe he would buy and when the opium imported was delivered, he made the
arrest, there is an instigation. Without the inducement, the opium would not
have been delivered.

ENTRAPMENT signifies the ways and means devised by a peace officer

to entrap or apprehend a person who has committed a crime. With or without
the entrapment, the crime has been committed already. Hence, entrapment is not
mitigating. ENTRAPMENT is sanctioned by the Revised Penal Code,
INSTIGATION is not

E.g., If the offender was suspected of selling at a price higher than that
fixed by law, and a policeman pretending to be a buyer, bought some of the
medicines and paid the offender with a marked money, since the offender sold
the medicine to the policeman at a higher price than the selling price, there is no
instigation but entrapment.

38
 In ENTRAPMENT, ways and means are resorted to for the purpose of
trapping and capturing the lawbreakers in the execution of their criminal plan;
whereas, in instigation, the instigator practically induces the would-be-
defendant into the commission of the offense and himself become a co-principal.

BUY-BUST OPERATION is a form of entrapment resorted to by the

Narcotics agents has long been recognized as an effective means of
apprehending drug peddlers. It is a procedure or operations sanctioned by the
RPC.

ABSOLUTORY CAUSES: In absolutory causes, the act committed constitutes a

crime but the law does not punish the offender by reason of public policy. Thus,
in addition to the justifying and exempting circumstances, some of the other
causes for non-liability are:

a. Art. 6, par. 3- the spontaneous desistance during the attempted stage

of a felony.
b. Art. 7-Light felonies are not punishable unless consummated except in
crimes against persons or property.
c. Art. 16- Accessories are not liable in light felonies.
d. Art. 247- Physical injuries other than serious physical injuries inflicted
under exceptional circumstances.
e. Art. 332- Exemption of certain persons from criminal liability in crimes
of theft, estafa and malicious mischief.

39
MITIGATING CIRCUMSTANCES- The following are mitigating circumstances:

1. Those mentioned in the preceding chapter, when all the requisites

necessary to justify the act or to exempt from criminal liability in the respective
cases are not attendant.

2. That the offender is under eighteen years of age or over seventy years.
In the case of the minor, he shall be proceeded against in accordance with the
provisions of Article 80.

3. That the offender had no intention to commit so grave a wrong as that

committed.

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

immediately preceded the act.

5. That the act was committed in the immediate vindication of a grave

offense to the one committing the felony (delito), his spouses, ascendants,
descendants, legitimate, natural or adopted brothers or sisters of relatives by
affinity within the same degrees.

6. That of having acted upon an impulse so powerful as naturally to have

produced passion or obfuscation.

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.

8. That the offender is deaf and dumb, blind, or otherwise suffering some
physical defect which restricts his means of action, defense, or communication
with his fellow beings.

9. Such illness of the offender as would diminish the exercise of the will
power of the offender without however depriving him of consciousness of his
acts.

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

TWO (2) KINDS OF MITIGATING CIRCUMSTANCES: Ordinary mitigating

circumstance and Privilege mitigating circumstance.

An ordinary mitigating circumstance can be offset by a generic

aggravating circumstance. A privileged mitigating circumstance cannot be offset
by any aggravating circumstance.

40
 One ordinary mitigating circumstance if not offset by a generic
aggravating circumstance has the effect of imposing the lesser penalty while a
privileged mitigating circumstance has the effect of imposing the penalty by one
or two degree next lower to that prescribed by law. The rule applies only if the
imposable penalty is divisible.

Paragraph 1 and the first parr of paragraph 2 are PRIVILEGED

MITIGATING CIRCUMSTANCES while the rest of those provided in Art. 13 are
ordinary mitigating circumstances.

There are however, other privileged mitigating circumstance applicable to

particular felonies only as:

(a) Concealment of dishonor of the mother in infanticide, Art. 255.

(b) Voluntary release of a person detained within three (3) days without
the accused attaining his purpose and before the institution of the
criminal action, Art. 268.
(c) Unjustified abandonment of the spouse in the crime of adultery.

Since a mitigating circumstance is a matter of defense, the accused must

prove it with concrete evidence to the satisfaction of the Court.

(1) The Privileged Mitigating Circumstance of Incomplete Justifying or

Exempting Circumstance (Art. 13, par. 1):

In self-defense, defense of relative or defense of stranger, it is essential that

unlawful aggression be present; otherwise, there can be no such defense,
whether complete or incomplete.

In the exempting circumstances of accident, if the requisites of due care

and without fault in causing the injury are absent, the result will be negligence
and the case will be covered by Art. 67 which provides for the same penalty as
that provided in Art. 365, par. 1. The effect is the same as that of a privileged
mitigating as the penalty is one degree lower than that provided for in an
intentional felony. If the requisites of lawful act and without intention of causing
the injury are absent, an intentional act results, and there can be no mitigating
circumstance based on the absence of such requisites.

(2) The offender under 18 years is entitled to a Privileged Mitigating

Circumstance

If the age of the offender is 15 years old or lower- he is exempt from

CRIMINAL RESPONSIBILITY, see Sec. 6 of RA 9344.

If above 15 but below 18- it is EXEMPTING unless he/she acted with

discernment in which case penalty is reduced by one (1) degree lower than that
imposed, see Art. 68 as amended by RA 9433, it is a PRIVILEGED MITIGATING
CIRCUMSTANCE.

41
 But minor delinquents under 18 years of age, enjoy suspended sentence
(Art. 192, PD 603, as amended by PD 1179, referred now as children in Conflict
with the Law under RA 9344). This is found in Sec. 38 of RA 9344, Upon
suspension of sentence and after considering the various circumstances of the
child, the court shall impose the appropriate disposition measures as provided
in the Supreme Court Rule on Juveniles in Conflict with the Law.

If 18 years or over- full criminal responsibility, while over 70 years,

ordinary mitigating, Art. 13, second paragraph.
(3) LACK OF INTENTION TO COMMIT SO GRAVE A WRONG- this is the
effect of praeter inentionem. The injury shall befall upon the same person, not
upon another.

Intent as a mental process is shown by the external acts of the offender

and is judged by the facts showing notable disparity between the means
employed, its consequences and the attendant circumstances, like the nature and
kind of weapon employed, location of the wound inflicted, the number of
wounds inflicted, and the conduct of the accused at the time of its commission.

E.g., the accused place a “pan de sal” in the mouth of the victim to prevent
her from making an outcry, but who died of asphyxiation as the “pan de sal” slid
onto her neckiline because of her movements when she was hogtied, lack of
intent to commit so grave a wrong was considered mitigating.

Inflicting upon the victim in the course of a fight two (2) wounds, one on
the left elbow and the other on the left calf which subsequently produced his
death of the act of the offender in striking the victim with his fist, who fell down
and as a result his head hit the pavement causing cerebral hemorrhage which
caused his death or the shot was directed at the calf of the leg and not upon the
vital part of the body show from the nature and location of the injuries and that
of the blow, lack of intention to commit so grave a wrong as that which resulted.

The intention of the offender is only to maltreat the offended party, who
was pregnant by pulling her hair and as a result of her fall, she aborted, lack of
intent to commit so grave a wrong which resulted was mitigating.

This mitigating circumstance is applicable only to felonies resulting in

material or physical injuries. It does not apply to felonies committed thru
negligence. This is true because mitigating and aggravating circumstance are not
considered as the imposition of the penalty in quasi-offenses.

(4) SUFFICIENT PROVOCATION- Requisites (a) The provocation must be

sufficient; (b) it must be immediate to the commission of the crime; and (c) it
must originate from the offended party.

“Sufficient” means adequate to excite a person to commit the crime and

must accordingly be proportionate to its gravity.

42
 E.G. Ill-treating and abusing the offender by kicking and cursing him

Hitting by the victim the eye of the accused.

Infidelity of the wife which made the husband kill her is sufficient
provocation.

However, request for an explanation to the accused regarding his

derogatory remarks against certain ladies or the act of the deceased in intentional
asking for more wine, however unreasonable or annoying it might have been is
not sufficient provocation. It is not enough that the provocative act be
unreasonable or annoying.

“Immediate” means that there is nor interval of time between the

provocation and the commission of the crime. Provocation occurring more than
one hour before the stabbing incident is not immediate or 24 hours before the
commission of the crime.

The accused was charged by the offended party to stealing his chickens,
went home and returned fully armed and killed the deceased, provocation is
mitigating.

But provocation given by the deceased during the first stage of a fight is
not mitigating where the accused pursued and killed the deceased while fleeing,
as the deceased, from the moment he fled after the first stage of the fight, to the
moment he died, did not give any provocation for the deceased to pursue, much
less further attack him.

(5) IMMEDIATE VINDICATION OF A GRAVE OFFENSE-The grave offense

mentioned in this mitigating circumstance need not be a felony or an act
punished by law.

E.g. The act of the victim in eloping with the daughter of the accused is a
grave offense to her family.

A remark to the accused, an old man of 70 years of age, in the presence of

so many guests that he would make a roast pig out of him was also a grave
offense considering his age.

The remark of the victim in the presence of guests during a celebration

that the accused lived at the expense of his wife, under the circumstance, were
highly offensive to the accused or to any other person in his place.

In determining the gravity of the offense, the age of the accused, his social
standing, time and place when the offense was committed and other attendant
circumstances are to be considered.

43
 The relative against whom the grave offense may be committed are the
same relatives mentioned in defense of relative except relatives by consanguinity
within the fourth civil degree are excluded

“IMMEDIATE” means proximate and hence, an interval of time may

elapse from the commission of the grave offense to the commission of the crime
in vindication thereof. But if a considerable period of time elapsed which is
sufficient to enable the accused to recover his serenity, this mitigating
circumstance is not present

Where the accused was slapped by the deceased in the presence of so

many persons, and he attacked the deceased the following day, this mitigating
circumstance was appreciated because it was shown that the slapping
engendered perturbation of mind, and although not so immediate, by reason
thereof, lasted until the moment the crime was committed.

DISTINCTION BETWEEN PROVOCATION AND VINDICATION OF A

GRAVE OFFENSE:
a. In provocation, it is directed against the person committing the felony,
whereas, vindication of a grave offense may be committed not only
against the offender but also relatives who are mentioned in the law.
b. Provocation must be immediate to the commission of the crime,
whereas, vindication may be proximate.

(6) PASSION OR OBFUSCATION- To be mitigating, it is necessary to establish

the existence of an act both unlawful or unjust and sufficient to such a condition
of mind to commit the felony and said act which produced the obfuscation was
not far removed from the commission of the crime by a considerable lapse of
time, during which the perpetrator might recover his normal equanimity.

E.g., There is passion or obfuscation where the accused boxed the victim
after he saw the latter boxed his four-year-old son. The accused did so.
Momentarily blinded by anger and he lost sight of the fact that his son’s
adversary was but a nine-year-old boy.

Where the shooting of the victim was aroused by a fit of jealousy due to
wild rumors of amorous relationship of the victim with the wife the accused. The
feeling of resentment from the rivalry in amorous relations with a woman is
powerful stimulant to jealousy and is sufficient to produce loss reason and self-
control.

But passion or obfuscation is not mitigating where the relationship of the

accused to the victim, who was the common law wife of another man, was
illegitimate.

Passion or obfuscation is mitigating only when it arose from LAWFUL

SENTIMENTS AND LEGITIMATE FEELINGS and not from vicious, unworthy
or immoral passion.

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 If the accused injured the offended party who made indecent propositions
to a woman with whom the accused had illicit relations, the obfuscation of the
accused is not mitigating because his relationship with the woman is illegitimate.

But killing a common-law wife surprised in flagranti in carnal intercourse

with a friend is passion that is mitigating because the offender acted under an
impulse caused by the sudden discovery that the woman proved untrue to him.

Killing by the accused of her common law husband with whom she lived
for 15 years but who married another woman, produced passion that is
mitigating because it arose from that natural feeling of despair in a woman who
saw her life broken and found herself abandoned by the very man whom she has
made so many sacrifices.

