1

REVISED ORTEGA NOTES

Fluvial jurisdiction is the jurisdiction exercised over
maritime and interior waters.

Aerial jurisdiction is the jurisdiction exercised over

Book I the atmosphere.

General Provisions The Archipelagic Rule

All bodies of water comprising the maritime zone and

CRIMINAL LAW interior waters abounding different islands comprising the
Philippine Archipelago are part of the Philippine territory
Criminal law is that branch of municipal law which defines regardless of their breadth, depth, width or dimension.
crimes, treats of their nature and provides for their
punishment. On the fluvial jurisdiction there is presently a departure
from the accepted International Law Rule, because the
Philippines adopted the Archipelagic Rule as stated above.
It is that branch of public substantive law which defines
In the International Law Rule, when a strait within a
offenses and prescribes their penalties. It is substantive
country has a width of more than 6 miles, the center lane
because it defines the states right to inflict punishment
in excess of the 3 miles on both sides is considered
and the liability of the offenders. It is public law because
international waters.
it deals with the relation of the individual with the state.

Limitations on the power of Congress to enact Question and Answer

penal laws
1. Must be general in application.
If a foreign merchant vessel is in the center lane and a
2. Must not partake of the nature of an ex post facto
crime was committed there what law will apply under the
law. (1987 Const. Art III, Sec.22)
International Law Rule? the Archipelagic Rule?
3. Must not partake of the nature of a bill of attainder.
(1987 Const. Art III, Sec 22)
Under the International Rule, the law of the country where
4. Must not impose cruel and unusual punishment or
that vessel is registered will apply, because the crime is
excessive fines. (1987 Const. Art III, Sec 19)
deemed to have been committed in the high seas.
Characteristics of Criminal Law
However, under the Archipelagic Rule as declared in Article
1. Generality
I of the 1987 Constitution, all waters in the archipelago
2. Territoriality
regardless of breadth, width or dimension are part of our
3. Prospectivity
national territory. Under this Rule, there is no more center
lane, all these waters, regardless of their dimension or
GENERALITY
width are part of Philippine territory.
Generality of criminal law means that the criminal law of
So if a foreign merchant vessel is in the center lane and a
the country governs all persons within the country
crime was committed, the crime will be prosecuted before
regardless of their race, belief, sex or creed. However, it
Philippine Courts.
is subject to certain exceptions brought about by
international agreement. Ambassadors, chiefs of states
and other diplomatic officials are immune from the
Three international law theories on aerial
application of penal laws when they are in the country
jurisdiction
where they are assigned.
1. The atmosphere over the country is free and not
Note that consuls are not diplomatic officers. This
subject to the jurisdiction of the subjacent state,
includes consul-general, vice-consul or and consul in a
except for the protection of its national security and
foreign country, who are therefore, not immune to the
public order.
operation or application of the penal law of the country
where they are assigned.
Under this theory, if a crime is committed on board a
foreign aircraft at the atmosphere of a country, the law
Generality has no reference to territory. Whenever you
of that country does not govern unless the crime
are asked to explain this, it does not include territory. It
affects the national security.
refers to persons that may be governed by the penal law.
2. Relative Theory- The subjacent state exercises
jurisdiction over the atmosphere only to the extent
[Take note of the Visiting Forces Agreement, Art. V,
that it can effectively exercise control thereof.
which defines Criminal Jurisdiction over United States
military and civilian personnel temporarily in the
Under this theory, if a crime was committed on an
Philippines in connection with activities approved by the
aircraft that is already beyond the control of the
Philippine Government (see attached supplement).]
subjacent state, the criminal law of the state will not
govern anymore. But if the crime is committed in an
TERRITORIALITY
aircraft within the atmosphere over a subjacent state
that exercises control, then its criminal law will govern.
Territoriality means that the penal laws of the country
have force and effect only within its territory. It cannot 3. Absolute Theory (adopted by the Philippines) - The
penalize crimes committed outside the same. This is subjacent state has complete jurisdiction over the
subject to certain exceptions brought about by atmosphere above it subject only to the innocent
international agreements and practice. The territory of passage by aircraft of a foreign country.
the country is not limited to the land where its
sovereignty resides but includes also its maritime and Under this theory, if the crime is committed in an
interior waters as well as its atmosphere. aircraft, no matter how high, as long as it can be
established that it is within the Philippine atmosphere,
Terrestrial jurisdiction is the jurisdiction
Philippine criminal law will govern.
exercised over land.
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PROSPECTIVITY Consequences if repeal of penal law is total or absolute:

1. If a case is pending in court involving the violation of
This is also called irretrospectivity.
the repealed law, the same shall be dismissed, even
Acts or omissions will only be subject to a penal law if though the accused may be a habitual delinquent. This
they are committed after a penal law had already taken is so because all persons accused of a crime are
effect. Vice versa, this act or omission which has been presumed innocent until they are convicted by final
committed before the effectivity of a penal law could not judgment. Therefore, the accused shall be acquitted.
2. If a case is already decided and the accused is already
be penalized by such penal law because penal laws
serving sentence by final judgment, if the convict is
operate only prospectively.
not a habitual delinquent, then he will be entitled to a
In some textbooks, an exemption is said to exist when release unless there is a reservation clause in the
the penal law is favorable to the offender, in which case penal law that it will not apply to those serving
it would have retroactive application (RPC Art. 22); sentence at the time of the repeal. But if there is no
reservation, those who are not habitual delinquents
provided that the offender is not a habitual delinquent
and there is no provision in the law against its retroactive even if they are already serving their sentence will
application. receive the benefit of the repealing law. They are
entitled to be released.
The exception where a penal law may be given This does not mean that if they are not released, they
are free to escape. If they escape, they commit the
retroactive application is true only with a repealing law. If
crime of evasion of sentence, even if there is no more
it is an original penal law, that exception can never
legal basis to hold them in the penitentiary. This is so
operate. What is contemplated by the exception is that
because prisoners are accountabilities of the
there is an original law and there is a repealing law
government; they are not supposed to step out simply
repealing the original law. It is the repealing law that
because their sentence has already been completed, or
may be given retroactive application to those who
that the law under which they are sentenced has been
violated the original law, if the repealing penal law is
more favorable to the offender who violated the original declared null and void.
law. If there is only one penal law, it can never be given If they are not discharged from confinement, a petition
retroactive effect. for habeas corpus should be filed to test the legality of
their continued confinement in jail.
If the convict, on the other hand, is a habitual
Rule of prospectivity also applies to administrative
delinquent, he will continue serving the sentence in
rulings and circulars
spite of the fact that the law under which he was
In Co vs. CA (1993), it was held that the principle of convicted has already been absolutely repealed. This is
prospectivity of statutes also applies to administrative so because penal laws should be given retroactive
rulings and circulars. In this case, Circular No. 4 of the application to favor only those who are not habitual
Ministry of Justice, dated December, 15, 1981, provides delinquents.
that where the check is issued as part of an
arrangement to guarantee or secure the payment of an Question and Answer
obligation, whether pre-existing or not, the drawer is not
criminally liable for either estafa or violation of BP 22.
Subsequently, the administrative interpretation was A, a prisoner, learns that he is already overstaying
reversed in Circular No. 12, issued on August 8, 1984, in jail because his jail guard, B, who happens to be a law
such that the claim that the check was issued as a student advised him that there is no more legal ground for
guarantee or part of an arrangement to secure an his continued imprisonment, and B told him that he can go.
obligation or to facilitate collection, is no longer a valid A got out of jail and went home. Was there any crime
defense for the prosecution of BP 22. Hence, it was ruled committed?
in Que vs. People that under the new Circular, a check As far as A, the prisoner who is serving sentence, is
issued merely to guarantee the performance of an concerned, the crime committed is evasion of sentence.
obligation is covered by BP 22. However, consistent with
the principle of prospectivity, the new doctrine should not As far as B, the jail guard who allowed A to go, is
apply to parties who had relied on the old Circular and concerned, the crime committed is infidelity in the custody
acted on the faith thereof. No retrospective effect. of prisoners.

Effect of repeal of penal law to liability of offender Consequences if repeal of penal law is partial or relative:

In some commentaries, there are distinctions as to 1. If a case is pending in court involving the violation of
whether the repeal is express or implied. However, what the repealed law, and the repealing law is more
affects the criminal liability of an offender is not whether favorable to the accused, it shall be the one applied to
a penal law is expressly or impliedly repealed; it is him. So whether he is a habitual delinquent or not, if
whether it is absolutely or totally repealed, or relatively the case is still pending in court, the repealing law will
or partially repealed. apply unless there is a saving clause in the repealing
law that it shall not apply to pending causes of action.
Total or absolute, or partial or relative repeal.-- As 2. If a case is already decided an the accused is already
to the effect of repeal of penal law to the liability of serving sentence by final judgment, even if the
offender, qualify your answer by saying whether the repealing law is partial or relative, the crime still
repeal is absolute or total or whether the repeal is partial remains to be a crime. Those who are not habitual
or relative only. delinquents will benefit on the effect of that repeal, so
A repeal is absolute or total when the crime punished that if the repeal is more lenient to them, it will be the
under the repealed law has been decriminalized by the repealing law that will apply to them.
repeal. Because of the repeal, the act or omission which
used to be a crime is no longer a crime. An example is For example, under the original law, the penalty is six
Republic Act No. 7363, which decriminalized subversion. years. Under the repealing law, it is four years. Those
A repeal is partial or relative when the crime punished convicted under the original law will be subjected to
under the repealed law continues to be a crime in spite of the four-year penalty. This retroactive application will
the repeal. This means that the repeal merely modified not be possible if there is a saving clause that provides
the conditions affecting the crime under the repealed law. that it should not be given retroactive effect.
The modification may be prejudicial or beneficial to the Under Article 22, even if the offender is already
offender. Hence, the following rule: convicted and serving sentence, a law which is
 3

beneficial shall be applied to him unless he is a

habitual delinquent in accordance with Rule 5 of
Article 62.
Question and Answer

Express or implied repeal.- Express or implied repeal

refers to the manner the repeal is done. One boy was accused of parricide and was found guilty.
This is punished by reclusion perpetua to death. Assuming
Express repeal takes place when a subsequent law
you were the judge, would you give the accused the
contains a provision that such law repeals an earlier
benefit of the Indeterminate Sentence Law (ISLAW)? The
enactment. For example, in Republic Act No. 6425 (The
ISLAW does not apply when the penalty imposed is life
Dangerous Drugs Act of 1972), there is an express
imprisonment or death. Would you consider the penalty
provision of repeal of Title V of the Revised Penal Code.
imposable or the penalty imposed, taking into
Implied repeals are not favored. It requires a competent consideration the mitigating circumstance of minority?
court to declare an implied repeal. An implied repeal will
If you will answer no, then you go against the doctrine of
take place when there is a law on a particular subject
Pro Reo, because you can interpret the ISLAW in a more
matter and a subsequent law is passed also on the same
lenient manner. Taking into account the doctrine, we can
subject matter but is inconsistent with the first law, such
interpret the ISLAW to mean that the penalty imposable
that the two laws cannot stand together, one of the two
and not the penalty prescribed by law, since it is more
laws must give way. It is the earlier that will give way to
favorable for the accused to interpret the law.
the later law because the later law expresses the recent
legislative sentiment. So you can have an implied repeal Nullum crimen, nulla poena sine lege
when there are two inconsistent laws. When the earlier
law does not expressly provide that it is repealing an There is no crime when there is no law punishing the
earlier law, what has taken place here is implied repeal. same. This is true to civil law countries, but not to common
If the two laws can be reconciled, the court shall always law countries.
try to avoid implied repeals. For example, under Article 9, Because of this maxim, there is no common law crime in
light felonies are those infractions of the law for the the Philippines. No matter how wrongful, evil or bad act is,
commission of which a penalty of arresto mayor or a fine if there is no law defining the act, the same is not
not exceeding P200.00 or both is provided. On the other considered a crime.
hand, under Article 26, a fine whether imposed as a
single or an alternative penalty, if it exceeds P6,000.00 Common law crimes are wrongful acts which the
but is not less than P200.00, is considered a correctional community/ society condemns as contemptible, even
penalty. These two articles appear to be inconsistent. So though there is no law declaring the act criminal.
to harmonize them, the Supreme Court ruled that if the
Not any law punishing an act or omission may be valid as a
issue involves the prescription of the crime, the felony
criminal law. If the law punishing an act is ambiguous, it is
will be considered a light felony and, therefore,
null and void.
prescribes within two months. But if the issue involves
prescription of the penalty, the fine of P200.00 will be Actus non facit reum, nisi mens sit rea
considered correctional and it will prescribe within 10
years. Clearly, the court avoided the collision between The act cannot be criminal where the mind is not criminal.
the two articles. This is true to a felony characterized by dolo, but not a
felony resulting from culpa. This maxim is not an absolute
Consequences if repeal of penal law is express or one because it is not applied to culpable felonies, or those
implied: that result from negligence.
1. If a penal law is impliedly repealed, the Utilitarian Theory or Protective Theory
subsequent repeal of the repealing law will revive the
original law. So the act or omission which was The primary purpose of the punishment under criminal law
punished as a crime under the original law will be is the protection of society from actual or potential
revived and the same shall again be crimes although wrongdoers. The courts, therefore, in exacting retribution
during the implied repeal they may not be for the wronged society, should direct the punishment to
punishable. potential or actual wrongdoers, since criminal law is
2. If the repeal is express, the repeal of the repealing directed against acts and omissions which the society does
law will not revive the first law, so the act or not approve of. Consistent with this theory, the mala
omission will no longer be penalized. prohibita principle which punishes an offense regardless of
malice or criminal intent, should not be utilized to apply
the full harshness of the special law.
These effects of repeal do not apply to self-repealing laws
or those which have automatic termination. An example In Magno vs. CA, decided on June 26, 1992, the Supreme
is the Rent Control Law which is revived by Congress Court acquitted Magno of violation of Batas Pambansa Blg.
every two years. 22 when he acted without malice. The wrongdoer is not
Magno but the lessor who deposited the checks. He should
When there is a repeal, the repealing law expresses the have returned the checks to Magno when he pulled out the
legislative intention to do away with such law, and, equipment. To convict the accused would defeat the noble
therefore, implies a condonation of the punishment. Such objective of the law and the law would be tainted with
legislative intention does not exist in a self-terminating materialism and opportunism.
law because there was no repeal at all.
DEVELOPMENT OF CRIMINAL LAW IN THE
PHILIPPINES
BASIC MAXIMS IN CRIMINAL LAW Code of Kalantiao
Doctrine of Pro Reo If you will be asked about the development of criminal law
Whenever a penal law is to be construed or applied and in the Philippines, do not start with the Revised Penal
the law admits of two interpretations - one lenient to the Code. Under the Code of Kalantiao, there were penal
offender and one strict to the offender- that provisions. Under this code, if a man would have a relation
interpretation which is lenient or favorable to the with a married woman, she is penalized. Even offending
offender will be adopted. religious things, such as gods, are penalized. The Code of
Kalantiao has certain penal provisions. The Filipinos have
This is in consonance with the fundamental rule that all their own set of penology also.
doubts shall be construed in favor of the accused and
consistent with the presumption of innocence of the Spanish Codigo Penal
accused. This is peculiar only to criminal law.
 4

When the Spanish Colonizers came, the Spanish Codigo thought. Man is regarded as a moral creature who
Penal was made applicable and extended to the understands right from wrong. So that when he commits a
Philippines by Royal Decree of 1870. This was made wrong, he must be prepared to accept the punishment
effective in the Philippines on July 14, 1876. therefore.
Who is Rafael Del Pan?
Positivist or Realistic Philosophy
He drafted a correctional code which was after the
Spanish Codigo Penal was extended to the Philippines.
The purpose of penalty is reformation. There is great
But that correctional code was never enacted into law.
respect for the human element because the offender is
Instead, a committee was organized headed by then
regarded as socially sick who needs treatment, not
Anacleto Diaz. This committee was the one which drafted
punishment. Cages are like asylums, jails like hospitals.
the present Revised Penal Code.
They are to segregate the offenders from the good
The Present Revised Penal Code members of society.

When a committee to draft the Revised Penal Code was From this philosophy came the jury system, where the
formed, one of the reference that they took hold of was penalty is imposed on a case to case basis after
the correctional code of Del Pan. In fact, many provisions examination of the offender by a panel of social scientists
of the Revised Penal Code were no longer from the which do not include lawyers as the panel would not want
Spanish Penal Code; they were lifted from the the law to influence their consideration.
correctional code of Del Pan. So it was him who
formulated or paraphrased this provision making it Crimes are regarded as social phenomena which constrain
simpler and more understandable to Filipinos because at a person to do wrong although not of his own volition. A
that time, there were only a handful who understood tendency towards crime is the product of ones
Spanish. environment. There is no such thing as a natural born
Code of Crimes by Guevarra killer.

During the time of President Manuel Roxas, a code This philosophy is criticized as being too lenient.
commission was tasked to draft a penal code that will be
more in keeping with the custom, traditions, traits as well
as beliefs of the Filipinos. During that time, the code Eclectic or Mixed Philosophy
committee drafted the so-called Code of Crimes. This too,
slept in Congress. It was never enacted into law. Among This combines both positivist and classical thinking. Crimes
those who participated in drafting the Code of Crimes that are economic and social by nature should be dealt
was Judge Guellermo Guevarra. with in a positivist manner; thus, the law is more
compassionate. Heinous crimes should be dealt with in a
Since that Code of Crimes was never enacted as law, he
classical manner; thus, capital punishment.
enacted his own code of crimes. But it was the Code of
Crimes that was presented in the Batasan as Cabinet Bill
Since the Revised Penal Code was adopted from the
No. 2. Because the Code of Crimes prepared by Guevarra
Spanish Codigo Penal, which in turn was copied from the
was more of a moral code than a penal code, there were
French Code of 1810 which is classical in character, it is
several oppositions against the code.
said that our Code is also classical. This is no longer true
Proposed Penal Code of the Philippines because with the American occupation of the Philippines,
many provisions of common law have been engrafted into
Through Assemblyman Estelito Mendoza, the UP Law our penal laws. The Revised Penal Code today follows the
Center formed a committee which drafted the Penal Code mixed or eclectic philosophy. For example, intoxication of
of the Philippines. This Penal Code was substituted as the offender is considered to mitigate his criminal liability,
Cabinet Bill No. 2 and this has been discussed in the floor unless it is intentional or habitual; the age of the offender
of the Batasang Pambansa. So the Code of Crimes now in is considered; and the woman who killed her child to
Congress was not the Code of Crimes during the time of conceal her dishonor has in her favor a mitigating
President Roxas. This is a different one. Cabinet Bill No. 2 circumstance.
is the Penal Code of the Philippines drafted by a code
committee chosen by the UP Law Center, one of them
was Professor Ortega. There were seven members of the MALA IN SE AND MALA PROHIBITA
code committee. It would have been enacted into law if
not for the dissolution of the Batasang Pambansa. The Violations of the Revised Penal Code are referred to as
Congress was planning to revive it so that it can be malum in se, which literally means, that the act is
enacted into law. inherently evil or bad or per se wrongful. On the other
Special Laws hand, violations of special laws are generally referred to as
malum prohibitum.
During Martial Law, there are many Presidential Decrees
issued aside from the special laws passed by the Note, however, that not all violations of special laws are
Philippine Legislature Commission. All these special laws mala prohibita. While intentional felonies are always mala
which are penal in character, are part of our Penal Code. in se, it does not follow that prohibited acts done in
violation of special laws are always mala prohibita. Even if
the crime is punished under a special law, if the act
DIFFERENT PHILOSOPHIES UNDERLYING punished is one which is inherently wrong, the same is
THE CRIMINAL LAW SYSTEM malum in se, and, therefore, good faith and the lack of
criminal intent is a valid defense; unless it is the product of
Classical or Juristic Philosophy criminal negligence or culpa.
Best remembered by the maxim An eye for an eye, a Likewise when the special laws require that the punished
tooth for a tooth. [Note: If you want to impress the act be committed knowingly and willfully, criminal intent is
examiner, use the latin version- Oculo pro oculo, dente required to be proved before criminal liability may arise.
pro dente.]
The purpose of penalty is retribution. The offender is For example, Presidential Decree No. 532 punishes piracy
made to suffer for the wrong he has done. There is scant in Philippine waters and the special law punishing
regard for the human element of the crime. The law does brigandage in the highways. These acts are inherently
not look into why the offender committed the crime. wrong and although they are punished under special laws,
Capital punishment is a product of this kind of school of
 5

the act themselves are mala in se; thus good faith or lack endorsed by the municipal council as the most
of criminal intent is a defense. advantageous to the municipality. The losing bidder
challenged the validity of the contract, but the trial court
Distinction between crimes punished under the Revised sustained its validity. The case goes to the Sandiganbayan
Penal Code and crimes punished under special laws and the mayor gets convicted for violation of Republic Act
No. 3019 (Anti-Graft and Corrupt Practices Act). He
appeals alleging his defenses raised in the Sandiganbayan
1. As to moral trait of the offender
that he did not profit from the transaction, that the
In crimes punished under the Revised Penal Code, contract was advantageous to the municipality, and that he
the moral trait of the offender is considered. This is did not act with intent to gain. Rule.
why liability would only arise when there is dolo or
culpa in the commission of the punishable act. Judgment Affirmed. The contention of the mayor that he
did not profit anything from the transaction, that the
In crimes punished under special laws, the moral contract was advantageous to the municipality, and that he
trait of the offender is not considered; it is enough did not act with intent to gain, is not a defense. The crime
that the prohibited act was voluntarily done. involved is malum prohibitum.
2. As to use of good faith as defense
In crimes punished under the Revised Penal Code,
In the case of People vs. Sunico, an election registrar
good faith or lack of criminal intent is a valid
was prosecuted for having failed to include in the voters
defense; unless the crime is the result of culpa.
register the name of a certain voter. There is a provision in
the election law which proscribes any person from
In crimes punished under special laws, good faith is preventing or disenfranchising a voter from casting his
not a defense. vote. In trial, the election registrar raised as good faith as
a defense. The trial court convicted him saying that good
3. As to degree of accomplishment of the crime
faith is not a defense in violation of special laws. On
In crimes punished under the Revised Penal Code, appeal, it was held by the Supreme Court that
the degree of accomplishment of the crime is taken disenfranchising a voter from casting his vote is not wrong
into account in punishing the offender; thus, there because there is a provision of law declaring it a crime, but
are attempted, frustrated and consummated stages because with or without a law, that act is wrong. In other
in the commission of the crime. words, it is malum in se. Consequently, good faith is a
defense. Since the prosecution failed to prove that the
In crimes punished under special laws, the act gives accused acted with malice, he was acquitted.
rise to a crime only when it is consummated; there
are no attempted or frustrated stages, unless the Test to determine if violation of special law is malum
special law expressly penalizes a mere attempt or prohibitum or malum in se
frustration of the crime.
Analyze the violation: Is it wrong because there is a law
4. As to mitigating and aggravating circumstances
prohibiting it or punishing it as such? If you remove the
In crimes punished under the Revised Penal Code, law, will the act still be wrong?
mitigating and aggravating circumstances are taken
into account since the moral trait of the offender is If the working of the law punishing the crime uses the
considered. word willfully, then malice must be proven. Where malice
is a factor, good faith is a defense.
In crimes punished under special laws, mitigating
and aggravating circumstances are not taken into In violation of special law, the act constituting the crime is
account in imposing the penalty. a prohibited act. Therefore, culpa is not a basis of liability,
unless the special law punishes an omission.
5. As to degree of participation
In crimes punished under the Revised Penal Code, When given a problem, take note if the crime is a violation
when there is more than one offender, the degree of of the Revised Penal Code or a special law.
participation of each in the commission of the crime
is taken into account in imposing the penalty; thus, Question and Answer
offenders are classified as principal, accomplice and
accessory.
Q: Distinguish, in their respective concepts and legal
In crimes punished under special laws, the degree of implications, between crimes mala in se and crimes mala
participation of the offenders is not considered. All prohibita
who perpetrated the prohibited act are penalized to
the same extent. There is no principal or accessory A(Suggested): In concept, crimes mala in se are those
to consider. where the acts and omissions penalized are inherently
wrong that they are universally condemned. In crimes
Question and Answer mala prohibita, the acts are not inherently evil but
prohibited by law for public good, welfare and interest.
1. Three hijackers accosted the pilot of an airplane. In legal implications, good faith or lack of criminal intent is
They compelled the pilot to change destination, but a defense in crimes mala in se but not in crimes mala
before the same could be accomplished, the military was prohibita, where mere voluntary commission of the
alerted. What was the crime committed? prohibited act suffices. In crimes mala prohibita, criminal
liability is incurred when the crime is consummated while
Grave coercion. There is no such thing as attempted in mala in se, criminal liability is incurred even when the
hijacking. Under special laws, the penalty is not imposed crime is only attempted or frustrated. Also, in crimes mala
unless the act is consummated. Crimes committed in se, mitigating and aggravating circumstances are
against the provisions of a special law are penalized only appreciated in imposing penalties but not in crimes mala
when the pernicious effects, which such law seeks to prohibita, unless the special law has adopted the
prevent, arise. scheme/scale of penalties in the RPC.

FELONY, OFFENSE, MISDEMEANOR AND CRIME

2. A mayor awarded a concession to his daughter.
She was also the highest bidder. The award was even Felony
 6

A crime under the Revised Penal Code is referred to as a crime committed endangers the national security of a
felony. Do not use this term in reference to a violation of foreign country where the vessel is within jurisdiction in
special law. which case such foreign country will never lose jurisdiction
over such vessel.
Offense
A crime punished under a special law is called a statutory
offense. The American or Anglo-Saxon Rule

Misdemeanor This rule strictly enforces the territoriality of criminal law.

The law of the foreign country where a foreign vessel is
A minor infraction of the law, such as a violation of an
within its jurisdiction is strictly applied, except if the crime
ordinance, is referred to as a misdemeanor.
affects only the internal management of the vessel in
Crime which case it is subject to the penal law of the country
where it is registered.
Whether the wrongdoing is punished under the Revised
Penal Code or under a special law, the generic word
Both the rules apply only to a foreign merchant vessel if a
crime can be used.
crime was committed aboard that vessel while it was in the
territorial waters of another country. If that vessel is in the
SCOPE OF APPLICATION OF THE PROVISIONS OF high seas or open seas, there is no occasion to apply the
THE REVISED PENAL CODE two rules. If it is not within the jurisdiction of any country,
these rules will not apply.
The provisions in Article 2 embraces two scopes of
applications:

1. Intraterritorial- refers to the application of the Question and Answer

Revised Penal Code within the Philippine territory;
A vessel is not registered in the Philippines. A crime is
2. Extraterritorial- refers to the application of the
committed outside Philippine Territorial waters. Then the
Revised Penal Code outside the Philippines territory.
vessel entered our territory. Will the Revised Penal Code
apply?
Intraterritorial application
Yes. Under the old Rules of Criminal Procedure, for our
In the intraterritorial application of the Revised Penal
courts to take cognizance of any crime committed on board
Code, Article 2 makes it clear that it does not refer only
a vessel must be registered in the Philippines in
to the Philippine archipelago but it also includes the
accordance with Philippine laws. Under the Revised Rules
atmosphere, interior waters and maritime zone. So
of Criminal Procedure, however, the requirement that the
whenever you use the word territory, do not limit this to
vessel must be licensed and registered in accordance with
land area only.
Philippine laws has been deleted from Section 25,
paragraph c of Rule 110 of the Rules of Court. The
As far as jurisdiction or application of the Revised Penal
intention is to do away with the requirement so that as
Code over crimes committed on maritime zones or
long as the vessel is not registered under the laws of any
interior waters, the Archipelagic Rule shall be observed.
country, our courts can take cognizance of the crime
So the three-mile limit on our shoreline has been
committed in such vessel.
modified by the rule. Any crime committed in the interior
waters comprising the Philippine archipelago shall be
More than this, the revised provision added the phrase in
subject to our laws although committed on board a
accordance with generally accepted principles of
foreign merchant vessel.
International Law. So the intention is clearly to adopt
generally accepted principles of international law in the
A vessel is considered a Philippine ship only when it is
matter of exercising jurisdiction over crimes committed in
registered in accordance with Philippine laws. Under
a vessel while in the course of its voyage. Under
international law, as long as such vessel is not within the
international law rule, a vessel which is not registered in
territorial waters of a foreign country, Philippine laws
accordance with the laws of any country is considered a
shall govern.
pirate vessel and piracy is a crime against humanity in
general, such that wherever pirates may go, they can be
Extraterritorial application
prosecuted (* piracy is hostes humanis generis).
Extraterritorial application of the Revised Penal Code on a
Prior to the revision, the crime would not have been
crime committed on board a Philippine ship or airship is
prosecutable in our court. With the revision, registration is
not within the territorial waters or atmosphere of a
not anymore a requirement and replaced with generally
foreign country. Otherwise, it is the foreign countrys
accepted principles of international law. Piracy is
criminal law that will apply.
considered a crime against the law of nations.
However, there are two situations where the foreign
In your answer, reference should be made to the provision
country may not apply its criminal law even if a crime
of paragraph c of Section 15 of the Revised Rules of
was committed on board a vessel within its territorial
Criminal Procedure. The case may be regarded as an act of
waters and these are:
piracy as long as it is done with intent to gain.
1. When the crime is committed in a war vessel of a
foreign country, because war vessels are part of the
When public officers or employees commit an
sovereignty of the country to whose navel force they
offense in the exercise of their functions
belong;
2. When the foreign country in whose territorial waters The most common subject of bar problems in Article 2 is
the crime was committed adopts the French Rule, paragraph 4: While being public officers or employees,
which applies only to merchant vessels, except when [they] should commit an offense in the exercise of their
the crime committed affects the national security or functions:
public order of such foreign country.
As a general rule, the Revised Penal Code governs only
The French Rule when the crime committed pertains to the exercise of the
public officials functions, those having to do with the
The French Rule provides that the nationality of the discharge of their duties in a foreign country. The functions
vessel follows the flag which the vessel flies, unless the
 7

contemplated are those, which are, under the law, to be The term felony is limited only to violations of the Revised
performed by the public officer in the Foreign Service of Penal Code. When the crime is punishable under a special
the Philippine government in a foreign country. law you do not refer to this as a felony, it is to be
understood as referring to crimes under the Revised Penal
Exception: The Revised Penal Code governs if the crime Code.
was committed within the Philippine Embassy or within
This is important because there are certain provisions in
the embassy grounds in a foreign country. This is
the Revised Penal Code where the term felony is used,
because embassy grounds are considered an extension of
which means that the provision is not extended to crimes
sovereignty.
under special laws. A specific instance is found in Article
Illustration: 160- Quasi-Recidivism, which reads:
A person who shall commit a felony after having
A Philippine consulate official who is validly married here been convicted by final judgment, before
in the Philippines and who marries again in a foreign beginning to serve sentence or while serving the
country cannot be prosecuted here for bigamy because same, shall be punished under the maximum
this is a crime not connected with his official duties. period of the penalty.
However, if the second marriage was celebrated within
the Philippine embassy, he may be prosecuted here, Note that the word felony is used.
since it is as if he contracted the marriage here in the
Philippines.
Question and Answer
Question and Answer
1. If a prisoner who is serving sentence is found in
possession of dangerous drugs, can he be considered a
A consul was to take a deposition in a hotel in Singapore. quasi-recidivist?
After the deposition, the deponent approached the
consuls daughter and requested certain parts of the No. The violation of Presidential Decree No. 6425 (The
deposition be changed in consideration of $10,000.00. Dangerous Drugs Act of 1972) is not a felony. The
The daughter persuaded the consul and the latter provision of Article 160 specifically refers to a felony and
agreed. Will the crime be subject to the Revised Penal felonies are those acts and omissions punished under the
Code? If so, what crime or crimes have been committed? Revised Penal Code.

