Criminal Law-1 San beda memory aid.pdf

8/17/2019 Criminal Law-1 San beda memory aid.pdf

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San eda College of Law

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MEMORY AID IN CRIMINAL LAW

CRIMINAL LAW COMMITTEE CHAIRPERSON: Mark David Martinez EDP: Elaine Masukat ASSISTANTS: Catherine Danao, Albert Rodriguez, Claro

Regino Sampaga, Gizelle Lou Cabahug, Mary Karen Quizon, Leo San Juan, Ma. Victoria Yambao, Ryan Lita, Bayani Brillante, Jr.

BOOK ONE

CRIMINAL LAW - that branch or division oflaw which defines crimes, treats of theirnature and provides for their punishment.

CHARACTERISTICS OF CRIMINAL LAW1. GENERAL - it is binding on all persons

who live or sojourn in the Philippineterritory (Art. 14, NCC)EXCEPTIONS:a) Treaty stipulationsb) Laws of preferential applicationc) Principles of Public International

Law.

The following persons areexempted:

a. Sovereigns and other chiefof state

b. Ambassadors,ministers,plenipotentiary, ministerresident and chargesd’affaires.

Consuls, vice-consuls and othercommercial representatives of foreignnation cannot claim the privileges andimmunities accorded to ambassadors

and ministers.

2. TERRITORIAL – penal laws of thePhilippines are enforceable only withinits territory.EXCEPTIONS: (Art. 2, RPC) i.e.,

enforceable even outsidePhilippine territory.

1) Offense committed while on aPhilippine ship or airship

2) Forging or counterfeiting any coinor currency note of the Philippinesor obligations and securities issued

by the Government.3) Introduction into the country of

the above-mentioned obligationsand securities.

4) While being public officers oremployees should commit anoffense in the exercise of theirfunctions.

5) Should commit any of the crimesagainst national security and thelaw of nations defined in Title Oneof Book Two.

EXCEPTION TO THE EXCEPTION:

Penal laws not applicable within orwithout Philippine territory if soprovided in treaties and laws ofpreferential application. (Art.2, RPC)

3. PROSPECTIVE

GENERAL RULE: Penal laws cannotmake an act punishable in a manner inwhich it was not punishable when

committed. EXCEPTION: (it may be appliedretroactively) When the new law isfavorable to the accused.EXCEPTION TO THE EXCEPTIONa) The new law is expressly made

inapplicable to pending actions orexisting causes of actions.

b) Offender is a habitual criminal.

LIMITATIONS ON THE POWER OFCONGRESS TO ENACT PENAL LAWS: 1. No ex post facto law shall be enacted2. No bill of attainder shall be enacted3. No law that violates equal protection

clause of the constitution shall beenacted

4. No law which imposes cruel andunusual punishments nor excessivefines shall be enacted.

THEORIES IN CRIMINAL LAW1. Classical Theory - basis of criminal

liability is human free will. Under thistheory, the purpose of penalty isretribution. The RPC is generallygoverned by this theory.

2.

Positivist Theory – basis of criminalliability is the sum of the social andeconomic phenomena to which theactor is exposed wherein preventionand correction is the purpose ofpenalty. This theory is exemplified inthe provisions regarding impossiblecrimes and habitual delinquency.

3. Eclectic or Mixed Theory – combinationof positivist and classical thinkingwherein crimes that are economic andsocial in nature should be dealt in apositive manner; thus, the law is more

compassionate.

PRELIMINARY TITLE

ART. 2 – APPLICATION OF ITSPROVISIONS

RULES ON VESSELS: 1.) Philippine vessel or aircraft. Must be understood as that which is

registered in the Philippine Bureau ofCustoms.

2.) On Foreign Merchant Vessels ENGLISH RULE: Crimes committed

aboard a vessel within the territorialwaters of a country are triable in thecourts of such country.


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2 2005 CENTRALIZEDB AROPERATIONS

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC-Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), MarkDavid Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

EXCEPTION: When the crimes merelyaffect things within the vessel or whenthey only refer to the internal

management thereof.

FRENCH RULE:GENERAL RULE: Crimes committedaboard vessel within the territorialwaters of a country are not triable inthe courts of said country.EXCEPTION: When their commissionaffects the peace and security of theterritory or when the safety of thestate is endangered.

In the Philippines, we follow theEnglish Rule.

In the case of a foreign warship, thesame is not subject to territorial laws.

TITLE ONE: FELONIES ANDCIRCUMSTANCES WHICH AFFECTCRIMINAL LIABILITY

Chapter One: Felonies (Arts. 3-10)

ART. 3 – FELONIES

Felonies – are acts or omissions punishable

by the RPC.

ELEMENTS OF FELONIES (GENERAL)1. there must be an act or omission ie,

there must be external acts.2. the act or omission must be punishable

by the RPC.3. the act is performed or the omission

incurred by means of dolo or culpa.

“NULLUM CRIMEN, NULLA POENA SINELEGE” - there is no crime where there isno law punishing it.

CLASSIFICATION OF FELONIESACCORDING TO THE MEANS BY WHICHTHEY ARE COMMITTED:

1. Intentional Felonies – the act isperformed with deliberate intent ormalice.Requisites of DOLO or MALICE:

a. Freedomb. Intelligencec. Criminal Intent

Mistake of Fact – is a misapprehension offact on the part of the person causinginjury to another. Such person is notcriminally liable as he acted withoutcriminal intent.

Requisites of mistake of fact as adefense:

a. That the act done would

have been lawful had thefacts been as the accusedbelieved them to be.

b. That the intention of theaccused in performing theact should be lawful.

c. That the mistake must bewithout fault orcarelessness on the part ofthe accused.

2. Culpable Felonies - performedwithout malice.Requisites of CULPA:

a. Freedomb. Intelligencec. Negligence and Imprudence

REASON FOR PUNSHING ACTS OFNEGLIGENCE: A man must use commonsense and exercise due reflection in allhis acts; it is his duty to be cautious,careful and prudent.

Mala Prohibita - the class of crimespunishable by SPECIAL LAWS and wherecriminal intent is not, as a rule, necessary,

it being sufficient that the offender hasthe intent to perpetrate the act prohibitedby the special law.

MALA IN SE vs. MALA PROHIBITA

MALA IN SEMALA

PROHIBITA

1. As tomoraltrait oftheoffender

The moral traitis considered.Liability willarise only whenthere is dolo orculpa.

The moraltrait of theoffender is notconsidered. Itis enough thatthe prohibited

act wasvoluntarilydone.

2. As touse ofgoodfaith asadefense

Good faith orlack of criminalintent is a validdefense; unlessthe crime is theresult of culpa.

Good faith isnot a defense.

3. As todegreeof

accom-plish-ment ofthecrime

The degree ofaccomplishmentof the crime is

taken intoaccount inpunishing theoffender.

The act givesrise to a crimeonly when it is

consummated.


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4. As tomitigating andaggravat

ingcircum-stances

Mitigating andaggravatingcircumstancesare taken into

account inimposing thepenalty.

Mitigating andaggravatingcircumstancesare generally

not taken intoaccount.

5. As todegreeofpartici-pation

When there ismore than oneoffender, thedegree ofparticipation ofeach in thecommission ofthe crime istaken intoaccount.

Degree ofparticipation isgenerally nottaken intoaccount. Allwhoparticipated inthe act arepunished tothe sameextent.

6. As towhatlaws areviolated

Violation of theRPC (Generalrule)

Violation ofSpecial Laws

(General rule)

Intent distinguished from Motive

INTENT MOTIVE1. Is the purpose touse a particularmeans to effectsuch result

1. Is the movingpower which impelsone to act

2. Is an element of

the crime, except inunintentionalfelonies (culpable)

2. Is NOT an

element of thecrime

3. Is essential inintentional felonies

3. Is essential onlywhen the identity ofthe perpetrator is indoubt

ART. 4 – CRIMINAL LIABILITY

PAR. 1 - Criminal Liability for a felonydifferent from that intended to becommitted

REQUISITES:a) That an intentional felony has been

committed.b) That the wrong done to the aggrieved

party be the direct, natural and logicalconsequence of the felony committed.

PROXIMATE CAUSE – that cause, which, inthe natural and continuous sequence,unbroken by any efficient interveningcause, produces the injury without whichthe result would not have occurred.