Passion may also arose from causes existing in the honest belief of the
offender as the belief that the deceased caused his dismissal from the service or
that the deceased cast a spell of witchcraft which caused the illness of his mother.

(7) VOLUNTARY SURRENDER AND VOLUNTARY PLEA OF GUILTY

These two (2) mitigating circumstances are independent of each other and
if present in the commission of the crime are both appreciated in favor of the
offender. These are the only mitigating circumstances based on the lesser
perversity of the offender and are present after and not at the time of the
commission of the crime.

Voluntary surrender must be made to a person in authority or his agent.

It may be present if made after the issuance of a warrant of arrest but before
actual arrest is made.

To be voluntary, a surrender must be spontaneous, there must an intent to

submit oneself to the authorities, either because he acknowledges his guilt or
because he wishes to save them from the trouble and expenses to be necessarily
incurred in his search ad capture.

If the search for the offender lasted 4 years, the voluntary surrender is not
mitigating because it is not spontaneous. . The surrender is not voluntary if the
offender was merely forced by circumstances because he could not live any
longer in hostility as the agents of the law did not give him peace of a moment.

Elements of voluntary surrender: (a) the offender has not been actually
arrested; (b) the offender surrendered himself to a person in authority or an
agent of a person in authority; (c) the surrender must be voluntary.

Voluntary plea of guilty is mitigating because it is an act of repentance

and respect for the law. It indicates a moral disposition in the accused favorable
to his reform.

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 To be entertained, the plea of guilty must be made: (a) made in open
court; (b) spontaneous; and (c) prior to the presentation of the evidence by the
prosecution.

But an extra-judicial confession is not mitigating or even if a witness or

part of the evidence of the prosecution has only been presented.

The offer to enter a plea of guilty to a lesser offense than that charged in
the Information is not mitigating. But if the offer is accepted and the information
amended to which the accused entered a plea of guilty, such is mitigating even
though the prosecution ahs already presented it s evidence during the trial of the
original charge.

However, a plea of guilty to a lighter offense than that actually charged is

not supposed to be allowed as a matter of bargaining or compromise for the
convenience of the accused. The rules allow such a plea only when the
prosecution does not have sufficient evidence to establish the guilt of the accused
to the crime charged. Thus, the plea of guilty which was substituted after the
prosecution had presented its evidence was rejected as mitigating because even
without the plea of guilty, the evidence already presented was sufficient to
establish the guilt of the accused.

However, trial judges must not accept with alacrity the plea of guilty of
the accused, especially in CAPITAL OFFENSES. They should be extra-solicitous
in seeing to it that the accused understood fully the nature of his plea and the
import of inevitable conviction.

Thus, when a grave offense is charged, the taking of testimony is the

prudent and proper course to follow for purposes of establishing the guilt and
the defense of culpability of the defendant.

In capital offenses, voluntary plea of guilty does not mean admission of

the material allegations in the information, including the circumstances,
qualifying and/or aggravating of the crime. The precise purpose of the
automatic review in capital cases is to pen the entire record for scrutiny so that a
human life will not be lost through a miscarriage of justice by a misapprehension
of the evidence.

(8) THE OFFENDER IS DEAF AND DUMB OR BLIND- The physical defect
contemplated in this mitigating circumstance must affect the means of action,
defense of communication of the offender with his fellow beings. The nature of
the offense is to be considered as to whether such physical defect is mitigating.

E.g. A blind person or one who is crippled or lame is entitled to this

mitigating circumstance if he commits the crime of physical injuries.

In case of robbery, the accused who is deaf and dumb or right hand is
missing is entitled to this mitigating circumstance.

46
 However, the commission by a blind person of the crime of estafa by
misappropriating a sum of money entrusted by a friend to him for safekeeping
will not entitle him to this mitigating circumstance.

In the crime of treason, the physical infirmity of the accused was not
considered mitigating because he had shown such fire of purpose, zeal and vigor
in the execution of his treasonous activities.

(9) ILLNESS THAT DIMINISHES THE EXERCISE OF WILL POWER- The nature
of the illness effects the will of a person but must not deprive him of the
consciousness of his acts otherwise, such will be exempting.

E.g. A mother who killed her child after delivery as she was suffering
under the influence of a puerperal fever.

A mild behavior disorder as a consequence of an illness in the early

life of the offender.

Acute neurosis that made the offender ill-tempered and easily

angered.

Mild psychosis or schizophrenic reaction is a mental illness which

diminishes the will power of the offender, without however, depriving him of
the consciousness of his acts and should be considered a mitigating
circumstance.

(10) ANALOGOUS MITIGATING CIRCUMSTANCE- These analogous

mitigating circumstances are similar to those provided in paragraph 1 to 9 of
Article 13.

Examples:

(a) Over 60 years old and with failing eyesight analogous to one over 70
years old.
(b) Jealousy-similar to passion or obfuscation.
(c) Mass psychology and appeal to esprit de corps similar to passion or
obfuscation
(d) Voluntary restitution of property-similar to voluntary surrender
(e) Extreme poverty-similar to incomplete justifying circumstance of state
of necessity.
(f) Killing of the deceased by accused after he was boxed during a dance
two weeks previous is analogous to sufficient provocation or passion
because the wrong committed by the deceased undoubtedly produced
rancor in his person who must have felt deeply insulted and hence,
committed the crime to vindicate himself and appease his self-respect.
(g) Testifying for the prosecution without being discharged is analogous
to voluntary plea of guilty.

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 (h) Where the victim previously threatened the accused for non-payment
of debts arising from gambling, causing the accused humiliation and
shame is mitigating circumstance analogous to passion or obfuscation.
(i) Where the accused killed the deceased, who took away his carabao
and held it for ransom and thereafter failed to pay its value after the
carabaos died, the accused would be entitled to a mitigating
circumstance, analogous to, if not the same, as vindication of a grave
offense committed by the deceased upon the accused.

But if the accused impoverished himself and lost his gainful occupation by
committing crimes, extreme poverty is not mitigating, since he was not driven to
the commission of crimes due to want and poverty

AGGRAVATING CIRCUMSTANCES- are circumstances which aggravate

criminal liability. The following are aggravating circumstances:

1. That advantage be taken by the offender of his public position.

2. That the crime be committed in contempt of or with insult to the public
authorities.

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3. That the act be committed with insult or in disregard of the respect due
to the offended party of his rank, age, or sex or that it be in the
dwelling of the offended party, if the latter had not given provocation.
4. That that act be committed with abuse of confidence or obvious
ungratefulness.
5. That the crime be committed in the Palace of the Chief Executive, or in
his presence, or where public authorities are engaged in the discharge
of their duties, or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime or in an uninhabited
place, or by a band whenever such circumstances may facilitate the
commission of the offense.
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have
been committed by a band.
7. That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic, or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons
who insure or afford impunity.
9. That the accused is a recidivist. A recidivist is one who, at the time of
his trial for one crime, shall have been previously convicted by final
judgment if another crime embraced in the same title of this Code.
10. That the offender has been previously punished by an offense in
which the law attaches an equal or greater penalty or for two or more
crimes in which it attaches a lighter penalty.
11. That the crime be committed in consideration of a prize, reward, or
promise.
12. That the crime be committed by means of inundation, fire, poison,
explosion, stranding of a vessel, or international damage therein,
derailment of a locomotive, or by use of any other artifice involving
great waste and ruin.
13. That the crime be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means be employed
to weaken the defense.
16. That the act be committed with treachery (alevoisia). There is treachery
when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which
tend directly and specially to insure the execution, without risk to
himself arising from the defense which the offended party might
make.
17. That means be employed or circumstances brought about which add
ignominy to the natural effects of the act.

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 18. That the crime be committed after an unlawful entry. There is
unlawful entry when an entrance is effected by a way not intended for
the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door,
or window be broken.
20. That the crime be committed with the aid of persons under fifteen (15)
years of age or by means of motor vehicles, motorized watercraft,
airship or other similar means.
21. That the wrong done in the commission of the crime be deliberately
augmented by causing other wrong not necessary for its commission.

KINDS OF AGGRAVATING CIRCUMSTANCES:

a. GENERIC- that which generally applies to all crimes.
b. SPECIFIC- that which applies to a particular felony like cruelty
in crimes against persons.
c. QUALIFYING- that which changes the nature of the felony as
treachery in murder.
d. INHERENT- that which is part of the felony committed, such as
unlawful entry in robbery with force upon things.

DISTINCTIONS BETWEEN GENERIC AND QUALIFYING

AGGRAVATING CIRCUMSTANCES:

a. A generic aggravating circumstance can be offset by an ordinary

mitigating circumstance.
b. A qualifying aggravating circumstance cannot be proved as
such unless alleged in the INFORMATION.
c. Generic aggravating circumstance if not offset have the effect of
increasing the penalty to the maximum but not beyond that
provided by law. A qualifying aggravating circumstance
changes not only the nature but also the name of the offense and
the offender becomes liable for the new offense which is more
serious in nature.

Aggravating circumstance have the effect of increasing the penalty

because of the greater perversity of the offender. As such, it must be proved.

Qualifying circumstances must not only be alleged in the INFORMATION

by must be established by direct and positive evidence as well. Mere
presumption or inferences are not sufficient no matter how logical or probable
they may be.

(1) TAKING ADVANTAGE OF OFFICIAL POSITION- The essence of the

aggravating circumstance is presented in the inquiry: Did the accused
abuse his office in order to commit the crime? If the accused could have

50
 killed the victim without having occupied his position of confidential
agent, then there is no abuse of public position.
E.g. A policeman who effected the abduction of the offended party when
he was wearing his uniform or robbery committed by the Chief of Police
and others who represented themselves as persons in authority or the
accused, a policeman, committed the crime with eh aid of a gun he had
been authorized to carry as a police officer, taking advantage of official
position as an aggravating circumstance is present.

The aggravating circumstance of taking advantage of public position in

perpetrating the crime was appreciated against the police officers who
killed the person they were supposed to arrest.

If the abuse of office is an integral element of the felony as in falsification

of public document by a public officer who took advantage of his official
position, bribery or malversation, the circumstance is not considered. This
means that this aggravating circumstance is inherent in the crime, since it
cannot be committed except by a public officer.

(2) CRIME COMMITTED IN CONTEMPT OF WITH INSULT TO PUB;IC

AUTHORITIES- Requisites: (a) The public authority is engaged in the
discharge of his duties; and (b) he is into the person against whom the
crime is committed.

In this aggravating circumstance, it is essential that the offender knows

the identity of the public authority. A public authority is a person in
authority, thus, the Chief of Police is a person in authority. A Barangay
Chairman is a person in authority.

But if the crime is committed against the public authority, the crime
committed is DIRECT ASSAULT and this aggravating circumstance will
be considered absorbed.

(3) ACT COMMITTED WITH INSULT OR LACK OF REGARD DUE TO THE

OFFENDED PARTY BY REASON OF AGE, SEX, OR RANK OR THE
CRIME IS COMMITTED IN THE DWELLING OF THE OFFENDED
PARTY, IF THE LATTER HAS NOT GIVEN PROVOCATION- There are
four (4) aggravating circumstances in this paragraph, which, if present in
the commission of the crime is considered as one aggravating
circumstance only.

“With insult or in disregard” means the specific fact of insult or disregard

of the sex, age, or rank of the offended party. There must be proof

51
showing that the accused deliberately intended to offend or insult the
AGE, SEX, OR RANK of the offended party.

Examples of WITH INSULT OR DISREGARA TO RANK:

(a) Killing of a judge because he was strict. Killing of a consul and
the accused was a mere chancellor, a subordinate of the
accused.
(b) A clerk killing a ranking official of the Civil Service Commission

Example of WITH INSULT OR DISREGARD TO AGE:

(a) The accused was 45 years old and the offended party was an
octogenarian.
(b) The victim in the crime of murder is a child three (3) years old.
(c) The victim was 73 years old at the time he was hacked to death.
(d) The killing by the accused of his grandfather, an old man while
sleeping, is characterized by disregard of the respect due to the
victim on account of age.