Yes. Falsification. 2. Is illegal possession of a bladed weapon a felony?

Normally, the taking of the deposition is not the function No. It is not under the RPC.
of the consul, his function being the promotion of trade
and commerce with another country. Under the Rules of An act or omission
Court, however, a consul can take depositions or letters
rogatory. There is, therefore, a definite provision of the To be considered as a felony, there must be an act or
law making it the consuls function to take depositions. omission; a mere imagination no matter how wrong does
When he agreed to the falsification of the deposition, he not amount to a felony. An act refers to any kind of body
was doing so as a public officer in the service of the movement that produces change in the outside world. For
Philippine government. example, if A, a passenger of a jeepney seated in front of a
lady, started putting out his tongue suggesting lewdness,
Paragraph 5 of Article 2, uses the phrase as defined in that is already an act in contemplation of criminal law. He
Title One of Book Two of this Code. This is a very cannot claim that there was no crime committed. If A
important part of the exception, because Title 1 of Book scratches something, this is already an act which annoys
2 (crimes against national security) does not include the lady he may be accused of unjust vexation, not
rebellion. So if acts of rebellion were perpetrated by malicious mischief.
Filipinos who were in a foreign country, you cannot give
territorial application to the Revised Penal Code, because Dolo or culpa
Title 1 of Book 2 does not include rebellion.
However, it does not mean that if an act or omission is
punished under the Revised Penal Code, a felony is already
Illustration: committed. To be considered a felony, it must also be done
with dolo or culpa.
When a Filipino who is already married in the Philippines,
Under Article 3, there is dolo when there is deceit. This is
contracts another marriage abroad, the crime committed
no longer true. At the time the Revised Penal Code was
is bigamy. But the Filipino can not be prosecuted when
codified, the term nearest to dolo was deceit. However,
he comes back to the Philippines, because the bigamy
deceit means fraud, and this is not the meaning of dolo.
was committed in a foreign country and the crime is not
covered by paragraph 5 of Article 2. However, if the
Dolo is deliberate intent otherwise referred to as criminal
Filipino, after the second marriage, returns to the
intent, and must be coupled with freedom of action and
Philippines and cohabits here with his second wife, he
intelligence on the part of the offender as to the act done
commits the crime of concubinage for which he can be
by him.
prosecuted.

The Revised Penal Code shall not apply to any other The term, therefore, has three requisites on the part of the
crime committed in a foreign country which does not offender:
come under any of the exceptions and which is not a 1. Criminal intent;
crime against national security. 2. Freedom of action; and
3. Intelligence
HOW A FELONY MAY ARISE
If any of these is absent, there is no dolo. If there is no
dolo, there could be no intentional felony (Visbal vs.
Punishable by the Revised Penal Code Buban, 2003).
 8

Criminal Intent

Question and Answer Criminal Intent is not deceit. Do not use deceit in
translating dolo, because the nearest translation is
deliberate intent.
What requisites must concur before a felony may be
committed? In criminal law, intent is categorized into two:
1. General criminal intent; and
There must be (1) an act or omission; (2) punishable by 2. Specific criminal intent.
the Revised Penal Code; and (3) the act is performed or
the omission incurred by means of dolo or culpa. General criminal intent is presumed from the mere doing of
a wrong act. This does not require proof. The burden is
But although there is no intentional felony, there could be upon the wrong doer to prove that he acted without such
culpable felony. Culpa requires the concurrence of three criminal intent.
requisites:
Specific criminal intent is not presumed because it is an
1. criminal negligence on the part of the offender, that ingredient or element of a crime, like intent to kill in the
is, the crime was the result of negligence, reckless crimes attempted or frustrated homicide/ parricide/
imprudence, lack of foresight or lack of skill; murder. The prosecution has the burden of proving the
2. freedom of action on the part of the offender, that is, same.
he was not acting under duress; and
3. intelligence on the part of the offender in the Distinction between intent and discernment
performance of the negligent act.
Intent is the determination to do a certain thing, an aim or
Between dolo and culpa, the distinction lies on the purpose of the mind. It is the design to resolve or
criminal intent and criminal negligence. If any of these determination by which a person acts.
requisites is absent, there can be no dolo nor culpa.
When there is no dolo or culpa, a felony cannot arise. On the other hand, discernment is the mental capacity to
tell right from wrong. It relates to the moral significance
Question and Answer that a person ascribes to his act and relates to the
intelligence as an element of dolo, distinct from intent.

What do you understand by voluntariness in criminal Distinction between intent and motive
law?
Intent is demonstrated by the use of a particular means to
The word voluntariness in criminal law does not mean bring about a desired result- it is not a state of mind or a
acting in ones own volition. In criminal law, reason for committing a crime.
voluntariness comprehends the concurrence of freedom
of action, intelligence and the fact that the act was On the other hand, motive implies motion. It is the moving
intentional. In culpable felonies, there is no voluntariness power which impels one to do an act. When there is motive
if either freedom, intelligence or imprudence, negligence, in the commission of a crime, it always comes before the
lack of foresight or lack of skill is lacking. Without intent. But a crime may be committed without motive.
voluntariness, there can be no dolo or culpa, hence,
there is no felony.
If the crime is intentional, it cannot be committed without
In a case decided by the Supreme Court, two persons intent. Intent is manifested by the instrument used by the
went wild boar hunting. On their way, they met Pedro offender. The specific criminal intent becomes material if
standing by the door of his house and they asked him the crime is to be distinguished form the attempted or
where they could find wild boars. Pedro pointed to a frustrated stage. For example, a husband came home and
place where wild boars were supposed to be found, and found his wife in a pleasant conversation with a former
the two proceeded thereto. Upon getting to the place, suitor. Thereupon, he got a knife. The moving force is
they saw something moving, they shot, unfortunately jealousy. The intent to resort to the knife, so that means
ricocheted killing Pedro. It was held that since there was he desires to kill the former suitor.
neither dolo nor culpa, there is no criminal liability.
Even if the offender states that he had no reason to kill the
In US vs. Bindoy, accused had an altercation with X. X victim, this is not criminal intent. Criminal intent is the
snatched the bolo from the accused. To prevent X from means resorted to by him that brought about the killing. If
using his bolo on him, accused tried to get it from X. we equate intent as a state of mind, many would escape
Upon pulling it back towards him, he hit someone from criminal liability.
behind, instantly killing the latter. The accused was found
to be not liable. In criminal law, there is pure accident, In a case where mother and son were living in the same
and the principle damnum absque injuria is also honored. house, and the son got angry and strangled his mother,
the son, when prosecuted for parricide, raised the defense
Even culpable felonies require voluntariness. It does not that he had no intent to kill his mother. It was held that
mean that if there is no criminal intent, the offender is criminal intent applies on the strangulation of the vital part
absolved of criminal liability, because there is culpa to of the body. Criminal intent is on the basis of the act, not
consider. on the basis of what the offender says.

Question and Answer Look into motive to determine the proper crime
which can be imputed to the accused. If a judge was
killed, determine if the killing has any relation to the
May a crime be committed without criminal intent? official functions of the judge in which case the crime
would be direct assault complexed with murder/ homicide,
Yes. Criminal intent is not necessary in these cases: not the other way around. If it has no relation, the crime is
simply homicide or murder.
1. When the crime is the product of culpa or negligence,
reckless imprudence, lack of foresight or lack of skill; Omission is the inaction, the failure to perform a positive
2. When the crime is a prohibited act under a special duty which he is bound to do. There must be a law
law or what is called malum prohibitum. requiring the doing or performing of an act.
 9

Distinction between negligence and imprudence serious physical injuries. Should he be acquitted or
convicted, given the circumstances? Why?
1. In negligence, there is deficiency of action;
A: He should be acquitted. Considering the given
2. In imprudence, there is deficiency of perception.
circumstances - - frequent neighborhood robberies, time
was past midnight, and the victim appeared to be a robber
Mens rea
in the dark, the accused could have entertained an honest
belief that his life and limb and those of his family are
The technical term mens rea is sometimes referred to in
already in immediate and imminent danger. Hence, it may
common parlance as the gravamen of the offense. To a be reasonable to accept that he acted out of an honest
layman, that is what you call the bullseye of the crime. MISTAKE OF FACT, without criminal intent. An honest
This term is used synonymously with criminal or mistake of fact negatives criminal intent and absolves the
deliberate intent, but that is not exactly correct. accused from liability.
Mens rea of the crime depends upon the elements of the Real concept of culpa
crime. You can only detect the mens rea of a crime by
knowing the particular crime committed. Without Under Article 3, it is clear that culpa is just a modality by
reference to a particular crime, this term is meaningless. which a felony may be committed. A felony may be
For example, in theft, the mens rea is the taking of committed or incurred through dolo or culpa. Culpa is just
property of another with intent to gain. In falsification, a means by which a felony may result.
the mens rea is the effecting of the forgery with intent to
pervert the truth. It is not merely writing something that In Article 365, you have criminal negligence as an omission
is not true; the intent to pervert the truth must follow the which the article definitely or specifically penalized. The
performance of the act. concept of criminal negligence is the inexcusable lack of
precaution on the part of the person performing or failing
In criminal law, we sometimes have to consider the crime to perform an act. If the danger impending from that
on the basis of intent. For example, attempted or situation is clearly manifest, you have a case of reckless
frustrated homicide is distinguished from physical injuries imprudence. But if the danger that would result from such
only by the intent to kill. Attempted rape is distinguished imprudence is not clear, not manifest nor immediate, you
from acts of lasciviousness by the intent to have sexual have only a case of simple negligence. Because of Article
intercourse. In robbery, the mens rea is the taking of the 365, one might think that criminal negligence is the one
property of another coupled with the employment of being punished. That is why a question is created that
intimidation or violence upon persons or things; remove criminal negligence is the crime in itself.
the employment of force or intimidation and it is not
robbery any longer. In People vs. Faller, it was stated indirectly that criminal
negligence or culpa is just a mode of incurring criminal
liability. In this case, the accused was charged with
Mistake of fact malicious mischief. Malicious mischief is an intentional
negligence under Article 327 of the Revised Penal Code.
When an offender acted out of a misapprehension of fact, The provision expressly requires that there be a deliberate
it cannot be said that he acted with criminal intent. Thus, damaging of property of another, which does not constitute
in criminal law, there is a mistake of fact. When the destructive arson. You do not have malicious mischief
offender acted out of a mistake of fact, criminal intent is through simple negligence or reckless imprudence because
negated, so do not presume that the act was done with it requires deliberateness. Faller was charged with
criminal intent. This is absolutory if the crime involved malicious mischief, but was convicted of damage to
dolo. property through reckless imprudence. The Supreme Court
pointed out that although the allegation in the information
Mistake of fact would be relevant only when the felony
charged the accused with an intentional felony, yet the
would have been intentional or through dolo, but not words feloniously and unlawfully, which are standard
when the felony is a result of culpa. When the felony is a languages in an information, covers not only dolo but also
product of culpa, do not discuss mistake of fact. When culpa because culpa is just a mode of committing a felony.
the felonious act is the product of dolo and the accused
claimed to have acted out of mistake of fact, there should In Quezon vs. Justice of the Peace, Justice J.B.L. Reyes
be no culpa in determining the real facts, otherwise, he is dissented and claimed that criminal negligence is a quasi-
still criminally liable, although he acted out of a mistake offense, and the correct designation should not be
of fact. Mistake of fact is only a defense in intentional homicide through reckless imprudence, but reckless
felony but never in culpable felony. imprudence resulting in homicide. The view of Justice
Reyes is sound, but the problem is Article 3, which states
Requisites of mistake of fact that culpa is just a mode by which a felony may result.
1. That the act done would have been lawful had the
facts been as the accused believed them to be.
Question and Answer

2. That the intention of the accused in performing the Is culpa or criminal negligence a crime?
act should be lawful.
First, point out Article 3. Under Article 3, it is beyond
Question and Answer question that culpa or criminal negligence is just a mode
by which a felony may arise; a felony may be committed
through dolo or culpa.
Q: The accused and his family lived in a neighborhood
However, Justice J.B.L. Reyes pointed out that criminal
that often was the scene of frequent robberies. At one
negligence is a quasi-offense. His reason is that if criminal
time past midnight, the accused went downstairs with a
negligence is not a quasi-offense, and only a modality,
loaded gun to investigate what he thought were footsteps
then it would have been absorbed in the commission of the
of an unwanted guest. After seeing what appeared to him
felony and there would be no need for Article 365 as a
an armed stranger out to rob them, he fired his gun and
separate article for criminal negligence. Therefore, criminal
seriously injured the man. When the lights turned on, the
negligence, according to him, is not just a modality; it is a
man turned out to be a brother-in-law on his way to the
crime by itself, but only a quasi-offense.
kitchen for some snacks. The accused was indicted for
 10

However, in Samson vs. CA, where a person who has negligently, he will be liable for criminal negligence
been charged with falsification as an intentional felony, resulting in the death of another.
was found guilty of falsification through simple
negligence. This means that culpa or criminal negligence 2. A had been courting X for the last five years. X
is just a modality of committing a crime. told A, Let us just be friends. I want a lawyer for a
husband and I have already found somebody whom I
In some decision on a complex crime resulting from agreed to marry. Anyway, there are still a lot of ladies
criminal negligence, the Supreme Court pointed out that around; you will still have your chance with another lady.
when crimes result from criminal negligence, they should A, trying to show that he is a sport, went down from the
not be made the subject of a different information. For house of X, went inside his car, and stepped on the
instance, the offender was charged with simple accelerator to the limit, closed his eyes, started the
negligence resulting in slight physical injuries, and vehicle. The vehicle zoomed, running over all pedestrians
another charge for simple negligence resulting in damage on the street. At the end, the car stopped at the fence. He
to property. The slight physical injuries which are the was taken to the hospital, and he survived. Can he be held
result of criminal negligence are under the jurisdiction of criminally liable for all those innocent people that he ran
the inferior court. But damage to property, if the damage over, claiming that he was committing suicide?
is more than P2,000.00, would be under the jurisdiction
of the Regional Trial Court because the imposable fine He will be criminally liable, not for an intentional felony,
ranges up to three times the value of the damage. but for culpable felony. This is so because, in paragraph 1
of Article 4, the term used is felony, and that term covers
In People vs. Angeles, the prosecution filed an both dolo and culpa.
information against the accused in an inferior court for
slight physical injuries through reckless imprudence and
filed also damage to property in the Regional Trial Court. 3. A pregnant woman thought of killing herself by
The accused pleaded guilty to the charge of slight climbing up a tall building and jumped down below.
physical injuries. When he was arraigned before the Instead of falling in the pavement, she fell on the owner of
Regional Trial Court, he invoked double jeopardy. He was the building. An abortion resulted. Is she liable for an
claiming that he could not be prosecuted again for the unintentional abortion? If not, what possible crime may
same criminal negligence. The Supreme Court ruled that have been committed?
there is no double jeopardy because the crimes are two
different crimes. Slight physical injuries and damage to The relevant matter is whether the pregnant woman could
property are two different crimes. commit unintentional abortion upon herself. The answer is
no because the way the law defines unintentional abortion,
In so ruling that there is no double jeopardy, the it requires physical violence coming from a third party.
Supreme Court did not look into the criminal negligence. When a pregnant woman does an act that would bring
The Supreme Court looked into the physical injuries and about abortion, it is always intentional. Unintentional
the damage to property as the felonies and not criminal abortion can only result when a third person employs
negligence. physical violence upon a pregnant woman resulting to an
unintended abortion.
In several cases that followed, the Supreme Court ruled
that where several consequences result from reckless In one case, a pregnant woman and man quarreled. The
imprudence or criminal negligence, the accused should man could no longer bear the shouting of the woman, so
be charged only in the Regional Trial Court although the he got his firearm and poked it into the mouth of the
reckless imprudence may result in slight physical injuries. woman. The woman became hysterical, so she ran as fast
The Supreme Court argued that since there was only one as she could, which resulted in an abortion. The man was
criminal negligence, it would be an error to split the same prosecuted for unintentional abortion. It was held that an
by prosecuting the accused in one court and prosecuting unintentional abortion was not committed. However,
him again in another for the same criminal negligence. drawing a weapon in the height of a quarrel is a crime
This is tantamount splitting a cause of action in a civil under light threats under Art. 285. An unintentional
case. For orderly procedure, the information should only abortion can only be committed out of physical violence,
be one. This, however, also creates some doubts. As you not from mere threat.
know, when the information charges the accused for
more than the crime, the information is defective unless
the crime charged is a complex one or a special complex Proximate cause
crime.
Article 4, paragraph 1 presupposes that the act done is the
CRIMINAL LIABILITY proximate cause of the resulting felony. It must be the
direct, natural and logical consequence of the felonious act.
Since in Article 3, a felony is an act or omission
punishable by law, particularly the Revised Penal Code, it Proximate cause is that cause which sets into motion other
follows that whoever commits a felony incurs criminal causes and which unbroken by any efficient supervening
liability. In paragraph 1 of Article 4, the law uses the cause produces a felony and without which such felony
word felony, that whoever commits a felony incurs could not have resulted. He who is the cause of the cause
criminal liability. A felony may arise not only when it is is the evil of the cause. As a general rule, the offender is
intended, but also when it is the product of criminal criminally liable for all the consequences of his felonious
negligence. What makes paragraph 1 of Article 4 act, although not intended, if the felonious act is the
confusing is the addition of the qualifier although the proximate cause of the felony or resulting felony. A
wrongful act be different from what he intended. proximate cause is not necessarily the immediate cause.
This may be a cause which is far and remote from the
Question and Answer consequence which sets into motion other causes which
resulted in the felony.

1. A man thought of committing suicide and went Illustrations:

on top of a tall building. He jumped, landing on
somebody else, who died instantly. Is he criminally A, B, C, D, and E were driving their vehicles along Ortigas
liable? Ave. As car was ahead, followed by those of B, C, D, and
E. When As car reached the intersection of EDSA and
Yes. A felony may result not only from dolo but also from Ortigas Avenue, the traffic light turned red so A
culpa. If that fellow who was committing suicide acted immediately stepped on his break, followed by B, C, and D.
 11

However, E was not aware that the traffic light had husband was made criminally liable for the death of the
turned to red, so he bumped the car of D, then D hit the wife.
car of C, then C hit the car of B, then, finally, B hit the
car of A. In this case, the immediate cause of the Even though the attending physician may have been
damage to the car of A is the car of B, but that is not the negligent and the negligence brought about the death of
proximate cause. The proximate cause is the car of E the offended partyin other words, if the treatment was
because it was the care of E which sets into motion the not negligent, the offended party would have survivedis
cars to bump into each other. no defense at all, because without the wound inflicted by
the offender, there would have been no occasion for a
In one case, A and B, who are brothers-in-law, had a medical treatment.
quarrel. At the height of their quarrel, A shot B with an
airgun. B was hit at the stomach, which bled profusely. Even if the wound was called slight but because of the
When A saw this, he put B on the bed and told him not to careless treatment, it was aggravated, the offender is
leave because he will call a doctor. While A was away, B liable for the death of the victim and not only for the slight
rose from the bed, went into the kitchen and got a physical injuries. The reason for this is that without the
kitchen knife and cut his throat. The doctor arrived and infliction of the injury, there would have been no need for
said that the wound in the stomach is only superficial; any medical treatment. That the medical treatment proved
only that it is a bleeder, but the doctor could no longer to be careless or negligent, is not enough to relieve the
save him because Bs throat was already cut. Eventually, offender of the liability for the inflicted injuries.
B died. A was prosecuted for manslaughter. The Supreme
Court rationalized that what made B cut his throat, in the When a person inflicted a wound upon another, and his
absence of evidence that he wanted to commit suicide, is victim upon coming home got some leaves, pounded them
the belief that sooner or later, he would die out of the and put lime there, and applying this to the wound,
wound inflicted by A. Because of that belief, he decided developed locked jaw and eventually died, it was held that
to shorten the agony by cutting his throat. That belief the one who inflicted the wound is liable for the death.
would not be engendered in his mind were it not because
of the profuse bleeding from his wound. Now, that In another instance, during a quarrel, the victim was
profusely bleeding wound would not have been there, wounded. The wound was superficial, but just the same
were it not for the wound inflicted by A. As a result, A the doctor put inside some packing. When the victim went
was convicted for manslaughter. home, he could not stand the pain, so he pulled out the
packing. That resulted into profuse bleeding and he died
In criminal law, as long as the act of the accused because of loss of blood. The offender who caused the
contributed to the death of the victim, even if the victim wound, although the wound caused was only slight, was
is about to die, he will still be liable for the felonious act held answerable for the death of the victim, even if the
of putting to death that victim. In one decision, the victim would not have died were it not for the fact that he
Supreme Court held that the most precious moment in a pulled out that packing. The principle is that without the
mans life is that of the losing seconds when he is about wound, the act of the physician or the act of the offended
to die. So when you robbed him of that, you should be party would not have anything to do with the wound, and
liable for his death. Even if a person is already dying, if since the wound was inflicted by the offender, whatever
one suffocates him to end up his agony, one will be liable happens on that wound, he should be made punishable for
for murder, when you put him to death, in a situation that.
where he is utterly defenseless.
In Urbano vs. IAC, A and B had a quarrel and started
In US vs. Valdez, the deceased is a member of the crew hacking each other. B was wounded at the back. Cooler
of a vessel. Accused is in charge of the crewmembers heads intervened and they were separated. Somehow,
engaged in the loading of cargo in the vessel. Because their differences were patched up. A agreed to shoulder all
the offended party was slow in his work, the accused the expenses for the treatment of the wound of B, and to
shouted at him. The offended party replied that they pay him also whatever loss of income B may have
would be better if he would not insult them. The accused suffered. B, on the other hand, signed a forgiveness in
resented this, and rising in rage, he moved towards the favor of A and on that condition, he withdrew the
victim, with a big knife in hand threatening to kill him. complaint that he filed against A. After so many weeks of
The victim believing himself to be in immediate peril treatment in a clinic, the doctor pronounced that the
threw himself into the water. The victim died of wound was already healed. Thereafter, B went back to his
drowning. The accused was prosecuted for homicide. His farm. Two months later, B came home and was chilling.
contention that his liability should be only for grave Before midnight, he died out of tetanus poisoning. The
threats since he did not even stab the victim, that the heirs of B filed a case of homicide against A. The Supreme
victim died of drowning, and this can be considered as a Court held that A is not liable. It took into account the
supervening cause. It was held that the deceased, in incubation period of tetanus toxic. Medical evidence were
throwing himself into the river, acted solely in obedience presented that tetanus toxic is good only for two weeks.
to the instinct of self-preservation, and was in no sense That if, indeed, the victim had incurred tetanus poisoning
legally responsible for his own death. As to him, it was out of the wound inflicted by A, he would not have lasted
but the exercise of a choice between two evils, and any two months. What brought about the tetanus to infect his
reasonable person under the same circumstance might body was his work in the farm using his bare hands.
have done the same. The accused must, therefore, be Because of this, the Supreme Court said that the act of B
considered the author of the death of the victim. working in his farm where the soil is filthy, using is own
hands, is an efficient supervening cause which relieves A of
This case illustrates that proximate cause does not any liability for the death of B. A, if at all, is only liable for
require that the offender needs to actually touch the the physical injuries inflicted upon B.
body of the offended party. It is enough that the offender
generated in the mind of the offended party the belief If you are confronted with these facts of the Urbano case,
that made him risk himself. where the offended party died because of tetanus
poisoning reason out according to the reasoning laid down
If a person shouted fire, and because of that a moviegoer by the Supreme Court, meaning to say, the incubation
jumped into the fire escape and died, the person who period of the tetanus poisoning was considered. Since
shouted fire when there is no fire is criminally liable for tetanus toxic would affect the victim for no longer than two
the death of that person. weeks, the fact that the victim died two months later
shows that it is no longer tetanus brought about by the act
In a case where a wife had to go out to the cold to of the accused. The tetanus was gathered by his working in
escape a brutal husband and because of that she was the farm and that is already an efficient intervening cause.
exposed to the elements and caught pneumonia, the
 12

The one who caused the proximate cause is the one distinction is important because the legal effects are not
liable. The one who caused the immediate cause is also the same.
liable, but merely contributory or sometimes totally not
liable. In aberratio ictus, the offender delivers the blow upon the
intended victim, but because of poor aim the blow landed
on somebody else. You have a complex crime, unless the
Wrongful act done be different from what was resulting consequence is not a grave or less grave felony.
intended You have a single act as against the intended victim and
also giving rise to another felony as against the actual
What makes the first paragraph of Article 4 confusing is victim. To be more specific, let us take for example A and
the qualification although the wrongful act done be B. A and B are enemies. As soon as A saw B at the
different from what was intended. There are three distance, A shot at B. However, because of poor aim, it
situations contemplated under paragraph 1 of Article 4: was not B who was hit but C. You can readily see that
1. Aberratio ictus or mistake in blow; there is only one single actthe act of firing at B. In so far
2. Error in personae or mistake in identity; as B is concerned, the crime at least is attempted homicide
3. Praeter intentionem or where the consequence or attempted murder, as the case may be, if there is any
exceeded the intention. qualifying circumstance. As far as the third party C is
concerned, if C were killed, the crime is homicide. If C was
only wounded, the crime is only physical injuries. You
Question and Answer cannot have attempted or frustrated homicide or murder
I. as far as C is concerned, because as far as he is
concerned, there is no intent to kill. As far as that other
Q: A aroused the ire of her husband, B. Incensed with victim is concerned, only physical injuries serious or less
anger almost beyond his control, B could not help but serious or slight.
inflict physical injuries on A. Moments after B started
hitting A with his fists, A suddenly complained of severe
chest pains. B, realizing that A was in serious trouble, If the resulting physical injuries were only slight, then you
immediately brought her to the hospital. Despite efforts cannot complex; you will have one prosecution for the
to alleviate As pains, she died of a heart attack. It turned attempted homicide or murder, and another prosecution
out she was suffering from a heart ailment. What crime, for slight physical injuries for the innocent party. But if the
if any, could B be held guilty of? innocent party was seriously injured or less seriously
injured, then you have another grave or less grave felony
A: Parricide. Although A died of a heart attack, the said resulting from the same act which gave rise to attempted
attack was generated by Bs felonious act of hitting her homicide or murder against B; hence, a complex crime.
with his fists. Such felonious act was the immediate
cause of the heart attack, having materially contributed In other words, aberratio ictus, generally gives rise to a
to and hastened As death. Even though B had no intent complex crime. This being so, the penalty for the more
to kill his wife, lack of such intent is of no moment when serious crime is imposed in the maximum period. This is
the victim dies. B. however, may be given the mitigating the legal effect. The only time when a complex crime may
circumstance of having acted without intent to commit so not result in aberratio ictus is when one of the resulting
grave a wrong (Art. 13(3), RPC). felonies is a light felony.