Thus, the person is still criminally liablein: 1. Error in personae- mistake in the

identity of the victim.2. Abberatio ictus – mistake in the blow.

3. Praeter intentionem – lack of intent tocommit so grave a wrong.

PAR. 2 (IMPOSSIBLE CRIME)REQUISITES:a) That the act performed would be an

offense against persons or property.b) That the act was done with evil intent.c) That its accomplishment is inherently

impossible, or that the meansemployed is either inadequate orineffectual.

d) That the act performed should notconstitute a violation of anotherprovision of the RPC.

ART. 6 – CONSUMMATED,FRUSTRATED & ATTEMPTED

FELONIES

STAGES OF EXECUTION:1. CONSUMMATED FELONY When all the elements necessary for

its execution and accomplishment arepresent.

2. FRUSTRATED FELONYELEMENTS:a) The offender performs all the acts of

execution.b) All the acts performed would produce

the felony as a consequence.c) But the felony is not produced.d) By the reason of causes independent

of the will of the perpetrator.

WHAT CRIMES DO NOT ADMIT OFFRUSTRATED STAGE?1) Rape2) Bribery3) Corruption of Public Officers4) Adultery

5) Physical Injury

3. ATTEMPTED FELONYELEMENTS:a) The offender commences the

commission of the felony directly byovert acts.

b) He does not perform all the acts ofexecution which should produce thefelony.

c) The offender’s acts are not stopped byhis own spontaneous desistance.

DESISTANCE - is an absolutory cause whichnegates criminal liability because the lawencourages a person to desist fromcommitting a crime.


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- this is applicable only inthe attempted stage.

OVERT ACTS – Some physical activity ordeed, indicating intention to commit aparticular crime, more than a mereplanning or preparation, which if carriedto its complete termination following itsnatural course, without being frustratedby external obstacles, nor by voluntarydesistance of the perpetrator will logicallyripen into a concrete offense.

INDETERMINATE OFFENSE: One wherethe purpose of the offender in performingan act is not certain. The accused maybeconvicted for a felony defined by the actsperformed by him up to the time ofdesistance.

2 STAGES IN THE DEVELOPMENT OF ACRIME: 1) Internal acts

Such as mere ideas in the mind ofperson.

Not punishable.2) External acts cover:

a) Preparatory acts - ordinarily notpunished except when consideredby law as independent crimes (e.g.

Art. 304, Possession of picklocksand similar tools)

b) Acts of Execution - punishableunder the RPC

ART. 7 – LIGHT FELONIES

Light Felonies are punishable onlywhen they have been consummatedEXCEPT: If committed against personsor property, punishable even if notconsummated.

Only principals and accomplices areliable, accessories are not liable evenif committed against persons orproperty.

ART. 8 – CONSPIRACY AND PROPOSALTO COMMIT FELONY

REQUISITES OF CONSPIRACY 1. That 2 or more persons came to an

agreement.2. That the agreement pertains to the

commission of a felony.3. That the execution of the felony was

decided upon.

2 CONCEPTS OF CONSPIRACY1. Conspiracy as a crime by itself.

EXAMPLE: conspiracy to commitrebellion or insurrection, treason,sedition.

2.

Conspiracy as a means of committing acrimea) There is a previous and express

agreement;b) The participants acted in concert

or simultaneously which isindicative of a meeting of theminds towards a common criminalobjective. There is an implied agreement.

GENERAL RULE: Mere conspiracy orproposal to commit a felony is notpunishable since they are only preparatoryactsEXCEPTION: in cases in which the lawspecially provides a penalty therefor, suchas in treason, coup d’etat, and rebellion orinsurrection

“The act of one is the act of all” GENERAL RULE: When conspiracy isestablished, all who participated therein,irrespective of the quantity or quality ofhis participation is liable equally, whetherconspiracy is pre-planned orinstantaneous. EXCEPTION: Unless one or

some of the conspirators committed someother crime which is not part of theintended crime.EXCEPTION TO THE EXCEPTION: When theact constitutes a “single indivisibleoffense”.

Conspiracy may be inferred when twoor more persons proceed to performovert acts towards theaccomplishment of the same feloniousobjective, with each doing his act, sothat their acts though seemingly

independent were in fact connected,showing a common design.

These overt acts must consist of:- active participation in the actualcommission of the crime itself, or- moral assistance to his co-conspirators by being present at thetime of the commission of the crime,or- exerting a moral ascendance overthe other co-conspirators by movingthem to execute or implement the

criminal plan (PEOPLE vs. ABUT, etal., GR No. 137601, April 24, 2003)

REQUISITES OF PROPOSAL:1. That a person has decided to commit a

felony; and2. That he proposes its execution to


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some other person or persons.

ART. 9 – CLASSIFICATION OF FELONIESACCORDING TO GRAVITY

Importance of Classification1. To determine whether these felonies

can be complexed or not.2. To determine the prescription of the

crime and the prescription of thepenalty.

Grave felonies – are those to which thelaw attaches the capital punishment orpenalties which in any of their periods areafflictive, in accordance with Art. 25 ofthe Code.

Less grave felonies – are those which thelaw punishes with penalties which in theirmaximum period are correctional, inaccordance with Art. 25 of the Code.

Light felonies – are those infractions oflaw for the commission of which thepenalty of arresto menor or a fine notexceeding 200 pesos, or both, is provided.

ART. 10 – OFFENSES NOT SUBJECT TOTHE PROVISIONS OF THE RPC

GENERAL RULE: RPC provisions aresupplementary to special laws.EXCEPTION:1. Where the special law provides

otherwise; and2. When the provisions of the RPC are

impossible of application, either byexpress provision or by necessary

implication.

Thus, when the special law adopts thepenalties imposed in the RPC, such asreclusión perpetua or reclusión temporal,the provisions of the RPC on imposition ofpenalties based on stage of execution,degree of participation, and attendance ofmitigating and aggravating circumstancesmay be applied by necessary implication.

Chapter Two: Justifying Circumstances

and Circumstances Which Exempt fromCriminal Liability (Arts. 11-12)

ART. 11. JUSTIFYING CIRCUMSTANCES

JUSTIFYING CIRCUMSTANCES – are thosewhere the act of a person is said to be in

accordance with law, so that such personis deemed not to have transgressed thelaw and is free from both criminal and civil

liability. There is no civil liability, exceptin par. 4 of Art. 11, where the civilliability is borne by the persons benefitedby the act.

1. SELF- DEFENSE

REQUISITES:a) Unlawful aggression (condition sine

qua non);b) Reasonable necessity of the means

employed to prevent or repel it; andc) Lack of sufficient provocation on the

part of the person defending himself.

UNLAWFUL AGGRESSION - is equivalent to an actual

physical assault or, at least- threatened assault of an

immediate and imminent kind which isoffensive and positively strong, showingthe wrongful intent to cause injury.

TEST OF REASONABLENESS – the meansemployed depends upon the nature andquality of the (1) weapon used by theaggressor, and (2) his physical condition,character, size and other circumstances,(3) and those of the person defendinghimself, (4) and also the place andoccasion of the assault.

Perfect equality between the weaponsused by the one defending himself andthat of the aggressor is not required,

nor material commensurabilitybetween the means of attack anddefense.REASON: Because the person assaulteddoes not have sufficient tranquility ofmind to think and to calculate.

Rights included in self-defense:Self-defense includes not only the defenseof the person or body of the one assaultedbut also that of his rights, the enjoymentof which is protected by law. Thus, it

includes:1. The right to honor. Hence, a slap on

the face is considered as unlawfulaggression directed against the honorof the actor (People vs. Sabio, 19 SCRA901).


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2.

The defense of property rights, only ifthere is also an actual and imminentdanger on the person of the one

defending ( People vs Narvaez, 121SCRA 389).

“Stand ground when in the right” - thelaw does not require a person to retreatwhen his assailant is rapidly advancingupon him with a deadly weapon.

Under Republic Act 9262, known as theAnti- Violence against Women and theirChildren Act of 2004:

Victim-survivors who are found bythe courts to be suffering from BatteredWoman Syndrome do not incur anycriminal or civil liability notwithstandingthe absence of any of the elements forjustifying circumstances of self-defenseunder the RPC. (Sec. 26, R.A. No. 9262)The law provides for an additionaljustifying circumstance.