Example of WITH INSULT OR DISREGARD TO SEX (GENDER):

(a) Compelling a woman to go to the house of the accused against
her will.
(b) The killing of a woman, a sexagenarian was attended by
disrespect done her on account of her sex.

However, sex is not considered in a crime where being a

woman is an element thereof like parricide, rape, abduction or
seduction.

“DWELLING” includes dependencies, staircase, and enclosures under

the house. The rationale for this aggravating circumstance is the offender’s
deliberate invasion of the tranquility of one’s domicile, which shows
greater perversity of the offender.

Dwelling includes a room in a boarding house. It is not necessary

that the victim owns the place where he lives or dwells. The place is his
home which the law seeks to protect or uphold whether he is a lessee,
boarder, or bed spacer.

Examples where DWELLING IS AGGRAVATING:

(a) If robbery is committed with violence against persons or
intimidation of persons.
(b) Where the victims are living in different rooms or apartments
since the same are considered separate dwellings.
(c) When the victim was killed while opening the door.

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 (d) The victim was killed on the staircase of his house.
(e) When the victim was taken from his house although he was
killed outside his abode.

Examples where dwelling IS NOT AGGARAVATING:

(a) If the offended party has given provocation.
(b) If both the offender and offended party are occupants of the
same house.
(c) It is inherent in robbery with force upon things.
(d) When the victim was killed in the awning of the house, which
means he was outside the house.

(4) ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS- The

requisites of abuse of confidence: (a) the offended party had trusted the offender;
(b) the offender abused such trust; and (c) that such abuse of confidence
facilitated the commission of the crime.

E.g. The killing by the accused of his sweetheart whom he invited to a ride
after he had determined to kill her and who went with him not knowing of his
plan.

The accused was hired by the deceased as a trusted houseboy for four (4)
years prior to the commission of the crime; that in the discharge of his duties he
was allowed to enter and clean her room and to close the flower shop and
therefore had access also to the private room where he killed her, abuse of
confidence.

The accused robbed and killed the victim after having fed and lodged
them in his house on the tragic night.

The offender was the servant of the family and sometimes took care of the
child, whom she later killed, there is abuse of confidence. But if the accused
raped a girl who was entrusted by HER PARENTS, there is betrayal of
confidence but NOT an abuse of confidence of the offended party since the
confidence between the parties must be personal.

This aggravating circumstance is to be considered where there exists trust

and confidence between the accused and the victim and the accused made use of
such relation to commit the crime. It is not present if the trust and confidence
existed between the accused and the father of the deceased, and the deceased
was residing apart from the father.

It is essential that the confidence between the parties must be

IMMEDIATE AND PERSONAL as would give the accused some advantage or to
make it easier for him to commit the crime, that such advantage was a means of
facilitating the commission of the crime, the culprit taking advantage of the
offended party’s belief that the former would not abuse such confidence.

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 OBVIOUS UNGRATEFULNESS is present when the robbery or theft
made by a visitor in the house of the offended party. It is also present if the
accused in the crime of murder was an employee of the victim living with him in
the same dwelling. It was also considered when the accused killed his employer
who allowed him to maintain a store in his compound without paying rent.

(4) CRIME COMMITTED IN THE (A) PALACE OF THE CHIEF EXECUTIVE; (B)
IN HIS PRESENCE; (C) WHERE PUBLIC AUTHORITIES ARE ENGAGED IN
THE DISCHARGE OF THEIR DUTIES; OR (D) IN A PLACE DEDICATED TO
RELIGIOUS WORSHIP- Performance of any function is not necessary if the
crime is committed in the Palace of the Chief Executive or in his presence or in a
place dedicated to religious worship. But there must be some performance of
public functions as regards the place where public authorities are engaged in the
discharged of their duties.

It is necessary to show that the offender must have sought any of the
above places for the commission of the crime. Any of the said places is not
aggravating if the crime was casually committed therein.

E.g. The accused stabbed the victim in the Office of the Chief of Police
who was investigating a fist fight between them.

It was not considered aggravating when the assault was committed

inside a courtroom after the court had adjourned.

(6) NIGHTTIME, UNINHABITED PLACE OR BAND- These aggravating

circumstances can be considered SEPARATELY if their elements are distinctly
perceived and can subsists independently, revealing a greater degree of
perversity.

To be aggravating, it is essential that the same facilitated the commission

of the crime or the offender took advantage of it and purposely sought for the
purpose of impunity.

Nighttime is that period of darkness beginning at the end of dusk and

ending at dawn. The period from sunset to sunrise. The crime must be
consummated exclusively at nighttime. If the commission of the crime
commenced at daytime and it was consummated at nighttime, it is not
aggravating. When nighttime is a mere accident or had no influence in the
perpetration thereof, like bribery or bigamy, it is not aggravating.

There are two tests of nocturnity as an aggravating circumstance, the

objective test, under which nocturnity is aggravating because it facilitates the
commission of the crime and the subjective test, under which nocturnity is
aggravating because it was purposely sought for by the offender.

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 UNINHABITED PLACE is determined not by distance of the nearest
house to the scene of the crime but whether or not in the place of the commission
of the crime there was a reasonable possibility of the victim receiving some help.

E.g., The crime was committed in a banca at sea not so far away from
another banca, the place is uninhabited as it was difficult for the victim to receive
any help.

Where the crime was committed 500 meters from the toll gate in a
solitary place off the road where help to the victim was difficult and the escape of
the accused seemed easy.

A place where there are no people or any number of houses within a

perimeter of less than 200 meters is uninhabited.

An uninhabited place is one where there are no houses at all, a place

at a considerable distance from the town or where the houses are scattered at
great distances from each other or where the nearest house was 400 meters
distant, hidden by coconut groves.

Killing was done in secluded place at the foot of a hill, forested and
uninhabited, the nearest house being 200 meters away.

Uninhabited place is aggravating where the crime was committed in a

solitary place, where help to the victim is difficult and escape of the accused is
easy, provided that solitude was purposely sought or taken advantage of to
facilitate the commission of the felony.

Uninhabited place is aggravating if it is shown that such facilitated the

commission of the crime or the offender took advantage of the isolated places
either a) that he might better attain his and free from molestation or b)that he
might better secure himself against detection.

BAND consist of at least four (4) armed malefactors organized with the
intention of carrying out any unlawful design. They should have acted together
in the commission of the crime.

If one had no direct participation in the commission of the crime, like a

principal by inducement there is no band. Even if there are 20 members but only
three (3) are armed, there is no band.

Band had been applied in the crime of treason, in robbery with homicide
and in crimes against persons like murder. Band and abuse of superior strength
have the same essence which is the utilization of the combined strength of the
assailants to overcome the victim and consummate the killing.

(7) CRIME COMMITTED OF THE OCCASION OF CALAMITY- the term “other

calamity or misfortune” refers to conflagration, shipwreck, earthquake or
epidemic.

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 E.g., Where defendant set fire on his establishment as the fire which broke
earlier in the neighborhood spread out towards his place and while the people
were going about in confusion as a result of the fire, the circumstance of “taking
advantage” of the confusion occasioned by another fire is aggravating in the
arson committed.

This aggravating circumstance is distinguished from that provided in

paragraph 12 for in this aggravating circumstance the crime is committed on the
occasion of or during any of the calamities therein mentioned, whereas in
paragraph 12, the fire, inundation or explosion is used as a means in the
commission of the crime.

This is aggravating because the offender “who is in the midst of a great

calamity, instead of lending aid to the afflicted, adds to their suffering by taking
advantage of their misfortune to despoil them.

(8) AID OF ARMED MEN WHO INSURE OR AFFORD IMPUNITY- The armed
men present must take part, either directly or indirectly, in the commission of the
crime be the offender. But it must not appear that the offender as well as those
armed men acted under the plan and for the same purpose as there will be
conspiracy.

Aid of armed men is present even if the principal offender merely relied
on their aid as actual aid is not essential.

BAND may be absorb aid of armed men, since in the existence of a band
the employment of more than three armed men is automatically included.

(9) RECIDIVISM- A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment if another crime
embraced in the same title of this Code.

The first conviction must be by a final judgment and must take place prior to the
second conviction. The offender should have been convicted by final judgment
at the time of rendition for the second offense.

(10) REITERACION OR HABITUALITY- In reiteracion, it is essential that the

offender be previously punished, that is, he has served the sentence, for an
offense in which the law attaches, or provides for an equal or greater penalty
than that attached by law to the second offense or for two or more offenses, in
which the law attaches a lighter penalty. Reiteracion is also called habituality .
The two offenses are not embraced in the same Title of the Code.

If the two offenses are embraced in the same Title of the Code, irrespective
of whether the law attaches a greater penalty for the first offense, recidivism and
not reiteracion is present.

RECIDIVISM DISTINGUISHED FROM REITERACION:

56
 a. In reiteracion, the offender is previously punished, whereas, in
recidivism, it is enough that there be a previous conviction by final
judgment.
b. In reiteracion, the offenses are not embraced in the same Title of the
Code, whereas, is recidivism , these offenses must be embraced in the
same Title of the Code.
c. Reiteracion is not always aggravating as its application rest upon the
discretion of the Court, whereas, recidivism, if present, is always
considered aggravating.

(11) COMMISSION OF THE CRIME IN CONSIDERATION OF A PRICE,

PROMISE OR REWARD- When this aggravating circumstance is present, it
affects not only the person who gave the price or reward but also the person who
received it.

The offender who induced other to commit the crime for a price, promise
or reward is a principal by inducement. The inducement must be the primary
consideration in the commission of the crime for this aggravating circumstance
to be considered against the person induced.

(12) COMMISSION OF CRIME BY MEANS OF INUDATION, FIRE, POISON,

EXPLOION, STRANDING OF A VESSEL OR INTENTIONAL DAMAGE
THERETO, DERAILMENT OF LOCOMOTIVE OR THE USE OF NAY OTHER
ARTIFICE INVOLVING GREAT WASTE AND RUIN- This is the only
aggravating circumstance that may constitute a crime in itself.
If a building is set on fire to burn it, the crime committed is arson. If as a
result of the burning of the building, somebody dies, it is the complex crime of
ARSON WITH HOMICIDE.

If the building is burned as a means to kill the occupant, the crime will be
murder, not murder with arson. When the victim was first killed and the
accused set fire to his house, he is guilty of two separate crimes of murder and
arson because arson was committed to conceal the murder.

If a hand grenade was thrown into the house and as a result of the
explosion, the house was damage but no one was injured, the crime committed is
destruction of property. If the explosion was used as a means to kill the
occupant, who died as a consequence, the crime will be murder.

(13) EVIDENT PREMEDITATION- Requisites: (a) The time when the accused
determined to commit the crime; (b) an act manifestly indicating that the accused
clung to his determination; and (c) sufficient lapse of time between such
determination and execution, to allow the accused to reflect on the consequences
of his act.

The premeditation must be based upon external acts and must be evident
and not merely suspected indicating deliberate planning.

57
 The criminal intent evident from outward acts must be notorious and
manifest, and the purpose and determination must be plain and have been
adopted after mature consideration on the part of the person who conceived and
resolved upon the perpetration of the crime, as a result of deliberation,
meditation and reflection sometime its commission.

Mere threats to kill without evidence of sufficient time for meditation and
reflection do not constitute evident premeditation.

The essence of premeditation is that the execution of the criminal act must
be preceded by cool thought and reflection of the resolution to carry out the
criminal intent during the space of time sufficient to arrive at a calm judgment.

There must be evidence of planning and sufficient lapse of time before

determination and execution to allow the accused to reflect on the consequences
of his act.

Three (3) and a half hour from the plan to the commission of the crime is
sufficient time for the accused to dispassionately reflect upon the consequences
of his act or desist from its execution. Or, when the accused planned the killing
after taking their lunch a day before the incident because he had ample
opportunity o desist from executing the crime.

There is no evident premeditation in the absence of a pre-conceived plan.

(14) THAT CRAFT FRAUD OR DISGUISE IS EMPLOYED- There are the

intellectual means in the commission of a crime and are separate aggravating
circumstances.

Craft is cunning or intellectual trickery or chicanery resorted to by the

accused to carry out his evil design.