Question and Answer

Question and Answer

The facts were one of aberratio ictus, but the facts stated
Q: On his way home from the office, ZZ rode in a
that the offender aimed carelessly in firing the shot. Is the
jeepney. Subsequently, XX boarded the same jeepney.
felony the result of dolo or culpa? What crime was
Upon reaching a secluded spot in QC, XX pulled out a
committed?
grenade from his bag and announced a hold-up. He told
ZZ to surrender his watch, wallet and cellphone. Fearing
All three instances under paragraph 1, Article 4 are the
for his life, ZZ jumped out of the vehicle. But as he fell,
product of dolo. In aberratio ictus, error in personae and
his head hit the pavement, causing his instant death.
praeter intentionem, never think of these as the product of
Is XX liable for ZZs death? Explain briefly. culpa. They are always the result of an intended felony,
and, hence dolo. You cannot have these situations out of
A (Suggested): Yes, XX is liable for ZZs death because criminal negligence. The crime committed is attempted
his acts of pulling a grenade and announcing a hold-up, homicide or attempted murder, not homicide through
coupled with a demand for the watch, wallet and reckless imprudence.
cellphone of ZZ is felonious, and such felonious act was
the proximate cause of ZZs jumping out of the jeepney, Error in personae
resulting in the latters death. Stated otherwise, the
death of ZZ was the direct, natural and logical In error in personae, the intended victim was not at the
consequence of XXs felonious act which created an scene of the crime. It was the actual victim upon whom the
immediate sense of danger in the mind of ZZ who tried blow was directed, but he was not really the intended
to avoid such danger by jumping out of the jeepney victim. There was really a mistake in identity.
(People v. Arpa, 27 SCRA 1036).
This is very important because Article 49 applies only in a
Aberratio ictus case of error in personae and not in a case of aberratio
ictus.
In aberratio ictus, a person directed the blow at an
intended victim, but because of poor aim, that blow In Article 49, when the crime intended is more serious
landed on someone else. In aberratio ictus, the intended than the crime actually committed or vice versa, whichever
victim as well as the actual victim are both at the scene crime carries the lesser penalty, that penalty will be the
of the crime. one imposed. But it will be imposed in the maximum
period. For instance, the offender intended to commit
Distinguish this from error in personae, where the victim homicide, but what was actually committed was parricide
actually received the blow, but he was mistaken for because the person killed by mistake was somebody
another who was not at the scene of the crime. The related to him within the degree of relationship in
parricide. In such a case, the offender will be charged with
 13

parricide, but the penalty that would be imposed will be a person is determined by the means resorted to by him in
that of homicide. This is because under Article 49, the committing the crime.
penalty for the lesser crime will be the one imposed,
whatever crime the offender is prosecuted under. In any Illustrations:
event, the offender is prosecuted for the crime
A stabbed his friend when they had a drinking spree. While
committed not for the crime intended.
they were drinking, they had some argument about a
basketball game and they could not agree, so he stabbed
Illustrations:
him eleven times. His defense is that he had no intention
of killing his friend. He did not intend to commit so grave a
A thought of killing B. He positioned himself at one wrong as that committed. It was held that the fact 11
corner where B usually passes. When a figure resembling wounds were inflicted on As friend is hardly compatible
B was approaching, A hid and when that figure was near with the idea that he did not intend to commit so grave a
him, he suddenly hit him with a piece of wood on the wrong as that committed.
nape, killing him. But it turned out that it was his own
father. The crime committed is parricide, although what In another instance, the accused was a homosexual. The
was intended was homicide. Article 49, therefore, will victim ridiculed or humiliated him while he was going to
apply because out of a mistake in identity, a crime was the restroom. He was so irritated that he just stabbed the
committed different from that which was intended. victim at the neck with a ladys comb with a pointed
handle, killing the victim. His defense was that he did not
In another instance, A thought of killing B. Instead of B, intend to kill him. He did not intend to commit so grave a
C passed. A thought that he was B, so he hit C on the wrong as that of killing him. The contention was rejected,
neck, killing the latter. Just the same the crime intended because of the instrument used was pointed. The part of
to be committed is homicide and what was committed is the body wherein it was directed was the neck which is a
actually homicide, Article 49 does not apply. Here, error vital part of the body. In praeter intentionem, it is
in personae is of no effect. mitigating only if there is a notable or notorious disparity
between the means employed and the resulting felony. In
How does error in personae affect criminal liability of the criminal law, intent of the offender is determined on the
offender? basis employed by him and the manner in which he
committed the crime. Intention of the offender is not what
Error in personae is mitigating if the crime committed is is in his mind; it is disclosed in the manner in which he
different from that which was intended. If the crime committed the crime.
committed is the same as that which was intended, error
in personae does not affect the criminal liability of the In still another case, the accused entered the store of a
offender. Chinese couple, to commit robbery. They hogtied the
In mistake of identity, if the crime committed was the Chinaman and his wife. Because the wife was so talkative,
same as the crime intended, but on a different victim, one of the offenders got a pan de sal and placed it in her
error in personae does not affect the criminal liability of mouth. But because the woman was trying to wiggle from
the offender. But if the crime committed was different the bondage, the pan de sal slipped through her throat.
from the crime intended, Article 49 will apply and the She died because of suffocation. The offenders were
penalty for the lesser crime will be applied. In a way, convicted for robbery with homicide because there was a
mistake in identity is a mitigating circumstance where resulting death, although their intention was only to rob.
Article 49 applies. Where the crime intended is more They were given the benefit of paragraph 3 of Article 13,
serious than the crime committed, the error in personae that they did not intend to commit so grave a wrong as
is not a mitigating circumstance. that committed. There was really no intention to bring
about the killing, because it was the pan de sal that they
put into the mouth. Had it been a piece of rag, it would be
Praeter intentionem different. In that case, the Supreme Court gave the
offenders the benefit of praeter intentionem as a mitigating
In People vs. Gacogo, 53 Phil 524, two persons circumstance. The means employed is not capable of
quarreled. They had fist blows. The other started to run producing death if only the woman chewed the pan de sal.
away and Gacogo went after him, struck him with a fist
blow at the back of the head. Because the victim was A man raped a young girl. The young girl was shouting so
running, he lost balance, fell on the pavement and his the man placed his hand on the mouth and nose of the
head struck the cement pavement. He suffered cerebral victim. He found out later that the victim was already
hemorrhage. Although Gacogo claimed that he had no dead; she died of suffocation. The offender begged that he
intention of killing the victim, his claim is useless. Intent had no intention of killing the girl and that his only
to kill is only relevant when the victim did not die. This is intention was to prevent her from shouting. The Supreme
so because the purpose of intent to kill is to differentiate Court rejected the plea saying that a person who is
the crime of physical injuries from the crime of attempted suffocated may eventually die. Do the offender was
homicide or attempted murder or frustrated homicide or prosecuted for the serious crime of rape with homicide and
frustrated murder. But once the victim is dead, you do was not given the benefit of paragraph 3 of Article 13.
not have talk of intent to kill anymore. The best evidence
of intent to kill is the fact that the victim was killed. Differentiating this first case with the case of the Chinaman
Although Gacogo was convicted for homicide for the and his wife, it would seem that the difference lies in the
death of the person, he was given the benefit of means employed by the offender.
paragraph 3 of Article 13, that is, that the offender did
not intend to commit so grave a wrong as that In praeter inentionem, it is essential that there is a notable
committed. disparity between the means employed or the act of the
offender and the felony which resulted. This means that
This is the consequence of praeter intentionem. In short, the resulting felony cannot be foreseen from the act of the
praeter intentionem is mitigating, particularly covered by offender. If the resulting felony can be foreseen or
paragraph 3 of Article 13. In order however, that the anticipated from the means employed, the circumstance of
situation may qualify as praeter intentionem, there must praeter intentionem does not apply.
be a notable disparity between the means employed and
the resulting felony. If there is no disparity between the For example, if A gave B a karate blow in the throat, there
means employed by the offender and the resulting is no praeter intentionem because the blow to the throat
felony, this circumstance cannot be availed of. It cannot can result in death.
be a case of praeter intentionem because the intention of
 14

So also, if A tried to intimidate B by poking a gun at the

latters back, and B died of cardiac arrest, A will be Under Article 4, paragraph 2, impossible crime is true only
prosecuted for homicide but will be given the mitigating when the crime committed would have been against
circumstance of praeter intentionem. person or against property. It is therefore important to
know what are the crimes against Title VIII, against
In Ramos-Andan v. People (2006) the court said that persons and those against property under Title X. An
the mitigating circumstance of lack of intention to commit impossible crime is true only to any of those crimes.
so grave a wrong may not be availed of when fraud is
employed.
3. A entered a department store at about midnight,
when it was already closed. He went directly to the room
Impossible crime
where the safe or vault was being kept. He succeeded in
opening the safe, but the safe was empty. Is an impossible
An impossible crime is an act which would be an offense
crime committed? If not, what crime was possibly
against person or property were it not for the inherent
committed?
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means. This is not an impossible crime. That is only true if there is
nothing more to steal. But in a department store, there is
plenty to steal, not only the money inside the vault or safe.
Question and Answer The fact that the vault had turned out to be empty is not
really inherently impossible to commit the crime of
robbery. There are other things that he could take. The
1. Accused was a houseboy in a house where only a crime committed therefore is attempted robbery, assuming
spinster resides. It is customary for the spinster to sleep that he did not lay his hands on any other article. This
in the nude because her room was warm. It was also the could not be trespass to dwelling because there are other
habit of the houseboy that whenever she enters her things that can be stolen.
room, the houseboy would follow and peek into the
keyhole. Finally, when the houseboy could no longer 4. A and B were lovers. B was willing to marry A
resist the urge, he climbed into the ceiling, went inside except that A is already married. A thought of killing his
the room of his master, placed himself on top of her and wife. He prepared her breakfast every morning, and every
abused her, not knowing that she was already dead five morning, he placed a little dose of arsenic poison into the
minutes earlier. Was an impossible crime committed? breakfast of the wife. The wife consumed all the food
prepared by her husband including the poison but nothing
Yes. Before, the act performed by the offender could not happened to the wife. Because of the volume of the
have been a crime against person or property. The act household chores that the wife had to attend to daily, she
performed would have been constituted a crime against developed a physical condition that rendered her strong
chastity. An impossible crime is true only if the act done and resistant to any kind of poisoning, so the amount of
by the offender constitutes a crime against person or poison applied to her breakfast had no effect on her. Is
property. However, with new rape law amending the there an impossible crime?
Revised Penal Code and classifying rape as a crime
against persons, it is now possible that an impossible No impossible crime is committed because the fact itself
crime was committed. Note, however, that the crime stated that what prevented the poison from taking effect is
might also fall under the Revised Administrative Code the physical condition of the woman. So it implies that if
desecrating the dead. the woman was not of such physical condition, the poison
would have taken effect. Hence, it is not inherently
2. A was driving his car around Roxas Boulevard impossible to realize the killing. The crime committed is
when a person hitched a ride. Because this person was frustrated parricide.
exquisitely dressed, A readily welcomed the fellow inside
his car and he continued driving. When he reached a If it were a case of poisoning, an impossible crime would
motel, A suddenly swerved his car inside. A started be constituted if a person who was thinking that it was a
kissing his passenger, but he found out that his poison that he was putting into the food of the intended
passenger was not a woman but a man, and so he victim but actually it was vetsin or sugar or soda. Under
pushed him out of the car and gave him fist blows. Is an any and all circumstances, the crime could not have been
impossible crime committed? If not, is there any crime realized. But if due to the quantity of the vetsin, sugar or
committed at all? soda, the intended victim developed LBM and was
It cannot be an impossible crime, because the act would hospitalized, then it would not be a case of impossible
have been a crime against chastity. The crime is physical crime anymore. It would be a case of physical injuries, if
injuries or acts of lasciviousness, if this was done against the act done does not amount to some other crime under
the will of the passenger. There are two ways of the Revised Penal Code.
committing acts of lasciviousness.
Do not confuse an impossible crime with the attempted or
Under Article 336, where the acts of lasciviousness were frustrated stage.
committed under circumstances of rape, meaning to say,
there is employment of violence or intimidation or the
victim is deprived of reason. Even if the victim is a man, 5. Scott and Charles are roommates in a boarding
the crime of acts of lasciviousness is committed. This is a house. Everyday, Scott leaves for work but before leaving
crime that is not limited to a victim who is a woman. Acts he would lock the food cabinet where he kept his food.
of lasciviousness require a victim to be a woman only Charles resented this. One day, he got an electric cord,
when it is committed under the circumstances of tied the one end to the door know and plugged the other
seduction. If it is committed under the circumstances of end to an electric outlet. The idea was that, when Scott
rape, the victim may be a man or a woman. The essence comes home to open the doorknob, he would be
of an impossible crime is the inherent impossibility of electrocuted. Unknown to Charles, Scott is working in an
accomplishing the crime or the inherent impossibility of electric shop where he received a daily dosage of electric
the means employed to bring about the crime. When we shock. When Scott opened the doorknob, nothing
say inherent impossibility, this means that under any and happened to him. He was just surprised to find out that
all circumstances, the crime could not have materialized. there was an electric cord plugged to the outlet and the
If the crime could have materialized under a different set other end to the doorknob. Was an impossible crime
of facts, employing the same mean or the same act, it is committed?
not an impossible crime; it would be an attempted
felony.
 15

It is not an impossible crime. The means employed is not crimes punishable under the Revised Penal Code. An
inherently impossible to bring about the consequence of impossible crime is a crime of last resort.
his felonious act. What prevented the consummation of
the crime was because of some cause independent of the Modified Concept of impossible crime
will of the perpetrator.
In a way, the concept of impossible crime has been
6. A and B are enemies. A, upon seeing B, got the modified by the decision of the Supreme Court in the case
revolver of his father, shot B, but the revolver did not of Intod vs. CA, et. al., 285 SCRA 52. In this case, four
discharge because the bullets were old, none of them culprits, all armed with firearms and with intent to kill,
discharged. Was an impossible crime committed? went to the intended victims house and after having
pinpointed the latters bedroom, all four fired at and
No. It was purely accidental that the firearm did not riddled the said room with bullets, thinking that the
discharge because the bullets were old. If they were new, intended victim was already there as it was about 10:00 in
it would have fired. That is a cause other than the the evening. It so happened that the intended victim did
spontaneous desistance of the offender, and therefore, not come home on that evening and so was not in her
an attempted homicide. bedroom at that time. Eventually the culprits were
prosecuted and convicted by the trial court for attempted
But if let us say, when he started squeezing the trigger, murder. The Court of Appeals affirmed the judgment but
he did not realize that the firearm was empty. There was the Supreme Court modified the same and held the
not bullet at all. There is an impossible crime, because petitioner liable only for the so-called impossible crime. As
under any and all circumstance, an unloaded firearm will a result, petitioner-accused was sentenced to
never fire. imprisonment of only six months of arresto mayor for the
felonious act he committed with intent to kill: this despite
Whenever you are confronted with a problem where the the destruction done to the intended victims house.
facts suggest that an impossible crime was committed, Somehow, the decision depreciated the seriousness of the
be careful about the question asked. If the question act committed, considering the lawlessness by which the
asked is: Is an impossible crime committed? Then you culprits carried out the intended crime, and so some
judge that question on the basis of the facts. If the facts members of the bench and bar spoke out against the
really constitute an impossible crime, then you suggest soundness of the ruling. Some asked questions, was it
that an impossible crime is committed, then you state really the impossibility of accomplishing the killing that
the reason for the inherent impossibility. brought about its non-accomplishment? Was it not purely
accidental that the intended victim did not come home that
If the question asked is Is he liable for an impossible evening and, thus, unknown to the culprits, she was not in
crime?, this is a catching question. Even though the her bedroom at the time it was shot and riddled with
facts constitute an impossible crime, if the act done by bullets? Suppose, instead of using firearms, the culprits set
the offender constitutes some other crimes under the fire on the intended victims house, believing that she was
Revised Penal Code, he will not be liable for an there when in fact she was not, would the criminal liability
impossible crime. He will be prosecuted for the crime so be for an impossible crime?
far by the act done by him. The reason is an offender is
punished for an impossible crime just to teach him a Until the Intod case, the prevailing attitude was that the
lesson because of his criminal perversity. Although provision of the Revised Penal Code on impossible crime
objectively, no crime is committed, but subjectively, he is would only apply when the wrongful act, which would have
a criminal. That purpose of the law will also be served if constituted a crime against persons or property, could not
he is prosecuted for some other crime constituted by his and did not constitute another felony. Otherwise, if such
acts which are also punishable under the Revised Penal act constituted any other felony although different from
Code. what the offender intended, the criminal liability should be
for such other felony and not for an impossible crime. The
7. A and B are neighbors. They are jealous of each attitude was so because Article 4 of the Code provides two
others social status. A thought of killing B so A climbed situations where criminal liability shall be incurred, to wit:
the house of B through the window and stabbed B on the
heart, not knowing that B died a few minutes ago of
Article 4. Criminal liabilityCriminal liability shall
bangungot. Is A liable for an impossible crime?
be incurred:
No. A shall be liable for qualified trespass to dwelling.
1. By any person committing a felony (delito)
Although the act done by A against B constitutes an
although the wrongful act done be different
impossible crime, it is the principle of criminal law that
from that which he intended.
the offender shall be punished for an impossible crime
only when his act cannot be punished under some other
2. By any person performing an act which would
provision of the Revised Penal Code.
be an offense against persons or property,
were it not for the inherent impossibility of its
In other words, this idea of an impossible crime is one of
accomplishment or on account of the
last resort, just to teach the offender a lesson because of
employment of inadequate or ineffectual
his criminal perversity. If he could be taught of the same
means.
lesson by charging him with some other crime
constituted by his act, then that will be the proper way. If
Paragraph 1 refers to a situation where the wrongful act
you want to play safe, you state there that although an
done constituted a felony although it may be different from
impossible crime is constituted, yet it is a principle of
what he intended. Paragraph 2 refers to a situation where
criminal law that he will only be penalized for an
the wrongful act done did not constitute any felony, but
impossible crime if he cannot be punished under some
because the act would have given rise to a crime against
other provision of the Revised Penal Code.
persons or against property, the same is penalized to
repress criminal tendencies to curtail their frequency.
If the question is Is an impossible crime committed?,
Because criminal liability for impossible crime presupposes
the answer is yes, because on the basis of the facts
that no felony resulted form the wrongful act done, the
stated, an impossible crime is committed. But to play
penalty is fixed at arresto mayor or a fine from P200.00 to
safe, add another paragraph: However, the offender will
P500.00, depending on the social danger and degree of
not be prosecuted for an impossible crime but for
criminality shown by the offender(Article 59), regardless
[state the crime]. Because it is a principle in criminal law
of whether the wrongful act was an impossible crime
that the offender can only be prosecuted for an
against persons or against property.
impossible crime if his acts do not constitute some other
 16

There is no logic in applying paragraph 2 of Article 4 to a yet to be performedbut he was not able to perform all
situation governed by paragraph 1 of the same Article, the acts of execution due to some cause or accident other
that is, where a felony resulted. Otherwise, a redundancy than his own spontaneous desistance, then you have an
or duplicity would be perpetrated. attempted felony.

In the Intod case, the wrongful acts of the culprits You will notice that the felony begins when the offender
caused destruction to the house of the intended victim; performs an overt act. Not any act will mark the beginning
this felonious act negates the idea of an impossible of a felony, and therefore, if the act so far being done does
crime. But whether we agree or not, the Supreme Court not begin a felony, criminal liability correspondingly does
has spoken, we have to respect its ruling. not begin. In criminal law, there is such a thing as
preparatory act. These acts do not give rise to criminal
NO CRIME UNLESS THERE IS A LAW liability.
PUNISHING IT
Question and Answer
When a person is charged in court, and the court finds
that there is no law applicable, the court will acquit the
accused and the judge will give his opinion that the said
A and B are husband and wife. A met C who was willing to
act should be punished.
marry him, but he is already married. A thought of
eliminating B and to poison her. So, he went to the
Article 5 covers two situations:
drugstore and bought arsenic poison. On the way out, he
met D. D asked him who was sick in the family, A confided
1. The court cannot convict the accused because the
to D that he bought the poison to poison his wife in order
acts do not constitute a crime. The proper judgment
to marry C. After that, they parted ways. D went directly
is acquittal, but the court is mandated to report to
to the police and reported that A is going to kill his wife. So
the Chief Executive that said act be made subject of
the policemen went to As house and found A still
penal legislation and why.
unwrapping the arsenic poison. The policemen asked A if
2. Where the court finds the penalty prescribed for the
he was planning to poison his wife B and A said yes. The
crime too harsh considering the conditions
police arrested him and charged him with attempted
surrounding the commission of the crime, the judge
parricide. Is the charge correct?
should impose the law. The most that he could do is
recommend to the Chief Executive to grand
No. Overt act begins when the husband mixed the poison
executive clemency.
with the food his wife is going to take. Before this, there is
no attempted stage yet.
STAGES IN THE COMMISSION OF A FELONY An overt act is that act which if allowed to continue its
natural course would definitely result into a felony.
The classification of stages of a felony in Article 6 are
true only to crimes under the Revised Penal Code. This In the attempted stage, the definition uses the word
does not apply to crimes punished under special laws. directly. This is significant. In the attempted stage, the
But even certain crimes which are punished under the acts so far performed may already be a crime or it may
Revised Penal Code do not admit of these stages. just be an ingredient of another crime. The word directly
emphasizes the requirement that the attempted felony is
The purpose of classifying penalties is to bring about a that which is directly linked to the overt act performed by
proportionate penalty and equitable punishment. The the offender, no the felony he has in his mind.
penalties are graduated according to their degree of
severity. The stages may not apply to all kinds of In criminal law, you are not allowed to speculate, not to
felonies. There are felonies which do not admit of imagine what crime is intended, but apply the provisions of
division. the law to the facts given.

When a person starts entering the dwelling of another, that

Formal Crimes act is already trespassing. But the act of entering is an
ingredient of robbery with force upon things. You could
Formal crimes are crimes which are consummated in one only hold him liable for attempted robbery when he has
instance. For example, in oral defamation, there is no already completed all acts performed by him directly
attempted oral defamation or frustrated oral defamation; leading to robbery. The act of entering alone is not yet
it is always in the consummated stage. indicative of robbery although that may be what he may
have planned to commit. In law, the attempted stage is
So also, in illegal exaction under Article 213 is a crime only that overt act which is directly linked to the felony
committed when a public officer who is authorized to intended to be committed.
collect taxes, licenses or impose for the government,
shall demand an amount bigger than or different from In US vs. Namaja, the accused was arrested while he was
what the law authorizes him to collect. Under sub- detaching some of the wood panels of a store. He was
paragraph a of Article 213 on illegal exaction, the law already able to detach two panels. To a layman, the only
uses the word demanding. Mere demanding of an conclusion that will come to your mind is that this fellow
amount different from what the law authorizes him to started to enter the store to steal something. He would not
collect will already consummate a crime, whether the be there just to sleep there. But in criminal law, since the
taxpayer pays the amount being demanded or not. act of removing the panel indicates only at most the
Payment of the amount being demanded is not essential intention to enter. He can only be prosecuted for trespass.
to the consummation of the crime. The removal of the paneling is just an attempt to trespass,
not an attempt to rob. Although Namaja was prosecuted
The difference between the attempted stage and the for attempted robbery, the Supreme Court held it is only
frustrated stage lies on whether the offender has attempted trespass because that is the crime that can be
performed all the acts of execution for the directly linked to his act of removing the wood panel.
accomplishment of a felony. Literally, under the article, if
the offender has performed all the acts of execution There are some acts which are ingredients of a certain
which should produce the felony as a consequence but crime, but which are, by themselves, already criminal
the felony was not realized, then the crime is already in offenses.
the frustrated stage. If the offender has not yet
performed all the acts of executionthere is something
 17

In abduction, your desire may lead to acts of window, which is not intended for entrance, it is always
lasciviousness. In so far the woman being carried is presumed to be against the will of the owner. If the
concerned, she may already be the victim of lascivious offender proceeded to abuse the woman, but the latter
acts. The crime is not attempted abduction but acts of screamed, and A went out of the window again, he could
lasciviousness. You only hold him liable for an attempt, not be prosecuted for qualified trespass. Dwelling is taken
so far as could be reasonably linked to the overt act done as an aggravating circumstance so he will be prosecuted
by him. Do not go far and imagine what you should do. for attempted rape aggravated by dwelling.

In deciding whether a felony is attempted or frustrated or

Question and Answer consummated, there are three criteria involved:

1. The manner of committing the crime;

A awakened one morning with a man sleeping in his sofa. 2. The elements of the crime; and
Beside the man was a bag containing picklocks and 3. The nature of the crime itself.
similar tools. He found out that the man entered the sala
by cutting the screen on his window. If you were to Manner of committing a crime
prosecute this fellow, for what crime are you going to
prosecute him? For example, let us take the crime of bribery. Can the
crime of frustrated bribery be committed? No.
The act done by him of entering through an opening not (Incidentally, the common concept of bribery is that it is
intended for the purpose is only qualified trespass. the act of one who corrupts a public officer. Actually,
Qualified trespass because he did so by cutting through bribery is the crime of the receiver, not the giver. The
the screen. There was force applied in order to enter. crime of the giver is corruption of public official. Bribery is
Other than that, under Article 304 of the Revised Penal the crime of the public officer who in consideration of an
Code, illegal possession of picklocks and similar tools is a act having to do with his official duties would receive
crime. Thus, he can be prosecuted for two crimes: 1. something, or accept any promise or present in
qualified trespass to dwelling, and 2. illegal possession of consideration thereof.)
picklocks and similar tools; not complex because one is
not necessary means to commit the other.
The confusion arises from the fact that this crime requires
Desistance two to committhe giver and the receiver. The law called
the crime of the giver as corruption of public official and
Desistance on the part of the offender negates criminal the receiver as bribery. Giving the idea that these are
liability in the attempted stage. Desistance is true only in independent crimes, but actually, they cannot arise without
the attempted stage of the felony. If under the definition the other. Hence, if only one side of the crime is present,
of the felony, the act done is already in the frustrated only corruption, you cannot have consummated corruption
stage, no amount of desistance will negate criminal without the corresponding consummated bribery. There
liability. cannot be a consummated bribery without the
corresponding consummated corruption. If you have
The spontaneous desistance of the offender negates only bribery only, it is only possible in the attempted stage. If
the attempted stage but not necessarily all criminal you have corruption only, it is possible only in the
liability. Even though there was desistance on the part of attempted stage. A corruptor gives money to a public
the offender, if the desistance was made when acts done officer for the latter not to prosecute him. The public officer
by him already resulted to a felony, that offender will still received the money but just the same, arrested him. He
be criminally liable for the felony brought about his act. received the money to have evidence of corruption. Do not
What is negated is only the attempted stage, but there think that because the corruptor has already delivered the
may be other felonies constituting his act. money, he has already performed all the acts of execution
and, therefore, the corruption is already beyond the
Illustrations: attempted stage. That thinking does away with the concept
of the crime that it requires two to commit. The manner of
committing the crime requires the meeting of the minds
A fired at B and B was hit on the shoulder. But Bs wound between the giver and the receiver.
was not mortal. What A then did was to approach B, and
told B, Now you are dead, I will kill you. But A took pity When the giver delivers the money to the supposed
and kept the revolver and left. The crime committed is receiver, but there is no meeting of the minds, the only act
attempted homicide and not physical injuries, because done by the giver is an attempt. It is not possible for him
there was an intention to kill. The desistance was with to perform all the acts of execution because in the first
the second shot and would not affect the first shot place, the receiver has no intention of being corrupted.
because the first shot had already hit B. The second Similarly, when a public officer demands a consideration
attempt has nothing to do with the first. by official duty, the corruptor turns down the demand,
there is no bribery.
In another instance, A has a very seductive neighbor in
the person of B. A had always been looking at B and had If the one to whom the demand was made pretended to
wanted to possess her but their status were not the give, but he had reported the matter to higher authorities,
same. One evening, after A saw B at her house and the money was marked and this was delivered to the
thought that B was already asleep, he entered the house public officer. If the public officer was arrested, do not
of B through the window to abuse her. He, however, think that because the public officer already had the
found out that B was nude so he lost interest and left. money in his possession, the crime is already frustrated
Can A be accused of attempted rape? No, because there bribery, it is only attempted bribery. This is because the
was desistance, which prevented the crime from being supposed corruptor has no intention to corrupt. In short,
consummated. The attempted stage was erased because there is no meeting of the minds. On the other hand, if
the offender desisted after having commenced the there is a meeting of the minds, there is consummated
commission of the felony. bribery or consummated corruption. This leaves out the
frustrated stage because of the manner of committing the
The attempted felony is erased by desistance because crime.
the offender spontaneously desisted from pursuing the
acts of execution. It does not mean, however, that there But indirect bribery is always consummated. This is
is no more felony committed. He may be liable for a because the manner of consummating the crime does not
consummated felony constituted by his act of admit of attempt or frustration.
trespassing. When A entered the house through the
 18

You will notice that under the Revised Penal Code, when felony is attempted, frustrated or consummated, the court
it takes two to commit the crime, there could hardly be a does not only consider the definition under Article 6 of the
frustrated stage. For instance, the crime of adultery. Revised Penal Code, or the stages of execution of the
There is frustrated adultery. Only attempted or felony. When the offender has already passed the
consummated. This is because it requires the link of two subjective stage of the felony, it is beyond the attempted
participants. If that link is there, the crime is stage. It is already on the consummated or frustrated
consummated; if such link is absent, there is only an stage depending on whether a felony resulted. If the felony
attempted adultery. There is no middle ground when the did not result, frustrated.
link is there and when the link is absent.
The attempted stage is said to be within the subjective
There are instances where an intended felony could phase of execution of a felony. On the subjective phase, it
already result from the acts of execution already done. is that point in time when the offender begins the
Because of this, there are felonies where the offender can commission of an overt act until that point where he loses
only be determined to have performed all the acts of control of the commission of the crime already. If he has
execution when the resulting felony is already reached that point where he can no longer control the
accomplished. Without the resulting felony, there is no ensuing consequence, the crime has already passed the
way of determining whether the offender has already subjective phase and, therefore, it is no longer attempted.
performed all the acts of execution or not. It is in such The moment the execution of the crime has already gone
felonies that the frustrated stage does not exist because to that point where the felony should follow as a
without the felony being accomplished, there is no way of consequence, it is either already frustrated or
stating that the offender has already performed all the consummated. If the felony does not follow as a
acts of execution. An example of this is the crime of rape. consequence, it is already frustrated. If the felony follows
The essence of the crime is carnal knowledge. No matter as a consequence, it is consummated.
what the offender may do to accomplish a penetration, if
there was no penetration yet, it cannot be said that the The trouble is that, in the jurisprudence recognizing the
offender has performed all the acts of execution. We can objective phase and the subjective phase, the Supreme
only say that the offender in rape has performed all the Court considered not only the acts of the offender, but also
acts of execution when he has effected a penetration. his belief. That although the offender may not have done
Once there is penetration already, no matter how slight, the act to bring about the felony as a consequence, if he
the offense is consummated. For this reason, rape admits could have continued committing those acts but he himself
only of the attempted and consummated stages, no did not proceed because he believed that he had done
frustrated stage. This was the ruling in the case of enough to consummate the crime, Supreme Court said the
People vs. Orita. subjective phase has passed. This was applied in the case
of US vs. Valdez, where the offender, having already put
In rape, it requires the connection of the offender and kerosene on jute sacks, lighted the same, he had no
the offended party. No penetration at all, there is only an reason not to believe that the fire would spread, so he ran
attempted stage. Slightest penetration or slightest away. That act demonstrated that in his mind, he believed
connection, consummated. You will notice this from the that he has performed all the acts of execution and that it
nature of the crime requiring two participants. is only a matter of time that the premises will burn. The
fact that the occupant of the other room came out and put
This is also true in the crime of arson. It does not admit out the fire is a cause independent of the will of the
of the frustrated stage. In arson, the moment any perpetrator.
particle of the premises intended to be burned is
blackened, that is already an indication that the premises The ruling in the case of US vs. Valdez is still correct. But
have begun to burn. It does not require that the entire in the case of People vs. Garcia, the situation is different.
premises be burned to consummate arson. Because of Here, the offender who put the torch over the house of the
that, the frustrated stage of arson has been eased out. offended party, the house being a nipa hut, the torch
The reasoning is that one cannot say that the offender, in which was lighted could easily burn the roof of the nipa
the crime of arson, has already performed all the acts of hut. But the torch burned out.
execution which could produce the destruction of the
premises through the use of fire, unless a part of the In that case, you cannot say that the offender believed
premises has begun to burn. If it has not begun to burn, that he had performed all the acts of execution. There was
that means that the offender has yet to perform all the not even a single burn of any instrument or agency of the
acts of execution. On the other hand, the moment it crime.
begins to burn, the crime is consummated. Actually, the
frustrated stage is already standing on the consummated The analysis made by the Court of Appeals is still correct:
stage except that the outcome did not result. As far as that they could not demonstrate a situation where the
the stage is concerned, the frustrated stage overlaps the offender has performed all the acts of execution to bring
consummated stage. about the crime of arson and the situation where he has
not yet performed all the acts of execution. The weight of
Because of this reasoning by the Court of Appeals in authority is that the crime of arson cannot be committed in
People vs. Garcia, the Supreme Court followed the the frustrated stage. The reason is because we can hardly
analysis that one cannot say that the offender in the determine whether the offender has performed all the acts
crime of arson has already performed all the acts of of execution that would result in arson, as a consequence,
execution which would produce the arson as a unless a part of the premises has started to burn. On the
consequence, unless and until a part of the premises had other hand, the moment a particle or a molecule of the
begun to burn. premises has blackened, in law, arson is consummated.
This is because consummated arson does not require that
In US vs. Valdez, the offender had tried to burn the the whole of the premises be burned. It is enough that any
premises by gathering jute sacks laying these inside the part of the premises, no matter how small, bas begun to
room. He lighted these, and as soon as the jute sacks burn.
began to burn, he ran away. The occupants of the room
put out the fire. The court held that what was committed There are also certain crimes that do not admit of the
was frustrated arson. attempted or frustrated stage, like physical injuries. One of
the known commentators in criminal law has advanced the
This case was much the way before the decision in the view that the crime of physical injuries can be committed
case of People vs. Garcia was handed down and the in the attempted as well as the frustrated stage. He
Court of Appeals ruled that there is no frustrated arson. explained that by going through the definition of an
But even then, the analysis in the case of US vs. Valdez attempted and a frustrated felony under Article 6, if a
is correct. This is because, in determining whether the person was about to give a fist blow to another raises his
 19

arms, but before he could throw a blow, somebody holds misappropriation already done, so that there is damage
that arm, there would be attempted physical injuries. The already suffered by the offended party. If there is no
reason for this is because the offender was not able to damage yet, the estafa can only be frustrated or
perform all the acts of execution to bring about physical attempted.
injuries.
On the other hand, if it were a crime of theft, damage or
On the other hand, he also stated that the crime of intent to cause damage is not an element of theft. What is
physical injuries may be committed in the frustrated necessary only is intent to gain, not even gain is
stage when the offender was able to throw the blow but important. The mere intent to derive some profit is enough
somehow, the offended party was able to sidestep away but the thinking must be complete before a crime of theft
from the blow. He reasoned out that the crime would be shall be consummated. That is why we made that
frustrated because the offender was able to perform all distinction between theft and estafa.
the acts of execution which would bring about the felony If the personal property was received by the offender, this
were it not for a cause independent of the will of the is where you have to decide whether what was transferred
perpetrator. to the offender is juridical possession or physical
possession only. If the offender did not receive the
The explanation is academic. You will notice that under personal property, but took the same from the possession
the Revised Penal Code, the crime of physical injuries is of the owner without the latters consent, then there is no
penalized on the basis of the gravity of the injuries. problem. That cannot be estafa; this is only theft or none
Actually, there is no simple crime of physical injuries. You at all.
have to categorize because there are specific articles that
apply whether the physical injuries are serious, less In estafa, the offender receives the property; he does not
serious or slight. If you say physical injuries, you do not take it. But in receiving the property, the recipient may be
know which article to apply. This being so, you could not committing theft, not estafa, if what was transferred to
punish the attempted or frustrated stage because you do him was only the physical or material possession of the
not know what crime of physical injuries was committed. object. It can only be estafa if what was transferred to him
is not only material or physical possession but juridical
possession as well.
Question and Answer
When you are discussing estafa, do not talk about intent to
gain. In the same manner that when you are discussing
1. Is there an attempted slight physical injuries? the crime of theft, do not talk of damage.