Battered Woman Syndrome – refersto a scientifically defined pattern ofpsychological and behavioral symptomsfound in women living in batteringrelationships as a result of cumulativeabuse.

Battery – refers to any act of

inflicting physical harm upon the womanor her child resulting to physical andpsychological or emotional distress.

2. DEFENSE OF RELATIVES

REQUISITES:1. Unlawful Aggression;2. Reasonable necessity of the

means employed to prevent orrepel it; and

3. In case the provocation was givenby the person attacked, the one

making the defense had no parttherein.

RELATIVES THAT CAN BE DEFENDED:1. Spouse2. Ascendants3. Descendants4. Legitimate, natural or adopted

brothers and sisters, or relatives byaffinity in the same degrees.

5. Relatives by consanguinity within thefourth civil degree.

3. DEFENSE OF STRANGER

REQUISITES:1. Unlawful Aggression;2. Reasonable necessity of the means

employed to prevent or repel it; and

3. The person defending be not inducedby revenge, resentment or other evilmotive.

4. AVOIDANCE OF GREATER EVIL ORINJURY

REQUISITES:1. That the evil sought to be avoided

actually exists:2. That the injury feared be greater

than that done to avoid it; and3. There be no other practical and less

harmful means of preventing it.

No civil liability except when there isanother person benefited in whichcase the latter is the one liable.

Greater evil must not be broughtabout by the negligence or imprudenceor violation of law by the actor.

5. FULFILLMENT OF DUTY; OR LAWFULEXERCISE OF RIGHT OR OFFICE.

REQUISITES:1. That the accused acted in the

performance of a duty or in thelawful exercise of a right or office;

2. That the injury caused or the

offense committed be thenecessary consequence of the dueperformance of duty or the lawfulexercise of such right or office.

6. OBEDIENCE TO AN ORDER ISSUED FORSOME LAWFUL PURPOSE.

REQUISITES:1. That an order has been issued by a

superior.2. That such order must be for some

lawful purpose

3.

That the means used by thesubordinate to carry out said order islawful.

Subordinate is not liable for carryingout an illegal order if he is not awareof its illegality and he is not negligent.

ART. 12. EXEMPTING CIRCUMSTANCES

Exempting Circumstances (or thecircumstances for non-imputability) – are

those grounds for exemption frompunishment, because there is wanting inthe agent of the crime any of theconditions which makes the act voluntary,or negligent.

BASIS:


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The exemption from punishment is basedon the complete absence of intelligence,freedom of action, or intent, or on the

absence of negligence on the part of theaccused.

JUSTIFYINGCIRCUMSTANCE

EXEMPTINGCIRCUMSTANCE

1. It affects the actnot the actor.

1. It affects theactor not the act.

2. The act isconsidered to havebeen done within thebounds of law;hence, legitimateand lawful in theeyes of the law.

2. The actcomplained of isactually wrongful,but the actor is notliable.

3. Since the act isconsidered lawful,there is no crime.

3. Since the actcomplained of isactually wrong thereis a crime but sincethe actor actedwithoutvoluntariness, thereis no dolo nor culpa

4. Since there is nocrime, nor acriminal, there isalso no criminal orcivil liability. (exceptArt. 11, par. 4)

4. Since there is acrime committedthough there is nocriminal, there iscivil liability.

1. IMBECILITY OR INSANITYInsanity or imbecility exists when there isa complete deprivation of intelligence orfreedom of the will. An insane person is not so exempt if it

can be shown that he acted during alucid interval. But an imbecile isexempt in all cases from criminalliability.

TWO TESTS OF INSANITY:1. Test of COGNITION – complete

deprivation of intelligence incommitting the crime.

2. Test of VOLITION – totaldeprivation of freedom of will.

The defense must prove that theaccused was insane at the time of thecommission of the crime because thepresumption is always in favor ofsanity.

Insanity exists when there is a

complete deprivation of intelligence incommitting the act. Mere abnormalityof the mental faculties will notexclude imputability. The accusedmust be "so insane as to be incapableof entertaining criminal intent." Hemust be deprived of reason and acting

without the least discernment becausethere is a complete absence of thepower to discern or a total deprivation

of freedom of the will. (PEOPLE vs. ANTONIO, GR No. 144266, November27, 2002)

2. PERSON UNDER NINE YEARS OF AGE

An infant under the age of nine yearsis absolutely and conclusivelypresumed to be incapable ofcommitting a crime.

The phrase “under nine years” shouldbe construed “nine years or less”

3. PERSON OVER NINE YEARS OF AGEAND UNDER 15 ACTING WITHOUTDISCERNMENT.

Must have acted without discernment.

DISCERNMENT – mental capacity to fullyappreciate the consequences of anunlawful act.Discernment maybe shown by:a) The manner the crime was

committed: orb) The conduct of the offender after its

commission.

4. ACCIDENT WITHOUT FAULT ORINTENTION OF CAUSING IT

Basis: Lack of negligence or intent.

ELEMENTS:1. A person is performing a lawful act;2. With due care;3. He causes injury to another by mere

accident;4. Without fault or intention of causing

it.

5. A PERSON WHO ACTS UNDER THECOMPULSION OF AN IRRESISTABLEFORCE

ELEMENTS:1. That the compulsion is by means of

physical force.2. That the physical force must be

irresistable.3. That the physical force must come

from a third person.

Basis: complete absence of freedom orvoluntariness.

The force must be so irresistable as toreduce the actor to a mere instrument


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who act not only without will butagainst his will.

6.

UNCONTROLLABLE FEAR

ELEMENTS:1. That the threat which causes the fear

is of an evil greater than, or at leastequal to, that which he is required tocommit;

2. That it promises an evil of such gravityand imminence that the ordinary manwould have succumbed to it.

Duress as a valid defense should bebased on real, imminent, orreasonable fear for one’s life or limband should not be speculative,fanciful, or remote fear.

“ACTUS ME INVITO FACTUS NON ESTMEUS ACTUS” – An act done by meagainst my will is not my act.

7. INSUPERABLE CAUSE.

INSUPERABLE CAUSE – some motive whichhas lawfully, morally or physicallyprevented a person to do what the lawcommands.

ELEMENTS:1. That an act is required by law to be

done.2. That a person fails to perform such

act.3. That his failure to perform such act

was due to some lawful or insuperablecause.

Examples:a. The municipal president detained the

offended party for three days because

to take him to the nearest justice ofthe peace required a journey for threedays by boat as there was no othermeans of transportation. (US vs.Vicentillo, 19 Phil. 118)

The distance which required ajourney for three days was consideredan insuperable cause.Note: Under the law, the personarrested must be delivered to thenearest judicial authority at mostwithin 18 hours (now 36 hours, Art.125 RPC); otherwise, the public officer

will be liable for arbitrary detention.

b. A mother who at the time of childbirthwas overcome by severe dizziness andextreme debility, and left the child ina thicket were said child died, is notliable for infanticide because it was

physically impossible for her to takehome the child. (People vs. Bandian,63 Phil. 530).

The severe dizziness and extremedebility of the woman constitute aninsuperable cause.

ABSOLUTORY CAUSES - are those wherethe act committed is a crime but forreasons of public policy and sentiment,there is no penalty imposed.

Other absolutory causes:1. Spontaneous desistance (Art. 6)2. Accessories who are exempt from

criminal liability (Art. 20)3. Death or physical injuries inflicted

under exceptional circumstances (Art.247)

4. Persons exempt from criminal liabilityfor theft, swindling and maliciousmischief (Art. 332)

5. Instigation

Entrapment is NOT an absolutorycause. A buy-bust operationconducted in connection with illegaldrug-related offenses is a form ofentrapment.

ENTRAPMENT INSTIGATION1. Ways andmeans areresorted to for thecapture oflawbreaker in theexecution of hiscriminal plan.

1. Instigatorinduces the would-be accused tocommit the crime,hence he becomes aco-principal.

2. not a bar tothe prosecutionand conviction ofthe lawbreaker

2. it will result inthe acquittal of theaccused.

Chapter Three: Circumstances WhichMitigate Criminal Liability

ART.13 MITIGATING CIRCUMSTANCES

MITIGATING CIRCUMSTANCES – thosewhich if present in the commission of thecrime, do not entirely free the actor fromcriminal liability but serve only to reducethe penalty.