E.g., The accused assumed a position of authority to gain entrance in a

house.

The accused shouted from the outside that they wanted to but
cigarettes which induced the offended party to open the kitchen which paved the
way for the intrusion into the house of the offended party.

The accused pretended to be constabulary soldiers to gain entry into

the place of the victim

FRAUD which constitutes deceit and manifested by insidious words or

machination.

E.g. The accused, the step father of the offended party taking advantage of
the absence of the mother, took the young girl away and told her she was going
to be taken to the house of her grandmother but instead taken to another house
where she was raped.

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 The accused simulated the handwriting of B, who is a friend of C,
inviting the latter to meet at a designated place, and upon showing at the
designated place killed him

The purpose of DISGUISE is to conceal the identity. If despite the

disguise, the offender was recognized, such cannot be aggravating.

E.g., The use of an assumed name in the publication, covering the face
with a hanker chief or blackening the face or illegally wearing constabulary
uniform is disguise or by wearing a mask.

It is not aggravating if there is no evidence that the accused resorted to

means and measures to conceal their identities during the commission of the
crime.

(15) ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH OR MEANS BE

E,PLOYED TO WEAKEN THE DEFENSE- Intentionally employing excessive
force our of proportion to the means of defense available to the offended party is
taking advantage of superior strength.

There must be notorious inequality of forces between the victim and the
aggressor, and to appreciate it, it is necessary to evaluate the physical conditions
of the protagonists and the arms employed by each side and to analyze the
incidents and episodes constituting the total development of the crime.

E.g., If several persons all armed, attacked the victim who was
defenseless, abuse of superior strength is present.

Four (4) persons armed with bladed instruments while the victim was
alone, unarmed and taken by surprise or when four (4) persons confronted the
victim in his house when je just woke up and unarmed, indicating a show of
force to overwhelm him and to forestall any resistance he might have attempted
to make.

Superiority in number does not necessarily mean superiority in strength.

It is necessary to show that the aggressors cooperated in such a way as to secure
advantage from their superior strength. There must also be proof that the
accused simultaneously assaulted the victim

On the other hand, intoxicating a victim with intention to kill him is

characterized by means employed to weaken the defense. Another example is by
suddenly casting sand or dirt upon the eyes of the offended party and then
wounding him.

(16) TREACHERY- is applicable in crimes against persons only. It is qualifying

in murder (Art. 248) or in serious physical injuries (Art. 263). In parricide,
treachery is a generic aggravating circumstance as well as in homicide, if it is not

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alleged in the Information. It is also present in the crimes complex with a crime
against person like robbery with homicide.

The means, methods of form of execution of the crime must be consciously

adopted because the law requires that the same insure its execution. The attack
must be intended to facilitate the perpetration of the killing without risk to his
own person from a defense which the other party might offer.

E.g., Treachery was present if the deceased was killed while bound in
such way as to be deprived of any opportunity to repel the attack or escape with
nay possibility of success.

The deceased was killed while asleep or if the deceased was shot while
answering a call of nature or if the hanks of the deceased were tied when
attacked. Or when the accused stabbed the victim while the latter was
practically helpless and unable to put up any defense or when the victim was
shot while lying on the floor, face downward. The killing of a child is murder
qualified by treachery , even if the manner of attack was not shown.

Treachery cannot be presumed. So, when the manner of attack was not
proven, there can be no treachery as such cannot be presumed. Treachery must
be proven as conclusively as the act itself.

The following requisites must concur for treachery to be present: 1) The

culprit employed means, methods or forms of execution which directly and
especially tend to insure the offended party which means that no opportunity
was given to the latter to do so; 2) That such means, methods or manner of
execution was deliberately or consciously shown.

(17) MEANS EMPLOYED OR CIRCUMSTANCES BROUGH ABOUT TO ADD

IGNOMINY TO THE NATURAL EFFECTS OF THE CRIME- This is a
circumstance pertaining to the moral order, which adds disgrace and obloquy
caused by the crime. It therefore, produces more suffering on account of its
humiliating effects.

There is ignominy (a) when he accused raped a woman in the presence of

her husband; (b) in compelling a woman to confess toa theft of clothes, the
accused took off her drawers as there could be no other purpose except to put
her to shame; (c) In ordering complainant to exhibit to the accused her complete
nakedness for about ten minutes before raping her as such brought about a
circumstance which tended to make the effect of the crime more humiliating.

IGNOMINY produces moral suffering, CRUELTY produces physical

suffering.

(18) UNLAWFUL ENTRY- Unlawful entry exists when an entrance into a

building is made by a way not intended for the purpose. Entering through a
window is unlawful entry.

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 The unlawful entrance must be made for the purpose of committing a
crime like rape or murder. But it is inherent in the crime to trespass to dwelling
and in robbery with force upon things, although it may be considered in robbery
with violence or intimidation against persons.

Unlawful entry to be aggravating must be for the purpose of entrance and

not for the purpose of escape.

(19) AS A MEANS TO COMMIT A CRIME A WALL, ROOF, FLOOR, DOORS

OR WINDOWS BE BROKEN-The basis has reference to means and ways
employed to commit crime.

To be considered aggravating, breaking the door must be utilized as a

means to the commission of the crime.

E.g., A murderer who for the purpose of entering the house of his victim,
breaks a wall or a window of the house.

(20) COMMISSION OF CRIME WITH THE AID OF PERSONS UNDER 15

YEARS OF AGE OR BY MEANS OF MOTOR VEHICLE, AIRSHIPS,
MOTORIZED WATERCRAFT OR SIMILAR MEANS- There are two (2) distinct
aggravating circumstances here, the first shows the greater perversity of the
offender in taking advantage of the youthfulness of those persons for criminal
purposes. The second is intended to meet the problem created by modern
criminals in resorting to faster means of conveyance to commit the crime.

The circumstance of motor vehicles is present in the case of a taxicab used

in committing robbery. Or the victim was killed in a taxi hired and used by the
accused.

This circumstance will be considered when there is a showing that the

motor vehicle was purposedly used to facilitate the commission of the offense or
when it is shown that without it the offense charged could not have been
committed or was intentionally sought to insure the success of the nefarious
enterprise.

(21) THE WRONG DONE IN THE COMMISSION OF THE CRIME IS

DELIBERATELY AUGMENTED BY ANOTHER WRONG NOT NECESSARY
FOR ITS COMMISSION-There is cruelty when the culprit enjoys and delights in
making his victims suffer slowly and gradually, causing unnecessary moral and
physical pain in the consummation of the criminal act which he intended to
commit.

Cruelty requires the deliberate prolongation of the suffering of the victim.

It refers to the physical suffering of the victim purposely intended by the
offender. Hence, the wrong done must be performed while the victim is still
alive. It must be shown that the accused enjoyed and delighted in making the

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victim suffer slowly and gradually, causing unnecessary physical or moral pain
in the consummation of the act.

E.g., Gagging of the mouth of a three year old child with stockings,
dumping him with head downward into a box, and covering the box with sacks
and other boxes, causing slow suffocation and as a result the child died,
constitutes cruelty.

ALTERNATIVE CIRCUMSTANCES- 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

62
commission. They are relationship, intoxication and degree of instruction and
education of the offender.

The alternative circumstance of relationship shall be taken into

consideration when the 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.

The intoxication of the offender shall be taken into consideration as a

mitigating circumstance 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.

Thus, alternative circumstances are defined as 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.

RELATIONSHIP- is taken into consideration when the 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.

Relationship of stepfather or stepmother and stepson or stepdaughter is

included by analogy as similar to ascendant or descendant. The reason is
because it is the duty of a stepmother to bestow upon her stepdaughter a
mother’s affection, care and protection. But relationship between uncle and niece
is not included.

Relationship is mitigating in crimes against property by analogy to the

provisions of Art. 332. But in theft, estafa and malicious mischief, relationship is
exempting.

Relationship is aggravating in crimes against persons if the offended party

is a relative of higher degree or when the offender and the offended party are
relatives of the same level.

As a rule, relationship is mitigating if the offended party is of a lower

degree than that of the offender. The exception is the crime of serous physical
injuries if committed against the offender’s child provided the same were not
due to excessive chastisement except if the offender is the parent, see Art. 263.

Relationship of father-in-law and brother-in-law also aggravates the crime

of murder.

Relationship is also present since the accused is the brother of the victim.

But if relationship is an element of the crime as in parricide, it neither

aggravating or mitigating.

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 In crimes against chastity, relationship is aggravating whether the
offender is of a higher or lower degree than that of the offended party. It is due
to the nature of the crime.

INTOXICATION- Intoxication is mitigating if it is not habitual or it is not

subsequent to the plan if the commission of a felony. It is aggravating if it is
habitual or intentional.

By intoxication is meant that the offender’s mental faculties must be

affected by drunkenness. Intoxication must be proved. Mere drinking of liquor
prior to the commission of the crime does not necessarily produce a state of
intoxication.

To be mitigating, it must b shown (1) that at the time of the commission of

the criminal act, the accused has taken such quantity of alcoholic drinks as to
blur his reason and deprive him of a certain degree of control and (2) that such
intoxication is not habitual or subsequent to the plan to commit the felony.

To be aggravating, there must be evidence of excessive and habitual use or

specific purpose to commit the crime by getting drunk, otherwise, it will be
mitigating.

Drunkenness or intoxication is mitigating if accidental, not habitual or

intentional, that it, subsequent to the plan to commit the crime. It is aggravating
if habitual or intentional.

A habitual drunkard is one given to intoxication by excessive use of

intoxicating drinks. The habit should be actual and confirmed. It is unnecessary
that it be a matter of daily occurrence. It lessens individual resistance to evil
thought and undermines will power, making the victim a potential evil doer.

E.g., The accused cannot claim intoxication when he was able to climb his
tricycle to the place where he brought the victim, made love to her, following
which he killed and dumped her in a well and then drove his vehicle back to the
place where he came from, as such conduct shows that he had complete control
of his mental faculties.

When the accused failed to prove that the liquor he drank impaired his
mental faculties and that his drinking was not habitual or subsequent to the plan
to commit the felony.

DEGREE OF INSTRUCTION AND EDUCATION/LACK OF EDUCATION- In

the degree of instruction and education of the offender, the court considers not
only ILLITERACY but the lack of intelligence of the offender.

If one is unable to write but is highly and exceptionally intelligent or

mentally alert that he easily realizes the significance of his act, there is no
mitigating circumstance.

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 It is not illiteracy alone but the lack of sufficient intelligence and
knowledge of the full significance of all acts which only the trial court can
appreciate that constitute the mitigating circumstance of lack of instruction.

Where the accused has studied up to sixth grade, lack of instruction

cannot be considered in his favor.

Lack of instruction or low degree of intelligence is generally mitigating in

almost all crimes, but jurisprudence had held that it is not mitigating in murder
because to kill is forbidden by natural law. It is also not mitigating in crimes
against property nor in crimes against chastity.

On the other hand, high degree of instruction is aggravating if the

offender availed himself or took advantage of it in committing a crime as in the
case of a lawyer who commits falsification or a doctor who kills his victim by
means of a poison.

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PERSONS CRIMINALLY LIABLE FOR FELONIES:

Art. 16. Who are criminally liable.- The following are criminally for grave and
less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.

The following are criminally liable for light felonies:

1. Principals.
2. Accomplices.

Thus, for grave and less grave felonies, those liable are principals,
accomplices, and accessories. For light felonies, those liable are principals and
accomplices only.

Those liable are natural persons. Juridical persons like a corporation are
not liable. A corporation cannot be proceeded against criminally and as such it
cannot commit a crime in which a willful purpose and malicious intent is
required.

A corporation can only act through its officers or incorporators and the
accepted rule is that as regards the violation committed by an officer of a
corporation, in the exercise of his duties, he answers criminally for his acts and
not the corporation of which he belongs, for being a fictitious person, it cannot be
prosecuted criminally.