If there is no result, you do not know. Criminal law The crime of theft is the one commonly given under Article
cannot stand on any speculation or ambiguity; otherwise, 6. This is so because the concept of theft under the
the presumption of innocence would be sacrificed. Revised Penal Code differs from the concept of larceny
Therefore, the commentators opinion cannot stand under American common law. Under American common
because you cannot tell what particular physical injuries law, the crime of larceny which is equivalent to out crime
was attempted or frustrated unless the consequence is of theft here requires that the offender must be able to
there. You cannot classify the physical injuries. carry away or transport the thing being stolen. Without
that carrying away, the larceny cannot be consummated.
2. A threw muriatic acid on the face of B. The
injuries would have resulted in deformity were it not for In our concept of theft, the offender need not move an
timely plastic surgery. After the surgery, B became more inch from where he was. It is not a matter of carrying
handsome. What crime is committed? Is it attempted, away. It is a matter of whether he has already acquired
frustrated or consummated? complete control of the personal property involved. That
complete control simply means that the offender has
The crime committed here is serious physical injuries already supplanted his will from the will of the possessor or
because of the deformity. When there is deformity, you owner of the personal property involved, such that he
disregard the healing duration of the wound or the could exercise his own control over the thing.
medical treatment required by the wound. In order that
in law, a deformity can be said to exist, three factors Illustration:
must concur:
I placed a wallet on a table inside a room. A stranger
1. The injury should bring about the ugliness; comes inside the room, gets the wallet and puts it in his
2. The ugliness must be visible; pocket. I suddenly started searching him and I found the
3. The ugliness would not disappear through natural wallet inside his pocket. The crime of theft is already
healing process. consummated because he already acquired complete
control of my wallet. This is so true when he removed the
Along this concept of deformity in law, the plastic surgery wallet from the confines of the table. He can exercise his
applied to B is beside the point. In law, what is will over the wallet already, he can drop this on the floor,
considered is not the artificial or the scientific treatment etc. But as long as the wallet remains on the table, the
but the natural healing of the injury. So the fact that theft is not yet consummated; there can only be attempted
there was plastic surgery applied to B does not relieve or frustrated theft. If he has started lifting the wallet, it is
the offender from the liability for the physical injuries frustrated. If he is in the act of trying to take the wallet or
inflicted. The crime committed is serious physical place it under, attempted.
injuries. It is consummated. In determining whether a
felony is attempted, frustrated or consummated, you Taking in the concept of theft, simply means exercising
have to consider the manner of committing the felony, control over the thing.
the element of the felony and the nature of the felony
itself. There is no real hard and fast rule. If instead of the wallet, the man who entered the room
pretended to carry the table out of the room, and the
Elements of the crime wallet is there. While taking the table out of the room, I
apprehended him. It turned out that he is not authorized
In the crime of estafa, the element of damage is at all and is interested only in the wallet, not the table. The
essential before the crime could be consummated. If crime is not yet consummated. It is only frustrated
there is no damage, even if the offender succeeded in because as far as the table is concerned, it is the confines
carting away the personal property involved, estafa of this room that is the container. As long as he has not
cannot be considered as consummated. For the crime of taken this table out of the four walls of this room, the
estafa to be consummated, there must be taking is not complete.
 20

Hence, the crime was already consummated, and being

A man entered a room and found a chest on the table. He consummated, the return of the owners property is not
opened it and found some valuables inside. He took the desistance anymore. The offender is criminally liable but
valuables, put them in his pocket and was arrested. In he will not be civilly liable but he will not be civilly liable
this case, theft is consummated. because the object was returned.

But if he does not take the valuables but lifts the entire When the receptacle is locked or sealed, and the offender
chest, and before he could leave the room, he was broke the same, in lieu of theft, the crime is robbery with
apprehended, there is frustrated theft. force upon things. However, that the receptacle is locked
or sealed has nothing to do with the stage of the
If the thing is stolen from a compound or from a room, commission of the crime. It refers only to whether it is
as long as the object has not been brought out of that theft or robbery with force upon things.
room, or from the perimeter of the compound, the crime
is only frustrated. This is the confusion raised in the case
of US vs. Dino compared with People vs. Espiritu and
People vs. Adio. Nature of the crime itself

In US vs. Dino, the accused loaded boxes of rifles on In crimes involving the taking of human lifeparricide,
their truck. When they were on their way out of the homicide, and murderin the definition of the frustrated
South Harbor, they were checked at the checkpoint, so stage, it is indispensable that the victim be mortally
they were not able to leave the compound. It was held wounded. Under the definition of the frustrated stage, to
that what was committed was frustrated theft. consider the offender as having performed all the acts of
execution, the acts already done by him must produce or
In People vs. Espiritu, the accused were on their way be capable of producing a felony as a consequence. The
out of the supply house when they were apprehended by general rule is that there must be a fatal injury inflicted,
the military police who found them secreting some because it is only then that death will follow.
hospital linen. It was held that what was committed was
consummated theft. If the wound is not mortal, the crime is only attempted.
The reason is that the wound inflicted is not capable of
The emphasis, which was erroneously laid in some bringing about the desired felony of parricide, murder or
commentaries, is that, in both cases, the offenders were homicide as a consequence; it cannot be said that the
not liable to pass the checkpoint. But why is it that in offender has performed all the acts of execution which
one, it is frustrated and in the other, it is consummated? would produce parricide, homicide or murder as a result.

In the case of US vs. Dino, the boxes of rifle were An exception to the general rule is the so-called subjective
stocked inside the compound of the South Harbor. As far phase. The Supreme Court has decided cases which
as the boxes of rifle are concerned, it is the perimeter of applied the subjective standard that when the offender
the compound that is the container. As long as they were himself believed that he had performed all the acts of
not able to bring these boxes of rifle out of the execution, even though no mortal wound was inflicted, the
compound, the taking is not complete. On the other act is already in the frustrated stage.
hand, in the case of People vs. Espiritu, what were
taken were hospital linens. These were taken from a CONSPIRACY AND PROPOSAL TO COMMIT A
warehouse. Hospital linens were taken from the boxes FELONY
that were diffused or destroyed and brought out of the
hospital. From the moment they took it out of the boxes Two ways for conspiracy to exist:
where the owner or the possessor had placed it, the
control is complete. You do not have to go out of the
compound to complete the taking or the control. 1. There is an agreement.
2. The participants acted in concert or simultaneously
This is very decisive in the problem because in most which is indicative of a meeting of the minds towards a
problems given in the bar, the offender, after having common criminal goal or criminal objective. When
taken the object out of the container changed his mind several offenders act in a synchronized. Coordinated
and returned it. Is he criminally liable? Do not make a manner, the fact that their acts complimented each
mistake by saying that there is desistance. If the crime is other is indicative of the meeting of the minds. There
one of theft, the moment he brought it out, it was is an implied agreement.
consummated. The return of the thing cannot be
desistance because in criminal law, desistance is true Two kinds of conspiracy:
only in the attempted stage. You cannot talk of
1. Conspiracy as a crime; and
desistance anymore when it is already in the
2. Conspiracy as a manner of incurring criminal liability.
consummated stage. If the offender has already acquired
complete control of what he intended to take, the fact
When conspiracy itself as a crime, no overt act is
that he changed his mind and returned the same will no
necessary to bring about the criminal liability. The mere
longer affect his criminal liability. It will only affect the
conspiracy is the crime itself. This is only true when the
civil liability of the crime because he will no longer be
law expressly punishes the mere conspiracy; otherwise,
required to pay the object. As far as the crime committed
the conspiracy does not bring about the commission of the
is concerned, the offender is criminally liable and the
crime because conspiracy is not an overt act but a mere
crime is consummated theft.
preparatory act. Treason, rebellion, sedition and coup d
etat are the only crimes where the conspiracy and proposal
Illustration: to commit them are punishable.
A and B are neighbors. One evening, A entered the yard
of B and opened the chicken coop where B keeps his
fighting cocks. He discovered that the fighting cocks were
Question and Answer
not physically fit for cockfighting so he returned it. The
crime is consummated theft. The will of the owner is to
keep the fighting cock inside the chicken coop. When the Union A proposed acts of sedition to Union B. Is there a
offender succeeded in bringing the coop, it is clear that crime committed? Assuming Union B accepts the proposal,
his will is completely governed or superseded the will of will your answer be different?
the owner to keep such cock inside the chicken coop.
 21

There is no crime committed. Proposal to commit sedition In People vs. Laurio, 200 SCRA 489, it was held that it
is not a crime. But if Union B accepts the proposal, there must be established by positive and conclusive evidence,
will be conspiracy to commit sedition which is a crime not by conjectures or speculations.
under the Revised Penal Code.
In Taer vs. CA, 186 SCRA 5980, it was held that mere
knowledge, acquiescence to, or approval of the act,
When the conspiracy is only a basis of incurring criminal
without cooperation at least, agreement to cooperate, is
liability, there must be an overt act done before the co-
not enough to constitute a conspiracy. There must be an
conspirators become criminally liable.
intentional participation in the crime with a view to further
When the conspiracy itself is a crime, this cannot be the common felonious objective.
inferred or deduced because there is no overt act. All that When several persons who do not know each other
there is is the agreement. On the other hand, if the co- simultaneously attack the victim, the act of one is the act
conspirator or any of them would execute an overt act, of all, regardless of the degree of injury inflicted by any
the crime would no longer be the conspiracy but the one of them. All will be liable for the consequences. A
overt act itself. conspiracy is possible even when participants are not
known to each other. Do not think that participants are
Illustration: always known to each other.

A, B, C and D came to an agreement to commit rebellion.

Their agreement was to bring about the rebellion on a Illustrations:
certain date. Even if none of them has performed the act A thought of having her husband killed because the latter
of rebellion, there is already criminal liability arising from was maltreating her. She hired some persons to kill him
the conspiracy to commit the rebellion. But if anyone of and pointed at her husband. The goons got hold of her
them has committed the overt act of rebellion, the crime husband and started mauling him. The wife took pity and
of all is no longer conspiracy but rebellion itself. This shouted for them to stop but the goons continued. The
subsists even though the other co-conspirator does not wife ran away. The wife was prosecuted for parricide. But
know that one of them had already done the act of the Supreme Court said that there was desistance so she is
rebellion. not criminally liable.

This legal consequence is not true if the conspiracy is not

a crime. If the conspiracy is only a basis of criminal
A law student resented the fact that his brother was killed
liability, none of the co-conspirators would be liable,
by A. He hired B to kill A and offered him P50,000.00. He
unless there is an overt act. So, for long as anyone shall
disclosed to B that A was being arraigned in the City Hall of
desist before an overt act in furtherance of the crime was
Manila and told him to execute the plan on following day.
committed, such a desistance would negate criminal
In the evening of that same day, the law student changed
liability.
his mind so he immediately went to the police and told
them to dispatch police officers to prevent B from
Illustration: committing the crime. Unfortunately, the police were
caught in traffic causing their delay, so that when they
Three persons plan to rob a bank. For as long as none of reached the place, B had already killed A. In this case,
the conspirators has committed an overt act, there is no there was no proposal but a conspiracy. They have
crime yet. But when one of them commits any overt act, conspired to execute a crime but the crime involved here is
all of them shall be held liable, unless a co-conspirator murder and a conspiracy to commit murder is not a crime
was absent from the scene of the crime or he showed up, in itself but merely a basis for incurring criminal liability.
but he tried to prevent the commission of the crime. This is just a preparatory act, and his desistance negates
criminal liability.

As a general rule, if there has been a conspiracy to Proposal is true only up to the point where the party to
commit a crime in a particular place, anyone who did not whom the proposal was made has not yet accepted the
appear shall be presumed to have desisted. The proposal. Once the proposal was accepted, a conspiracy
exception to this is if such person who did not appear arises. Proposal is unilateral, one party makes a
was the mastermind. proposition to the other; conspiracy is bilateral, it requires
two parties.
We have to observe the distinction between the two
because conspiracy as a crime, must have a clear and As pointed out earlier, desistance is true only in the
convincing evidence of its existence. Ever crime must be attempted stage. Before this stage, there is only a
proved beyond reasonable doubt. preparatory stage. Conspiracy is only in the preparatory
stage.
When the conspiracy is just a basis of incurring criminal
liability, however, the same may be deduced or inferred The Supreme Court has ruled that one who desisted is not
from the acts of several offenders in carrying out the criminally liable. When a person has set foot to the path
commission of the crime. The existence of a conspiracy of wickedness and brings back his foot to the path of
may be reasonably inferred from the acts of the righteousness, the law shall reward him for doing so.
offenders when such acts disclose or show a common Where there are several persons who participated, like in a
pursuit of the criminal objective. This was the ruling in killing, and they attacked the victim simultaneously, so
People vs. Pinto, 204 SCRA 9. much that it cannot be known what participation each one
Although conspiracy is defined as two or more persons had, all these participants shall be considered as having
coming to an agreement regarding the commission of a acted in conspiracy and they will be held collectively
felony and deciding to commit it, the word person here responsible.
should not be understood to require a meeting of the co- Do not search for an agreement among the participants. If
conspirator regarding the commission of the felony. A they acted simultaneously to bring about their common
conspiracy of the second kind can be inferred or deduced intention, conspiracy exists. And when conspiracy exists,
even though they have not met as long as they acted in do not consider the degree of participation of each
concert or simultaneously, indicative of a meeting of the conspiracy because the act of one is the act of all. As a
minds toward a common goal or objective. general rule, they have equal responsibility.
Conspiracy is a matter of substance which must be
alleged in the information, otherwise, the court will not Question and Answer
consider the same.
 22

There are several offenders who acted simultaneously. The prosecution must prove conspiracy by the same
When they fled, a victim was found dead. Who should be quantum of evidence as the felony charged itself although,
liable for the killing if who actually killed the victim is not proof of previous agreement among the malefactors to
known? commit the crime is not essential to prove conspiracy. It is
not necessary to show that all the conspirators actually hit
and killed the victim; what is primordial is that all the
There is collective responsibility here. Without the
participants performed specific acts with such closeness
principle of conspiracy, nobody would be prosecuted;
and coordination as to indicate a common purpose or
hence, there is the rule on collective responsibility since
design to bring out the victims death. (People v. Bulan,
it cannot be ascertained who actually killed the victim.
2005)

There is conspiracy when the offenders acted Expressed Conspiracy

simultaneously pursuing a common criminal design; thus,
acting out a common criminal intent.
Question and Answer
Illustration:

Q: Store janitors A & B planned to kill their employer C at

A, B and C have been courting the same lady for several midnight and take the money kept in the cash register. A &
years. On several occasions, they even visited the lady B together drew the sketch of the store, where they knew
on intervening hours. Because of this, A, B and C became C would be sleeping, and planned the sequence of their
hostile with one another. One day, D invited the young attack. Shortly before midnight, A & B were ready to carry
lady and she accepted the invitation. Eventually, the out the plan. When A was about to lift Cs mosquito net to
young lady agreed to marry D. When A, B and C learned thrust the dagger, a police car with sirens blaring passed
about this, they all stood up to leave the house of the by. Scared, B ran outside the store and fled, while A went
young lady feeling disappointed. When A looked back at on to stab C to death, put the money in the bag and ran
the young lady with D, he saw D laughing menacingly. At outside to look for B. The latter was nowhere in sight.
that instance, A stabbed D. C and B followed. In this Unknown to him, B already left the place. What was the
case, it was held that conspiracy was present. participation and corresponding criminal liability of each, if
any?
The common notion is that when there is conspiracy
involved, the participants are punished as principals. This
notion is no longer absolute. In the case of People vs. A(Suggested): There was an expressed conspiracy
Nierra, the Supreme Court ruled that even though there between A and B to kill C and take his money. The planned
was conspiracy, if a co-conspirator merely cooperated in killing and taking of the money appears to be intimately
the commission of the crime with insignificant or minimal related as component crimes, a special complex crime of
acts, such that even without his cooperation, the crime robbery and homicide. The conspiracy being expressed,
could be carried out as well, such co-conspirator should both are bound as co-conspirators after they have planned
be punished as an accomplice only. The reason given is and agreed on the sequence of attack prior to the
that penal laws always favor a milder form of commission of the crime. In conspiracy, the act of one is
responsibility upon and offender. So it is no longer the act of all.
accurate to think that when there is a conspiracy, all are
principals. A(Alternative): Only A is liable for robbery with homicide. B
spontaneously desisted before all acts of execution were
Notwithstanding that there is conspiracy, a co- performed. Conspiracy to rob and kill is not per se
conspirator may be held liable only as an accomplice. punishable.
That means the penalty which shall be imposed upon him
is one degree lower. For example, there was a planned Implied Conspiracy
robbery, and the taxi driver was present during the
planning. There, the conspirators told the taxi driver that In PP vs Pangilinan, it was reiterated that conspiracy
they are going to use his taxicab in going to the place of need not be direct but may be inferred from the conduct of
robbery. The taxi driver agreed but said, I will bring you the parties, their joint purpose, community of interest and
there, and after committing the robbery I will return in the mode and manner of commission of the offense.
later. The taxi driver brought the conspirators where the
robbery would be committed. After the robbery was Question and Answer
finished, he took the conspirators back to his taxi and
brought them away. It was held that the taxi driver was
liable only as an accomplice. His cooperation was not
really indispensable. The robbers could have engaged Q: State the concept of implied conspiracy and give its
another taxi. The taxi driver did not really stay during the legal effects
commission of the robbery. At most, what he only
extended was his cooperation. That is why he was given A: An implied conspiracy is one which is only inferred or
only that penalty for an accomplice. deduced from the manner the participants in the
commission of the crime carried out its execution. Where
A, B, and C, under the influence of marijuana, broke into the offenders acted in concert in the commission of the
a house because they learned that the occupants have crime, meaning their acts are coordinated or synchronized
gone on an excursion. They ransacked the house. A got a in a way indicative of a common criminal objective, they
colored TV, B saw a camera and took that, and C found a are deemed acting in conspiracy and their criminal liability
can of salmon and took that. In the crime of robbery with shall be collective.
force upon things, the penalty is based on the totality of The legal effects of implied conspiracy are:
the value of the personal property taken and not on the
individual property taken by him. 1. Not all those present at the crime scene will be
considered conspirators;
In Siton vs. CA, it was held that the idea of a conspiracy 2. Only those who participated in the criminal acts during
is incompatible with the idea of a free for all. There is no the commission of the crime will be considered co-
definite opponent or definite intent as when a basketball conspirators;
crowd beats a referee to death.
 23

3. Mere acquiescence to or approval of the commission of

the crime, without any act of criminal participation, shall This question was asked in the bar examination: How do
not render one criminally liable as co-conspirator. you classify felonies and how are felonies classified?
What the examiner had in mind was Articles 3, 6 and 9. Do
Composite crimes not write the classification of felonies under Book 2 of the
Revised Penal Code. That was not what the examiner had
Composite crimes are crimes which, in substance, consist in mind because the question does not require the
of more than one crime but in the eyes of the law, there candidate to classify but also to define. Therefore, the
is only one crime. For example, the crimes of robbery examiner was after the classifications under Articles 3, 6
with homicide, robbery with rape, robbery with physical and 9.
injuries.
Felonies are classified as follows:
In case the crime committed is a composite crime, the
conspirator will be liable for all the acts committed during
1. According to the manner of their commission
the commission of the crime agreed upon. This is
because, in the eyes of the law, all those acts done in
Under Article 3, they are classified as, intentional
pursuance of the crime agreed upon are acts which
felonies or those committed with deliberate intent; and
constitute a single crime.
culpable felonies or those resulting from negligence,
reckless imprudence, lack of foresight or lack of skill.
Illustrations:
2. According to the stages of their execution
A, B, and C decided to commit robbery in the house of D.
Pursuant to their agreement, A would ransack the second Under Article 6, felonies are classified as attempted
floor, B was to wait outside, and C would stay on the first felony when the offender commences the commission
floor. Unknown to B and C, A raped a girl upstairs. All of of a felony directly by overt acts, and does not perform
them will be liable for robbery with rape. The crime all the acts of execution which should produce the
committed is robbery with rape, which is not a complex felony by reason of some cause or accident other than
crime, but an indivisible felony under the Article 294 of his own spontaneous desistance; frustrated felony
the Revised Penal Code. Even if B and C did not know when the offender commences the commission of a
that rape was being committed and they agreed only and felony as a consequence but which would produce the
conspired to rob, yet rape was part of robbery. Rape can felony as a consequence but which nevertheless do not
not be separated from robbery. produce the felony by reason of causes independent of
the will of the perpetrator; and consummated felony
A, B, and C agreed to rob the house of D. It was agreed when all the elements necessary for its execution are
that A would go to the second floor, B would stay in the present.
first floor, and C stands guard outside. All went to their
designated areas in pursuit of the plan. While A was 3. According to their gravity
ransacking the second floor, the owner was awakened. A
killed him. A, B, and C will be liable for robbery with Under Article 9, felonies are classified as grave felonies
homicide. This is because, it is well settled that any or those to which attaches the capital punishment of
killing taking place while robbery is being committed shall penalties which in any of their periods are afflictive;
be treated as a single indivisible offense. less grave felonies or those to which the law punishes
As a general rule, when there is conspiracy, the rule is with penalties which in their maximum period was
that the act of one is the act of all. This principle applies correctional; and light felonies or those infractions of
only to the crime agreed upon. law for the commission of which the penalty is arresto
menor.
The exception is if any of the co-conspirator would
commit a crime not agreed upon. This happens when the
crime agreed upon and the crime committed by one of Why is it necessary to determine whether the crime is
the co-conspirators are distinct crimes. grave, less grave or light?

Exception to the exception: In acts constituting a single To determine whether these felonies can be complexed or
indivisible offense, even though the co-conspirator not, and to determine the prescription of the crime and the
performed different acts bringing about the composite prescription of the penalty. In other words, these are
crime, all will be liable for such crime. They can only felonies classified according to their gravity, stages and the
evade responsibility for any other crime outside of that penalty attached to them. Take note that when the Revised
agreed upon if it is proved that the particular conspirator Penal Code speaks of grave and less grave felonies, the
had tried to prevent the commission of such other act. definition makes a reference specifically to Article 25 of the
Revised Penal Code. Do not omit the phrase In
The rule would be different if the crime committed was accordance with Article 25 because there is also a
not a composite crime. classification of penalties under Article 26 that was not
applied.
Illustration:
If the penalty is a fine and exactly P200.00, it is only
considered a light felony under Article 9.
A, B, and C agreed to kill D. When they saw the
opportunity, A, B, and C killed D and after that, A and B If the fine is imposed as an alternative penalty or as a
ran into different directions. C inspected the pocket of single penalty, the fine of P200.00 is considered a
the victim and found that the victim was wearing a ring correctional penalty under Article 26.
a diamond ringand he took it. The crimes committed
are homicide and theft. As far as the homicide is If the penalty is exactly P200.00, apply Article 26. It is
concerned, A, B, and C are liable because that was considered as a correctional penalty and it prescribes in 10
agreed upon and theft was not an integral part of years. If the offender is apprehended at any time within
homicide. This is a distinct crime so the rule will not ten years, he can be made to suffer the fine.
apply because it was not the crime agreed upon. Insofar
as the crime of theft is concerned, C will be the only one This classification of felony according to gravity is
liable. So C will be liable for homicide and theft. important with respect to the question of prescription of
crimes.
CLASSIFICATION OF FELONIES
 24

In the case of light felonies, crimes prescribe in two Revised Penal Code. The stages of the commission of
months. After two months, the state loses the right to felonies will also apply since suppletory application is now
prosecute unless the running period is suspended. If the allowed.
offender escapes while in detention after he has been
loose, if there was already judgment that was passed, it
can be promulgated even if absent under the New Rules CIRCUMSTANCES AFFECTING CRIMINAL
on Criminal Procedure. If the crime is correctional, it LIABILITY
prescribes in ten years, except arresto mayor, which
prescribes in five years. There are five circumstances affecting criminal liability:
1. Justifying circumstances; Art. 11 (6)
2. Exempting circumstances; Art. 12 (7)
SUPPLETORY APPLICATION OF THE 3. Mitigating circumstances; Art. 13 (10)
REVISED PENAL CODE 4. Aggravating circumstances; Art. 14 (21)
5. Alternative circumstances. Art. 15 (3)
Article 10 is the consequence of the legal requirement
There are others which are found elsewhere in the
that you have to distinguish those punished under special
provisions of the Revised Penal Code:
laws and those under the Revised Penal Code. With
1. Absolutory cause; and
regard to Article 10, observe the distinction.
2. Extenuating circumstances.
In Article 10, there is a reservation provision of the
In justifying and exempting circumstances, there is no
Revised Penal Code may be applied suppletorily to special
criminal liability. When an accused invokes them, he in
laws. You will only apply the provisions of the Revised
effect admits the commission of a crime but tries to avoid
Penal Code as a supplement to the special law, or simply
the liability thereof. The burden is upon him to establish
correlate the violated special law, if needed to avoid an
beyond reasonable doubt the required conditions to justify
injustice. If no justice would result, do not give
of exempt his acts from criminal liability. What is shifted is
suppletory application of the Revised Penal Code to that
only the burden of evidence, not the burden of proof.
of the special law.
Justifying circumstances contemplate intentional acts and,
For example, a special law punishes a certain act as a
hence, are incompatible with dolo. Exempting
crime. The special law is silent as to the civil liability of
circumstances may be invoked in culpable felonies.
one who violates the same. Here is a person who violated
the special law and he was prosecuted. His violation
caused damage or injury to a private party. May the
Absolutory cause
court pronounce that he is civilly liable to the offended
party, considering that the special law is silent on this
The effect of this is to absolve the offender from criminal
point? Yes, because Article 100 of the Revised Penal Code
liability, although not from civil liability. It has the same
may be given suppletory application to prevent an
effect as an exempting circumstance, but do not call it as
injustice from being done to the offended party. Article
such in order not to confuse it with the circumstances
100 states that every person criminally liable for a felony
under Article 12.
is also civilly liable. That article shall be applied
suppletorily to avoid an injustice that would be caused to
Article 20 provides that the penalties prescribed for
the private offended party, if he would not be indemnified
accessories shall not be imposed upon those who are such
for the damages or injuries sustained by him.
with respect to their spouses, ascendants, descendants,
legitimate, natural and adopted brothers and sisters, or
In People vs. Rodriguez, it was held that the use of relatives by affinity within the same degrees with the
arms is an element of rebellion, so a rebel cannot be exception of accessories who profited themselves by
further prosecuted for possession of firearms. A violation assisting the offender to profit by the effects of the crime.
of a special law can never absorb a crime punishable
under the Revised Penal Code, because violations of the Then, Article 89 provides how criminal liability is
Revised Penal Code are more serious than a violation of a extinguished:
special law. But a crime in the Revised Penal Code can
absorb a crime punishable by a special law if it is a Death of the convict as to the personal penalties, and
necessary ingredient of the crime in the Revised Penal as to pecuniary penalties, liability therefore is
Code. extinguished is death occurs before final judgment;
Service of the sentence;
In the crime of sedition, the use of firearms is not an Amnesty;
ingredient of the crime. Hence, two prosecutions can be Absolute pardon;
had: 1. sedition; and 2. illegal possession of firearms. Prescription of the crime;
Prescription of the penalty; and
But do not think that when a crime is punished outside of Marriage of the offended woman as provided in Article
the Revised Penal Code, it is already a special law. For 344.
example, the crime of cattle-rustling is not a mala
prohibitum but a modification of the crime of theft of Under Article 247, a legally married person who kills or
large cattle. So Presidential Decree No. 533, punishing inflicts physical injuries upon his or her spouse whom he
cattle-rustling, is not a special law. It can absorb the surprised having sexual intercourse with his or her
crime of murder. If in the course of cattle rustling, paramour or mistress in not criminally liable.
murder was committed, the offender cannot be
prosecuted for murder. Murder would be a qualifying
Under Article 219, discovering secrets through seizure of
circumstance in the crime of qualified cattle rustling. This
correspondence of the ward by their guardian is not
was the ruling in People vs. Martinada.
penalized.
The amendments of Presidential Decree No. 6425 (The
Under Article 332, in the case of theft, swindling and
Dangerous Drugs Act of 1972) by Republic Act NO. 7659,
malicious mischief, there is no criminal liability but only
which adopted the scale of penalties in the Revised Penal
civil liability, when the offender and the offended party are
Code, means that mitigating and aggravating
related as spouse, ascendant, descendant, brother and
circumstances can now be considered in imposing
sister-in-law living together or where in case the widowed
penalties. Presidential Decree No. 6425 does not
spouse and the property involved is that of the deceased
expressly prohibit the suppletory application of the
 25

spouse, before such property had passed on to the In another instance, a law enforcer pretended to be a
possession of third parties. buyer of marijuana. He approached a person suspected to
be a pusher and prevailed upon his person to sell him two
Under Article 344, in cases of seduction, abduction, acts kilos of dried marijuana leaves and this fellow gave him
of lasciviousness, and rape, the marriage of the offended and delivered them. He apprehended the fellow. Defense is
party shall extinguish the criminal action. instigation, because he would not have come out for the
marijuana leaves if the law enforcer had not instigated
Absolutory cause has the effect of an exempting him. It is a case of entrapment because the fellow is
circumstance and they are predicated on lack of already committing a crime from the mere fact that he his
voluntariness like instigation. Instigation is associated possessing marijuana. Even without selling, there is a
with criminal intent. Do not consider culpa in connection crime committed by him: illegal possession of dangerous
with instigation. If the crime is culpable, do not talk of drugs. How can one sell marijuana if he is not in
instigation. In instigation, the crime is committed with possession thereof? The law enforcer is only ascertaining if
dolo. It is confused with entrapment. this fellow is selling marijuana leaves, so this is
entrapment, not instigation. Selling is not necessary to
Entrapment is not an absolutory cause. Entrapment does commit the crime, mere possession is already a crime.
not exempt the offender or mitigate his criminal liability.
But instigation absolves the offender from criminal A fellow wants to make money. He was approached by a
liability because in instigation, the offender simply acts as law enforcer and was asked if he wanted to deliver a
a tool of the law enforcers and, therefore, he is acting package to a certain person. When that fellow was
without criminal intent because without the instigation, delivering the package, he was apprehended. Is he
he would not have done the criminal act which he did criminally liable? This is a case of instigation; he is not
upon instigation of the law enforcers. committing a crime.