One single fact cannot be made thebasis of more than one mitigatingcircumstance. Hence, a mitigatingcircumstance arising from a singlefact, absorbs all the other mitigatingcircumstances arising from the samefact.


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BASIS : Diminution of either freedom ofaction intelligence or intent or on the

lesser perversity of the offender.

CLASSES ORDINARY PRIVILEGEDSource Subsections

1-10 of Art.13 (RPC)

Arts. 68, 69and 64 ofRPC

As to theeffect

If not offset(by anaggravatingcircumstance) it willoperate tohave thepenaltyimposed atits minimumperiod,provided thepenalty is adivisible one

It operatesto reducethe penaltyby one totwo degreesdependingupon whatthe lawprovides

As to offset May beoffset byaggravatingcircums-tance

Cannot beoffset

1. INCOMPLETE JUSTIFYING OREXEMPTING CIRCUMSTANCES

Applies, when all the requisitesnecessary to justify the act are notattendant.

But in the case of “incomplete self -defense, defense of relatives, anddefense of a stranger”, unlawfulaggression must be present, it beingan indispensable requisite.

2. UNDER 18, OR OVER 70 YEARS OLD

It is the age of the accused at the time

of the commission of the crime whichshould be determined. His age at thetime of the trial is immaterial.

Legal effects of various ages of offender1. Nine (9) years of age and below –

exempting circumstance. (Art. 12,par. 2)

2. Over 9 but not more than 15 – exempting unless, he acted withdiscernment in which case penalty isreduced to at least two (2) degreeslower than that imposed. (Art. 12,

par. 3; Art. 68, par. 1)3. Above 15 but under 18 - regardless of

discernment, penalty is reduced byone (1) degree lower than thatimposed. (Art. 68 par. 2)

4. Minor delinquent under 18 years ofage, sentence suspended (Art. 192,PD 603 as amended by PD 1179)

5.

18 years or over – full criminalresponsibility.6. 70 years or over – mitigating, no

imposition of death penalty; ifalready imposed, execution of deathpenalty is suspended and commuted.

BASIS: diminution of intelligence

3. NO INTENTION TO COMMIT SO GRAVEA WRONG

Rule for the application:Can be taken into account only when thefacts proven show that there is a notableand evident disproportion between themeans employed to execute the criminalact and its consequences.

Intention may be ascertained byconsidering:

a) the weapon usedb) the part of the body injuredc) the injury inflicted

BASIS : intent is diminished

4.

PROVOCATION OR THREAT

PROVOCATION – any unjust or improperconduct or act of the offended party,capable of exciting, inciting or irritatingany one.

REQUISITES:1. The provocation must be sufficient.2. It must originate from the offended

party.3. The provocation must be immediate to

the commission of the crime by the

person who is provoked. The threat should not be offensive and

positively strong. Otherwise, thethreat to inflict real injury is anunlawful aggression, which may giverise to self-defense.

5. VINDICATION OF GRAVE OFFENSE

REQUISITES:1. That there be a grave offense done to

the one committing the felony, hisspouse, ascendants; descendants,

legitimate, natural or adoptedbrothers or sisters or relatives byaffinity within the same degrees;

2. That the felony is committed inimmediate vindication of such graveoffense.


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“Immediate” allows for a lapse of timeunlike in sufficient provocation, aslong as the offender is still suffering

from the mental agony brought aboutby the offense to him.

PROVOCATION VINDICATION1. It is madedirectly only to theperson committingthe felony.

1. The graveoffense may becommitted alsoagainst theoffender’s relativesmentioned by law.

2. The cause thatbrought about theprovocation neednot be a graveoffense.

2. The offendedparty must havedone a graveoffense to theoffender or hisrelatives mentionedby law.

3. It is necessarythat the provocationor threatimmediatelypreceded the act.

3. The vindicationof the grave offensemay be proximate,which admits of anINTERVAL of time.

5.

PASSION OR OBFUSCATION

It requires that:1. The accused acted upon an impulse.2. The impulse must be so powerful that

it naturally produced passion orobfuscation in him.

REQUISITES:1. That there be an act, both unlawful

and sufficient to produce such acondition of mind;

2. That said act which produced theobfuscation was not far removed fromthe commission of the crime by aconsiderable length of time, duringwhich the perpetrator might recoverhis normal equanimity.

A mitigating circumstance only whenthe same arose from lawfulsentiments.

BASIS: Loss of reasoning and self-control, thereby diminishing theexercise of his will power.

WHEN PASSION OR OBFUSCATION NOTMITIGATING: When committed:

1. In the spirit of lawlessness, or2. In a spirit of revenge

PASSION/OBFUSCATION

PROVOCATION

- produced by animpulse which maybe caused byprovocation

- the provocationcomes from theinjured party.

- the offense neednot be immediate. Itis only required thatthe influence thereof

lasts until themoment the crime iscommitted

-must immediatelyprecede thecommission of thecrime.

7. SURRENDER AND CONFESSION OFGUILT

REQUISITES OF VOLUNTARY SURRENDER:1. That the offender had not been

actually arrested;2. That the offender surrendered himself

to a person in authority or to thelatter’s agent;

3.

That the surrender was voluntary.

WHEN SURRENDER VOLUNTARYA surrender to be voluntary must bespontaneous, showing the intent of theaccused to submit himself unconditionallyto the authorities, either because:1. he acknowledges his guilt; or2. he wishes to save them the trouble

and expense necessarily incurred in hissearch and capture.

REQUISITES OF VOLUNTARY PLEA OFGUILTY:1. That the offender spontaneously

confessed his guilt.2. That the confession of guilt was made

in open court, that is, before thecompetent court that is to try thecase; and

3. That the confession of guilt was madeprior to the presentation of evidencefor the prosecution.

BASIS: lesser perversity of theoffender.

8. PHYSICAL DEFECT OF OFFENDER

When the offender is deaf and dumb,blind or otherwise suffering from somephysical defect, restricting his meansof action, defense or communicationwith others.

The physical defect must relate to theoffense committed.

BASIS: diminution of element ofvoluntariness.

9.

ILLNESS OF THE OFFENDER

REQUISITES:


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1. That the illness of the offender mustdiminish the exercise of his will-power.

2.

That such illness should not deprivethe offender of consciousness of hisacts.

Includes illness of the mind notamounting to insanity.

BASIS: diminution of intelligence andintent.

10. SIMILAR AND ANALOGOUSCIRCUMSTANCES

EXAMPLES:1) Impulse of jealousy, similar to passion

and obfuscation.2) Testifying for the prosecution,

analogous to plea of guilty

Chapter Four: Circumstances whichAggravate Criminal Liability (Art. 14)

Aggravating circumstances – are thosewhich, if attendant in the commission ofthe crime, serve to have the penaltyimposed in its maximum period provided

by law for the offense or change thenature of the crime.

BASIS:They are based on the greater perversityof the offender manifested in thecommission of the felony as shown by:1. the motivating power itself,2. the place of the commission,3. the means and ways employed4. the time, or5. the personal circumstances of the

offender, or the offended party.

KINDS OF AGGRAVATINGCIRCUMSTANCES:

1. Generic – those which apply to allcrimes, such as:a) Advantage taken of public

position;b) Contempt or insult of public

authorities;c) Crime committed in the dwelling

of the offended party;d) Abuse of confidence or obvious

ungratefulness;e) Place where crime is committed;f) Nighttime, uninhabited place, or

band;g) Recidivism (reincidencia);h) Habituality (reiteracion);

i) Craft, fraud or disguise;j) Unlawful entry;k) Breaking of parts of the house;

l)

Use of persons under 15 years ofage.

2. Specific – those which apply only tospecific crimes, such as ignominy incrimes against chastity and cruelty andtreachery which are applicable only tocrimes against persons.a) Disregard of rank, age or sex due

the offended party;b) Abuse of superior strength or

means be employed to weaken the

defense;c) Treachery (alevosia);d) Ignominy;e) Cruelty;f) Use of unlicensed firearm in the

murder or homicide committedtherewith (RA 8294).