OFFICERS, NOT THE CORPORATION, ARE CRIMINALLY LIABLE: If the

crime is committed by a corporation or other juridical entity, the directors,
officers, employees, or other officers thereof responsible for the offense shall be
charged and penalized for the crime, precisely because of the nature of the crime
and the penalty therefor. A corporation cannot be arrested and imprisoned;
hence, cannot be penalized for a crime punishable by imprisonment.

Case reading: ONG VS. COURT OF APPEALS, 499 PHIL. 691 (2003)

JURIDICAL PERSONS ARE CRIMINALLY LIABLE UNDER SPECIAL LAWS:

Under BP 68, now amended by RA 112321 The Revised Corporation Code

of the Philippines, Com. Act 146 The Public Service Law, the Securities Law, the

66
Election Code, the corporation may be fined for certain violations of the
provisions.

Under PD 115, the Trust Receipts Law, it includes an express provision

that if the violation of the offense is committed by a corporation, partnership,
association, or other juridical entities, the penalty provided by the decree shall be
imposed upon the directors, officers, employees and other officials or persons
therein responsible for the offense.

CASE READING: SIA VS. PEOPLE L- 30896, April 25, 1983

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

1. Those who take 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 WHO TAKE DIRECT PART IN THE EXECUTION OF THE ACT:

They are those who, participating in the criminal design, proceed to carry out
their plan and personally take part in its execution by acts which directly tend to
the same end.

To establish conspiracy, proof of the previous agreement is not essential. It

is not sufficient that the attack be joint and simultaneous. It is necessary that the
assailants be animated by one and the same purpose, and that a conspiracy must
be shown to exists as clearly and convincingly as the crime itself.

Direct proof is not essential to show conspiracy. It is proved that two or

more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently
independent, were in fact connected, indicating a closeness of formal association
and a concurrence of sentiment, a conspiracy may be inferred.

In conspiracy, there is a collective criminal responsibility, as the act of one

is the act of all. This is the rule even though such act differs radically and
substantially from that which the conspirators intended to commit.

By personally taking part in the execution of the plan means that the
conspirator must be present at the scene of the commission of the crime,
particularly in the crime of arson. However, if a conspirator had already
performed his part of the agreement, although he was not present at the scene of
the actual commission of the crime, as in kidnaping a victim and bringing him to
the place where he was later killed by the other conspirators, he is equally liable
as principal by direct participation.

E.g., One who stood as a guard outside a house for the purpose of keeping
other persons away while the other companions were inside the house killing the

67
victim, is a co-principal by direct participation, because as a guard he knew of
the plan and being present, aided in the commission of the crime.

But where the act done is not pursuant to the conspiracy and is not a
necessary and logical consequence of the intended crime, only the actual
perpetrators are liable. Thus, if the conspiracy is to commit robbery and one of
them committed rape, only he will be liable for robbery with rape and the other s
for robbery only.

To free himself from criminal responsibility, the law required some overt
act on the part of the conspirator to seek to prevent the commission of the second
or related felony or to abandon or disassociate himself from the conspiracy.

PRINCIPAL WHO DIRECTLY FORCES OR INDUCES OTHERS TO COMMIT A

CRIME- There is a principal by induction or by inducement only if it is shown
that the crime was actually committed by another who was induced.

If the force employed is irresistible or is caused by an uncontrollable fear,

only the one employing it is liable as the executor as EXEMPT under pars. 5 and
6 of Article 12.

Inducement comprises reward, promise, command. With respect to

command, it must be the moving cause of the offense.

But an imprudent or ill-conceived advice without any intention that such

would be followed or that it would produce any result is not inducement
because such is not made with the intention of the making the one advised to
commit a crime. Also, if the one induced has a personal reason to commit the
crime so that he would commit it just the same whether or not there is
inducement cannot be determining and only cause of the commission of the
crime.

Regarding the induction, it is essential that (a) it be made directly with the
intention of procuring the commission of the crime; (b) that such inducement be
the determining cause of the said commission by the one induced.

E.g., A wife who induced the killing of the mistress of her husband by
giving money to the killer is a principal by inducement.

One who planned the commission of the crime is a principal by

inducement

The person who supplied to the innocent employee un the treasurer’s

office the false facts to be written on the residence certificate he was buying is a
principal by inducement as he was the one who induced the employee to write
those false facts which he supplied.

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PRINCIPALS WHO COOPERATE IN THE COMMISSION OF THE OFFENSE
BY ANOTHER ACT WITHOUT WHICH IT WOULD NOT HAVE BEEN
ACCOMPLISHED: There must be immediate participation in the criminal design
of the principal by direct participation by an act without which the crime would
not have been committed. The cooperation of this principal is by an act
indispensable to the commission of the felony.

E.g., An employee of a bank in connivance with a depositor placed in his

initials on the check of the depositor drawn against the bank knowing that there
was no sufficient funds, the employee is a principal by indispensable
cooperation. The act of initialing the check is indispensable to the act of
defraudation of the depositor as without it the checked would not be cashed.

One who knowingly contributes money of for the purpose of buying the
weapon to be used by another in killing a third person is responsible as principal
for having cooperated with an act without which the crime would not have been
committed.

Holding the deceased from behind and the other accused stabbed the
deceased, the co-accused performed an act without which the crime would not
have been accomplished which makes him a principal by indispensable
cooperation.

One of the accused removed the panties of the offended party and held
her feet while the sexual act was performed by the other accused, the first
accused is a principal by indispensable cooperation since considering the extent
of the cooperation, without his aid, the crime of rape would not have been
committed.

But any cooperation, even done with knowledge of the criminal intent of
an accused, if not indispensable, to the commission of the crime, will make one
liable as an accomplice.

E.g., The accused knowingly aided the killers by casting stones at the
victim or the act of giving fist blow after he was stabbed by the other accused, the
liability will be that of an accomplice.

ACCOMPLICES- Art. 18. Accomplices.- Accomplices are those persons who, not
being included in Art. 17, cooperate in the execution of the offense be previous or
simultaneous act.

They are those who not being principals, cooperate in the execution of
the offense by previous or simultaneous acts. The are two (2) elements required:
(1) that he takes part in the execution of the crime by previous or simultaneous
acts; and (2) that he intends, by said acts to commit or take part in the execution
of the crime.

In the case of accomplices, there is no conspiracy. An accomplice has

knowledge of the criminal design of the principal and all that he does is to

69
concur with the latter in his purpose, by cooperating in the execution of the crime
by previous or simultaneous acts; for the purpose of supplying material or moral
aid to the principal in an efficacious way.

E.g., A driver of the taxicab knowing that his co-accused were going to
commit robbery permitted them to use the taxicab in going to the place where
the robbery was committed is an accomplice.

One is an accomplice in the crime of kidnapping if he guarded the

detained person to prevent him from escaping. This participation was
simultaneous with the commission of the crime if not with its commencement or
previous thereto, such not being indispensable to the end proposed.

The act of the accused in blocking the way of the victim’s companion to
prevent them from coming to the aid of the victim is one of help and cooperation.
But it is not indispensable to the stabbing of the victim. The liability of the said
accused should be held merely as an accomplice.

The persons who entertains the owner of the house while robbers are
assaulting it, so that he will not return thereto until the robbery has been
consummated, is also an accomplice to the crime, inasmuch as he cooperated
therein, by simultaneous acts, although not as an indispensable one for its
commission.

Although strictly speaking, a co-conspirator should be punished as co-

principals, in some EXCEPTONAL SITUATIONS, having community of design
with a principal does not prevent a malefactor from being regarded as an
accomplice, if his role in the participation of the homicide or murder was,
relatively speaking of minor character or if the participation was no absolutely
indispensable to the commission of the crime, and therefore the rule that the
court should favor the milder form of liability may be applied to him.

CASE READING: People vs. San Miguel 106 SCRA 290 (1980)

People vs. Doble 114 SCRA 131 (1982)

Art. 19 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
manner:

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 principal 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 the Chief Executive, or is known to be habitually guilty of
some other crime.

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PROFITING FROM THE EFFECS OF THE CRIME: The accessory should
materially benefit from the act.

In the crime of murder, one who shared in the reward for the commission
of the crime is an accessory because he profited from the effects of the crime.

A person who received from another property which he knew to have

been stolen, sold it and gave the proceeds to the thief is an accessory because he
assisted the offender to profit from the effects of the crime.

But if one engages in the buy and sell, deals or possesses goods which he
knows or should have known are proceeds of the crime of robbery or theft, will
be liable not as an accessory , but for the offense of fencing.

CONCEALING OR DESTROYING THE BODY OF THE CRIME: Body of the

crime in Par. 2, Article 19 is the CORPUS DELICTI, that is, a specific offense in
fact committed by someone.

E.g., A person who placed a weapon in one of the hands of the deceased
after he was killed to show that he was armed, and it was necessary to kill him
for having offered resistance to the authorities is an accessory. This is similar to
concealing the body of the crime to prevent its discovery.

ASSISTING THE PRINCIPAL TO ESCAPE:

In par. 3, Art. 19, the public officer who harbors, conceals, or assists in the
escape of the principal of the crime must act with abuse of his public functions.
IF THE ONE ASSISTED IS THE ACCOMPLICE, THERE IS NO
ACCESSORY. However, the public officer is an accessory irrespective of the
crime committed by the principal provided it is not a LIGHT FELONY.

If the person who harbors, conceals, or assists in the escape of the author
of the crime is not a public officer but a private person, the author of the crime
must be guilty of treason, parricide, murder, or attempt against the life of the
President or is known to be habitually guilty of some other crime.

So, if a private person assists another who has been guilty of robbery, he
cannot be an accessory.

E.g., A person who when asked by the police gave false information
regarding the whereabouts of a person who was guilty of murder in order to
enable the latter to escape, is an accessory, as by misleading the police, he
thereby assisted in the escape of the principal.

The wife told her daughter who knew of the identity of the killers of her
father not to reveal what she knew to anyone and instead of helping the police in

71
their investigation, she claimed that she had no suspects in mind was held liable
as an accessory as the acts constitute concealing or assisting in the escape of the
principal.

If after the principal ahs been declared guilty, a person presents himself to
serve the sentence by representing himself to be the principal, he is an accessory.

EEFECTS OF ACTS OF ACCESSORYSHIP: The responsibility of an accessory is

subordinate of the principal in a crime because the accessory’s participation is
subsequent to its commission, and it is essential that it should established that a
crime is committed by the principal and his guilt is directly related to that of the
principal.

If the principal is acquitted because the facts alleged to have been

committed are not proved or do not constitute a crime, the accessory is not liable.

As long a crime has been committed, even if the principal has not been
arrested and convicted, the accessory may be held liable. Art. 19 does not require
the conviction of the principal in order to convict the accessory.

The participation of accessories subsequent to the commission of the crime

may be accomplished in various ways and they may be, according to their form
of participation, convicted as such, without the conviction of the principal author
thereof.

ACCESSORIES WHO ARE EXEMPT FROM CRIMINAL LIABILITY:

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 RELATIVS BY
AFFINITY WITHIN THE SAME DEGREE, with the single exception of
accessories within the provisions of paragraph 1 of the next preceding article.
If the acts performed, therefore, by these accessories pertain to paragraphs
2 and 3 of Article 19, they are not liable, because he acted due to blood or
immediate relationship and not for gain or material profit.

But if a peace officer who is related to the principal helped him to escape,
he will be liable for dereliction of duty under Article 208 for failing to prosecute
one who has committed a crime or for tolerating the commission of an offense.

PENALTIES- in its general sense, penalty signifies pain. In its juridical sense,
penalty means the suffering undergone because of the action of society, by one
who commits a crime. Penalty is imposed only after a conviction in a criminal
action.

NATURE OF SYSTEM OF PENALTIES PROVIDED IN THE RPC: The system of

penalties adopted by the Revised Penal Code is both RIGID AND ELASTIC. Its
rigidity lies in the classification of penalties. Its elastic lies in the range of each

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class, period or degree of penalty. Its elasticity had been further enlarged by the
LAW OF INDETERMINATE SENTENCE (ISLAW) not only in the range of
penalty but in its actual application.