Difference between instigation and entrapment A policeman suspected a fellow was selling marijuana. The
law enforcer asked him, Are you selling that? How much?
Could you bring that to the other fellow there? When he
In instigation, the criminal plan or design exists in the
brought it there, the person, who happens to be a law
mind of the law enforcer with whom the person instigated
enforcer, to whom the package was brought to found it to
cooperated so it is said that the person instigated is
be marijuana. Even without bringing, he is already
acting only as a mere instrument or tool of the law
possessing the marijuana. The fact that he was appointed
enforcer in the performance of his duties.
to another person to find out its contents, is to discover
whether the crime is committed. This is entrapment.
On the other hand, in entrapment, a criminal design is
already in the mind of the person entrapped. It did not
The element which makes instigation an absolutory cause
emanate from the mind of the law enforcer entrapping
is the lack of criminal intent as an element of
him. Entrapment involves only ways and means which
voluntariness.
are laid down or resorted to facilitate the apprehension of
the culprit. If the instigator is a law enforcer, the person instigated
cannot be criminally liable, because it is the law enforcer
Illustrations:
who planted that criminal mind in him to commit the
crime, without which he would not have been a criminal. If
An agent of the narcotics command had been tipped off the instigator is not a law enforcer, both will be criminally
that a certain house is being used as an opium den by liable, you cannot have a case of instigation. In instigation,
prominent members of the society. The law enforcers the private citizen upon instigation of the law enforcer
cannot themselves penetrate the house because they do incriminates himself. It would be contrary to public policy
not belong to that circle so what they did was to convince to prosecute a citizen who only cooperated with the law
a prominent member of society to visit such house to find enforcer. The private citizen believes that he is a law
out what was really happening inside and that so many enforcer and that is why when the law enforcer tells him,
cars were congregating there. The law enforcers told the he believes that it is a civil duty to cooperate.
undercover man that if he is offered a cigarette, then he
should try it to find out whether it is loaded with If the person instigated does not know that the person is
dangerous drugs or not. This fellow went to the place and instigating him is a law enforcer or he knows him to be not
mingled there. The time came when he was offered a a law enforcer, this is not a case of instigation. This is a
cigarette and he tried it to see if the cigarette would case of inducement, both will be criminally liable.
affect him. Unfortunately, the raid was conducted and he
was among those prosecuted for violation of the In entrapment, the person entrapped should not know that
Dangerous Drugs Act. Is he criminally liable? No. He was the person trying to entrap him was a law enforcer. The
only there upon instigation of the law enforcers. On his idea is incompatible with each other because in
own, he would not be there. The reason he is there is entrapment, the person entrapped is actually committing a
because he cooperated with the law enforcers. There is crime. The officer who entrapped him only lays down ways
absence of criminal intent. If the law enforcers were able and means to have evidence of the commission of the
to enter the house and mingle there, nobody would offer crime, but even without those ways and means, the person
him a cigarette because he is unknown. When he saw entrapped is actually engaged in a violation of the law.
somebody, he pleaded to spare him a cigarette so this
fellow handed him the cigarette he was smoking and Instigation absolves the person instigated from criminal
found out that it was loaded with a dangerous drug. He liability. This is based on the rule that a person cannot be a
arrested the fellow. Defense was that he would not give a criminal if his mind is not criminal. On the other hand,
cigarette if he was not asked. Is he criminally liable? Yes. entrapment is not an absolutory cause. It is not even
This is a case of entrapment and not instigation. Even if mitigating.
the law enforcer did not ask for a cigarette, the offender
was already committing a crime. The law enforcer In case of somnambulism or one who acts while sleeping,
ascertained if it is a violation of the Dangerous Drugs Act. the person involved is definitely acting without freedom
The means employed by the law enforcer did not make and without sufficient intelligence, because he is asleep. He
the accused commit a crime. Entrapment is not an is moving like a robot, unaware of what he is doing. So the
absolutory cause because in entrapment, the offender is element of voluntariness which is necessary in dolo and
already committing a crime. culpa is not present. Somnambulism is an absolutory
cause. If the element of voluntariness is absent, there is
no criminal liability, although there is civil liability, and if
 26

the circumstance is not among those enumerated in A kleptomaniac is one who cannot resist the temptation of
Article 12, refer to the circumstance as an absolutory stealing things which appeal to his desire. This is not
cause. exempting. One who is a kleptomaniac and who would
Mistake of fact is not an absolutory cause. The offender is steal objects of his desire is criminally liable. But he would
acting without criminal intent. So in mistake of fact, it is be given the benefit of a mitigating circumstance
necessary that had the facts been true as the accused analogous to paragraph 9 of Article 13, that of suffering
believed them to be, this act is justified. If not, there is from an illness which diminishes the exercise of his will
criminal liability, because there is no mistake of fact poser without, however, depriving him of the
anymore. The offender must believe he is performing a consciousness of his act. So this is an extenuating
lawful act. circumstance. The effect is to mitigate the criminal liability.

Question and Answer Distinctions between justifying circumstances and

exempting circumstances

Q: Distinguish fully between entrapment and instigation. In justifying circumstances

Exemplify each.
1. The circumstance affects the act, not he actor;
A: In entrapment, the criminal design originates from 2. The act complained of is considered to have been done
and is already in the mind of the lawbreaker even before within the bounds of law; hence, it is legitimate and
entrapment. The law enforcers merely resort to ways and lawful in the eyes of the law;
means for the purpose of capturing the lawbreaker in 3. Since the act is considered lawful, there is no crime,
flagrante delicto. This circumstance is no bar to the and because there is no crime, there is no criminal;
prosecution and conviction of the lawbreaker. 4. Since there is no crime or criminal, there is no criminal
liability as well as civil liability.
Example of entrapment - - A, a government anti-
narcotics agent, acted as a poseur buyer of shabu and In exempting circumstances
negotiated with B, a suspected drug pusher who is
unaware that A is a police officer. A then paid B in 1. The circumstances affect the actor, not the act;
marked money and the latter handed over a sachet of 2. The act complained of is actually wrongful, but the
shabu. Upon signal, the cops closed in on B. actor acted without voluntariness. He is a mere tool or
instrument of the crime;
In instigation, the idea and design to bring about the 3. Since the act complained of is actually wrongful, there
commission of the crime originated in the mind of the law is a crime. But because the actor acted without
enforcers. They induce or incite a person not otherwise voluntariness, there is absence of dolo or culpa. There
minded to commit a crime and would not otherwise is no criminal;
commit it to do so. This absolved the accused from 4. Since there is a crime committed but there is no
liability. criminal, there is civil liability for the wrong done. But
there is no criminal liability. However, in paragraphs 4
Example of instigation - - A, leader of an anti-narcotics and 7 of Article 12, there is neither criminal nor civil
team, approached and persuaded B to act as a buyer of liability. (Accident and insuperable cause)
shabu and transact with C, a suspected pusher. B was
given marked money to pay C for a sachet of shabu. When you apply for justifying or exempting circumstances,
After the sale was consummated, the cops closed in and it is confession and avoidance and burden of proof shifts to
arrested both B and C. the accused and he can no longer rely on the weakness of
the prosecutions evidence.
Extenuating circumstances
Justifying circumstances
The effect of this is to mitigate the criminal liability of the
offender. In other words, this has the same effect as Since the justifying circumstances are in the nature of
mitigating circumstances, only you do not call it defensive acts, there must be always unlawful aggression.
mitigating because this is not found in Article 13. The reasonableness of the means employed depends on
the gravity of the aggression. If the unlawful aggressor
Illustrations: was killed, this can only be justified if it was done to save
the life of the person defending or the person being
defended. The equation is life was taken to save life.
An unwed mother killed her child in order to conceal a
dishonor. The concealment of dishonor is an extenuating
Self Defense
circumstance insofar as the unwed mother or the
maternal grandparents are concerned, but not insofar as
In justifying circumstances, the most important is self-
the father of the child is concerned. Mother killing her
defense. When this is given in the bar, it is the element of
new born child to conceal her dishonor, penalty is
unlawful aggression that is in issue. Never confuse
lowered by two degrees. Since there is a material
unlawful aggression with provocation. Mere provocation is
lowering of the penalty or mitigating the penalty, this is
not enough.
an extenuating circumstance.

The concealment of honor by mother in the crime of Illustration:

infanticide is an extenuating circumstance but not in the
case of parricide when the age of the victim is three days
old and above. A and B are long standing enemies. Because of their
continuous quarrel over the boundaries of their adjoining
In the crime of adultery on the part of a married woman properties, when A saw B one afternoon, he approached
abandoned by her husband, at the time she was the latter with a bolo in his hand. When he was about five
abandoned by her husband, is it necessary for her to feet away from B, B pulled out his revolver and shot A on
seek the company of another man. Abandonment by the the chest, killing him. Is B criminally liable? What crime
husband does not justify the act of the woman. It only was committed, if any?
extenuates or reduces criminal liability. When the effect
of the circumstance is to lower the penalty there is an The act of A is nothing but a provocation. It cannot be
extenuating circumstance. characterized as an unlawful aggression because in
criminal law, an unlawful aggression is an attack or a
 27

threatened attack which produces an imminent danger to defense of self-defense is not available. The shooting was
the life and limb of the one resorting to self-defense. In not justified.
the facts of the problem given above, what was said was
that A was holding a bolo. That bolo does not produce In People vs. Rodriguez, a woman went into the house
any real or imminent danger unless A raises his arm with of another woman whom she suspected of having an affair
the bolo. As long as that arm of A was down holding the with her husband. She started pouring gasoline on the
bolo, there is no imminent danger to the life or limb of B. house of the woman. Since the woman has children inside
Therefore, the act of B in shooting A is not justified. the house, she jumped out to prevent this other woman
from pouring gasoline around the house. The woman who
In People vs. Cueto, 2003, the Court held that self- was pouring gasoline had a bolo, so she started hacking
defense is questionable when there is FLIGHT, for such is the other woman with it. They grappled with the bolo. At
an act of evading the course of justice and responsibility. that moment, the one who jumped out of the house was
It tends to indicate guilt. able to wrest the bolo away and started hacking the other
woman. It was held that the hacking was not justified.
It was also held that the facts constituting treachery are Actually, when she killed the supposed unlawful aggressor,
irreconcilable with self-defense (Sullon v. People, her life and limb were no longer in imminent danger. That
2005) is the focal point.

In Soplente v. People (2005), the Court that the At the time the accused killed the supposed unlawful
determination of whether there is unlawful aggression for aggressor, was her life in danger? If the answer is no,
the purposes of self-defense there is no self-defense. But while there may be no
justifying circumstance, do not forget the incomplete self-
Defense of rights is included in the circumstances of defense. This is a mitigating circumstance under paragraph
defense and so is defense of honor. 1 of Article 13. This mitigating circumstance is either
privileged or ordinary. If ordinary, it has the effect of
In US vs. Mateo, while a woman was sleeping, her sister reducing the imposable penalty to the minimum period.
and brother-in-law went to see a movie and came home But if it is privileged, it has the effect of lowering the
late that evening. The accused was already asleep. The penalty by one to two degrees, depending on how the
brother-in-law came up first while his wife was still in the court will regard the absence or presence of conditions to
staircase. He started feeling through the dark, and in the justify the act.
process, he awakened the accused. Believing that her
honor was at stake, she got a pair of scissors and One who invokes self-defense admits responsibility for the
stabbed the man. When the lights were turned on, she killing. Accordingly, the burden of proof shifts to the
realized that she had stabbed her brother-in-law. The accused who must then prove the justifying circumstance.
accused claimed as having acted in defense of her honor He must show by clear and convincing evidence that he
and mistake of fact. She said that she believed that her indeed acted in self-defense, or in defense of a relative or
own honor was at stake. It was held that the whole a stranger. (Cabuslay v. People, 2005)
matter is purely her imagination. Touching the arm could
not produce such danger as would really be imminent to
the honor of the woman. Defense of property rights

Apparently, under the Revised Penal Code, the honor of a This can only be invoked if the life and limb of the person
woman in respect of her defense is equated with her making the defense is also the subject of unlawful
virginity. aggression. Life cannot be equal to property.

In US vs. Jaurigue, it was held that it was not possible

to rape the accused because the whole thing transpired Defense of relatives
in the church, where there were so many people.
Therefore, her availing of defense of honor is not tenable. This may be availed of if one acts in defense of the person
She could not possibly be raped in that place. Defense of of rights of ones spouse, ascendants, descendants,
honor here is being equated with one of abuse of chastity legitimate, natural or adopted brothers or sisters, or of his
of a woman. In this case, the offended party placed his relatives by affinity in the same degree and those by
hand on the thigh of the woman who was then praying. affinity to the fourth degree. The requisites for self-defense
There was already some sort of aggression but it was not must likewise be present.
enough to warrant the act resorted to by the accused in
getting a small knife from her bag and thrusting it on the
chest of the offended party. Defense of stranger

Do not confuse unlawful aggression with provocation. If the person being defended is already a second cousin,
What justifies the killing of a supposed unlawful you do not invoke defense of a relative anymore. It will be
aggressor is that if the offender did not kill the aggressor, defense of stranger. This is vital because if the person
it will be his own life that will be lost. That will be the making the defense acted out of revenge, resentment or
situation. If that is not the situation, even if there was an some evil motive in killing the aggressor, he cannot invoke
unlawful aggression that has already begun, you cannot the justifying circumstance if the relative defended is
invoke self-defense. already a stranger in the eyes of the law. On the other
hand, if the relative defended is still within the coverage of
Illustration: defense of relative, even though he acted out of some evil
motive, it would still apply. It is enough that there was
unlawful aggression against the relative defended, and that
Two policemen quarreled inside a police precinct. One the person defending did not contribute to the unlawful
shot the other. The other was wounded on his thigh. The aggression.
policeman who was wounded on the thigh jumped on the
arm of the fellow who shot him. In the process, they
wrestled for possession of the gun. The policeman who Question and Answer
shot the other guy fell on the floor. On that point, this
policeman who was shot at the thigh was already able to The person being defended was a relativea first cousin.
get hold of the revolver. In that position, he started But the fellow who killed the aggressor had some score to
emptying the revolver of the other policeman who was settle with the aggressor. Is he entitled to a justifying
lying on the floor. In this case, it was held that the circumstance?
 28

Yes. In law, the condition that a person making the Civil liability referred to here is based not on the act
defense did not act out of revenge, resentment or evil committed but on the benefit derived from the avoidance
motive is not a requirement in defense of relative. This is of the evil or injury. So the accused will not be civilly liable
only required in defense of strangers. if he did not receive any benefit out of such avoidance. On
the other hand, persons who did not participate in the
Incomplete self-defense or incomplete justifying damage or injury would be pro tanto civilly liable if they
circumstance or incomplete exempting derived benefit from the same.
circumstances
Civil liability is based on the benefit derived and not on the
act, damage or injury caused. It is wrong to treat this as
When you say incomplete justifying circumstance, it
an exception to the rule that in justifying circumstances,
means that not all the requisites to justify the act are
there is no criminal nor civil liability, on the principle that
present or not the requisite to exempt from criminal
no one should enrich himself at the expense of another.
liability are present.
Illustration:
How, if at all, may incomplete self-defense affect the
criminal liability of the offender?
A and B are owners of adjoining lands. A owns the land for
If the question specifically refers to incomplete self- planting certain crops. B owns the land for raising certain
defense, defense of relative or defense of stranger, you goats. C used another land for a vegetable garden. There
have to qualify your answer. 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
First, to have incomplete self-defense, the offended party land to be saved, but the land of A was destroyed. The
must be guilty of unlawful aggression. Without this, there author of the act is C, but C is not civilly liable because he
can be no incomplete self-defense, defense of relative, or did not receive benefits. It was B who was benefited,
defense of stranger. although he was not the actor. He cannot claim that it was
a fortuitous event. B will answer only to the extent of the
Second, if only the element of unlawful aggression is benefit derived by him. If C who drove all of the goats is
present, the other requisites being absent, the offender accused of malicious mischief, his defense would be that
shall be given only the benefit of an ordinary mitigating he acted out of a state of necessity. He will not be civilly
circumstance. liable.

Third, if aside from the element of unlawful aggression

another requisite, but not all, are present, the offender Question and Answer
shall be given the benefit of a privileged mitigating
circumstance. In such a case, the imposable penalty shall
be reduced by one or two degrees depending upon how BB and CC, both armed with knives, attacked FT. The
the court regards the importance of the requisites victims son, ST, upon seeing the attack, drew his gun but
present. Or absent. was prevented from shooting the attackers by AA, who
grappled with him for the possession of the gun. FT died
If the question refers generally to justifying or exempting from knife wounds. AA, BB and CC were charged with
circumstances, the question should be, how many murder.
incomplete justifying circumstance can affect criminal
liability of the offender, if at all? In his defense, AA invoked the justifying circumstance of
Make a separate answer with respect to self-defense, greater evil or injury, contending that by preventing ST
defense of relative or defense of stranger because in from shooting BB and CC, he merely avoided a greater
these cases, you always shave to specify the element of evil.
unlawful aggression; otherwise, there would be no
incomplete self-defense, defense of relative or defense of Will AAs defense prosper? Reason briefly.
stranger. In general, with respect to other circumstances,
you need only to say this: If less than a majority of the A: No, AAs defense will not prosper because obviously
requisites necessary to justify the act or exempt from there was a conspiracy among BB, CC and AA, such that
criminal liability are present, the offender shall be the principle that when there is a conspiracy, the act of
entitled to an ordinary mitigating circumstance. one shall be the act of all shall govern. The act of ST, the
victims son, appears to be a legitimate defense of
If a majority of the requisites needed to justify the act or relatives; hence justified as a defense of his father against
exempt from criminal liability are present, the offender the unlawful aggression by BB and CC. STs act to defend
shall be given the benefit of a privileged mitigating his fathers life cannot be regarded as an evil inasmuch as
circumstance. The penalty shall be lowered by one or two it is, in the eyes of the law, a lawful act.
degrees. When there are only two conditions to justify
What AA did was to stop a lawful defense, not a greater
the act or to exempt from criminal liability, the presence
evil, to allow BB and CC to achieve their criminal objective
of one shall be regarded as the majority.
of stabbing FT.
Avoidance of greater evil or injury Fulfillment of duty

To invoke this justifying circumstance, the evil sought to In the justifying circumstance of a person having acted out
be avoided must actually exist and the injury feared must of fulfillment of a duty and the lawful exercise of a right or
be greater than that done to avoid it. Also, there should office, there are only two conditions:
be no other practical and less harmful means of
preventing it. 1. The felony was committed while the offender was in
the fulfillment of a duty or in the lawful exercise of a
The evil or injury sought to be avoided must not have right or office;
been created by the one invoking the justifying 2. The resulting felony is the unavoidable consequence of
circumstances. For example, A drove his car beyond the the due fulfillment of the duty or the lawful exercise of
speed limit so much so that when he reached the curve, the right or office.
his vehicle skidded towards a ravine. He swerved his car
towards a house, destroying it and killing the occupant Invariably, when you are given a problem on this premise,
therein. A cannot be justified because the state of and the first condition is present, but the second is not
necessity was brought about by his own felonious act. because the offender acted with culpa, the offender will be
 29

entitled to a privileged mitigating circumstance. This is Imbecility and Insanity

what you call incomplete justification of fulfillment of
duty or incomplete justification of exercise of a right. In There is complete absence of intelligence. The intellectual
that case, the penalty would be reduced by one or two deficiency is permanent. There is no lucid interval unlike in
degrees. insanity. An imbecile is a person whose mental
development is like that of a child between 2 to 7 years of
In People vs. Oanis and Callanta, the accused Chief of age.
Police and the constabulary soldier were sent out to
arrest a certain Balagtas, supposedly a notorious bandit. The insanity that is exempting is limited only to mental
There was an order to kill Balagtas if he would resist. The aberration or disease of the mind and must completely
accused arrived at the house of a dancer who was impair the intelligence of the accused. Under common law
supposedly the girlfriend of Balagtas. When they were countries, emotional or spiritual insanity are exempting
there, they saw a certain person who resembled Balagtas circumstances unlike in this jurisdiction because the
in all his bodily appearance sleeping on a bamboo bed Revised Administrative Code, as defined is limited to
but facing the other direction. The accused, without going mental aberration of the mind. This was the ruling in
around the house, started firing at the man. They found People vs. Dungo.
out later that the man was not really Balagtas. They tried
to invoke the justifying circumstance of having acted in In People vs. Rafanan, the following are the two tests for
fulfillment of a duty. exemption on the grounds of insanity:
The second requisite is absent because they acted with 1. The test of cognition, or whether the accused acted
negligence. There was nothing that prevented them from with complete deprivation of intelligence in committing
looking around the house and looking at the face of the the said crime;
fellow who was sleeping. There could not be any danger 2. The test of volition, or whether the accused acted in
on their life and limb. Hence, they were held guilty of the total deprivation of freedom of will.
crime of murder because the fellow was killed when he
was sleeping and totally defenseless. However, the Schizophrenia (dementia praecox) can only be considered
Supreme Court granted them the benefit of incomplete a mitigating circumstance because it does not completely
justification of fulfillment of duty and the penalty was deprive the offender of consciousness of his acts.
reduced by one or two degrees.
In People vs Galigao, the defense of insanity, to be
Do not confuse fulfillment of a duty with self-defense. tenable, should be based on more than the non-medical
opinion of the defense counsel that his client is insane.
Illustration:
Minority
A, a policeman, while waiting for his wife to go home,
was suddenly stabbed at the back by B, a hoodlum, who In exempting circumstances, the most important issue is
mistook him for someone else. When A saw B, he drew how the minority of the offender affected his criminal
his revolver and went after B. After firing a shot in the liability. It seems that the view of many is that when the
air, B did not stop so A shot B who was hit at a vital part offender is a youthful offender, he must necessarily be
of the body. B died. Is the act of A justified? confined in a reformatory. This is wrong. A youthful
offender can only be confined in a reformatory upon order
Yes. The justifying circumstance of self-defense cannot of the court. Under the amendment to Presidential Decree
be invoked because the unlawful aggression had already No. 1179 requires that before a youthful offender may be
ceased by the time A shot B. When the unlawful given the benefit if a suspension of sentence, there must
aggressor started fleeing, the unlawful aggression be an application filed with the court which should
ceased. If the person attacked runs after him, in the eyes pronounce sentence. Now, however, the suspension is
of the law, he becomes the unlawful aggressor. Self- already automatic. Note that the commitment of the
defense cannot be invoked. You apply paragraph 5 on offender in a reformatory is just a consequence of the
fulfillment of duty. The offender was not only defending suspension of the sentence. If the sentence is not
himself but was acting in fulfillment of a duty, to bring suspended, there is no commitment in a reformatory. The
the criminal to the authorities. As long as he was not commitment is in a penitentiary, since suspension of
acting out of malice when he fired at the fleeing criminal, sentence requires certain conditions:
he cannot be made criminally liable. However, this is true
only if it was the person who stabbed was the one killed. 1. The crime committed should not be punishable by
But if, let us say, the policeman was stabbed and despite reclusion perpetua or death penalty;
the fact that the aggressor ran into a crowd of people, 2. The offender should not have been given the benefit of
the policeman still fired indiscriminately. The policeman a suspended sentence before. This means he is a first-
would held criminally liable because he acted with timer;
imprudence in firing toward several people where the 3. He must be below 18 years old because a youthful
offender had run. But although he will be criminally offender is one who is below 18.
liable, he will be given the benefit of an incomplete
fulfillment of duty. Note that the age of majority has been reduced to 18.
There is no more bracket where the offender is a minor yet
Obedience to a lawful order no longer entitled to a mitigating circumstance. An
offender below 18 is always entitled to a mitigating or
exempting circumstance.
The order must have been issued by a superior for some
lawful purpose and the means used to carry it out must
How does the minority of the offender affect his criminal
be lawful.
liability?
Exempting circumstances
1. If the offender is within the bracket of nine years old
In exempting circumstances, the reason for the exactly or less, he is exempt from criminal liability but
exemption lies on the involuntariness of the actone or not from civil liability. This type of offenders are
some of the ingredients of voluntariness such as criminal absolutely exempt. Even if the offender nine years or
intent, intelligence, or freedom of action on the part of below acted with discernment, this should not be taken
the offender is missing. In case it is a culpable felony, against him because in his age bracket, the exemption
there is absence of freedom of action or intelligence, or is absolute.
absence of negligence, imprudence, lack of foresight or
lack of skill. 2. If over nine but below 15, a distinction has to be made
whether the offender acted with or without
 30

discernment. The burden is upon the prosecution to sentence and ascertain any civil liability incurred. However,
prove that the offender acted with discernment. It is the sentence shall be suspended without need of
not for the minor to prove that he acted without application pursuant to PD 603. Under PD 603, suspension
discernment. All that the minor has to show is that of sentence is required and thereunder it is one of the
he is within the age bracket. If the prosecution would conditions for suspension of sentence that the convict is a
want to pin criminal liability on him, it has to prove first time offender. RA 8369 already displaced such.
that the crime was committed with discernment.
Here, if the offender was exempt from criminal
liability because the prosecution was not able to Damnum absque injuria
prove that the offender acted with discernment, he is
Under Article 12, paragraph 4, the offender is exempt not
only civilly liable but he will be committed to the
only from criminal but also from civil liability. This
surveillance of his parents who will be required to
paragraph embodies the Latin maxim damnum absque
report to the court periodically on the progress or
development of the offender. injuria.

Illustration:
If the offender is proven to have acted with
discernment, this is where the court may give him
the benefit of a suspended sentence. He may be A person who is driving his car within the speed limit, while
given the benefit of a suspended sentence under the considering the condition of the traffic and the pedestrians
conditions mentioned earlier and only if he would file at that time, tripped on a stone with one of his car tires.
an application therefore. The stone flew hitting a pedestrian on the head. The
pedestrian suffered profuse bleeding. What is the liability
Suspension of sentence is now automatic. of the driver?

There is no civil liability under paragraph 4 of Article 12.

3. If at the time the judgment is to be promulgated he
is already above 18, he cannot avail of a suspended Although this is just an exempting circumstance, where
sentence. The reason is because if the sentence were generally there is civil liability, yet, in paragraph 4 of
to be suspended, he would be committed in a Article 12, there is no civil liability as well as criminal
reformatory. Since he cannot be committed to a liability. The driver is not under obligation to defray the
reformatory anymore because he is not less than 18 medical expenses.
years old, he would have to be committed to a
penitentiary. That means promulgation of the However, correlate paragraph 4 of Article 12 with the
sentence shall not be suspended. If the sentence second paragraph of Article 275. Article 275 gives you the
should not be suspended, although the minor may be crime of abandoning the victim of ones own accident. It is
qualified, the court will promulgate the sentence but a crime. Here, the accident referred to in paragraph 2 of
the minor shall be entitled to the reduction of the Article 275 is in the concept of paragraph 4 of Article 12.
penalty by at least two degrees. This means that the offender must be performing a lawful
act, that he was doing it with due care but somehow,
When the offender is over nine but below 15, the injury resulted by mere accident without fault or intention
penalty to be imposed is discretionary on the court, of causing it.
but lowered by at least two degrees.
If at the very beginning, the offender was negligent, you
do not apply Article 275, paragraph 2. Instead, it will be
4. If the offender is 15 years old and above but below Article 365 on criminal negligence. Notice that in the last
18, there is no exemption anymore but he is also paragraph of Article 365, in the case of the so-called hit
given the benefit of a suspended sentence under the and run drivers who have injured somebody and would
conditions stated earlier and if at the time the abandon the victim of the accident, the penalty is qualified
sentence is promulgated, he is not yet 18 years old to a higher degree. Here, under paragraph 4 of Article 12,
or over yet. If the sentence is promulgated, the court the infliction of the injury by mere accident does not give
will impose a penalty one degree lower. This time it rise to a criminal or civil liability, but the person who
is fixed. It is to be imposed one degree lower and in caused the injury is duty bound to attend to the person
the proper periods subject to the rules in Article 64. who was injured. If he would abandon him, it is in that
abandonment that the crime arises which is punished
Question and Answer under the second paragraph of Article 275.