3. Qualifying – those that change thenature of the crime. Alevosia (treachery) or evident

premeditation qualifies the killing

of a person to murder. Art. 248 enumerates the qualifying

aggravating circumstances whichquality the killing of person tomurder.

4. Inherent – those which of necessityaccompany the commission of thecrime, therefore not considered inincreasing the penalty to be imposed,such as:a) Evident premeditation in robbery,

theft, estafa, adultery andconcubinage;

b) Abuse of public office in bribery;c) Breaking of a wall or unlawful

entry into a house in robbery withthe use of force upon things;

d) Fraud in estafa;e) Deceit in simple seduction;f) Ignominy in rape.

5. Special – those which arise underspecial conditions to increase the

penalty of the offense and cannot beoffset by mitigating circumstances,such as:a) Quasi-recidivism (Art. 160);b) Complex crimes (Art. 48);c) Error in personae (Art. 49);


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d) Taking advantage of publicposition and membership in anorganized/syndicated crime group

(Par.1[a], Art. 62).

GENERICAGGRAVATINGCIRCUMSTANCE

QUALIFYINGAGGRAVATINGCIRCUMSTANCE

As to its effectIncreases the penaltywhich should beimposed upon theaccused to themaximum period butwithout exceedingthe limit prescribedby law.

To give the crime itsproper and exclusivename and to placethe author thereof insuch a situation as todeserve no otherpenalty than thatspecially prescribed

by law for saidcrime.

As to whether it can be offset by amitigating circumstance

May be offset by amitigatingcircumstance.

Cannot be offset by amitigatingcircumstance

RULES ON AGGRAVATINGCIRCUMSTANCES1. Aggravating circumstances shall not be

appreciated if:

a)

They constitute a crime speciallypunishable by law, or

b) They are included by the law indefining a crime and prescribing apenalty therefor, shall not betaken into account for the purposeof increasing the penalty.

EXAMPLE: “That the crime becommitted by means of…fire,…explosion” (Art. 14, par. 12) isin itself a crime of arson (Art. 321) ora crime involving destruction (Art.324). It is not to be considered to

increase the penalty for the crime ofarson or for the crime involvingdestruction.

2. The same rule shall apply with respectto any aggravating circumstanceinherent in the crime to such a degreethat it must of necessity accompanythe commission thereof. (Art. 62, par.2)

3. Aggravating circumstances whicharise:a) From the moral attributes of the

offender, or

b)

From his private relations with theoffended party, orc) From any personal cause,shall only serve to aggravate theliability of the principals, accomplicesand accessories as to whom such

circumstances are attendant. (Art. 62, par. 3)

4. The circumstances which consist

a)

In the material execution ofthe act, orb) In the means employed to

accomplish it,shall serve to aggravate the liability ofthose persons only who had knowledgeof them at the time of the executionof the act or their cooperationtherein. Except when there is proof ofconspiracy in which case the act ofone is deemed to be the act of all,regardless of lack of knowledge of thefacts constituting the circumstance.(Art. 62, par. 4)

5. Aggravating circumstances, regardlessof its kind, should be specificallyalleged in the information AND provedas fully as the crime itself in order toincrease the penalty. (Sec. 9, Rule110, 2000 Rules of CriminalProcedure)

6. When there is more than onequalifying aggravating circumstancepresent, one of them will beappreciated as qualifying aggravatingwhile the others will be considered asgeneric aggravating.

ART. 14 – AGGRAVATINGCIRCUMSTANCES

Par. 1. – That advantage be taken bythe offender of his public position.

Applicable only when the offender is apublic officer.

The offender must have abused hispublic position or at least use of thesame facilitated the commission of the

offense. This circumstance cannot be taken

into consideration in offenses wheretaking advantage of official position ismade by law an integral element ofthe crime, such as in malversationunder Art. 217, or in falsification of adocument committed by publicofficers under Art. 171.

Taking advantage of a public positionis also inherent in the case ofaccessories under Art. 19, par. 3(harboring, concealing, or assisting in

the escape of the principal of thecrime), and in crimes committed bypublic officers (Arts. 204-245).


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Par. 2 – That the crime be committed incontempt of or with insult to the publicauthorities.

REQUISITES OF THIS CIRCUMSTANCE:1. That the public authority is engaged in

the exercise of his functions.2. That he who is thus engaged in the

exercise of said functions is not theperson against whom the crime iscommitted.

3. The offender knows him to be a publicauthority.

4. His presence has not prevented theoffender from committing the criminalact.

Public authority – sometimes also called aperson in authority, is a public officer whois directly vested with jurisdiction, that is,a public officer who has the power togovern and execute the laws; like amayor, councilor, governor, barangaycaptain and barangay chairman.

A teacher or professor of a public orrecognized private school is not a“public authority within thecontemplation of this paragraph.While he is a person in authority under

Art. 152, that status is only forpurposes of Art. 148 (direct assault)and Art. 152 (resistance anddisobedience).

Par. 3 – That the act be committed(1) with insult or in disregard of

the respect due the offended party onaccount of his (a) rank, (b) age, or (c)sex, or

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

The four circumstances enumeratedshould be considered as oneaggravating circumstance only.

Disregard of rank, age or sex isessentially applicable only to crimesagainst person or honor. They are nottaken into account in crimes againstproperty.

To be appreciated as an aggravatingcircumstance, there must be evidencethat in the commission of the crime,the offender deliberately intended to

offend or insult the sex, age and rankof the offended party.

Rank of the offended party – is thedesignation or title of distinction used tofix the relative position of the offendedparty in reference to others.

- there must be a difference in thesocial condition of the offender and theoffended party.

Age of the offended party – may refer toold age or the tender age of the victim.

Sex of the offended party – refers to thefemale sex, not to the male sex.

THE AGGRAVATING CIRCUMSTANCE OFDISREGARD OF RANK, AGE, OR SEX ISNOT APPLICABLE IN THE FOLLOWINGCASES:1. When the offender acted with passion

and obfuscation.2. When there exists a relationship

between the offended party and theoffender.

3. When the condition of being a womanis indispensable in the commission ofthe crime. (e.g. in parricide,abduction, seduction and rape)

Disregard of sex and age are notabsorbed in treachery becausetreachery refers to the manner of thecommission of the crime, whiledisregard of sex and age pertains tothe relationship of the victim (Peoplevs. Lapaz, March 31, 1989).

Dwelling – must be a building or structure,exclusively used for rest and comfort. A“combination of a house and a store” or amarket stall where the victim slept is nota dwelling.

- dwelling includesdependencies, the foot of the staircaseand enclosure under the house.

The aggravating circumstance ofdwelling requires that the crime be

wholly or partly committed therein orin any integral part thereof.

Dwelling does not mean thepermanent residence or domicile ofthe offended party or that he must bethe owner thereof. He must, however,be actually living or dwelling thereineven for a temporary duration orpurpose.

It is not necessary that the accusedshould have actually entered thedwelling of the victim to commit the

offense; it is enough that the victimwas attacked inside his own house,although the assailant may havedevised means to perpetrate theassault from without.


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WHAT AGGRAVATES THE COMMISSION OFTHE CRIME IN ONE’S DWELLING: 1. The abuse of confidence which the

offended party reposed in the offenderby opening the door to him; or2. The violation of the sanctity of the

home by trespassing therein withviolence or against the will of theowner.

MEANING OF PROVOCATION IN THEAGGRAVATING CIRCUMSTANCE OFDWELLING:The provocation must be:1. Given by the owner of the dwelling,2. Sufficient, and3. Immediate to the commission of the

crime.

If all these conditions are present, theoffended party is deemed to havegiven the provocation, and the factthat the crime is committed in thedwelling of the offended party is notan aggravating circumstance.REASON: When it is the offended partywho has provoked the incident, heloses his right to the respect andconsideration due him in his ownhouse.

DWELLING IS NOT AGGRAVATING IN THEFOLLOWING CASES:1. When both the offender and the

offended party are occupants of thesame house, and this is true even ifoffender is a servant in the house. EXCEPTION: In case of adultery in

the conjugal dwelling, the same isaggravating. However, if theparamour also dwells in theconjugal dwelling, the applicableaggravating circumstance is abuse

of confidence.

2. When robbery is committed by the useof force upon things, dwelling is notaggravating because it is inherent. But dwelling is aggravating in

robbery with violence against orintimidation of persons becausethis class of robbery can becommitted without the necessityof trespassing the sanctity of theoffended party’s house.