JURIDICAL CONDITIONS OF PENALTY:

1. Must be productive of suffering but the limit is the integrity of human
personality.
2. Must be proportionate to the crime in the sense that different penalties
are prescribed for different felonies.
3. Must be personal as it must be imposed only upon the criminal and no
other.
4. Must be legal as it must be the consequence of a judgment according to
law.
5. Must be certain so that no one cannot escape from it.
6. Must be equal in the sense that it applies to all persons regardless of
circumstance.
7. Must be correctional.

PURPOSE OF THE STATE IN PUNISHING CRIMES: For justice, because the

State has an existence of its own to maintain, a conscience to assert and moral
principles to be vindicated. Penal justice rest primarily on the moral rightfulness
of the punishment imposed.

THEORIES JUSTIFYING PENALTY:

1. Absolute Theory- an act of retributive justice, a vindication of absolute
right and moral law violated by the criminal.
2. Relative Theory
a. Prevention- to prevent or suppress the danger to the State
arising from crime.
b. Self-Defense-to protect society from the wrong or threat
inflicted by the offender.
c. Reformation-to correct and reform and offender.
d. Exemplary- to deter others from committing crimes.

CONSTITUTIONAL LIMITATIONS:
1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted.
2. Death Penalty shall be not be imposed, unless, for compelling reasons
involving heinous crimes, Congress shall provide for it.

Art. 21. Penalties that may be imposed.- No felony shall be punishable by any
penalty not prescribed by law prior to its commission.

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 Only those provided by law prior to the commission of a felony. Thus, if
the law does not provide for subsidiary imprisonment prior to the commission of
the felony, such cannot be imposed, for to do so is to give it retroactive effect.

The exception to this rule is a penalty modified by law subsequent to the

commission of the crime which favors the offender, except if the latter is a
habitual delinquent or when the law otherwise provides.

RETRO-ACTIVE EFFECT OF PENAL LAWS:

Art. 22. Retroactive effect of penal laws.- Penal laws shall have retroactive
effect insofar as they favor the person 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 publication of such laws a final sentenced has been pronounced and
the convict is serving the same.

SITUATIONS WHEN A FAVORABLE PENAL LAW BE GIVEN RETROACTIVE

AFFECT:
1. The crime has been committed and the prosecution began presenting
its evidence.
2. Sentence has been passed but the service has not begun.
3. The sentence is being carried out.

WHO IS A HABITUAL DELINQUENT: A culprit is a habitual delinquent if

within ten (10) years from the date of his release or last conviction of the crime of
serious or less serious physical injuries, robbery, robbery, theft, estafa or
falsification, he is found guilty of any of said crimes a third time or oftener.

EFFECT OF PARDON BY THE OFFENDED PARTY ON THE PROSECUTION

OF THE OFFENDER:

Art. 23. Effect of pardon by the offended party- A pardon by the offended
party does not extinguish criminal action except as provided in Art. 344 of this
Code, but civil liability with regards to the interest of the injured party is
extinguished by his express waiver.

The criminal action in PUBLIC CRIMES is not extinguish. Thus, the

criminal liability for estafa is not affected by the compromise or novation of
contract, for it is a public offense which must be prosecuted and punished by the
government in its own motion even though complete reparation should have
been made of the damages suffered by the offended party.

Reimbursement of or compromise as to the amount of crime affects only

the civil liability but does not relieve him from the penalty prescribed by law for
the offense committed.

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 As to PRIVATE CRIMES, which are those mentioned in At. 344 like
SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS, AULTERY AND
CONCUBINAGE, the criminal action is barred if:
(a) The pardon is made before the institution of the action.
(b) In adultery or concubinage, the pardon refers to both offenders, which
may either be express or implied.
(c) Marriage between the offender and the offended party totally
extinguishes the criminal liability of the offender.

MEASURES OF PREVENTION OR SAFETY ARE NOTCONSIDERED

PENALTIES:

Article 24. Measures of prevention or safety which are not 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.

Preventive and corrective measures take place before conviction while

corrective measures are imposed not in a criminal case. Penalty is always
imposed upon conviction in a criminal case only.

Arrest and temporary detention of accused persons, their detention being

due to insanity or imbecility, or illness requiring confinement in a hospital is not
a penalty. Commitment of a minor to an institution as provided by RA 9344 is
not a penalty. Likewise, suspension from public office during the trial or in order
to institute the action is not a penalty because it is not imposed in a judicial
proceeding. This is necessary to prevent the accused from interfering with the
investigation with his influence and authority over possible witnesses. Fines and
other corrective measures imposed by superior officers upon their subordinates
in the exercise of administrative or disciplinary powers. Deprivation of rights
and reparations which the civil law establishes in penal form, an example is Art.

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372 of the Civil Code which provides for deprivation of PARENTAL
AUTHORITY on statutory grounds.

PENALTIES WHICH MAY BE IMPOSED:

Article 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:

Scale
Principal Penalties
Capital punishment:
Death.

Afflictive penalties:
Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.

Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.

Light penalties:
Arresto menor,
Public censure.

Penalties common to the three preceding classes:

Fine, and
Bond to keep the peace.

Accessory Penalties
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.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and proceeds of the offense,
Payment of costs.

CLASSIFICATION OF PENALTIES UNDER THE REVISED PENAL CODE:

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 1. PRINCIPAL- that provided by law for a felony and which is imposed
by the court expressly upon conviction.
2. ACCESSORY- that deemed included in the imposition of the principal
penalty.

CLASSIFICATION OF PRINCIPAL PENALTIES:

1. According to their DIVISIBILITY:
a. INDIVISIBLE- those which do not have fixed duration, like
DEATH, RECLUSION PERPETUA, PERPETUAL ABSOLUTE
DISQUALIFICATION, PERPETUAL SPECIAL
DISQUALIFICATION.
b. DIVISIBLE- those which have a fixed duration are always divisible
into three (3) periods namely: MAXIMUM, MEDIUM AND
MINIMUM, like reclusion temporal, prision mayor, prision
correccional etc.

2. According to their GRAVITY:

a. Afflictive-prision mayor up to reclusion perpetua.
b. Correctional- destierro up to prision correccional.
c. Light Penalties- Public Censure to Arresto menor.

3. According to subject matter:

a. Deprivation of Freedom- reclusion perpetua.
b. Restriction of freedom- destierro.
c. Deprivation of rights- suspension.
d. Pecuniary- Fine

PENALTIES THAT MAY BE EITHER BE PRINCIPAL OR ACCESSORY:

1. Perpetual or temporary absolute disqualification.
2. Perpetual or temporary special disqualification.
3. Suspension

These penalties are included by law in the classification of principal and

accessory penalties. If suspension is the penalty provided in the Revised Penal
Code for the offense, it is a PRINCIPAL PENALTY, if not it is only an accessory
penalty.

LEGAL TERMINOLOGY USED IN THE IMPOSITION OF PENATIES TO BE

EMPLOYED: The exact legal terminology as stated in the law must be employed
because the different kinds of penalties have their corresponding legal
accessories and effects.

CENSURE CANNOT BE IMPOSED IF THE ACCUSED IS ACQUITTED: If the

accused is acquitted, the Court has no authority to censure him, because censure,
no matter how light a punishment it may be is repugnant and is essentially
contrary to an acquittal.

FINE- WHEN AFFLICTIVE, CORRECTIONAL OR LIGHT.

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 Article 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.

DURATION AND EFFECT OF PENALTIES:

Article 27. Reclusion perpetua. – The penalty of reclusion perpetua shall be from

twenty years and one day to forty years.

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.

DURATION OF PENALTIES:
1. Reclusion perpetua- 20 years, 1 day to 40 years, after serving 30 years,
he may be pardoned.
2. Reclusion temporal- 12 years, 1 day to 20 years.
3. Prision mayor and temporary disqualification- 6 years, day to 12
years.
4. Prision correccional, destierro and suspension- 6 months, day to 6
years.
5. Arresto Mayor- 1 month, 1 day to 6 months.
6. Arresto menor- 1day to 30 days.
7. Bond to keep the peace- such period of time as the court may require.

COMPUTATION OF PENALTIES:

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Article 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.

From the day judgment becomes final- temporary penalties, like

suspension, if the offender is in prison.

From the day the offender is placed at the disposal of the judicial
authorities for the enforcement of the penalty- penalty consisting of deprivation
of liberty if the offender is not in prison.

From the day defendant commences to serve the sentence- other penalties.

OFFENDERS ENTITLED TO A DEDUCTION OF THEIR PREVENTIVE

IMPRISONMENT FROM THE TERM OF IMPRISONMENT:

“Article 29. Period of preventive imprisonment deducted from term of

imprisonment. – Offenders or accused 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).

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.”

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 An accused undergoes preventive imprisonment when the offense
charged is non-bailable or even if bailable, he cannot furnish the required bail.

Those sentenced to a penalty involving deprivation of liberty except the

following:

(a) Recidivists or those who have been convicted previously of two or

more times of any crime.
(b) Those who failed to surrender voluntarily upon being summoned for
the execution of their sentence.

The deduction is for the full time of the service of the preventive
imprisonment, if the detention prisoner agrees voluntarily in writing to abide by
the same disciplinary rules imposed upon convicted prisoners. If the detention
prisoner does not agree, the deduction shall be four-fifths of the time during
which he has undergone preventive imprisonment.

EFFECTS OF PERPETUAL OR TEMPORARY ABSOLUTE DISQUALIFICATON:

“Article 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 effects of perpetual or temporary ABSOLUTE DISQUALIFICATION

FOR PUBLIC OFFICE are:

1. Deprivation of any public office or employment of the offender.

2. Deprivation of the right to vote in any election or to be voted for.
3. Disqualification for any public office and for the exercise of any rights
mentioned therein.
4. Loss of right to retirement pay or pension.

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EFFECTS OF PERETUAL OR TEMPORARY SPECIAL DISQUALIFICATION
FOR PUBLIC OFFICE, PROFESSION OR CALLING:

“Article 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.”

The effects of perpetual or temporary SPECIAL DISQUALIFICATION

FOR PUBLIC OFFICE, PROFESSION OR CALLING:

1. Deprivation of the office, employment, profession or calling.

2. Deprivation for holding similar offices or employments during the
period of disqualification.

EFFECTS OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION

FOR THE EXERCISE OF RIGHT OF SUFFRAGE:

“Article 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.”

The effects of perpetual or temporary SPECIAL DISQUALIFICATION

FOR THE EXERCISE OF RIGHT OF SUFFRAGE:

1. Deprivation of the right to vote or elected to an office.

2. Cannot hold any public office during the period of disqualification.

EFFECTS OF SUSPENSION FROM PUBLIC OFFICE, PROFESSION OR RIGHT

OF SUFFRAGE:

“Article 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.”

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 The effects of SUSPENSION FROM PUBLIC OFFICE, PROFESION OR
RIGHT OF SUFFRAGE:

1. Disqualification from holding such office or the exercise of such

profession or right of suffrage during the term of sentence.
2. Cannot hold another office having similar functions during the period
of suspension.

EFFECTS OF CIVIL INTERDICTION:

“Article 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.”

Deprivation of the following rights:

(a) Parental authority.

(b) Guardianship over the ward.
(c) Marital authority.
(d) Right to manage his property and dispose of the same by any other act
inter vivos.

Civil interdiction is an accessory penalty to the following principal

penalties: (Art. 40) (a) Reclusion perpetua; and (b) reclusion temporal (Art. 41).

BOND TO KEEP THE PEACE:

“Article 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.”

Offender presents two (2) sufficient sureties who shall undertake that he
will not commit the offense sought to be prevented and in case such offense is
committed, they shall pay the amount determined by the court or a deposit may
be made by the offender to guarantee such undertaking.

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 If the offender cannot give the bond, he may be detained for a period not
to exceed six (6) months if prosecuted for grave or less grave felony or for a
period not to exceed 30 days, for a light felony.

Bond to keep the peace is a penalty common to afflictive, correctional or

light penalty. 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.

EFFECTS OF PARDON BY THE CHIEF EXECUTIVE:

“Article 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.”