Q: A was 2 months below 18 years of age when he Compulsion of irresistible force and under the impulse of
committed the crime. He was charged 3 months later and an uncontrollable fear
was 23 years old when he was finally convicted and
sentenced. Instead of preparing to serve a jail term, he The offender must be totally deprived of freedom. If the
sought a suspension of sentence on the ground of being offender still has freedom of choice, whether to act or not,
a juvenile offender. Is he entitled to suspension? even if the force was employed on him or even if he is
suffering from uncontrollable fear, he is not exempt from
A: No, A is not entitled to a suspension of sentence since criminal liability because he is still possessed with
he is no longer a minor at the time of the promulgation of voluntariness. In exempting circumstances, the offender
the sentence. He was already 23 years old. For purposes must act without voluntariness.
of suspension of sentence, his age at the time of
promulgation is the determining factor, not the age at In a situation where the offender would otherwise be
the time of commission of the offense. exempt, but the requisites for exemption are not all
present, the offender is still entitled to a mitigating
circumstance of incomplete exemption under paragraph 1
Question and Answer of Article 13. Apply the rule if majority of the requisites to
exempt from criminal liability are present. The offender
Q: Can juvenile offenders, who are recidivists, validly ask shall be given the benefit of privileged mitigating
for the suspension of sentence? circumstances. That means that the penalty prescribed of
the crime committed shall be reduced by one or two
A: YES, so long as the offender is still a minor at the time degrees in accordance with Article 69 of the Revised Penal
of promulgation of sentence. RA 8369 provides that if the Code. If less than a majority of the requisites for
minor is found guilty, the court should promulgate the exemption are present, the offender shall be given only the
 31

benefit of ordinary mitigating circumstances. That means the facts state, penalty for parricide is reclusion perpetua
the penalty shall be reduced to the minimum period of to death.
the prescribed penalty, unless the mitigating
circumstance is offset by an aggravating circumstance.
You have learned that the Indeterminate Sentence Law
does not apply, among other situations, when the penalty
imposed is death or life imprisonment. But then in the
Mitigating circumstances
problem given, the offender is a 17-year old boy, therefore
the penalty would go one degree lower and the penalty for
Distinctions between ordinary mitigating circumstances
parricide which now stands at reclusion perpetua will go
and privileged mitigating circumstances
down to reclusion temporal. Reclusion temporal is already
governed by the Indeterminate Sentence Law.
1. As to the nature of the circumstances

Ordinary mitigating circumstances can be offset by The answer, therefore, is yes. He shall be given the benefit
aggravating circumstances. of the Indeterminate Sentence Law. Although the penalty
prescribed for the crime committed is reclusion perpetua,
Privileged mitigating circumstance can never be that is not the imposable penalty, since being 17 years old
offset by any aggravating circumstance. is a privileged mitigating circumstance. That privilege
lowers the penalty by one degree. The imposable penalty,
therefore, is reclusion temporal. The Indeterminate
2. As to effect
Sentence Law applies to this and so the offender will be
given its benefit.
Ordinary mitigating circumstances, if not offset, will
operate to reduce the penalty to the minimum
Criminal laws are to be construed always in a manner
period, provided the penalty is a divisible one.
liberal or lenient to the offender. Between giving the
offender the benefit of the Indeterminate Sentence Law
Privileged mitigating circumstances operate to reduce and withholding it away from him, there is more reason to
the penalty by one or two degrees, depending upon give him its benefit. It is wrong for you to determine
what the law provides. whether the Indeterminate Sentence Law will apply or not
on the basis of reclusion perpetua because that is not the
imposable penalty. The moment you do that, you disregard
You can easily detect whether the circumstance which the privileged character of minority. You are only treating
mitigates the liability of the offender is privileged or not, it as an ordinary mitigating circumstance. Privileged
that is, if the penalty is reduced by one degree. If the mitigating circumstances will apply over and above all
penalty is lowered by one or two degrees, it is privileged; other considerations. When you arrive at the correct
therefore, even if there is an aggravating circumstance, penalty, that is the time when you find out whether the
do not compensate because that would be violating the Indeterminate Sentence Law will apply or not.
rules.
For purposes of lowering the penalty by one or two
The circumstances under Article 13 are generally ordinary degrees, the age of the offender at the time of the
mitigating, except in paragraph 1, where it is privileged, commission of the crime shall be the basis, not the age of
Article 69 would apply. So also, paragraph 2, in cases the offender at the time the sentence is to be imposed. But
where the offender is below 18 years old, such an for the purposes of suspension of the sentence, the age of
offender if criminally liable is entitled to the lowering of the offender at the time the crime was committed is not
penalty by one degree. But if over nine but under 15, he considered, it is the age of the offender at the time the
is entitled to a discretionary penalty of at least two sentence is to be promulgated.
degrees lower. When there is a lowering of penalties by
degrees, it is a privilege. It cannot be offset by an
aggravating circumstance. Praeter intentionem

Although the bulk of the circumstances in Article 13 are The common circumstance given in the bar of praeter
ordinary mitigating circumstances, yet, when the crime intentionem, under paragraph 3, means that there must be
committed is punishable by a divisible penalty, two or a notable disproportion between the means employed by
more of this ordinary mitigating circumstances shall have the offender compared to that of the resulting felony. If
the effect of a privileged mitigating circumstance if there the resulting felony could be expected from the means
is no aggravating circumstance at all. employed, this circumstance does not avail. This
circumstance does not apply when the crime results from
Correlate Article 13 with Articles 63 and 64. Article 13 is criminal negligence or culpa. When the crime is the product
meaningless without knowing the rules of imposing the of reckless imprudence or simple negligence, mitigating
penalties under Articles 63 and 64. circumstances does not apply. This is one of the three
instances where the offender has performed a felony
In bar problems, when you are given indeterminate different from that which he intended. Therefore, this is
sentences, these articles are very important. the product of intentional felony, not a culpable one.

When the circumstance which mitigates criminal liability

is privileged, you give effect to it above all Sufficient threat or provocation
considerations. In other words, before you go into any
circumstance, lower first the penalty to the proper This is mitigating only if the crime was committed on the
degree. That is precisely why this circumstance is very person who made the threat or provocation. The
considered privileged, it takes preference over all other common set-up given in a bar problem is that of
circumstances. provocation was given by somebody. The person provoked
cannot retaliate against him; thus the person provoked
retaliated on a younger brother or on an elder father.
Question and Answer Although in fact, there is sufficient provocation, it is not
mitigating because the one who gives the provocation is
not the one against whom the crime was committed.
A 17-year old boy committed parricide. Will he be given
the benefit of the Indeterminate Sentence Law? Then,
 32

You have to look at two criteria:

1. If from the element of time, there is a material laps of

time stated in the problem and there is nothing stated
in the problem that the effect of the threat of
Question and Answer provocation had prolonged and affected the offender at
the time he committed the crime, they you use the
criterion based on the time element.
A was walking in front of the house of B. B at that time
was with his brother C. C told B that sometime in the 2. However, if there is that time element and at the same
past, A boxed him, and because he was small, he did not time, facts are given indicating that at the time the
fight back. B approached A and boxed him, but A cannot offender committed the crime, he is still suffering from
hit back at B because B is bigger, so A boxed C. Can A outrage of the threat or provocation done to him, then
invoke sufficient provocation to mitigate criminal liability? he will still get the benefit of this mitigating
circumstance.
No. Sufficient provocation must come from the offended
party. There may actually be sufficient provocation which In People vs. Diokno, a Chinaman eloped with a woman.
immediately preceded the act, but if the provocation did Actually, it was almost three days before the accused was
not come from the person offended, paragraph 4 of able to locate the house where the Chinaman brought the
Article 13 will not apply. woman. Here, sufficient provocation was one of the
mitigating circumstances considered by the Supreme Court
The commission of the felony must be immediate to the in favor of the accused.
threat or provocation in order that this circumstance be
mitigating. If there is no sufficient break of time before
the provocation or threat and the consequent commission Vindication of a grave offense
of the crime, the law presupposes that during that
interval, whatever anger or diminished self-control may The word offense should not be taken as a crime. It is
have emerged from the offender had already vanished or enough if what was imputed or what was done was wrong.
disappeared. In applying this mitigating circumstance, In considering whether the wrong is a grave one upon the
the courts are generally considering that there must be person who committed the crime, his age, education and
no break between the provocation or threat and the social status will be considered.
commission of the felony. In other words, the felony was
committed precisely because he was then and there Here, in vindication of a grave offense, the vindication
provoked. need not be done by the person upon whom the grave
offense was committed. So, unlike in sufficient threat or
However, the recent rulings of the Supreme Court, as provocation where the crime should be inflicted upon the
well as the Court of Appeals, has stretched this very person who made the threat or provocation, here, it
criterionit is not only a matter of time anymore. Before, need not be the same person who committed the grave
there was a ruling that if a period of one hour had lapsed offense or who was offended by the wrong done by the
between the provocation and the commission of the offended party.
felony, this mitigating circumstance is no longer
applicable. The word immediate here does not carry the same
meaning as that under paragraph 4. The word immediate
Illustration: here is an erroneous Spanish translation because the
Spanish word is proxima and not immediatementa.
Therefore, it is enough that the offender committed the
The accused went to a barrio dance. In that gathering,
crime with the grave offense done to him, his spouse, his
there was a bully and he told the accused that he is not
ascendant or descendant or to his brother or sister,
allowed to go inside. The accused tried to reason out but
whether natural, adopted or legitimate and that is the
the bully slapped him several times in front of so many
proximate cause of the commission of the crime.
people, some of whom were ladies who were being
courted by the accused, so he was humiliated and
Passion or obfuscation
embarrassed. However, he cannot fight the bully at that
time because the latter was much bigger and heavier.
This stands on the premise or proposition that the offender
Accused had no choice but to go home. When he saw the
is suffering from a diminished self control because of the
bully again, this time, he was armed with a knife and he
passion or obfuscation. The same is true with the
stabbed the bully to death. The evidence for the accused
circumstances under paragraphs 4 and 5. So, there is a
showed that when he went home, he was not able to
ruling to the effect that if the offender is given the benefit
sleep throughout the night, thinking of the humiliation
of paragraph 4, he cannot be given the benefit of
and outrage done to him, despite the lapse of about 22
paragraph 5 or 6, or vice-versa. Only one of the three
hours. The Supreme Court gave him the benefit of this
mitigating circumstances should be given in favor of the
mitigating circumstance. The reason stated by the
offender.
Supreme Court for allowing the accused to be benefited
by this mitigating circumstance is that the effect of the
However, in one case, one of the mitigating circumstances
humiliation and outrage emitted by the offended party as
under paragraphs 4, 5 and 6 stands or arises from a set of
provocation upon the accused was still present when he
facts, and another mitigating circumstance arises from
committed the crime and, therefore, the reason for
another set of facts. Since they are predicated on different
paragraph 4 still applies. The accused was still acting
sets of facts, they may be appreciated together, although
under a diminished self-control because he was thinking
they arose from one and the same case. Hence, the
of the humiliation he suffered in the hands of the
prohibition against considering all these mitigating
offended party. The outrage was so serious unless
circumstances together and not as one applies only if they
vindicated.
would be taken on the basis of the same set of facts.
This is the correct interpretation of paragraph 4, Article
If the case involves a series of facts, then you can
13. As long as the offender at the time he committed the
predicate any one of these circumstances on one fact and
felony was still under the influence of the outrage caused
the other on another fact and so on.
by the provocation or threat, he is acting under a
diminished self-control. This is the reason why it is
The passion must be legitimate. As a rule, it cannot be
mitigating.
based on common law relationship because common law
relationships are illicit. However, consider whether passion
 33

or obfuscation is generated by common law relationship

or some other human consideration. However, there is a ruling that if after committing the
crime, the offender did not flee and instead waited for the
In a case where the relationship between the accused law enforcers to arrive and he surrendered the weapon he
and the woman he was living with was one of common used in killing the victim, the ruling was that voluntary
law, he came home and surprised his common law wife surrender was mitigating. In this case, the offender had
having sexual intercourse with a friend. This infuriated the opportunity to go into hiding, the fact that he did not
him. He killed the friend and he claimed passion or flee is not voluntary surrender.
obfuscation. The trial court denied his claim because the
relationship was a common law one. On review, the However, if he comes out from hiding because he is
accused was given the benefit of the circumstances and seriously ill and he went to get medical treatment, the
the basis of considering passion or obfuscation in favor of surrender is not considered as indicative of remorse or
the accused was the act of the common law wife in repentance. The surrender here is only done out of
committing adultery right from the conjugal bed. convenience to save his own self. Hence, it is not
Whether or not they are married, any man who discovers mitigating.
that infidelity was committed on the very bed provided
by him to the woman would naturally be subjected to Even if the offenders may have gone into hiding, if the law
obfuscation. enforcers had already known where he is hiding and it is
just a matter of time before he is flushed out of that place,
When a married person surprised his better half in the then even if the law enforcers do not know exactly where
act of sexual intercourse with another, he gets the he was hiding and he would come out, this is not voluntary
benefit of Article 247. However, that requisite which in surrender.
the first place, the offender must have surprised his/ her
spouse actually committing sexual intercourse should be Whether or not a warrant of arrest had been issued against
present. If the surprising was done not in the actual act the offender is immaterial and irrelevant. The criterion is
of sexual intercourse but before or after it, then Article whether or not the offender had gone into hiding and the
247 does not apply. law enforcers do not know of his whereabouts. If he would
give up, his act of surrendering under such circumstances
Although this is the ruling, still, the accused will be given indicates that he is willing to accept the consequences of
the benefit of sufficient provocation if the intercourse was the wrong he has done and also thereby saves the
done in his dwelling. If this act was done somewhere else government the effort, the time and the expenses to be
and the accused kills the paramour or the spouse, this incurred in looking for him.
may be considered as mitigation of a grave offense to
him or otherwise as a situation sufficient to create Where the offender went to the municipal building not to
passion or obfuscation. Therefore, when a married man own responsibility for the killing, such fact is not
upon coming home, surprises his wife who was nude, tantamount to voluntary surrender as a mitigating
Article 247 does not apply. If he kills them, vindication of circumstance. Although he admitted his participation in the
a grave offense will be mitigating in favor of the offender. killing, he tried to avoid responsibility by claiming self-
defense which however he was not able to prove. People
Illustrations: vs. Mindac.

A is courting B, a receptionist in a beerhouse. C danced Surrender to be considered voluntary and thus mitigating,
with B. A saw this and stabbed C. It was held that must be spontaneous, demonstrating an intent to submit
jealousy is an acknowledged basis of passion. himself unconditionally to the person in authority or his
agent in authority, because 1. he acknowledges his guilt,
A, a male classmate is escorting B, a female classmate. 2. he wishes to save the government the trouble and
On the way out, some men whistled lustfully. The male expenses of searching and capturing him. Where the
classmate stabbed said men. This was held to be reason for the surrender of the accused was to insure his
obfuscation. safety, his arrest by policemen pursuing him being
inevitable, the surrender is not spontaneous.
When a man saw a woman bathing, almost naked,
almost naked, for which reason he raped her, such man Physical defect
cannot claim passion as a mitigating circumstance.
The physical defect that a person may have must have a
A man and a woman were living together for 15 years. relation to the commission of the crime. In a case where
The man left the village where they were living and never the offender is deaf and dumb, personal property was
returned home. The common law wife learned that he entrusted to him and he misappropriated the same. The
was getting married to a classmate. On the scheduled crime committed was estafa. The fact that he was deaf and
wedding day, she stabbed the groom in the chest, dumb is not mitigating since that does not bear any
instantly killing him. She confessed and explained that relation to the crime committed.
any woman cannot tolerate what he did to her. She gave
him the best years of her life. She practically waited for Not any physical defect will affect the crime. It will only do
him day and night. It was held that passion and so if it has some relation to the crime committed. If a
obfuscation were considered mitigating. Ingratitude was person is deaf and dumb and he has been slandered, he
shown here. cannot talk so what he did was he got a piece of wood and
struck the fellow on the head. The crime committed was
Voluntary surrender physical injuries. The Supreme Court held that being a
deaf and dumb is mitigating because the only way is to use
The essence of voluntary surrender requires that the his force because he cannot strike back in any other way.
offender, after having committed the crime, had evaded
the law enforcers and the law enforcers do not know of If the offender is blind in one eye, as long as his means of
his whereabouts. In short, he continues to elude arrest. action, defense or communication with others are not
If, under this circumstance, the offender would come out restricted, such circumstance is not mitigating. This
in the open and he gives himself up, his act of doing so circumstance must also have a bearing on the crime
will be indicative of repentance and he also saves the committed and must depend on how the crime was
government the time and the expense of looking for him. committed.

As a general rule, if after committing the crime, the Analogous cases

offender did not flee and he went with the responding law
enforcers meekly, voluntary surrender is not applicable.
 34

The act of the offender of leading the law enforcers to the provision of law defining the crime. If it is not so included,
place where he buried the instrument of the crime has it is not qualifying.
been considered as equivalent to voluntary surrender. In Article 248, in the crime of murder, the law specifically
The act of a thief in leading the authorities to the place mentions several circumstances which are aggravating
where he disposed of the loot has been considered as under Article 14. All of these will qualify a killing from
analogous to voluntary surrender. homicide to murder; however, you understand that only
one is qualifying.
Stealing by a person who is driven to do so out of
extreme poverty is considered as analogous to If let us say that the accused was charged with murder.
incomplete state of necessity. However, this is not so Three of these circumstances: treachery, evident
where the offender became impoverished because of his premeditation and act was done in consideration of a price,
own way of living his life. If his lifestyle is one of having reward or promise were alleged as aggravating. Only one
so many vices, as a result of which he became poor, his of these is qualifying. If any one of the three circumstances
subsequent stealing because of his poverty will not be was proven, the crime was already murder. If the other
considered mitigating by incomplete state of necessity. two are also proven, even if they are not alleged in the
information or complaint, they are only to be taken as
generic. If there is any mitigating circumstance in favor of
the offender, the two other circumstances which are
Aggravating circumstances otherwise qualifying could be offset by the mitigating,
provided the mitigating circumstance is not a privileged
Kinds of aggravating circumstances: mitigating circumstance. Therefore, if there are three of
1. Generic or those that can generally apply to all the qualifying circumstances alleged in the complaint or
crimes; information, only one will qualify the crime. The others will
2. Specific or those that apply only to a particular merely be considered as generic. Thus, if there is any
crime; ordinary mitigating circumstance in favor of the accused,
3. Qualifying or those that change the nature of the such will be wiped out by these circumstances, although
crime; initially they are considered as qualifying. Do not hesitate
4. Inherent or those that must of necessity accompany to offset on the principle that a qualifying circumstance
the commission of the crime. cannot be offset by an ordinary mitigating circumstance
because only one is necessary.
The aggravating circumstances must be established with
moral certainty, with the same degree of proof required Even if any of the qualifying circumstances under Article
to establish the crime itself. 248 on murder was proven, if that is not the circumstance
alleged in the information, it cannot qualify the crime. Let
The most important of the classification of aggravating us say, what was alleged in the information was treachery.
circumstances are the qualifying and the generic During the trial, what was proven was the price, reward or
aggravating circumstances. promise as a consideration for killing. The treachery was
not proved. Just the same, the accused cannot be
In practice, the generic aggravating circumstances are convicted of murder because the circumstance proven is
referred to simply as aggravating circumstances. The so- not qualifying but merely generic. It is generic because it is
called qualifying aggravating circumstances are simply not alleged in the information at all. If any of these
referred to as qualifying circumstances. This is so qualifying circumstances is not alleged in the information,
because there is no qualifying circumstance that is not it cannot be considered qualifying because a qualifying
aggravating. To say qualifying aggravating circumstance circumstance is an ingredient of the crime and it cannot be
is redundant. In the examination, if you find qualifying taken as such without having been alleged in the
circumstances, you have to think about these as information because it will violate the right of the accused
aggravating circumstances which are the ingredients of to be informed of the nature of the accusation against him.
the crime.
Correlate Article 14 with Article 62. Article 62 gives you the
Distinctions between aggravating and qualifying different rules regarding aggravating circumstances.
circumstances: Aggravating circumstances will not be considered when it
is the crime itself. If the crime charged is qualified trespass
In aggravating circumstances to dwelling, dwelling is no longer aggravating. When the
aggravating circumstance refers to the material execution
1. The circumstance can be offset by an ordinary of the crime, like treachery, it will only aggravate the
mitigating circumstance; criminal liability of those who employed the same.
2. This circumstance must be alleged in the
information. If it is proved during trial, the court Illustration:
would consider the same in imposing the penalty.
3. It is not an ingredient of the crime. It only affects the A person induced another to kill somebody. That fellow
penalty to be imposed but the crime remains the killed the other guy and employed treachery. As far as the
same. killing is concerned, the treachery will qualify only the
criminal liability of the actual executioner. The fellow who
In qualifying circumstance induced him becomes a co-principal and therefore, he is
liable for the same crime committed. However, let us say,
1. The circumstance affects the nature of the crime the fellow was hired to kill the parent of the one who hired
itself such that the offender shall be liable for a more him. He killed a stranger and not the parent. What was
serious crime. The circumstance is actually an committed was different from what was agreed upon. The
ingredient of the crime; fellow who hired him will not be liable for the crime he had
2. Being an ingredient of the crime, it cannot be offset done because that was not the crime he was hired to
by any mitigating circumstance; commit.
3. Qualifying circumstances to be appreciated as such
must be specifically alleged in the complaint or
information. If not alleged but proven during trial, it Question and Answer
will be considered only as a generic aggravating
circumstance. If his happens, they are susceptible of
being offset by a mitigating circumstance. Q: When would qualifying circumstances be deemed, if at
An aggravating circumstance is qualifying when it is an all, elements of a crime?
ingredient of the crime. Therefore it is included in the
 35

A: A qualifying circumstance would be deemed an Dwelling need not be owned by the offended party. It is
element of a crime when - - enough that he used the place for his peace of mind, rest,
comfort and privacy. The rule that dwelling, in order to be
aggravating must be owned by the offended party is no
1. it changes the nature of the offense, bringing about a
longer absolute. Dwelling can be aggravating even if it is
more serious crime and a heavier penalty;
not owned by the offended party, provided that the
offended party is considered a member of the family who
2. it is essential to the crime involved, otherwise some
owns the dwelling and equally enjoys peace of mind,
other crime is committed;
privacy and comfort.
3. it is specifically alleged in the information and proven
Illustration:
during the trial;
Husband and wife quarreled. Husband inflicted physical
Taking advantage of public position violence upon a wife. The wife left the conjugal home and
went to the house of her sister bringing her personal
Article 62 was also amended by Republic Act No. 7659. belongings with her. The sister accommodated the wife in
The legal import of the amendment is that the subject her home. The husband went to the house of the sister-in-
circumstance has been made a qualifying or special law and tried to persuade the wife to return to the conjugal
aggravating that shall not be offset or compensated by a home but the wife refused since she was more at peace in
mitigating circumstance. If not alleged in the information, her sisters home than in their conjugal abode. Due to the
however, but proven during trial, it is only appreciated as wifes refusal to go back to the conjugal home and live with
a generic aggravating circumstance. her husband, the latter pulled out a knife and stabbed the
wife to death. It was held that dwelling was aggravating
The mitigating circumstance referred to in the although it is not owned by the victim since she is
amendment as not affecting the imposition of the penalty considered a member of the family who owns the dwelling
in the maximum are only ordinary mitigating and that place is where she enjoyed privacy, peace of mind
circumstances. Privileged mitigating circumstances and comfort.
always lower the penalty accordingly.
Even a room in a hotel if rented as a dwelling, like what
Disrespect due to rank, age, sex the salesmen do when they are assigned in the provinces
and they rent rooms, is considered a dwelling. A room in a
Aggravating only in crimes against persons and honor, hotel or motel will be considered dwelling if it is used with
not against property like Robbery with homicide. (People a certain degree of permanence, where the offended party
vs. Ga, 156 SCRA 790) seeks privacy, rest, peace of mind and comfort.
If a young man brought a woman in a motel for a short
Teachers, professors, supervisors of public and duly
time and he gets killed there, dwelling is not aggravating.
recognized private schools, colleges and universities, as
well as lawyers are persons in authority for purposes of
A man was killed in the house of his common law wife.
direct assault and simple resistance, but not for purposes
Dwelling is aggravating in this case because the house was
of aggravating circumstances in paragraph 2, Article 14. provided by the man.
(People vs. Taoan, 182 SCRA 601)
Dwelling should not be understood in the concept of a
Abuse of confidence
domicile. A person has more than one dwelling. So, if a
man has so many wives and he gave them places of their
Do not confuse this with mere betrayal of trust. This is
own, each one is his own dwelling. If he is killed there,
aggravating only when the very offended party is the one
dwelling will be aggravating, provided that he also stays
who reposed the confidence. If the confidence is reposed
there once in a while. When he is only a visitor there,
by another, the offended party is different from the fellow
dwelling is not aggravating.
who reposed the confidence and abuse of confidence in
this case is not aggravating.
The crime of adultery was committed. Dwelling was
considered aggravating on the part of the paramour. The
Illustrations:
paramour is not a resident of the same dwelling. However,
if the paramour was also residing in the same dwelling, it
A mother left her young daughter with the accused
will not be aggravating.
because she had nobody to leave the child with while she
had to go on an errand. The accused abused the child. It
The term dwelling includes all the dependencies
was held that the abuse of confidence was not
necessary for a house or for rest or for comfort or a place
aggravating. What is present is betrayal of trust and that
of privacy. If the place used is on the second floor, the
is not aggravating.
stairs which are used to reach the second floor is
considered a dwelling because the second floor cannot be
In a case where the offender is a servant, the offended
enjoyed without the stairs. If the offended party was
party is one of the members of the family. The servant
assaulted while on the stairs, dwelling is already
poisoned the child. It was held that abuse of confidence
aggravating. For this reason, any dependency necessary
is aggravating. This is only true, however, if the servant
for the enjoyment of a place of abode is considered a
was still in the service of the family when he did the
dwelling.
killing. If he was driven by the master out of the house
for some time and he came back to poison the child,
Illustrations:
abuse of confidence will no longer be aggravating. The
reason is because that confidence has already been A and B are living in one house. A occupies the ground
terminated when the offender was driven out of the floor while B the upper floor. The stairs here would form
house.
part of part only of Bs dwelling, the same being necessary
and an integral part of his house or dwelling. Hence, when
Dwelling
an attack is made while A is on the stairs, the aggravating
circumstance of dwelling is not present. If the attack is
Dwelling will only be aggravating if it is the dwelling of
made while B was on the stairs, then the aggravating
the offended party. It should also not be the dwelling of
circumstance of dwelling is present.
the offender. If the dwelling is both that of the offender
and the offended party, dwelling is not aggravating.
Whenever one is in his dwelling, the law is presuming that
he is not intending to commit a wrong so one who attacks
 36

him while in the tranquility of his home shows a degree However, where brigandage is actually committed, band
of perversity in him. becomes aggravating.

Dwelling is not limited to the house proper. All the

appurtenances necessary for the peace and comfort, rest Uninhabited place
and peace of mind in the abode of the offended party are
considered dwellings. It is determined not by the distance of the nearest house
to the scene of the crime but whether or not in the place of
Illustrations: the commission of the offense, there was a reasonable
possibility of the victim receiving some help.
A man was fixing something on the roof of his house
when he was shot. It was held that dwelling is Illustration:
aggravating. The roof still forms part of the house.
A is on board a banca, not so far away. B and C also are on
In the provinces where the comfort rooms are usually far board on their respective bancas. Suddenly, D showed up
from the house proper, if the offended party while from underwater and stabbed B. Is there an aggravating
answering the call of nature is killed, then dwelling is circumstance of uninhabited place here? Yes, considering
aggravating since the comfort room is a necessary the fact that A and C before being able to give assistance
dependency of the house proper. still have to jump into the water and swim towards B and
the time it would take them to do that, the chances of B
A person while in the room of his house, maintaining the receiving some help was very little, despite the fact that
room, was shot. Dwelling is aggravating. If the offender there were other persons not so far from the scene.
entered the house and the offended party jumped out of
the house, even if the offender caught up with him as he Evidence tending to prove that the offender took
was already out of the house, dwelling is still advantage of the place and purposely availed of it is to
aggravating. The reason is because he could not have left make it easier to commit the crime, shall be necessary.
his dwelling were it not for the fact that the attacker
entered his house. Nighttime

If the offended party was inside the house and the What if the crime started during the daytime and continued
offender was outside and the latter shot the former inside all the way to nighttime? This is not aggravating.
the house while he was still outside. Dwelling is still
aggravating even though the offender did not enter the As a rule, the crime must begin and end during the night.
house. Crime began at day and ended at night as well as crime
A garage is part of the dwelling when connected with an began at night and ended at day is not aggravated by the
interior passage to the house proper. If not connected, it circumstance of nighttime.
is not considered part of the dwelling.
Darkness is what makes this circumstance aggravating.
One-half of a house is used as a store and the other half The darkness of night must be purposely sought.
is used for dwelling but there is only one entrance. If the
dwelling portion is attacked, dwelling is not aggravating Illustration:
because whenever a store is open for business, it is a
public place and as such is not capable of being the One evening, a crime was committed near the lamppost.
subject of trespass. If the dwelling portion is attacked The Supreme Court held that there is no aggravating
where even the store is open, there is another separate circumstance of nighttime. Even if the crime was
entrance to the portion used for dwelling, then the committed at night, but there was light, hence, darkness
circumstance is aggravating. However, in case the store was not present, no aggravating circumstance just by the
closed, dwelling is aggravating since here, the store is fact of nighttime alone.
not a public place as in the first case.
Even if there was darkness but the nighttime was only and
A balcony is part of the dwelling because it is incident of a chance meeting, there is no aggravating
appurtenant to the house. circumstance. It must be shown that the offender
deliberately sought the cover of darkness and the offender
Dwelling is aggravating in robbery with homicide because purposely took advantage of nighttime to facilitate the
the crime can be committed without the necessarily commission of the offense.
transgressing the sanctity of the home. (People vs. De
Los Reyes, decided October 22, 1992) Nocturnity is the period of time after sunset to sunrise,
from dusk to dawn.
Dwelling is aggravating where the place is, even for a
brief moment, a home, although he is not the owner Different forms of repetition or habituality of offender
thereof as when the victim gets shot in the house of his
own parents. 1. Recidivism under Article 14 (9)The offender at the
time of his trial for one crime shall have been
Band previously convicted by final judgment of another
embraced in the same title of the Revised Penal Code.
In band, there should at least be four persons. All of 2. Repetition or reiteracion under Article 14 (10)The
them should be armed. Even if there are four, but only offender has been previously punished for an offense
three or less are armed, it is not a band. Whenever you to which the law attaches an equal or even greater
talk of band, always have in mind four at the very least. penalty or for two or more crimes to which it attaches
Do not say three or more because it is four or more. The a lighter penalty.
way the law defines a band is somewhat confusing 3. Habitual delinquency under Article 62 (5)The
because it refers simply to more than 3, when actually it offender within a period of 10 years from the date of
should be 4 or more. his release or last conviction of the crimes of serious or
less serious physical injuries, robo, hurto, estafa or
Correlate this with Article 306Brigandage. The crime is falsification, is found guilty of any of the said crimes a
the band itself. The mere forming of a band even without third time or another.
the commission of a crime is already a crime so that 4. Quasi-recidivism under Article 160Any person who
band is not aggravating in brigandage because the band shall commit a felony after having been convicted by
itself is the way to commit brigandage. final judgment before beginning to serve such
sentence or while serving such sentence shall be
 37

punished by the maximum period prescribed by law In recidivism, the crimes committed should be felonies.
for the new felony. Recidivism cannot be had if the crime committed is a
violation of a special law.