3.

In the crime of trespass to dwelling, itis inherent or included by law indefining the crime.

4. When the owner of the dwelling gavesufficient and immediate provocation.

There must exist a close relationbetween the provocation made bythe victim and the commission of

the crime by the accused.

5. The victim is not a dweller of thehouse.

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

Par. 4 provides two aggravatingcircumstances which, if present in thesame case and must be independentlyappreciated.

While one may be related to the otherin the factual situation in the case,they cannot be lumped together asabuse of confidence requires a specialconfidential relationship between theoffender and the victim, but this is notso in ungratefulness.

REQUISITES OF ABUSE OF CONFIDENCE:1. That the offended party had trusted

the offender .2. That the offender abused such trust by

committing a crime against the

offended party.3. That the abuse of confidence

facilitated the commission of thecrime.

Abuse of confidence is inherent inmalversation (Art. 217), qualified theft(Art. 310), estafa by conversion ormisappropriation (Art. 315), andqualified seduction (Art. 337).

REQUISITES OF OBVIOUSUNGRATEFULNESS1. That the offended party had trusted

the offender;2. That the offender abused such trust by

committing a crime against theoffended party.

3. That the act be committed withobvious ungratefulness.

The ungratefulness contemplated bypar. 4 must be such clear and manifestingratitude on the part of the accused.

Par. 5 – That the crime be committed(1) in the palace of the Chief

Executive, or in his presence, or(2) where public authorities areengaged in the discharge of theirduties, or(3) in a place dedicated toreligious worship.


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Except for the third which requiresthat official functions are beingperformed at the time of the

commission of the crime, the otherplaces mentioned are aggravating perse even if no official duties or acts ofreligious worship are being conductedthere.

Cemeteries, however respectable theymay be, are not considered as placededicated to the worship of God.

PAR. 5. Wherepublic authorities

are engaged inthe discharge of

their duties

PAR. 2. Contemptor insult to public

authorities

In bothPublic authorities are in the performance oftheir duties

Place where public duty is performedIn their office. Outside of their

office.

The offended partyMay or may not bethe public authority

Public authorityshould not be theoffended party

Par. 6.– That the crime be committed(1) in the nighttime, or(2) in an uninhabited place, or(3) by a band, whenever such

circumstance may facilitate thecommission of the offense.

When present in the same case andtheir element are distinctly palpableand can subsist independently, theyshall be considered separately.

WHEN NIGHTTIME, UNINHABITED PLACE

OR BAND AGGRAVATING:1. When it facilitated the commission of

the crime; or2. When especially sought for by the

offender to insure the commission ofthe crime or for the purpose ofimpunity; or

3. When the offender took advantage thereof for the purpose of impunity.

Nighttime (obscuridad ) – that period ofdarkness beginning at end of dusk andending at dawn. Nights are from sunset to

sunrise.

It is necessary that the commission ofthe crime was begun and completed atnighttime.

When the place of the crime isilluminated by light, nighttime is notaggravating.

GENERAL RULE: Nighttime is absorbed intreachery.EXCEPTION: Where both the treacherousmode of attack and nocturnity weredeliberately decided upon in the samecase, they can be considered separately ifsuch circumstances have different factualbases. Thus:

In People vs. Berdida, et. al. (June30, 1966), nighttime wasconsidered since it was purposelysought, and treachery was furtherappreciated because the victim’shands and arms were tied togetherbefore he was beaten up by theaccused.

In People vs. Ong, et. al. (Jan. 30,1975), there was treachery as thevictim was stabbed while lyingface up and defenseless, andnighttime was considered uponproof that it facilitated thecommission of the offense and wastaken advantage of by theaccused.

Uninhabited place (despoblado) – onewhere there are no houses at all; a placeat a considerable distance from town, orwhere the houses are scattered at a greatdistance from each other.

What actually determines whether thisaggravating circumstance should beconsidered against the accused, asidefrom the distance and isolation of theplace, is the reasonable possibility ofthe victim receiving or securing aidfrom third persons.

Band (en cuadrilla) – whenever more thanthree (i.e., at least four) armedmalefactors shall have acted together inthe commission of an offense, it shall bedeemed committed by a band. The requisite four armed persons

contemplated in this circumstancemust all be principals by directparticipation who acted together inthe execution of the acts constitutingthe crime.

If one of them was a principal byinducement, there would be nocuadrilla but the aggravatingcircumstance of having acted with theaid of armed men may be consideredagainst the inducer if the other twoacted as his accomplice.


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This aggravating circumstance isabsorbed in the circumstance of abuse

of superior strength. This aggravating circumstance is notapplicable in crimes against chastity.

Par. 7 – That the crime be committed onthe occasion of a conflagration,shipwreck, earthquake, epidemic orother calamity or misfortune.

REASON FOR THE AGGRAVATION:The debased form of criminality met inone who, in the midst of a great calamity,instead of lending aid to the afflicted,adds to their suffering by taking advantageof their misfortune to despoil them.Therefore it is necessary that the offendertook advantage of the calamity ormisfortune.

Par. 8 – That the crime be committedwith the aid of

(1) armed men or(2)persons who insure orafford impunity.

REQUISITES:1. That armed men or persons took part

in the commission of the crime,directly or indirectly .

2. That the accused availed himself oftheir aid or relied upon them when thecrime was committed.

This aggravating circumstance requiresthat the armed men are accompliceswho take part in that minor capacitydirectly or indirectly, and not whenthey were merely present at the crimescene. Neither should they constitutea band, for then the proper

aggravating circumstance would becuadrilla.

WHEN THIS AGGRAVATINGCIRCUMSTANCE SHALL NOT BECONSIDERED:1. When both the attacking party and the

party attacked were equally armed.2. When the accused as well as those

who cooperated with him in thecommission of the crime acted underthe same plan and for the same

purpose.

Par. 6 “By aband”

Par. 8. “With theaid of armed

men”

As to their numberRequires more thanthree armedmalefactors (i.e., atleast four)

At least two

As to their actionRequires that morethan three armedmalefactors shallhave acted togetherin the commission ofan offense.

This circumstance ispresent even if oneof the offendersmerely relied ontheir aid, for actualaid is not necessary.

If there are four armed men, aid of

armed men is absorbed in employmentof a band. If there are three armedmen or less, aid of armed men may bethe aggravating circumstance.

“Aid of armed men” includes “armedwomen.”

Par. 9 – That the accused is a recidivist.

REQUISITES: 1. That the offender is on trial for an

offense;2. That he was previously convicted by

final judgment of another crime;3. That both the first and the second

offenses are embraced in the sametitle of the Code;

4. That the offender is convicted of thenew offense.

MEANING OF “at the time of his trial forone crime.” It is employed in its general sense,including the rendering of the judgment. Itis meant to include everything that is donein the course of the trial, from

arraignment until after sentence isannounced by the judge in open court.

Being an ordinary aggravatingcircumstance, recidivism affects onlythe periods of a penalty, except inprostitution and vagrancy (Art. 202)and gambling (PD 1602) whereinrecidivism increases the penalties bydegrees. No other generic aggravatingcircumstance produces this effect.

In recidivism it is sufficient that the

succeeding offense be committedafter the commission of the precedingoffense provided that at the time ofhis trial for the second offense, theaccused had already been convicted ofthe first offense.


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If both offenses were committed onthe same date, they shall beconsidered as only one, hence, they

cannot be separately counted in orderto constitute recidivism. Also,judgments of convicted handed downon the same day shall be considered asonly one conviction.REASON: Because the Code requiresthat to be considered as separateconvictions, at the time of his trial forone crime the accused shall have beenpreviously convicted by final judgmentof the other.

To prove recidivism, it is necessary toallege the same in the information andto attach thereto certified copy of thesentences rendered against theaccused.

Recidivism must be taken into accountno matter how many years haveintervened between the first andsecond felonies.

Even if the accused was granted apardon for the first offense, but hecommits another felony embraced inthe same title of the Code, the firstconviction is still counted to make him

a recidivist since pardon does notobliterate the fact of his priorconviction.

The rule is different in the case ofamnesty which theoretically considersthe previous transgressions as notpunishable.