An absolute pardon extinguishes the criminal liability of the offender. But it does
not exempt the offender from the payment of the civil indemnity imposed in the
sentence. It does not restore the right to hold public office or the right of suffrage unless
such rights are expressly restored by the terms of the pardon.

Exceptions: Such power does not extend to cases of impeachment. In election

offenses, it can be exercise only upon prior recommendation of the Commission on
Elections.

PARDON BY THE CHIEF EXECUTIVE VS. PARDON BY THE OFFENDE

PARTY:

1. Pardon by the Chief Executive extinguishes criminal liability, whereas,

that is not the case if the pardon is given by the offended party except in
case of marriage, as it only bars the institution o the criminal action.
2. Pardon by the Chief Executive is granted after conviction by final
judgment whereas pardon by the offended party is given before the
institution of the action.
3. Pardon by the Chief Executive cannot include the civil liability of the
offender, whereas such civil liability may be expressly waived by the
offended party.

WHAT ARE INCLUDED AS COSTS:

“Article 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.”

These are fees and indemnities in the course of judicial proceedings. Such
may be fixed amounts already determined by law. If the accused is convicted,
cost may be charged against him. Payment of cost rest upon discretion of the

83
 Court. The government may ask the Court to assess the cost against the
offender but not as a right.

PECUNIARY LIABILITIES:

“Article 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 costs of the proceedings.”

These pecuniary liabilities must be satisfied in the order mentioned above.

Art. 38 is applied only if the property of the offender is not sufficient to pay
his pecuniary liability. If the offender does not have any property, he is to
undergo subsidiary imprisonment at the rate of 8.00 per day as provided in
Art. 39.

RULES GOVERNING SUBSIDIARY IMPRISONMENT:

“Article 39. Subsidiary penalty. - If the convict has no property with which to
meet the fine mentioned in paragraph 3 of the next 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 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 penalty imposed is higher than prision correccional

no subsidiary imprisonment shall be imposed upon the culprit.

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 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 deprivation 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 Republic Act
No. 5465, April 21, 1969.)”

SUMMARY OF RULES:

1. Penalty imposed is prision correccional or arresto AND FINE-

subsidiary imprisonment (a) not to exceed one-third (1/3) of the term
of the sentence; and (b) not to continue longer than one (1) year.
Fraction or part of a day is not counted.

E.g., Offender is sentenced to 6 years of prision correccional and to pay

a FINE OF PHP 4,000.00. Divide the number of days such fine of Php
4,000.00 may consist of at the rate of Php 8.00 for each day
(4,000/8)=500 days. But one-third (1/3) of 6 years is 2 years. The
period of 500 days is LESS THEN 2 YEARS (2 X 365 DAYS)=730 DAYS,
of the principal penalty. However, the offender is to serve 365 days
only of the 500 days because the law provides that the subsidiary
imprisonment shall not continue longer than one (1) year or 365 days.

2. Penalty imposed is FINE only- subsidiary imprisonment (a) grave or

less grave felony- not to exceed 6 months; (b) light felony-not to exceed 15
days. The gravity of the felony is the basis of the subsidiary imprisonment.
If the FINE is less than 8.00, there is no subsidiary imprisonment.

3. Penalty imposed is higher than prision correccional- no subsidiary

imprisonment.

4. Penalty imposed is not by confinement but is of fixed duration

subsidiary imprisonment is computed as in paragraph 1.

E.g., Penalty not to be served by confinement but is of fixed

duration is: DESTIERRO AND FINE OF 1,000.00

Follow rule no. 1

4. Service of subsidiary imprisonment will not relieve the offender of his

pecuniary liability to pay the fine if his financial position improves after
his release.

PRINCIPLES GOVERNING SUBSIDIARY IMPRISONMENT:

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 A. Subsidiary imprisonment applies only for failure to pay the fine
because of the insolvency of the accused. It does not apply to (1)
reparation for damages caused; (2) indemnification of consequential
damages and (3) cost of the proceedings.

B. The offender cannot be made to undergo subsidiary imprisonment

unless expressly provided in the judgment because it is not an
accessory penalty.

C. When the principal penalty is higher than prision correccional, there is

no subsidiary imprisonment.

D. When the principal penalty is NOT to be served by confinement but it

is NOT of fixed duration like the penalty of fine not exceeding Php
200.00 and censure, there is no subsidiary imprisonment.

E. The additional penalty of habitual delinquency is included in

determining whether the subsidiary penalty is to be imposed.

F. If the offender has been sentenced to several penalties, the aggregate

penalties should be considered in bulk, not separately.

G. Subsidiary imprisonment applies to the fine of Ph 200.00 which must

not exceed 15 days, if it is the maximum of the fine imposed as a
penalty, as the felony is light under Art. 9.

H. Subsidiary imprisonment does not extinguish the non-payment of the

fine.

I. If the culprit had properties, he has no option to serve the subsidiary

imprisonment in lieu of the performance of his obligation to satisfy his
pecuniary liability because subsidiary imprisonment is applied only in
cases of insolvency.

PENALTIES IN WHICH OTHER ACCESORY PENALTIES ARE INHERENT:

Article 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 of sentence, unless such accessory penalties have been
expressly remitted in the pardon.

Article 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.

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Article 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.

Article 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 this article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.

Article 44. Arresto - Its accessory penalties. - The penalty of arresto shall carry
with it that of suspension of the right to hold office and the right of suffrage
during the term of the sentence.

RECLUSION PERPETUA AND RECLUSION TEMPORAL-(a) Civil Interdiction

for life or during the term of the sentence and (b) absolute perpetual
disqualification unless expressly remitted in the pardon (Art. 41).

PRISION MAYOR-(a) Temporary absolute disqualification and (b) perpetual

special disqualification from right of suffrage unless expressly remitted in the
pardon (Art. 42).

PRISION CORRECCIONAL- (a) suspension from public office, right to follow a

profession or calling and (b) perpetual special disqualification from suffrage if
duration of imprisonment exceeds 18 months unless expressly remitted in the
pardon (Art. 43).

ARRESTO- suspension of the right to hold office and of suffrage during the term
of the sentence.

“Article 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 the property of a third person not liable
for the offense, but those articles which are not subject of lawful commerce shall
be destroyed.”

1. This accessory penalty is included in every penalty imposed for the

commission of a crime.

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 2. The confiscation is in favor of the government.
3. Property of a third person not liable for the offense is not subject to
confiscation.
4. Property not subject of lawful commerce though it belongs to a third
person shall be destroyed.

IMPOSITION OF PENALTIES:

1. Principal of a consummated felony- the penalty provided for by law.

Article 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 in general terms, it shall be
understood as applicable to the consummated felony.

2. Principal of a frustrated felony- 1 degree lower than that provided for a

consummated felony. (Art. 50)

Article 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.

3. Principal of a consummated felony- 2 degrees lower.

Article 51. Penalty to be imposed upon principals of attempted crimes. - The

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.

4. Accomplices of a consummated felony- 1 degree lower than that

prescribed for a consummated felony (Art. 52).

Article 52. Penalty to be imposed upon accomplices in a consummated crime.

- The penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the accomplices in the commission
of a consummated felony.

5. Accessories of a consummated felony- 2 degrees lower than that

prescribed for a consummated felony (Art. 53).

Article 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.

6. Accomplices of a frustrated felony- 1 degree lower than that prescribed for

a frustrated felony (Art. 54).

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Article 54. Penalty to be imposed upon accomplices in a frustrated crime. - The
penalty next lower in degree than that prescribed by law for the frustrated felony
shall be imposed upon the accessories in the commission of a frustrated felony.

7. Accessories of a frustrated felony- 2degrees lower than that prescribed for

a frustrated felony (Art. 53).

Article 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.

8. Accomplices of an attempted felony- 1 degree lower than that prescribed

for an attempt to commit a felony (Art. 56).

Article 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.

9. Accessory of an attempted felony- 2 degrees lower than that prescribed for

an attempted felony (Art. 57).

Article 57. Penalty to be imposed upon accessories of an attempted crime. - The

penalty lower by two degrees than that prescribed by law for the attempt shall be
imposed upon the accessories to the attempt to commit a felony.

But the rules provided in Art. 50-57 do not apply if the law expressly
provides for the penalty of a frustrated or attempted felony or upon the
accomplices or accessories.

“Article 60. Exceptions 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.”

And the rules provided in Art. 53, 55, and 57 do not apply if the felony is
light because accessories are not liable for the same, under Art. 16.

CASES WHERE THE LAW PUNISHES AN ACCOMPLICE WITH A PENALTY

CORRESPONDING TO THE PRINCIPAL:

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 1. Ascendants, guardians, curators, teachers, and any persons who by
abuse of authority or confidential relationship, shall cooperate as
accomplices IN RAPE, ACTS OF LASCIVIOUSNESS, SEDUCTION,
CORRUPTION OF MINORS, WHITE SLAVERY TRADE, OR
ABDUCTION, see. Art. 346.
2. One who furnished the place for the perpetration of the crime of slight
illegal detention.

CASES WHERE THE LAW PUNISHES AN ACCESSORY WITH A PENALTY

CORRESPONDING TO THAT OF A PRINCIPAL OR OF NE DEGREE LOWERE
INSTEAD OF TWO DEGREES:

1. Knowingly using counterfeit seal or forged signature of the President,

Art. 162.
2. Illegal possession and use of a false treasury or bank note, Art. 168.
3. Using falsified document, Art. 172, par. 3.
4. Using falsified dispatch, Art. 173, par.2.

BASE FOR THE IMPOSITION OF THE PENALTY UNDER THE RPC:

1. Stage of the commission of the crime, whether consummated,
frustrated or attempted.
2. Participation of the person liable whether as principal, accomplices or
accessories.
3. Presence of aggravating or mitigating circumstances.

CASES WHERE THE DEATH PEANLTY SHALL NOT BE IMPOSED:

The Revised Penal Code provides:

“Article 47. In what cases the death penalty shall not be imposed; Automatic
review of death penalty cases. - The death penalty shall be imposed in all cases in
which it must be imposed under existing laws, except when the guilty person is
below eighteen (18) years of age at the time of the commission of the crime or is
more than seventy years of age or when upon appeal or automatic review of the
case by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be reclusion
perpetua.

In all cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Supreme Court for automatic review and
judgment by the court en banc, within twenty (20) days but not earlier than
fifteen (15) days after the promulgation of the judgment or notice of denial of any
motion for new trial or reconsideration. The transcript shall also be forwarded
within ten (10) days after the filing thereof by the stenographic reporter. (As
amended by Section 22, Republic Act No. 7659.)

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 However, under RA 9346 AN ACT PROHIBITING THE DEATH
PENALTY OF THE HILIPPINES, it provides:

“SECTION 1. The imposition of the penalty of death is hereby prohibited.

Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven
(R.A. No. 8177), otherwise known as the Act Designating Death by Lethal
Injection is hereby repealed. Republic Act No. Seven Thousand Six Hundred
Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all
other laws, executive orders and decrees, insofar as they impose the death
penalty are hereby repealed or amended accordingly.

SEC. 2. In lieu of the death penalty, the following shall be imposed.

(a) the penalty of reclusion perpetua, when the law violated makes use of
the nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not
make use of the nomenclature of the penalties of the Revised Penal Code.

SEC. 3. Person convicted of offenses punished with reclusion perpetua, or whose

sentences will be reduced to reclusion perpetua, by reason of this Act, shall not
be eligible for parole under Act No. 4180, otherwise known as the Indeterminate
Sentence Law, as amended.”

THE CONCEPT OF 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 IN ITS MAXIMUM
shall be imposed.

“Article 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.(As amended by Act No. 4000.)

KINDS OF COMPLEX CRIMES:

1. COMPOUND (delito compuesto)- when a single act constitutes two or
more grave of less grave felonies.
2. COMPLEX PROPER (delito cmplejo)- when an offense if committed as
a necessary means to commit the other.

WHEN A SINGLE ACT CONSTITUTES TWO OR MORE GRAVE OR LESS

GRAVE FELONIES (COMPOUND):

Examples:
1. A single act of throwing a hand grenade at a person, killing him and
injuring others, the crime committed is murder with multiple
attempted/frustrated murder.