Recidivism does not prescribe. No matter how long ago the

offender was convicted, if he is subsequently convicted of a
crime embraced in the same title of the Revised Penal
Distinctions between recidivism and habitual delinquency Code, it is taken into account as aggravating in imposing
the penalty.
In recidivism
Pardon does not erase recidivism, even if it is absolute
1. Two convictions are enough. because only it only excuses the service of the penalty, not
2. The crimes are not specified; it is enough that they the conviction.
may be embraced under the same title of the
Revised Penal Code. If the offender has already served his sentence and he was
3. There is no time limit between the first conviction extended an absolute pardon, the pardon shall erase the
and the subsequent conviction. Recidivism is conviction including recidivism because there is no more
imprescriptible. penalty so it shall be understood as referring to the
4. It is a generic aggravating circumstance which can conviction or the effects of the crime.
be offset by an ordinary mitigating circumstance. If
not offset, it would only increase the penalty Recidivism may be considered even though not alleged in
prescribed by law for the crime committed to its the information because this is only a generic aggravating
maximum period. circumstance.
5. The circumstance need not be alleged in the
information. It is necessary to allege recidivism in the information, but
if the defense does not object to the presentation of
In habitual delinquency evidence during the trial and the same was proven, the
court shall consider such aggravating circumstance
1. At least three convictions are required. because it is only generic.
2. The crimes are limited and specified to: a. serious
physical injuries, b. Less serious physical injuries, c. In recidivism, although the law defines it as a circumstance
robbery, d. theft, e. estafa or swindling and f. where a person having been convicted by final judgment
falsification. was previously convicted also by final judgment for a crime
3. There is a time limit of not more than 10 years embraced in the same title of the Revised Penal Code, it is
between every conviction computed from the first necessary that the conviction must come in the order in
conviction or release from punishment thereof to which they are committed.
conviction computed from the second conviction or
release therefrom to the third conviction and so on
4. Habitual delinquency is a special aggravating Question and Answer
circumstance, hence it cannot be offset by any
mitigating circumstance. Aside from the penalty
prescribed by law for the crime committed, an In 1975, the same offender committed robbery. While the
additional penalty shall be imposed depending upon same was being tried in 1978, he committed theft. In
whether it is already the third conviction, the fourth, 1980, he was convicted of theft and he did not appeal the
the fifth and so on decision. The trial for robbery ended in 1981. May the
5. The circumstance must be alleged in the information; judge in imposing the penalty for robbery consider the
otherwise the court cannot acquire jurisdiction to accused a recidivist considering that he was already
impose the additional penalty. convicted in 1980 for the crime of theft which is under the
same title of the Revised Penal Code as that of robbery?
Recidivism
No, because the robbery which was committed earlier
In recidivism, the emphasis is on the fact that the would be decided later. It must be the other way around.
offender was previously convicted by final judgment of a This is because in 1975 when he committed the robbery,
felony and subsequently found guilty of another felony there was no crime committed yet. Thus, even though in
embraced in the same title of the Revised Penal Code. imposing the penalty for robbery, there was already a prior
The law considers this aggravating when a person has conviction, if that conviction is subsequent to the
been committing felonies embraced in the same title commission of robbery, he is not a recidivist. If you will
because the implication is that he is specializing on a king interpret the definition of recidivism, this would seem to be
of crime and the law wants to prevent any specialization. covered but that is not so.
Hence, ordinarily, when a person commits a crime under
different titles, no aggravating circumstance is present. It
is important that the conviction which cam earlier must Habitual delinquency
refer to the crime committed earlier than the subsequent
conviction. We have to consider the crimes in it and take note of the
titles of crimes in the Revised Penal Code.
Illustration: If the offender had committed and was convicted of each
of the crimes under each category so that no two crimes
In 1980, A committed robbery. While the case was being fall under the same title of the Revised Penal Code, you
tried, he committed theft in 1983. He was also found have a situation where the offender is a habitual
guilty and was convicted of theft also in 1983. The delinquent because no two crimes fall under the same title
conviction became final because he did not appeal of the Code.
anymore and the trial for hi earlier crime which was
robbery ended in 1984 where he was also convicted. He If the first conviction is for serious physical injuries and the
also did not appeal this decision. Is the accused a second conviction is for robbery, theft or estafa and the
recidivist? The subsequent conviction must refer to a third is for falsification, then the moment the habitual
felony committed later in order to constitute recidivism. delinquent is on his fourth conviction already, you cannot
The reason for this is as the time the first crime was avoid that he is a habitual delinquent and at the same time
committed, there was no other crime of which he was a recidivist because at least, the fourth time will have to
convicted so he cannot be regarded as a repeater. fall under any of the three categories.
 38

When the offender is a recidivist and a the same time a what he had served, reiteracion is not aggravating since
habitual delinquent, the penalty for the crime for which the law considers that somehow, this fellow was corrected
he will be convicted will be increased to the maximum because instead of committing a serious crime, he
period unless offset by a mitigating circumstance. After committed a lesser one. If he committed another lesser
determining the correct penalty for the last crime one, then he becomes a repeater.
committed, an added penalty will be imposed in
accordance with Article 62. So, in reiteracion, the penalty attached to the crime
subsequently committed should be higher or at least equal
Habitual delinquency, being a special or specific to the penalty that he has already served. If that is the
aggravating circumstance must be alleged in the situation, that means that the offender was never reformed
information. If it is not alleged in the information and in by the fact that he already served the penalty imposed on
the course of the trial, the prosecution tried to prove that him on the first conviction. However, if he commits a
the offender is a habitual delinquent over the objection of felony carrying a lighter penalty, subsequently, the law
the accused, the court has no jurisdiction to consider the considers that he has somehow been reformed but if he,
offender a habitual delinquent. Even if the accused is in again commits another felony which carries a lighter
fact a habitual delinquent but it is not alleged in the penalty, then he becomes a repeater because that means
information, the prosecution when introducing evidence he has not yet reformed.
was objected to, the court cannot admit the evidence
presented to prove habitual delinquency over the You will only consider the penalty in reiteracion if there is
objection of the accused. already a second conviction. When there is a third
conviction, you disregard whatever penalty for the
On the other hand, recidivism is a generic aggravating subsequent crimes committed. Even if the penalty for the
circumstance. It need not be alleged in the information. subsequent crimes committed are lighter than the ones
Thus, even if recidivism is not alleged in the information, already served, since there are already two of them,
if proven during the trial, the court can appreciate the subsequently the offender is already a repeater.
same. If the prosecution tried to prove recidivism and the
defense objected, the objection should be overruled. The However, if there is only a second conviction, pay attention
reason is that recidivism is a generic aggravating to the penalty attached to the crime which was committed
circumstance only. As such, it does not have to be for the second crime. That is why it is said that reiteracion
alleged in the information because even if not alleged, if is not always aggravating. This is so because if the penalty
proven during the trial, the trial court can appreciate it. attached to the felony subsequently committed is not equal
to or higher than the penalty already served, even if
Right now, the present rule is that it can be appreciated literally the offender is a repeater, repetition is not
even if not alleged in the information. This is the correct aggravating.
view because recidivism is a generic aggravating
circumstance. The reason why habitual delinquency
cannot be appreciated unless alleged in the information is Quasi-recidivism
because recidivism has nothing to do with the crime
committed. Habitual delinquency refers to prior This is found in Article 160. The offender must already be
conviction and therefore this must be brought in the convicted by final judgment and therefore to have served
information before the court can acquire jurisdiction over the penalty already, but even at this stage, he committed
this matter. a felony before beginning to serve sentence or while
serving sentence.
Generally, when the prosecutor alleges habitual
delinquency, it must specify the crimes committed, the Illustration:
dates when they were committed, the court which tried
the case, the date when the accused was convicted or Offender has already been convicted by final judgment.
discharged. If these are not alleged, then the information Sentence was promulgated and he was under custody in
is defective. Muntinlupa. While he was in Muntinlupa, he escaped from
his guard and in the course of his escape, he killed
However, in a relatively recent ruling of the Supreme someone. The killing was committed before serving
Court, it was held that even though the details of sentence but convicted by final judgment. He becomes a
habitual delinquency was not set forth in the information, quasi-recidivist because the crime committed was a felony.
as long as there is a habitual delinquent, that is enough
to confer jurisdiction upon a court to consider it. In the The emphasis here is on the crime committed before
absence of details set forth in the information, the sentence or while serving sentence which should be a
accused has the right to avail of the so-called bill of felony, a violation of the Revised Penal Code. In so far as
particulars. Even in a criminal case, the accused may file the earlier crime is concerned, it is necessary that it be a
a motion for a bill of particulars. If the accused fails to felony.
file such, he is deemed to have waived the required
particulars and so the court can admit evidence of the Reverse the situation. Assume that the offender was found
habitual delinquency, even though over and above the guilty of illegal use of prohibited drugs. While he was
objection of the defense. serving sentence, he got involved in a quarrel and killed a
fellow inmate. He is a quasi-recidivist because while
Reiteracion serving sentence, he committed a felony.

This has nothing to do with the classification of the The emphasis is on the nature of the crime committed
felonies. In reiteracion, the offender has already tasted while serving sentence or before serving sentence. It
the bitterness of punishment. This is the philosophy on should not be a violation of a special law.
which the circumstance becomes aggravating.
Quasi-recidivism is a special aggravating circumstance.
It is necessary in order that there be reiteracion that the This cannot be offset by any mitigating circumstance and
offender has already served out the penalty. If the the imposition of the penalty in the maximum period
offender had not yet served out his penalty, forget about cannot be lowered by any ordinary mitigating
reiteracion. That means that he has not yet tasted the circumstance. When there is a privileged mitigating
bitterness of life but if he had already served out the circumstance, the penalty prescribed by law for the crime
penalty, the law expects that since he has already tasted committed shall be lowered by 1 or 2 degrees, as the case
punishment, he will more or less refrain from committing may be, but then it shall be imposed in the maximum
crimes again. That is why if the offender committed a period if the offender is a quasi-recidivist.
subsequent felony which carries a penalty lighter than
 39

In consideration of a price, reward or promise Can there be evident premeditation when the killing is
accidental? No. In evident premeditation, there must be a
The Supreme Court rulings before indicate this clear reflection on the part of the offender. However, if the
circumstance aggravates only the criminal liability of the killing was accidental, there was no evident premeditation.
person who committed the crime in consideration of the What is necessary to show and to bring about evident
price, promise or reward but not the criminal liability of premeditation aside from showing that at some prior time,
the person who gave the price, reward or consideration. the offender has manifested the intention to kill the victim,
However, when there is a promise, reward or price and subsequently killed the victim.
offered or given as consideration for the commission of a
crime, the person making the offer is an inducer, a Illustrations:
principal by inducement while the person on the receiving
end is a principal by direct participation. Hence, their A and B fought. A told B that someday he will kill B. On
responsibilities are the same. They are both principals Friday, A killed B. A and B fought on Monday but since A
and that is why the recent rulings of the Supreme Court already suffered so many blows, he told B, This week shall
are to the effect that this aggravating circumstance not pass, I will kill you. On Friday, A killed B. Is there
affects or aggravates not only the criminal liability of the evident premeditation in both cases? None in both cases.
receiver of the price, reward or promise but also the What condition is missing to bring about evident
criminal liability of the one giving the offer. premeditation? Evidence to show that between Monday
and Friday, the offender clung to his determination to kill
the victim, acts indicative of his having clung to his
By means of inundation or fire determination to kill B.

Fire is not aggravating in the crime of arson. A and B had a quarrel. A boxed B. A told B, I will kill you
this week. A bought firearms. On Friday, he waited for B
Whenever a killing is done with the use of fire, as when but killed C instead, was there evident premeditation?
you kill someone, you burn down his house while the There is aberratio ictus. So, qualify. Insofar as B is
latter is inside, this is murder. concerned, the crime is attempted murder because there is
evident premeditation. However, that murder cannot be
There is no such crime as murder with arson or arson considered for C. Insofar as C is concerned, the crime is
with homicide. The crime is only murder. homicide because there was no evident premeditation.
Evident premeditation shall not be considered when the
If the victim is already dead and the house is burned, the crime refers to a different person other than the person
crime is arson. It is either arson or murder. premeditated against.
If the intent is to destroy property, the crime is arson
even if someone dies as a consequence. If the intent is to While it is true that evident premeditation may be
kill, there is murder even if the house is burned in the absorbed in treachery because the means, method and
process. form of attack may be premeditated and would be resorted
to by the offender. Do not consider both aggravating
Illustration: circumstances of treachery and evident premeditation
against the offender. It is only treachery because the
A and B were arguing about something. One argument evident premeditation is the very conscious act of the
led to another until A struck B to death with a bolo. A did offender to ensure its execution.
not know that C, the son of B was also in their house and
who was peeping through the door and saw what A did. But there may be evident premeditation and there is
Afraid that A might kill him too, he hid somewhere in the treachery also when the attack was so sudden.
house. A then dragged Bs body and poured gasoline on
it and burned the house altogether. As a consequence, C A and B are enemies. They fought on Monday and parted
was burned and eventually died too. ways. A decided to seek revenge. He bought a firearm and
practiced shooting and then sought B. When A saw B in a
As far as the killing of B is concerned, it is homicide since restaurant with so many people, A did not dare fire at B for
it is noted that they were arguing. It could not be fear that he might hit a stranger but instead, A saw a knife
murder. As far as the killing of C is concerned, it is arson and used it to stab B with all suddenness. Evident
since he intended to burn the house only. premeditation was not absorbed in treachery because
treachery refers to the manner of committing the crime.
No such crime of arson with homicide. Law enforcers only Evident premeditation is always absorbed in treachery.
use this to indicate that a killing occurred while arson
was being committed. At most, you could designate is as This is one aggravating circumstance where the offender
death as a consequence of arson. who premeditated, the law says evident. It is not enough
that there is some premeditation. Premeditation must be
Evident premeditation clear. It is required that there be evidence showing
meditation between the time when the offender
For evident premeditation to be aggravating, the determined to commit the crime and the time when the
following conditions must concur: offender executed the act. It must appear that the offender
clung to his determination to commit the crime. The fact
1. The time when the accused determined to commit that the offender premeditated is not prima facie indicative
the crime. of evident premeditation as the meeting or encounter
2. An act manifestly indicating that the accused has between the offender and the offended party was only by
clung to his determination. chance or accident.
3. Sufficient lapse of time between such determination
and execution, to allow him to reflect upon the In order for evident premeditation to exist, the very
consequences of his act. person/ offended party premeditated against must be the
one who is the victim of the crime. It is not necessary that
Illustration: the victim is identified. It is enough that the victim is
determined so he or she belongs to a group or class that
A, on Monday, thought of killing B on Friday. A knew that may be premeditated against. This is a circumstance that
B is coming home only on Friday so A decided to kill B on will qualify a killing from homicide to murder.
Friday evening when he comes home. On Thursday, A
met B and killed him. Is there evident premeditation? Illustration:
None. But there is treachery as the attack was sudden.
 40

A person who has been courting a lady for several years A and B quarreled. However, A had no chance to fight with
now has been jilted. Because of this, he thought of killing B because A is much smaller than B. A thought of killing B
somebody. He then bought a knife, sharpened it and but he cannot just attack because of the latters size. So A
stabbed the first man he met on the street. It was held thought of committing a crime at nighttime with the cover
that evident premeditation was not present. It is of darkness. A positioned himself in the darkest part of the
essential that the victim be identified from the beginning. street where B passes on his way home. One evening, A
waited for B and then stabbed the latter. However, B
A premeditated kill of any member of a particular pulled a knife as well and also stabbed A. A was wounded
fraternity. He then killed one. This is murdera homicide but not mortal so he managed to run away. B was able to
which has been qualified into murder by evident walk a few steps before he fell and died. What crime was
premeditation which is a qualifying circumstance. The committed?
same is true where A planned to kill any member of the
Iglesia ni Kristo. The crime is only homicide. The aggravating circumstance
is only nocturnity and nocturnity is not a qualifying
There are some crimes which cannot be aggravated by circumstance. Treachery cannot be considered here
evident premeditation because they require some because the offended party was able to put up a defense
planning before they can be committed. Evident and that negates treachery. In treachery, the offended
premeditation is part of the crime like kidnapping for party, due to the means, method or form employed by the
ransom, robbery with force upon things where there is offender, the former was denied the chance to defend
entry into the premises of the offended party, and estafa himself. If because of the cover of darkness, B was not
through false pretenses where the offender employs able to put up a defense and A was able to flee as B died,
insidious means which cannot happen accidentally. the crime will be murder due to the presence of treachery.
In the first situation, the crime was only homicide, the
Craft nighttime being a generic aggravating circumstance.

Aggravating in a case where the offenders pretended to In the example where A pretended to befriend B and
be bona fide passengers of a jeepney in order for them invited him to celebrate their friendship, if B despite
not to arouse suspicion, but once inside the jeep, robbed intoxication was able to put up some fight against A but B
the passengers and the driver. (People vs. Lee) eventually dies, then treachery is no longer present but
means employed to weaken the defense. The crime
Abuse of superior strength committed is murder but the proper qualifying
circumstance is the employment of means to weaken the
There must be evidence of notorious inequality of forces defense.
between the offender and the offended party in their age,
size and strength, and that the offender took advantage In the same manner, if the offender avails of the services
of such superior strength in the commission of the crime. of men and in the commission of the crime, they took
The mere fact that there were two persons who attacked advantage of superior strength but somehow, the offended
the victim does not per se constitute abuse of superior party fought back, the crime is still murder if the victim
strength. (People vs. Carpio, 191 SCRA 12) dies. Although the qualifying circumstance is abuse of
superior strength and not treachery, the former also makes
Treachery it murder under Article 248.

Treachery refers to the employment of means, methods Treachery is out when the attack was merely incidental or
and form in the commission of the crime which tend accidental because in the definition of treachery, the
directly and specially to ensure its execution without risk implication is that the offender had consciously and
to himself arising form the defense which the offended deliberately adopted the method, means and form used or
party might make. The means, method or form employed employed by him. So, if A and B casually met and there
may be an aggravating circumstance which like availing and then A stabbed B, although stabbing may be sudden
of the total darkness in nighttime or of superior strength since A was not shown to have the intention of killing B,
taken advantage of by the offender, employing means to treachery cannot be considered present.
weaken the defense.
There must be evidence on how the crime was committed.
Illustration: It is not enough to show that the victim sustained a
treacherous wound. Example: A had a gunshot wound at
A and B have been quarreling for some time. One day, A the back of his head, the SC ruled that this is only
approached B and befriended him. B accepted. A homicide since treachery must be proven. It must be
proposed that to celebrate their renewed friendship, they shown that the victim was totally defenseless.
were going to drink. B was having too much to drink. A Suddenness of the attack does not by itself constitute
was just waiting for him to get intoxicated and after treachery in the absence of evidence that the manner of
which, he stabbed B. attack was consciously adopted by the offender to render
A pretended to befriend B, just to intoxicate the latter. the victim defenseless. (People vs. Ilagan, 191 SCRA
Intoxication is the means deliberately employed by the 643)
offender to weaken the defense of the other party. If this
was the very means employed, the circumstance may be But where children of tender years were killed, being one
treachery and not abuse of superior strength or means to year old and 12 years old, the killing is murder even if the
weaken the defense. manner of attack was not shown. (People vs. Gahon,
decided on April 30, 1991)
What is the essence of treachery?
In People vs. Lapan, decided on July 6, 1992, the
The essence of treachery is that by virtue of the means, accused was prosecuted for robbery with homicide.
method or form employed by the offender, the offended Robbery was not proven beyond reasonable doubt. The
party was not able to put up any defense. If the offended accused was held liable only for the killings. Although one
party was able to put up a defense, even only a token of the victims was barely six years old, the accused was
one, there is no treachery. Instead, some other convicted only for homicide, aggravated by dwelling and in
aggravating circumstance may be present but it is no disregard of age.
longer treachery.
Treachery is not appreciated where quarrel and heated
Illustration: discussion preceded a killing, because the victim would be
put on guard (People vs. Gupo). But although a quarrel
preceded a killing where the victim was atop a coconut
 41

tree, treachery was considered as the victim was not in a

position to defend himself (People vs. Toribio). Motor vehicle

Treachery may still be appreciated even when the victim The Supreme Court considers strictly the use of the word
was forewarned of danger to his person. What is decisive committed, that the crime is committed with the use of a
is that the execution of the attack made it impossible for motor vehicle, motorized means of transportation or
the victim to defend himself or to retaliate. Thus, even a motorized watercraft. There is a decision by the Court of
frontal attack could be treacherous when unexpected and Appeals that a motorized bicycle is a motor vehicle even if
on an unarmed victim who would be in no position to the offender used only the foot pedal because he does not
repel the attack or avoid it (People v. Malejana, 2006). know how to operate the motor so if a bicycle is used in
the commission of the crime, motor vehicle becomes
Neither does the fact that other people were present aggravating if the bicycle is motorized.
during the shooting negate the attendance of treachery.
The suddenness of the attack prevented the victims This circumstance is aggravating only when used in the
unarmed companions from coming to his aid (People v. commission of the offense. If motor vehicles are used only
Malejana, supra). in the escape of the offender, it is not aggravating. It must
have been used to facilitate the commission of the crime to
Furthermore, if there is conspiracy, treachery shall be be aggravating.
considered against all perpetrators (Rivera v. People, Aggravating when a motorized tricycle was used to commit
2006). a crime.

Distinction between ignominy and cruelty Organized or syndicated crime group

Ignominy shocks the moral conscience of man while In the same amendment to Article 62 of the Revised Penal
cruelty is physical. Ignominy refers to the moral effect of Code, paragraphs were added which provide that the
a crime and it pertains to the moral order, whether or not maximum penalty shall be imposed if the offense was
the victim is dead or alive. Cruelty refers to the physical committed by any person who belongs to an organized or
suffering of the victim so he has to be alive. In plain syndicated crime group.
language, ignominy is adding insult to injury. A clear An organized or syndicated crime group means a group of
example is a married woman being raped before the eyes two or more persons collaborating, confederating or
of her husband. mutually helping one another for the purpose of gain in the
commission of a crime.
In a case where the crime is rape and the accused
abused the victims from behind, the Supreme Court held With this provision, the circumstance of an organized or
the crime as aggravated by ignominy. Hence, raping a syndicated crime group having committed the crime has
woman from behind is ignominous because that is not been added in the Code as a special aggravating
the normal form of intercourse, it is something which circumstance. The circumstance being special or qualifying,
offends the morals of the offended woman. This is how it must be alleged in the information and proved during
animals do it. trial. Otherwise, if not alleged in the information, even
though proved during trial, the court cannot validly
In a case of homicide, while the victim after having been consider the circumstances because it is not among those
killed by the offender, the offender shoved the body enumerated under Article 14 of the Code as aggravating. It
inside a canal, ignominy was held aggravating. is noteworthy, however, that there is an organized or
syndicated group even when only two persons
After having been killed, the body was thrown into a pile collaborated, confederated or mutually helped one another
of garbage, ignominy is aggravating. The Supreme Court in the commission of a crime, which acts are inherent in a
held that it added shame to the natural effects of the conspiracy. Therefore, where conspiracy in the commission
crime. of a crime is alleged in the information, the allegation may
be considered as procedurally sufficient to warrant
Cruelty and ignominy are circumstances brought about receiving of evidence on the matter during trial and
which are not necessary in the commission of the crime. consequently, the said special aggravating circumstance
may be appreciated if proven.
Illustration:
Use of Dangerous Drugs
A and B are enemies. A upon seeing B pulled out a knife
and stabbed B 60 times. Will the fact be considered as an
Under the Dangerous Drugs Act of 2002 (Section 25),
aggravating circumstance of cruelty? No, there is cruelty
notwithstanding the provisions of any law to the contrary,
only when there are evidence that the offender inflicted
a positive finding for the use of dangerous drugs shall be a
the stab wounds while enjoying or delighting seeing the
qualifying aggravating circumstance in the commission of a
victim in pain. For cruelty to exist as an aggravating
crime by an offender, and the application of the penalty
circumstance, there must be evidence showing that the
provided for in the Revised Penal Code shall be applicable.
offender inflicted the alleged cruel wounds slowly and
gradually and that he is delighted in seeing the victim
Alternative circumstances
suffer in pain. In the absence of evidence to this effect,
there is no cruelty. Sixty stab wounds do not ipso facto
Four alternative circumstances
make them aggravating circumstances of cruelty. The
crime is murder if 60 wounds were inflicted gradually;
1. Relationship;
absence of this evidence means the crime committed was
2. Intoxication;
only homicide.
3. Degree of instruction; and
4. Education
Cruelty is aggravating in rape where the offender tied the
victim to a bed and burnt her face with a lighted cigarette Use only the term alternative circumstance for as long as
while raping her laughing all the way. (People vs. the particular circumstance is not involved in any case or
Lucas, 181 SCRA 315) problem. The moment it is given in a problem, do not use
alternative circumstance, refer to it as aggravating or
Unlawful entry mitigating depending on whether the same is considered
Unlawful entry is inherent in the crime of robbery with as such or the other. If relationship is aggravating, refer
force upon things but aggravating in the crime of robbery to it as aggravating. If mitigating, then refer to it as such.
with violence against or intimidation of persons.
 42

Except for the circumstance of intoxication, the other the offender which shall be the basis of the mitigating
circumstances in Article 15 may not be taken into circumstance.
account at all when the circumstance has no bearing on
the crime committed. So the court will not consider this
Illustration:
as aggravating or mitigating simply because the
circumstance has no relevance to the crime that was
In a case, there were two laborers who were the best of
committed.
friends. Since it was payday, they decided to have some
Do not think that because the article says that these good time and ordered beer. After drinking two cases of
circumstances are mitigating or aggravating, that if the beer they became more talkative until they engaged in an
circumstance is present, the court will have to take it as argument. One pulled out a knife and stabbed the other.
mitigating, if not mitigating, aggravating. That is wrong. When arraigned, he invoked intoxication as a mitigating
It is only the circumstance of intoxication which if not circumstance.
mitigating, is automatically aggravating. But the other
Intoxication does not simply mean that the offender has
circumstances, even if they are present, but if they do
partaken of so much alcoholic beverages. The intoxication
not influence the crime, the court will not consider it at
in law requires that because of the quality of the alcoholic
all. Relationship may not be considered at all, especially
drink taken, the offender had practically lost self control.
if it is not inherent in the commission of the crime.
So although the offender may have partaken of two cases
Degree of instruction also will not be considered if the
of beer, but after stabbing the victim he hailed a tricycle
crime is something which does not require an educated
and even instructed the driver to the place where he is
person to understand.
sleeping and the tricycle could not reach his house and so
Relationship he has to alight and walk to his house, then there is no
diminished self control. The Supreme Court did not
Relationship is not simply mitigating or aggravating.
acknowledge the mitigating circumstance because of the
There are specific circumstances where relationship is
number of wounds inflicted upon the victim. There were 11
exempting. Among such circumstances are:
stab wounds and this, the Supreme Court said, is
1. In the case of an accessory who is related to the incompatible with the idea that the offender is already
principal within the relationship prescribed in Article suffering from diminished self control. On the contrary, the
20; indication is that the offender gained strength out of the
2. Also in Article 247, a spouse does not incur criminal drinks he had taken. It is not the quantity of drink that will
liability for a crime of less serious physical injuries or determine whether the offender can legally invoke
serious physical injuries if this was inflicted after intoxication. The conduct of the offender, the manner of
having surprised the offended spouse or paramour or committing the crime, his behavior after committing the
mistress committing actual sexual intercourse. crime must show the behavior of a man who has already
3. Those commonly given in Article 332 when the crime lost control of himself. Otherwise, intoxication cannot
of theft, malicious mischief and swindling or estafa. legally be considered.
There is no criminal liability but only civil liability if
the offender is related to the offended party as
Degree of instruction and education
spouse, ascendant, or descendant or if the offender
is a brother or sister or brother-in-law or sister-in- These are two distinct circumstances. One may not have
law of the offended party and they are living any degree of instruction but is nevertheless educated.
together. Exempting circumstance is the Example: A has been living with professionals for
relationship. This is an absolutory cause.
sometime. She may just be a maid in the house with no
Sometimes, relationship is a qualifying and not only a
degree of instruction but she may still be educated.
generic aggravating circumstance. In the crime of
qualified seduction, the offended woman must be a virgin It may happen also that the offender grew up in a family of
and less than 18 years old. But if the offender is a professionals, only he is the black sheep because he did
brother of the offended woman or an ascendant of the not want to go to school. But it does not follow that he is
offended woman, regardless of whether the woman is of bereft of education.
bad reputation, even if the woman is 60 years old or
more, crime is qualified seduction. In such a case, If the offender, who did not go higher than Grade 3 was
relationship is qualifying. involved in a felony, was invoking lack of degree of
Intoxication education, would this be considered as a mitigating
circumstance?. The Supreme Court held that although he
This circumstance is ipso facto mitigating, so that if the did not receive schooling, yet it cannot be said that he
prosecution wants to deny the offender the benefit of this lacks education because he came from a family of
mitigation, they should prove that it is habitual and that professionals. So he understands what is right or wrong.
it is intentional. The moment it is shown to be habitual
or intentional to the commission of the crime, the same The fact that the offender did not have schooling and is
will immediately aggravating, regardless of the crime illiterate does not mitigate his liability if the crime
committed. committed is one which he inherently understands as
wrong, such as parricide. If a child would kill his or her
parent, illiteracy will not mitigate because the low degree
Intoxication to be considered mitigating, requires that the of instruction has no bearing on the crime.
offender has reached that degree of intoxication where
he has no control of himself anymore. The idea is the In the same manner, the offender may be a lawyer who
offender, because of the intoxication is already acting committed rape. The fact that he has knowledge of the law
under diminished self-control. This is the rationale why will not aggravate his liability, because such knowledge has
intoxication is mitigating. So if this reason is not nothing to do with the commission of the crime. But if he
present, intoxication will not be considered mitigating. committed falsification and he used his special knowledge
So the mere fact that the offender has taken one or more as a lawyer, then such will serve to aggravate his criminal
cases of beer of itself does not warrant a conclusion that liability.
intoxication is mitigating. There must be an indication
that because of the alcoholic intake of the offender, he is
suffering from diminished self-control. There is
diminished voluntariness insofar as his intelligence or PERSONS WHO ARE CRIMINALLY LIABLE
freedom of action is concerned. It is not the quantity of
alcoholic drink. Rather it is the effect of the alcohol upon
 43