Par. 10 – That the offender has been previously punished for an offense towhich the law attaches an equal orgreater penalty or for two or morecrimes to which it attaches a lighter

penalty.

REQUISITES of REITERACION orHABITUALITY:1. That the accused is on trial for an

offense;2. That he previously served sentence for

another offense to which the lawattaches ana) Equal orb) Greater penalty, orc) For two or more crimes to which it

attaches a lighter penalty than

that for the new offense; and3. That he is convicted of the new

offense

REITERACION RECIDIVISM

As to the first offense

It is necessary thatthe offender shallhave served out hissentence for the

first offense

It is enough that a final judgment hasbeen rendered inthe first offense.

As to the kind of offenses involvedThe previous andsubsequent offensesmust not be embraced in the sametitle of the Code.

Requires that theoffenses beincluded in thesame title of theCode.

THE FOUR FORMS OF REPETITION ARE:

1. Recidivism (par. 9, Art. 14) – where aperson, on separate occasions, is

convicted of two offenses embraced in thesame title in the RPC. This is a genericaggravating circumstance.

2. Reiteracion or habituality (par. 10, Art.14) – where the offender has beenpreviously punished for an offense towhich the law attaches an equal or greaterpenalty or for two crimes to which itattaches a lighter penalty. This is ageneric aggravating circumstance.

3. Multi-recidivism or habitual delinquency(Art. 62, par, 5) – where a person within aperiod of ten years from the date of hisrelease or last conviction of the crimes ofserious or less serious physical injuries,robbery, theft, estafa or falsification, isfound guilty of the said crimes a third timeor oftener. This is an extraordinaryaggravating circumstance.

4. Quasi-recidivism (Art. 160) – Where aperson commits felony before beginning toserve or while serving sentence on aprevious conviction for a felony. This is aspecial aggravating circumstance.

Since reiteracion provides that theaccused has duly served the sentencefor his previous conviction/s, or islegally considered to have done so,quasi-recidivism cannot at the sametime constitute reiteracion, hence thisaggravating circumstance cannot applyto a quasi-recidivist.

If the same set of facts constitutesrecidivism and reiteracion, the liabilityof the accused should be aggravated

by recidivism which can easily beproven.

Par. 11 – That the crime be committedin consideration of a price, reward or promise.


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When this aggravating circumstance ispresent, there must be two or moreprincipals, the one who gave or

offered the price or promise and theone who accepted it, both of whomare principals.

If without previous promise it wasgiven voluntarily after the crime hadbeen committed as an expression ofhis appreciation for the sympathy andaid shown by the other accused, itshould not be taken into considerationfor the purpose of increasing thepenalty.

The price, reward or promise need notconsist of or refer to material things orthat the same were actually delivered,it being sufficient that the offer madeby the principal by inducement beaccepted by the principal by directparticipation before the commission ofthe offense.

Par. 12 – That the crime be committedby means of inundation, fire, poison,explosion, stranding of a vessel orintentional damage thereto, derailmentof a locomotive, or by the use of any

other artifice involving great waste andruin.

When another aggravatingcircumstance already qualifies thecrime, any of these aggravatingcircumstances shall be considered asgeneric aggravating circumstance only.

A killing committed through any ofthese qualifies the crime to murder,except if arson was resorted to butwithout intent to kill, in view of P.D.

1613 which provides a specific penaltyfor that situation.

PAR. 12 “bymeans of

inundation, fire,etc.”

PAR. 10 “on theoccasion of aconflagration,

shipwreck, etc.The crime iscommitted bymeans of any suchacts involving greatwaste or ruin.

The crime iscommitted on theoccasion of acalamity ormisfortune.

Par. 13–

That the act be committedwith evident premeditation

REQUISITES:The prosecution must prove – 1. The time when the offender

determined to commit the crime;

2. An act manifestly indicating that theculprit has clung to his determination;and

3.

A sufficient lapse of time between thedetermination and execution, to allowhim to reflect upon the consequencesof his act and to allow his conscienceto overcome the resolution of his will.

To establish evident premeditation, itmust be shown that there was a periodsufficient to afford full opportunity formeditation and reflection, a timeadequate to allow the conscience toovercome the resolution of the will, aswell as outward acts showing theintent to kill. It must be shown thatthe offender had sufficient time toreflect upon the consequences of hisact but still persisted in hisdetermination to commit the crime. (PEOPLE vs. SILVA, et. al., GR No.140871, August 8, 2002)

The essence of evident premeditationis that the execution of the criminalact is preceded by cool thought andreflection upon the resolution to carryout the criminal intent within a spaceof time sufficient to arrive at a calm

judgment. (PEOPLE vs. ABADIES, GRNo. 135975, August 14, 2002)

Evident premeditation is presumed toexist when conspiracy is directlyestablished. When conspiracy ismerely implied, evident premeditationcannot be presumed, the latter mustbe proved like any other fact. (PEOPLEvs. SAPIGAO, et. al., GR No. 144975, June 18, 2003)

Premeditation is absorbed by reward

or promise.

When the offender decides to kill aparticular person and premeditated onthe killing of the latter, but when hecarried out his plan he actually killedanother person, it cannot properly besaid that he premeditated on thekilling of the actual victim.

But if the offender premeditated onthe killing of any person, it is properto consider against the offender the

aggravating circumstance ofpremeditation, because whoever iskilled by him is contemplated in hispremeditation.

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


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Craft (astucia) – involved the use ofintellectual trickery or cunning on the part

of the accused. - it is a chicaneryresorted to by the accused to aid in theexecution of his criminal design. It isemployed as a scheme in the execution ofthe crime.

Fraud ( fraude) – insidious words ormachinations used to induce the victim toact in a manner which would enable theoffender to carry out his design.

FRAUD CRAFTWhere there is adirect inducement by insidious wordsor machinations,fraud is present.

The act of theaccused done inorder not to arouse the suspicion of thevictim constitutescraft.

According to Justice Regalado, thefine distinctions between “craft” and“fraud” would not really be called foras these terms in Art. 14 are variantsof means employed to deceive thevictim and if all are present in thesame case, they shall be applied as a

single aggravating circumstance.

Craft and fraud may be absorbed intreachery if they have beendeliberately adopted as the means,methods or forms for the treacherousstrategy, or they may co-existindependently where they are adoptedfor a different purpose in thecommission of the crime.

For instance: In People vs. San Pedro (Jan. 22,

1980), where the accusedpretended to hire the driver inorder to get his vehicle, it washeld that there was craft directedto the theft of the vehicle,separate from the meanssubsequently used to treacherouslykill the defenseless driver.

In People vs. Masilang (July 11,1986) there was also craft whereafter hitching a ride, the accusedrequested the driver to take themto a place to visit somebody, when

in fact they had already plannedto kill the driver.

Disguise (disfraz) – resorting to anydevice to conceal identity.

The test of disguise is whether thedevice or contrivance resorted to bythe offender was intended to or did

make identification more difficult,such as the use of a mask or false hairor beard.

The use of an assumed name in thepublication of a libel constitutesdisguise.

Par. 15 – That (1) advantage be taken ofsuperior strength, or (2) means beemployed to weaken the defense.

Par. 15 enunciates two aggravatingcircumstances, namely, thatadvantage was taken of superiorstrength, or that means wereemployed by the offender to weakenthe defense of the victim, either ofwhich qualifies a killing to murder.

MEANING OF “advantage be taken”:To deliberately use excessive force that isout of proportion to the means for self-defense available to the person attacked.(PEOPLE vs. LOBRIGAS, et. al., GR No.147649, December 17, 2002)

NO ADVANTAGE OF SUPERIOR STRENGTHIN THE FOLLOWING:1. One who attacks another with passion

and obfuscation does not takeadvantage of his superior strength.

2. When a quarrel arose unexpectedly and the fatal blow was struck at atime when the aggressor and his victimwere engaged against each other asman to man.

For abuse of superior strength, thetest is the relative strength of theoffender and his victim, whether ornot he took advantage of his greaterstrength.

When there are several offendersparticipating in the crime, they mustall be principals by direct participationand their attack against the victimmust be concerted and intended to beso.

Abuse of superior strength is inherentin the crime of parricide where thehusband kills the wife. It is generallyaccepted that the husband isphysically stronger than the wife.