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 2. The offender kills two (2) persons with the same shot, the complex
crime of murder with homicide is committed.
3. When a person planted a bomb in an airplane and the bomb exploded
with the result that several passengers were killed, the single act
produces a complex crime of murder with multiple murder.
4. Throwing a pillbox bomb at a group of demonstrators which upon
explosion caused the death to one and physical injuries to others is a
complex crime of murder and frustrated/attempted murder.
5. It also applies to felonies by negligence, accused accidentally
discharged a revolver during a dance killing a girl and wounding
another- reckless imprudence resulting to homicide with less serious
physical injuries.

But when a single act results in (a) grave felony and a light felony; or (b) a
grave or less grave felony and an offense punished by a special law, there is no
complex crime. Two independent crimes are committed.

Examples:
1. When a person in authority was assaulted in the performance of his
duties and he suffered slight physical injuries, two (2) crimes are
committed: DIRECT ASSAULT AND SLIGHT PHYSICLA INJURIES.
2. When a firearm was stolen with intent to own it and use it, two (2)
crimes are committed: THEFT AND ILLEGAL POSSESSION OF
FIREARMS.

And when the crimes are produced NOT by a single act but by SEVERAL
ACTS, there is no complex crimes. Several distinct crimes are committed.

Examples:
1. Two shots were fired in succession, killing two persons, two crimes
were committed, (a) homicide and (b) homicide.

WHERE AN OFFENSE IS COMMITTED AS AMEANS NECESSARY TO

COMMIT ANOTHER (COMPLEX CRIME PROPER):
1. When the two (2) crimes are punished by different statutes (laws),
although the law uses ”offense”, there is no complex crime. It is
essential that the two crimes must be punished under the same
statutes.

2. The phrase “necessary means” has been interpreted not to mean

indispensable means because if it did, then the offense as a necessary
means to commit another would be an element of the other crime. It
simply means that such offense is committed to facilitate and insure
the commission of the other.

Examples:
1. The accused erased the names originally written on the duplicate of
the cedula already issued to other persons and wrote in their places

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 new names, collected each from them Php 20.00 and
misappropriate the amount. The accused is guilty of malversation
through falsification of public document.
2. A hatched with B a plan to seduce C. A proposed marriage to C,
which proposal was accepted, and the marriage was celebrated by
B, who pretended to be a Protestant minister. The crime committed
is seduction thru usurpation of public functions
3. Accused received 17 money orders and addressed to the offended
party. He falsified the signatures of the remitter of said 17 money
orders and then cashed all of them on the same occasion. The crime
committed is estafa thru multiple falsification and not 17 eataf
and17 falsification.

THERE IS NO COMPLEX CRIME IF A CRIME IS COMMITTED TO CONCEAL

THE OTHER:

Examples:
1. Victim was killed. To conceal the crime, accused burned he house,
where the killing was committed. Two crimes were committed:
HOMICIDE AND ARSON.
2. When falsification is committed to conceal malversation as when a
postmaster received Php 1,250.00 from the offended party to be
transmitted as a money order. Postmaster failed to deliver the money
and delivered to the offended party the amount of Php 407.00 only
when the return of the money was demanded, as the difference of Php
833.00 was already misappropriated. Then he forged the signature of
the offended party on a receipt he prepared to show to the offended
party had already received the amount.

WHAT IS CONTINUOUS CRIME: A continued, continuous or continuing crime

is a SINGLE CRIME OF A SERIES OF ACTS arising from one criminal resolution
and therefore is NOT a complex crime. The reason is that neither the criminal act
nor the intention is susceptible of division.

Examples:
1. Taking by the accused from the yard of the house two (2) roosters
belonging to different owners is ONE THEFT ONLY because the two
(2) acts of taking arose from one criminal resolution only.
2. Taking of roosters from a chicken coop is considered a SINGLE
OFFENSE OF THEFT because the accused was animated by a single
criminal impulse.
3. Several accused entered inside a sugar mill. Two of them guarded the
people with guns while the other ransacked the houses of their
properties, the act of ransacking the different houses constitute ONE
SINGLE CRIME OF ROBBERY.
4. If the accused run amok and killed several persons, only one crime is
committed because the killing was the result of a single impulse.

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PENALTY IF THE CRIME COMMITTED IS DIFFERENT FROM THAT
INTENDED:

“Article 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.”

RULES:

1. Penalty for felony committed is HIGHER than that of the felony

intended- PENALTY FOR THE INTENDED FELONY IN ITS
MAXIMUM PERIOD.
2. Penalty for felony committed is lower than that of the felony intended-
PENALTY FOR THE FELONY COMMITTED IN ITS MAXIMUM
PERIOD.
3. Act committed also constitutes an attempt or frustration of another
felony and the law prescribes a higher penalty for either of the latter-
the PENALTY for attempted or frustrated felony in its maximum
period.

a. Art. 49 applies only to a case of mistake of identity or ERROR IN

PERSONAE.
b. ABERRATIO ICTUS or mistake in the blow results also in a
complex crime as when A shot B but missed and instead hot and
killed C as the two crimes of homicide and attempted homicide are
produced by a single act.

c. In praeter intentionem (the act went beyond the intent), the act is a
mitigating circumstance as the injury befell on the same person and
is therefore covered by par. 3 of Art. 13 and not by Art. 49.

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 d. Art. 49 provides for the imposition of the lower penalty in the
maximum period, whereas Art. 48 provides for the penalty for the
most serious offense in its maximum period.

e. Par. 3 of Art. 49 has not application under the Revised Penal Code
but was taken from the Spanish Code.

f. Article 49 applies only to cases when the crime committed befalls a

different person from the one intended to be the victim. An
example is where the different felony from that intended victim, as
when the person intended to be killed is a stranger but the person
actually killed is the offender’s father, thereby making the intended
felony which is homicide different from the crime actually
committed, which is parricide.

ADDITIONAL PENALTY UPON ACCESSORIES COVERED BY PAR. 3, ART. 19

WHO SHOULD ACT WITH ABUSE OF PUBLIC FUNCTIONS:

“Article 58. Additional penalty to be imposed upon certain accessories. - Those

accessories falling within the terms of paragraph 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.”

1. If the principal is guilty of a grave felony- absolute perpetual

disqualification.
2. If the principal is guilty of a less grave felony- absolute special
disqualification.

PENALTY FOR IMPOSSIBLE CRIMES:

“Article 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.

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 1. Arresto Mayor or a fin ranging from Php 200.00 to Php 500.00.
2. In its imposition the Court considers the social danger and the degree
of criminality of the offender.
3. The penalty cannot apply if the act performed would constitute a light
felony.

RULES FOR GRADUATING PENALTIES:

“Article 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 degree 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 imposed 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 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.
(As amended by Com. Act No. 217.)

TABULATION OF THE PROVISIONS OF THE CHAPTER

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 Penalty Penalty to be Penalty to be Penalty to be Penalty to
Prescribe imposed imposed imposed be
for the upon the upon the upon the imposed
crime principal in principal in accessory in upon the
a frustrated an a frustrated accessory
crime, and attempted crime, and in an
accomplice crime, the the attempted
in a accessory in accomplices crime
consummate the in an
d crime consummate attempted
d crime and crime
the
accomplices
in a
frustrated
crime.
First Death Reclusion Reclusion Prision Prision
Case Perpetua Temporal Mayor Correccion
al
Secon Reclusion Reclusion Prision Prision Arresto
d Perpetua t Temporal Mayor Correccional Mayor
Case o Death
Third Reclusion Prision Prision Arresto Fine
Case Temporal i Mayor in its correccional  Mayor in its and Arrest
n its maximum in its maximum o Mayor in
maximum period maximum period its
period to to reclusion period to prision minimum
death temporal in to prision correccional  and
its medium mayor in its in its medium
period medium medium periods
period period
Fourt Prision Prision Arresto Fine Fine.
h Mayor in correccional  mayor in its and Arresto
Case its in its maximum Mayor in its
maximum maximum period minimum
period period to prision and medium
to reclusio to prision correccional  periods
n temporal mayor in its in its
in its medium medium
medium period. period.
period.

SUMMARY OF RULES:

1. Penalty prescribed is single and indivisible- PENALTY NEXT LOWER

IN DEGREE shall be that following the indivisible penalty according to
the scale provided in Art. 71.

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Example: DEATH, which is a single and indivisible (Penalty imposed in
kidnapping for ransom, see. Art. 267). PENALTY NEXTLOWER IN
DEGREE IS RECLUSION PERPETUA.

2. Penalty prescribed consists of two indivisible penalties OR one or

more DIVISIBLE PENALTIES to be imposed in its full extent-
PENALTY NEXT LOWER IN DEGREE is that which immediately
follows the lesser of the penalties.

Example: TWO INDIVISIBLE PENALTIES- Reclusion Perpetua to

DEATH, (Penalty imposed for Parricide, see Art. 248, PENALTY NEXT
LOWER IN DEGREE is RECLUSION TEMPORAL, which follows,
reclusion perpetua, the lesser of the two penalties.

DIVISIBLE PENALTY imposed in its full extent- PRISION

MAYOR, (Penalty for the second kind of Intentional Abortion, see Art. 256
(2), PENALTY NEXT LOWER IN DEGREE is PRISION CORRECCIONAL.

3. Penalty prescribed consist of one or more INDIVISIBLE PENALTY

AND THE MAXIMUM PERIOD OF A DIVISIBLE PENALTY, the
PENALTY NEXT LOWER IN DEGREE consists of the medium and
maximum period of the proper divisible penalty and the maximum
period of the divisible penalty immediately following.

Example: RECLUSION TEMPORAL in its maximum period to DEATH

(Penalty for murder, Art. 248, PENALTY NEXT LOWER IN DEGREE
is PRISION MAYOR MAXIMUM PERIOD TO RECLUSION
TEMPORAL MEDIUM PERIOD.

4. Penalty prescribed consists of several period corresponding to

different divisible penalties- PENALTY NEXT LOWER IN DEGREE is
composed of period immediately following the minimum of that
prescribed and the next two to be taken from penalty prescribed, if
possible, otherwise, from the penalty immediately following.

Example: Prision mayor maximum to reclusion temporal medium,

(Penalty for frustrated murder, see. Art. 248, par.2), PENALTY NEXT
LOWER IN DEGREE is PRISION CORECCIONAL maximum period
to PRISION MAYOR medium.
5. Penalty prescribed in a manner not prescribed in a manner not
specifically provided in the preceding four rules, Court proceed by
analogy and shall impose the corresponding penalty.

Examples: (1)Penalty is composed of two period, prision correccional

in its minimum and medium periods (Penalty for Abduction, see Art.
343. The PENALTY NEXT LOWER IN DEGREE is ARRESTO MAYOR
in its medium and maximum periods.

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 (2) Penalty is composed of one period- RECLUSION
TEMPORAL in its minimum period (Penalty for Forging treasury and
bank notes, see Art. 166, par. 5, the PENALTY NEXT LOWER IN
DEGREE is PRISION MAYOR in its maximum period.

SOME GUIDE TO THE APPLICATION OF THE RULES IN APR. 4 AND 5 OF

ART. 61:
(a) If the penalty prescribed by law is composed of three period, the
penalty next lower in degree is the penalty consisting of three periods
down the scale.
(b) If the penalty prescribed by law is composed of two periods, the
penalty next lower in degree is the penalty consisting of two periods
down the scale.
(c) If the penalty prescribed by law consist of one period, the penalty next
lower in degree is the next period in the scale.

(d) If the given penalty is composed of one, two, or three periods, the
penalty next lower in degree begins where the penalty ends, because if
it were to skip over intermediate ones, it would be lower but not nect
lower in degree.

(e) In lowering the penalty by next lower in degree, aggravating or

mitigating circumstances are not considered because Art. 61 refers to
the felony prescribed for the felony. After the felony next lower in
degree is determined, aggravating or mitigating circumstances are
then considered to determine the proper period of said penalty.

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