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Abuse of superior strength is alsopresent when the offender uses aweapon which is out of proportion to

the defense available to the offendedparty.

“by a band” “abuse ofsuperior

strength” The element ofband is appreciatedwhen the offense iscommitted by morethan three armedmalefactorsregardless of thecomparative

strength of thevictim or victims.

The gravamen ofabuse of superiorityis the takingadvantage by theculprits of theircollective strengthto overpower theirrelatively weaker

victim or victims.

Hence, what istaken into accounthere is not thenumber ofaggressors nor thefact that they arearmed, but theirrelative physicalstrength vis-a vis the offended party.

Abuse of superior strength absorbs

cuadrilla (“band”).

“Means employed to weaken defense” -the offender employs means thatmaterially weakens the resisting power ofthe offended party.

EXAMPLES OF “means employed toweaken defense” 1. Where one, struggling with another,

suddenly throws a cloak over the headof his opponent and while in thissituation he wounds or kills him.

2. One who, while fighting with another,suddenly casts sand or dirt upon thelatter eyes and then wounds or killshim.

3. When the offender, who had theintention to kill the victim, made thedeceased intoxicated, therebymaterially weakening the latter’sresisting power.

This circumstance is applicable only tocrimes against persons, and sometimesagainst person and property, such asrobbery with physical injuries or

homicide.

Par. 16 – That the act be committedwith treachery (alevosia).

Treachery (alevosia) – is present whenthe offender commits any of the crimesagainst person, employing means, methods

or forms in the execution thereof whichtend directly and specially to insure itsexecution, without risk to himself arisingfrom the defense which the offended partymight make.

REQUISITES OF TREACHERY:1. That at the time of the attack, the

victim was not in a position to defendhimself ; and

2. That the offender consciously adoptedthe particular means, method or formof attack employed by him.

The test of treachery is not only therelative position of the parties but,more specifically, whether or not thevictim was forewarned or afforded theopportunity to make a defense or toward off the attack.

RULES REGARDING TREACHERY:1. Applicable only to crimes against

persons.2. Means, methods or forms need not

insure accomplishment of crime.3. The mode of attack must be

consciously adopted.

Treachery is taken into account even ifthe crime against the person iscomplexed with another felonyinvolving a different classification inthe Code. Accordingly, in the specialcomplex crime of robbery withhomicide, treachery but can beappreciated insofar as the killing isconcerned.

The suddenness of attack does not, ofitself, suffice to support a finding ofalevosia, even if the purpose was tokill, so long as the decision was madeall of a sudden and the victim’shelpless position was accidental.

Treachery must be appreciated in thekilling of a child even if the manner ofattack is not shown. It exists in thecommission of the crime when theadult person illegally attacks a child oftender years and causes his death.

WHEN MUST TREACHERY BE PRESENT:When the aggression is continuous,treachery must be present in the beginningof the assault. (PEOPLE vs. MANALAD, GRNo. 128593, August 14, 2002)

Thus, even if the deceased wasshot while he was lying wounded


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on the ground, it appearing thatthe firing of the shot was a merecontinuation of the assault in

which the deceased was wounded,with no appreciable time intervening between the deliveryof the blows and the firing of theshot, it cannot be said that thecrime was attended by treachery.

When the assault was not continuous, inthat there was interruption, it is sufficientthat treachery was present at the momentthe fatal blow was given.

Hence, even though in theinception of the aggression whichended in the death of thedeceased, treachery was notpresent, if there was a break inthe continuity of the aggressionand at the time of the fatalwound was inflicted on thedeceased he was defenseless, thecircumstance of treachery must betaken into account.

ALEVOSIA SHOULD BE CONSIDERED EVENIF:1. The victim was not predetermined but

there was a generic intent totreacherously kill any first two personsbelonging to a class. (The same ruleobtains for evident premeditation).

2. There was aberratio ictus and thebullet hit a person different from thatintended. (The rule is different inevident premeditation).

3. There was error in personae, hencethe victim was not the one intendedby the accused. (A different rule isapplied in evident premeditation).REASON FOR THE RULE: When there

is treachery, it is impossible for eitherthe intended victim or the actualvictim to defend himself against theaggression.

TREACHERY ABSORBS: 1. Craft2. Abuse of superior strength3. Employing means to weaken the

defense

4.

Cuadrilla (“band”) 5. Aid of armed men6. Nighttime

Par. 17 – That means be employed orcircumstances brought about which add

ignominy to the natural effects of theact.

Ignominy – is a circumstance pertaining tothe moral order , which adds disgrace andobloquy to the material injury caused bythe crime.

MEANING OF “which add ignominy to thenatural effects thereof” The means employed or the

circumstances brought about must tend tomake the effects of the crime morehumiliating to victim or to put theoffended party to shame, or add to hismoral suffering. Thus it is incorrect toappreciate ignominy where the victim wasalready dead when his body wasdismembered, for such act may not beconsidered to have added to the victim’smoral suffering or humiliation. (People vs.Carmina, G.R. No. 81404, January 28,1991)

Applicable to crimes against chastity,less serious physical injuries, light orgrave coercion, and murder.

Par. 18 – That the crime be committedafter an unlawful entry.

Unlawful entry – when an entrance iseffected by a way not intended for thepurpose.

Unlawful entry must be a means toeffect entrance and not for escape.

REASON FOR AGGRAVATION:One who acts, not respecting the wallserected by men to guard their propertyand provide for their personal safety,shows a greater perversity, a greater

audacity; hence, the law punishes himwith more severity.

Par. 19 – That as a means to thecommission of a crime, a wall, roof, floor, door, or window be broken.

This circumstance is aggravating onlyin those cases where the offenderresorted to any of said means to enter the house. If the wall, etc., is brokenin order to get out of the place, it isnot an aggravating circumstance.

PAR. 19 PAR. 18It involves thebreaking(rompimiento) ofthe enumeratedparts of the house.

Presupposes thatthere is no suchbreaking as by entrythrough thewindow.


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If the offender broke a window toenable himself to reach a purse withmoney on the table near that window,

which he took while his body wasoutside of the building, the crime oftheft was attended by this aggravatingcircumstance. It is not necessary thatthe offender should have entered thebuilding.

Par. 20 – That the crime be committed(1) with the aid of persons under

fifteen years of age, or(2) by means of motor vehicles,

airships, or other similar means.

TWO DIFFERENT CIRCUMSTANCESGROUPED IN THIS PARAGRAPH:1. With the aid of persons under fifteen

years of age: Tends to repress, so far as

possible, the frequent practiceresorted to by professionalcriminals to avail themselves ofminors taking advantage of theirirresponsibility .

2. By means of motor vehicles, airships,or other similar means: Intended to counteract the great

facilities found by modern

criminals in said means to commitcrime and flee and abscond oncethe same is committed .

Use of motor vehicle is aggravatingwhere the accused purposely anddeliberately used the motorvehicle in going to the place of thecrime, in carrying away the effectsthereof, and in facilitating theirescape.

MEANING OF “or other similar means” Should be understood as referring to

motorized vehicles or other efficientmeans of transportation similar toautomobile or airplane.

Par. 21 – That the wrong done in thecommission of the crime be deliberatelyaugmented by causing other wrong notnecessary for its commission.

Cruelty – there is cruelty when the culpritenjoys and delights in making his victimsuffer slowly and gradually, causingunnecessary physical pain in the

consummation of the criminal act.

REQUISITES OF CRUELTY:1. That the injury caused be deliberately

increased by causing other wrong;

2. That the other wrong be unnecessary for the execution of the purpose of theoffender.

Cruelty is not inherent in crimesagainst persons. In order for it to beappreciated, there must be positiveproof that the wounds found on thebody of the victim were inflicted whilehe was still alive in orderunnecessarily to prolong physicalsuffering.

If the victim was already dead whenthe acts of mutilation were beingperformed, this would also qualify thekilling to murder due to outraging ofhis corpse.

IGNOMINY(PAR.17)

CRUELTY (PAR.21)

Involves moralsuffering

Refers to physicalsuffering

Unlike mitigating circumstances (par.10, Art. 13), there is no provision foraggravating circumstances of a similaror analogous character.

ART. 15 – ALTERNATIVECIRCUMSTANCES

Alternative circumstances – are thosewhich mu

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