Under the Revised Penal Code, when more than one

person participated in the commission of the crime, the The focus is not just on participation but on the importance
law looks into their participation because in punishing of participation in committing the crime.
offenders, the Revised Penal Code classifies them as:
In the first situation, the facts indicate that if the fellow
(1) principal;
who held the legs of the victim and spread them did not do
(2) accomplice; or so, the offender on top could hardly penetrate because the
(3) accessory. woman was strong enough to move or resist. In the
second situation, the son was much bigger than the
This classification is true only under the Revised Penal woman, so considering the strength of the son and the
Code and is not applied under special laws, because the victim, penetration is possible even without the assistance
penalties under the latter are never graduated. Do not of the father. The son was a robust farmer and the victim
use the term principal when the crime committed is a was undernourished. The act of the father in holding the
violation of special law (use the term offender). Also, legs merely facilitated the penetration, but even without it,
classify offenders only when more than one took part in the son would have succeeded in what he wanted to do.
the commission of the crime to determine the proper The basis is the importance of the cooperation to the
penalty to be imposed. So, if only one person committed consummation of the crime. If the crime could hardly be
a crime, do not say principal. Use the offenders, committed without such cooperation, then such
culprits, or the accused. cooperation would bring about a principal. But if the
cooperation merely facilitated or hastened the
When a problem is encountered where there are several consummation of the crime, this would make the
participants in the crime, the first thing to find out is if cooperator merely an accomplice.
there is a conspiracy. If there is, as a general rule, the
criminal liability of all will be the same, because the act In a case, the offender was running after the victim with a
of one is the act of all. knife. Another fellow came and blocked the way of the
victim and as a result, the one chasing caught up with the
However, if the participation of one is so insignificant, victim and stabbed the latter at the back. It was held that
such that even without his cooperation, the crime would the fellow who blocked the victims way is a principal by
be committed just as well, then notwithstanding the indispensable cooperation because if he did not block the
existence of a conspiracy, such offender will be regarded way, the offender could not have caught up with the latter.
only as an accomplice. The reason for this ruling is that
the law favors a milder form of criminal liability if the act
In another case, A was mauling B. C, a friend of B tried to
of the participant does not demonstrate a clear criminal
approach but D stopped C so that A was able to
perversity. continuously maul B. The liability of D is as an accomplice.
As to the liability of the participants in a felony, the Code Obviously, he did not cooperate in the mauling, he only
takes into consideration whether the felony committed is stopped C from rescuing B in the hands of A.
grave, less grave, or light.
In case of doubt, favor the lesser penalty or liability. Apply
When the felony is grave, or less grave, all participants the doctrine of pro reo.
are criminally liable.
Principal by inducement
But where the felony is only light, only the principal and
the accomplice are liable. The accessory is not. Concept of inducementone strong enough that the
person induced could not resist. This is tantamount to an
But even the principal and accomplice will not be liable if irresistible force compelling the person induced to carry out
the felony committed is only light and the same is not the crime. Ill-advised language is not enough unless he
consummated unless such felony is against persons or who made such remark or advice is a co-conspirator in the
property. If they are not and the same is not crime committed.
consummated, even the principal and the accomplice are While in the course of a quarrel, a person shouted to A,
not liable.
Kill him! Kill him! A killed the other person. Is the person
who shouted criminally liable? Is that inducement? No. The
Therefore, it is only when the light felony is against
shouting must be an irresistible force for the one shouting
persons or property that criminal liability attaches to the
to be liable.
principal or accomplice, even though the felony is only
There was a quarrel between two families. One of the sons
attempted or frustrated, but accessories are not liable for
of family A came out with a shotgun. His mother then
light felonies.
shouted, Shoot! He shot and killed someone. Is the
mother liable? No.
Principal by indispensable cooperation
distinguished from an accomplice Examples of inducement:

It is not just a matter of cooperation, it is more of I will give you a large amount of money
whether the crime could have been hardly committed. It
is not that the crime would not be committed because if I will not marry you if you do not kill B
that is what you would imply, it becomes an ingredient of
the crime and that is not what the law contemplates.
In People v. Balderrama, Ernesto shouted to his younger
In the case of rape, where three men were accused, one brother Oscar, Birahin mo na, birahin mo na! Oscar
was on top of the woman, one held the hands, and one stabbed the victim. It was held that there was no
held the legs, the Supreme Court held that all conspiracy. Joint or simultaneous action per se is not
participants are principals. Those who held the legs and indicia of conspiracy without showing of common design.
arms are principals by indispensable cooperation. Oscar has no rancor with the victim for him to kill the
latter. Considering that Ernesto had great moral
The accused are father and son. The father told his son ascendancy and influence over Oscar, being much older
that the only way to convince the victim to marry him is (35 years old), than the latter, who was 18 years old, and
to resort to rape. So when the opportunity came, the it was Ernesto who provided his allowance, clothing, as
young man grabbed the woman, threw her on the ground well as food and shelter, Ernesto is principal by
and placed himself on top of her while the father held inducement.
both legs of the woman and spread them. The Supreme
Court held that the father is liable only as an accomplice.
 44

In People v. Agapinay, 188 SCRA 812, the one who 2 of Article 19 of the Code. Mere possession of any article
uttered kill him, we will bury him. while the felonious of value which has been the subject of robbery or theft
aggression was taking place cannot be held liable as brings about the presumption of fencing.
principal by inducement. Utterance was said in the
excitement of the hour, not a command to be obeyed. Presidential Decree No. 1612 has, therefore, modified
Article 19 of the Revised Penal Code.
In People v. Madall, 188 SCRA 69, the son was
mauled. The family was not in good terms with their Question and Answer
neighbors. The father challenged everybody and when
the neighbors approached, he went home to get a rifle. 1. May one who profited out of the proceeds of estafa
The shouts of his wife here comes another, shoot him or malversation be prosecuted under the Anti-Fencing
cannot make the wife a principal by inducement. It is not Law?
the determining cause of the crime in the absence of
proof that the words had great influence over the No. There is only a fence when the crime is theft or
husband. Neither is the wifes act of beaming the victim robbery. If the crime is embezzlement or estafa, he is still
with a flashlight indispensable to the killing. She assisted an accessory to the crime of estafa, not a fence.
her husband in taking good aim, but such assistance
merely facilitated the felonious act of shooting. 2. If principal committed robbery by snatching a
Considering that it was not so dark and the husband wristwatch and gave it to his wife to sell, is the wife
could have accomplished the deed without his wifes help, criminally liable? Can she be prosecuted as an accessory
and considering further that doubts must be resolved in and as a fence?
favor of the accused, the liability of the wife is only that
of an accomplice. The liability of the wife is based on her assisting the
principal profit and that act is punishable as fencing. She
will no longer be liable as an accessory to the crime of
Accessories robbery.

Two situations where accessories are not criminally

liable: In both laws, PD 1612 and the Revised Penal Code, the
same act is the basis of liability and you cannot punish a
1. When the felony committed is a light felony person twice for the same act as that would go against the
2. When the accessory is related to the principal as double jeopardy rule.
spouse, or as an ascendant, or descendant, or as
brother or sister whether legitimate, natural or Acquiring the effects of piracy or brigandage
adopted or where the accessory is a relative by
affinity within the same degree, unless the accessory It is relevant to consider in connection with the criminal
himself profited from the effects or proceeds of the liability of accessories under the Revised Penal Code, the
crime or assisted the offender to profit therefrom. liability of persons acquiring property subject of piracy or
brigandage.
One cannot be an accessory unless he knew of the
commission of the crime. One must not have participated
in the commission of the crime. The accessory comes into The act of knowingly acquiring or receiving property which
the picture when the crime is already consummated. is the effect of the proceeds of a crime generally brings
Anyone who participated before the consummation of the about criminal liability of an accessory under Article 19,
crime is either a principal or an accomplice. He cannot be paragraph 1 of the Revised Penal Code. But if the crime
an accessory. was piracy or brigandage under Presidential Decree 532
(Anti-piracy and Anti-Highway Robbery Law of 1974), said
When an offender has already involved himself as a act constitutes the crime of abetting piracy or abetting
principal or accomplice, he cannot be an accessory any brigandage as the case may be, although the penalty is
further even though he performs acts pertaining to an that for an accomplice, not just an accessory, to the piracy
accessory. or brigandage. To this end, Section 4 of PD 532 provides
that any person who knowingly and in any manner
Accessory as a fence acquires or receives property taken by such pirates or
brigands or in any manner derives benefit therefrom shall
The Revised Penal Code defines what manners be considered as an accomplice of the principal offenders
in accordance with the Rules prescribed by the Revised
of participation shall render an offender liable as an Penal Code.
accessory. Among the enumeration is by profiting
themselves or by assisting the offender to profit by the It shall be presumed that any person who does any acts
effects of the crime. So the accessory shall be liable for provided in this Section has performed them knowingly,
the same felony committed by the principal. However, unless the contrary is proven.
where the crime committed by the principal was robbery
or theft, such participation of an accessory brings about Although Republic Act 7659, in amending Article 122 of the
criminal liability under Presidential Decree No. 1612 Revised Penal Code, incorporated therein the crime of
(Anti-Fencing Law). One who knowingly profits or assists piracy in Philippine territorial waters and thus
the principal to profit by the effects of robbery or theft is correspondingly superseding PD 532, section 4 of said
not just an accessory to the crime, but principally liable Decree, which punishes said acts as a crime of abetting
for fencing under PD 1612. piracy or brigandage, still stands as it has not been
repealed nor modified, and is not inconsistent with any
Any person who, with intent to gain, acquires and/or sell, provision of RA 7659.
possesses, keeps, or in any manner deals with any article
of value which he knows or should be known to him to be
the proceeds of robbery or theft is considered a fence Destroying the corpus delicti
and incurs criminal liability for fencing under said
decree. The penalty is higher than that of a mere When the crime is robbery or theft, with respect to the
accessory to the crime of robbery or theft. second involvement of an accessory, do not overlook the
purpose which must be to prevent discovery of the crime.
Likewise, the participation of one who conceals the The corpus delicti is not the body of the person who is
effects pf robbery or theft gives rise to criminal liability killed. Even if the corpse is not recovered, as long as that
for fencing, not simply of an accessory under paragraph
 45

killing is established beyond reasonable doubt, criminal principal. Under PD 1829, a private individual who assists
liability will arise and if there is someone who destroys in the escape of an offender of any crime is no longer an
the corpus delicti to prevent discovery, he becomes an accessory. He is simply an offender without regard to the
accessory. crime of the person assisted to escape. So in the problem,
the aunt is not criminally liable under the Revised Penal
Harboring or concealing an offender Code because the crime is kidnapping, but under PD 1829.

In the third form or manner of becoming an accessory, Whether the accomplice and the accessory may be tried
take note that the law distinguishes between a public and convicted even before the principal is found guilty
officer harboring, concealing, or assisting the principal to
escape and a private citizen or civilian harboring, There is an earlier Supreme Court ruling that the accessory
concealing, or assisting the principal to escape. and accomplice must be charged together with the
principal and that if the latter is acquitted, the accomplice
In the case of a public officer, the crime committed by and accessory shall also not be criminally liable, unless the
the principal is immaterial. Such officer becomes an acquittal is based on a defense which is personal only to
accessory by the mere fact that he helped the principal to the principal.
escape by harboring or concealing, making use of his
public function and thus abusing the same.
Although this ruling may be correct if the facts charged do
not make the principal criminally liable at all because there
On the other hand, in case of a civilian, the mere fact
that he harbored, concealed, or assisted the principal to is no crime committed, this is not true in all cases. It is not
escape does not ipso facto make him an accessory. The always true that the accomplice and accessory cannot be
law requires that the principal must have committed the criminally liable without the principal being first convicted.
crime of treason, parricide, murder or attempt on the life Under Rule 110 of the Revised Rules on Criminal
of the Chief Executive. If this is not the crime, the civilian Procedure, it is required that all those involved in the
does not become an accessory unless the principal is commission of the crime must be included in the
known to be habitually guilty of some other crime. Even information that may be filed. And in filing an information
against the person involved in the commission of a crime,
if the crime committed by the principal is treason, or
the law does not distinguish between principal, accomplice,
murder, or parricide, or attempt on the life of the Chief
and accessory. All will be accused and whether a certain
Executive, the accessory cannot be held criminally liable
accused will be principal, accomplice, or accessory will
without the principal being found guilty of any such
depend on what the evidence would show. In other words,
crime. Otherwise, the effect would be that the accessory
merely harbored or assisted in the escape of an innocent the liability of the accused will depend on the quantum of
man, if the principal is acquitted of the charges. evidence adduced by the prosecution against the particular
accused. But the prosecution must initiate the proceedings
Illustration: against the principal.

Even if the principal is convicted, if the evidence presented

Crime committed is kidnapping for ransom. Principal was against a supposed accomplice or accessory does not meet
being chased by soldiers. His aunt hid him in the ceiling the required proof beyond reasonable doubt, then said
of her house and she told the soldiers that her nephew accused will be acquitted. So the criminal liability of an
had never visited her. When the soldiers left, the aunt accomplice or accessory does not depend on the criminal
even gave money to her nephew for the latter to go to liability of the principal but depends on the quantum of
the province. Is the aunt criminally liable? No. Article 20 evidence. But if the evidence shows that the act done does
does not include an aunt. However, this is not the not constitute a crime and the principal is acquitted, then
reason. The principal must have committed either the supposed accomplice and accessory should also be
treason, parricide, murder, or attempt on the life of the acquitted. If there is no crime, then there is no criminal
Chief Executive, or that the principal is known to be liability, whether principal, accomplice, or accessory.
habitually guilty of some other crime, for a person who is
not a public officer and who assists an offender to escape Under paragraph 3, Article 19, take note that before the
or otherwise harbors, or conceals such offender, to be civilian can be held liable as an accessory in assisting the
criminally liable. In this case, the crime committed was escape of an offender of the particular crimes specified, the
kidnapping. principal must first be found guilty of the crime charged,
either treason, parricide, murder, or attempt on the life of
the Chief Executive. If the principal is acquitted, the civilian
The crime committed by the principal is determinative of
who harbored, concealed, or assisted in the escape did not
the liability of the accessory who harbors or conceals,
violate Article 19. That is as far as the Revised Penal Code
knowing that the crime is committed. If the person is a
is concerned. But not PD 1829. This special law does not
public officer, the nature of the crime is immaterial. What
require that there be prior conviction. It is a malum
is material is that he used his public function is assisting
prohibitum, no need for guilt, or knowledge of the crime.
the escape.
In Taer v. CA, accused received from his co-accused two
Although under paragraph 3 of Article 19, the law
stolen male carabaos. Conspiracy was not proven. Taer
specifies the crimes that should be committed in case a
was held liable as an accessory in the crime of cattle-
civilian aids in the escape, there is a special law which
rustling under PD 533. [Taer should have been liable for
punishes the same act but does not specify a particular
violation of the Anti-Fencing Law since castle-rustling is a
crime. Presidential Decree 1829, which took effect on
form of theft or robbery of large cattle, except that he
January 16, 1981, penalizes acts commonly referred to
wasnt charged with fencing.]
as obstructions of justice. This decree penalizes, under
Section 1(c), the act, inter alia, of harboring or
In Enrile v. Amin, a person charged with rebellion should
concealing, or facilitating the escape of any person he not be separately charged under PD 1829. The theory of
knows or has reasonable ground to believe or suspect, absorption must not confine itself to common crimes but
has committed any offense under existing penal laws in also to offenses punished under special laws which are
order to prevent his arrest, prosecution and conviction.
perpetrated in furtherance of the political offense.
Under this law (PD 1829), there is no specification of the
crime to be committed by the offender in order that
PENALTIES
criminal liability be incurred by private persons for
harboring, concealing or facilitating the escape of the Measures of prevention not considered as penalty
offender, and the offender need not even be the
 46

The following are the measures of prevention or safety imprisonment, he is suffering like a convict. That is why
which are not considered penalties under Article 24: the credit is full.

But if the offender did not sign an undertaking, then he will

(1) The arrest and temporary detention of accused
only be subjected to the rules and regulations governing
persons as well as their detention by reason of
detention prisoners. As such, he will only be given 80% or
insanity or imbecility or illness requiring their
4/5 of the period of his preventive detention.
confinement in a hospital.
(2) The commitment of a minor to any of the institutions From this provision, one can see that the detention of the
mentioned in Art. 80 for the purposes specified offender may subject him only to the treatment applicable
therein. to convicts, but since he is not convicted yet, while he is
(3) Suspension from the employment or public office under preventive imprisonment, he cannot be subjected to
during the trial or in order to institute proceedings. the treatment applicable to convicts unless he signs and
(4) Fines and other corrective measures which, in the agrees to be subjected to such disciplinary measures
exercise of their administrative disciplinary powers, applicable to convicts.
superior officials may impose upon their
subordinates. Detention prisoner has more freedom within the detention
(5) Deprivation of rights and reparations which the civil institution rather than those already convicted. The
laws may establish in penal form. convicted prisoner suffers more restraints and hardship
than detention prisoners.
Why does the Revised Penal Code specify that such
detention shall not be a penalty but merely a preventive Under what circumstances may a detention prisoner be
measure? released, even though the proceedings against him are not
yet terminated?
This article gives justification for detaining the accused.
Otherwise, the detention would violate the constitutional Article 29 was amended by a Batas Pambansa that took
provision that no person shall be deprived of life, liberty effect on September 20, 1980. This amendment is found in
and property without due process of law and also, the the Rules of Court, under the rules on bail in Rule 114.
constitutional right of an accused to be presumed
innocent until the contrary is proved. In the amendment, the law does not speak of credit.
Whether the person is entitled to credit is immaterial. The
Repeal of Article 80 discharge of the offender from preventive imprisonment or
detention is predicated on the fact that even if he would be
When may a minor be committed to a reformatory? found guilty of the crime charged, he has practically served
the sentence already, because he has been detained for a
period already equal if not greater than the maximum
If the minor is between 9-15 years old and acted with penalty that would be possibly imposed on him if found
discernment, sentence must first be suspended under the guilty.
following conditions:
(1) Crime committed is not punishable by death or If the crime committed is punishable only by destierro, the
reclusion perpetua; most the offender may be held under preventive
(2) He is availing of the benefit of suspension for the first imprisonment is 30 days, and whether or not the
time; proceedings are terminated, such detention prisoner shall
(3) He must still be a minor at the time of promulgation be discharged.
of the sentence.
Understand the amendment made to Article 29. This
Correlating Article 24 with Article 29 amendment has been incorporated under Rule 114
precisely to do away with arbitrary detention.
Although under Article 24, the detention of a person
accused of a crime while the case against him is being Proper petition for habeas corpus must be filed to
tried does not amount to a penalty, yet the law considers challenge the legality of the detention of the prisoner.
this as part of imprisonment and generally deductible
from the sentence. Question and Answer
When will this credit apply? If the penalty imposed
consists of a deprivation of liberty. Not all who have
undergone preventive imprisonment shall be given credit.
If the offender has already been released, what is the use
of continuing the proceedings?
Under Article 24, preventive imprisonment of an accused
who is not yet convicted is not a penalty. Yet Article 29
The proceedings will determine whether or not the accused
provides that if the accused is ultimately convicted and
is liable. If he is criminally liable, it follows that he is also
the penalty imposed involves deprivation of liberty, the
civilly liable. The civil liability must be determined. That is
period during which he had undergone preventive
why the trial must go on.
detention will be deducted from the sentence, unless he
is one of those disqualified under the law. DURATION OF PENALTIES

So, if the accused has actually undergone preventive Reclusion Perpetua

imprisonment, but if he has been convicted of two or
more crimes whether or not he is a recidivist, or when he What is the duration of reclusion perpetua?
has been previously summoned but failed to surrender
and so the court has to issue a warrant for his arrest, Do not use Article 27 in answering this question. The
whatever credit he is entitled to shall be forfeited. proper answer would be that reclusion perpetua has no
duration because it is an indivisible penalty and indivisible
If the offender is not disqualified from the credit or penalties have no duration.
deduction provided for in Article 29 of the Revised Penal
Code, then the next thing to determine is whether he Under Article 27, those sentenced to reclusion perpetua
signed an undertaking to abide by the same rules and shall be pardoned after undergoing the penalty for 30
regulations governing convicts. If he signed, then it years, unless such person, by reason of his conduct or
means that while he is suffering from preventive some other serious cause, shall be considered by the Chief
Executive as unworthy of pardon.
 47

The penalties which are both principal and accessory

Under Article 70 (the Three-Fold Rule), the maximum penalties are the following:
period shall in no case exceed 40 years. If the convict
who is to serve several sentences could only be made to (1) Perpetual or temporary absolute disqualification;
serve 40 years, with more reason that one who is (2) Perpetual or temporary special disqualification.
sentenced to a single penalty of reclusion perpetua
should not serve for more than 40 years.
Question and Answer
The duration of 40 years is not a matter of provision of
law; this is only by analogy. There is no provision of the
Revised Penal Code that one sentenced to reclusion 1. If the penalty of suspension is imposed as an
perpetua cannot be held in jail for 40 years and neither is accessory, what is the duration?
there a decision to this effect. Its duration shall be that of the principal penalty.
2. If the penalty of temporary disqualification is
Destierro imposed as a principal penalty, what is the duration?
The duration is six years and one day to 12 years.
What is the duration of destierro?
3. What do we refer to if it is perpetual or temporary
The duration of destierro is from 6 months and 1 year to disqualification?
6 years, which is the same as that of prision correccional We refer to the duration of the disqualification.
and suspension. Destierro is a principal penalty. It is a 4. What do we refer to if it is special or absolute
punishment whereby a convict is banished from a certain disqualification?
place and is prohibited from entering or coming near that We refer to the nature of the disqualification.
place designated in the sentence for not less than 25
kilometers. However, the court cannot extend beyond The classification of principal and accessory is found in
250 kms. If the convict should enter the prohibited Article 25.
places, he commits the crime of evasion of service of
sentence under Article 157. But if the convict himself In classifying the penalties as principal and accessory,
would go further from which he is banished by the court, what is meant by this is that those penalties classified as
there is no evasion of service of sentence because the accessory penalties need not be stated in the sentence.
250km limit is upon the authority of the court in The accessory penalties follow the principal penalty
banishing the convict. imposed for the crime as a matter of course. So in the
imposition of the sentence, the court will specify only the
Under the Revised Penal Code, destierro is the penalty principal penalty but that is not the only penalty which the
imposed in the following situations: offender will suffer. Penalties which the law considers as
accessory to the prescribed penalty are automatically
(1) When a legally married person who had surprised his imposed even though they are not stated in the judgment.
or her spouse in the act of sexual intercourse with As to the particular penalties that follow a particular
another and while in that act or immediately principal penalty, Articles 40 to 45 of the Revised Penal
thereafter should kill or inflict serious physical Code shall govern.
injuries upon the other spouse, and/or the paramour
or mistress. This is found in Article 247. If asked what are the accessory penalties, do not just state
the accessory penalties. State the principal penalty and the
(2) In the crimes of grave threats and/or light threats, corresponding accessory penalties.
when the offender is required to put up a bond for
good behavior but failed or refused to do so under Penalties in which other accessory penalties are inherent:
Article 248, such convict shall be sentenced with
destierro so that he would not be able to carry out (1) Article 40. Deathperpetual absolute disqualification,
his threat. and civil interdiction during 30 years following date of
sentence;
(3) In the crime of concubinage, the penalty prescribed (2) Article 41. Reclusion perpetua and reclusion
for the concubine is destierro under Article 334. temporalcivil interdiction for life or during the period
of the sentence, as the case may be, and perpetual
(4) Where the penalty prescribed by law is arresto absolute disqualification;
mayor, but the offender is entitled to privileged (3) Art. 42. Prision mayortemporary absolute
mitigating circumstances and, lowering the disqualification, perpetual special disqualification from
prescribed penalty by one degree, the penalty the right of suffrage;
becomes destierro. Thus it shall be the one imposed.
(4) Art. 43. Prision correccionalsuspension from public
Civil Interdiction office, from the right to follow a profession or calling,
and perpetual special disqualification from the right of
Civil interdiction is an accessory penalty. Civil interdiction suffrage if the duration of the imprisonment shall
shall deprive the offender during the time of his exceed 18 months;
sentence: (5) Art. 44. Arrestosuspension of the right to hold office
and the right of suffrage during the term of the
(1) The rights of parental authority, or guardianship sentence.
either as to the person or property of any ward;
(2) Marital authority; There are accessory penalties which are true to other
principal penalties. An example is the penalty of civil
(3) The right to manage his property; and interdiction. This is accessory penalty, and, as provided in
(4) The right to dispose of such property by any act or Article 34, a convict sentenced to civil interdiction suffers
any conveyance inter vivos. certain disqualification during the term of the sentence.
One of the disqualifications is that of making conveyance
Can a convict execute a last will and testament? YES. of his property inter vivos.

PRIMARY CLASSIFICATION OF PENALTIES Illustration:

A has been convicted and is serving the penalty of prision
Principal penalties and accessory penalties
mayor. While serving sentence, he executed a deed of sale
over his only parcel of land. A creditor moved to annul the
 48

sale on the ground that the convict is not qualified to designation, there will be no accessory penalties that will
execute a deed of conveyance inter vivos. If you were go with them.
the judge, how would you resolve the move of the
Reclusion perpetua as modified
creditor to annul the sale?
Before the enactment of Republic Act 7659, which made
Civil interdiction is not an accessory penalty in prision amendments to the Revised Penal Code, the penalty of
mayor. The convict can convey his property. reclusion perpetua had no fixed duration. The Revised
Penal Code provides in Article 27 that the convict shall be
pardoned after undergoing the penalty for 30 years, unless
Question and Answer by reason of his conduct or some other serious cause, he is
not deserving of pardon. As amended by Section 21 of RA
7659, the same article now provides that the penalty of
What accessory penalty is common to all principal reclusion perpetua shall be from 20 to 40 years. Because
penalties? of this, speculations arose as to whether it made reclusion
perpetua a divisible penalty.
Confiscation or forfeiture of the instrument of the As we know, when a penalty has a fixed duration, it is said
proceeds of the crime. to be divisible and, in accordance with the provisions of
Articles 65 and 76, should be divided into three equal
Bond to keep the peace portions to form one period of each of the three portions.
One of the principal penalties common to the others is Otherwise, if the penalty has no fixed duration, it is an
bond to keep the peace. There is no crime under the indivisible penalty. The nature of the penalty as divisible or
Revised Penal Code which carries this penalty. indivisible is decisive of the proper penalty to be imposed
under the Revised Penal Code inasmuch as it determines
whether the rules in Article 63 or the rules in Article 64
Bond for good behavior should be observed in fixing the penalty.
Bond for good behavior is prescribed by the Revised
Penal Code for the crimes of grave threats and light Thus, consistent with the rule mentioned, the Supreme
threats under Article 234. You cannot find this penalty in Court, by its First Division, applied Article 65 of the Code in
Article 25 because Article 25 provides for bond to keep imposing the penalty for rape in People v. Conrado
the peace. Remember that no felony shall be punished by Lucas, GR No. 108172-73, May 25, 1994. It divided the
any penalty not prescribed by law prior to its commission time included in the penalty of reclusion perpetua into
pursuant to Article 21. three equal portions composing a period as follows:
Minimum20 years and one day to 26 years and eight
months;
Question and Answer
Medium26 years, eight months and one day to 33 years
and four months;
Is the bond to keep the peace the same as bond for good
Maximum34 years, four months and one day to 40
behavior?
years.
No. The legal effect of each is entirely different. The legal Considering the aggravating circumstance of relationship,
effect of a failure to post a bond to keep the peace is the Court sentenced the accused to imprisonment of 34
imprisonment either for 30 days or 6 months, depending years, four months and one day of reclusion perpetua,
on whether the felony committed is grave or less grave instead of the straight penalty of reclusion perpetua
on the one hand, or it is light only on the other hand. The imposed by the trial court. The appellee seasonably filed a
legal effect of failure to post a bond for good behavior is motion for clarification to correct the duration of the
not imprisonment but destierro under Article 284. sentence, because instead of beginning with 33 years, four
months and one day, it began with 34 years, four months
Divisible and Indivisible Penalties
and one day. The issue of whether the amendment of
When we talk of period, it is implying that the penalty is Article 27 made reclusion perpetua a divisible penalty was
divisible. raised, and because the issue is one of first impression and
momentous importance, the First Division referred the
If, after being given a problem, you were asked to state motion to the Court en banc.
the period in which the penalty of reclusion perpetua is to
be imposed, remember that when the penalty is In a resolution promulgated on January 5, 1995, the
indivisible, there is no period. Do not talk of period, Supreme Court en banc held that reclusion perpetua shall
because when you talk of period, you are implying that remain as an indivisible penalty. To this end, the resolution
the penalty is divisible since the period referred to is the states:
minimum, medium and maximum. If it is indivisible,
there is no such thing as a minimum, medium, or
maximum period. After deliberating on the motion and re-
examining the legislation history of RA 7659,
The capital punishment
the Court concludes that although Section 17
You were asked to state whether you are in favor or of RA 7659 has fixed the duration of
against capital punishment. Understand that you are not Reclusion Perpetua from twenty (20) years
taking an examination in Theology. Explain the issue on and one (1) day to forty (40) years, there
the basis of social utility of the penalty. Is it beneficial in was no clear legislative intent to alter its
deterring crimes or not? This should be the premise of original classification as an indivisible penalty.
your reasoning. It shall then remain as an indivisible penalty.
Designation of penalty
Since the principal penalties carry with them certain Verily, if reclusion perpetua was classified as
accessory penalties, the courts are not at liberty to use a divisible penalty, then Article 63 of the
any designation of the principal penalty. So it was held Revised Penal Code would lose its reason and
that when the penalty should be reclusion perpetua, it is basis of existence. To illustrate, the first
erroneous for the court to use life imprisonment. In paragraph of Section 20 of the amended RA
other words, the courts are not correct when they No. 6425 provides for the penalty of reclusion
deviate from the technical designation of the principal perpetua to death whenever the dangerous
penalty, because the moment they deviate from this drugs involved are of any of the quantities
 49

stated herein. If Article 63 of the Code were directs that the manner of putting the convict to death
no longer applicable because reclusion shall be by lethal injection (formerly electrocution then
perpetua is supposed to be a divisible gas poisoning), and the sentence shall be carried out
penalty, then there would be no statutory not earlier than one (1) year but not later than
rules for determining when either reclusion eighteen (18) months after the finality of judgment.
perpetua or death should be the imposable
penalty. In fine, there would be no occasion (3) The original provision of Article 83, anent the
for imposing reclusion perpetua as the suspension of the execution of the death penalty for
penalty in drug cases, regardless of the three years if the convict was a woman, has been
attendant modifying circumstances. deleted and instead, limits such suspension to last
while the woman was pregnant and within one year
Now then, if Congress had intended to after delivery.
reclassify reclusion perpetua as divisible
penalty, then it should have amended Question and Answer
Article 63 and Article 76 of the Revised
Penal Code. The latter is the law on what
are considered divisible penalties under the The death penalty cannot be inflicted under which of the
Code and what should be the duration of following circumstances?
the periods thereof. There are, as well, 1. When the guilty person in at least 18 years of age
other provisions of the RPC involving at the time of the commission of the crime.
reclusion perpetua, such as Art 41 on the 2. When the guilty person is more than 70 years of
accessory penalties thereof and paragraphs age.
2 and 3 of Art 61, which has not been 3. When, upon appeal or automatic review by the
touched by the corresponding amendment. Supreme Court, the required majority for the
imposition of the death penalty is not obtained.
Ultimately, the question arises: What then may be the 4. When the person is convicted of a capital crime
reason for the amendment fixing the duration of but before executin becomes insane.
reclusion perpetua? This question was answered in the 5. When the accused is a woman while she is
same case of People v. Lucas by quoting pertinent pregnant or within one year after delivery.
portion of the decision in People v. Reyes, 212 SCRA Explain your answer and choice briefly.
402, thus:
A (Suggested): Understanding the word inflicted to mean
The imputed duration of thirty (30) years the imposition of death penalty, not its execution, the
for reclusion perpetua, thereof, is only to circumstance in which the death penalty cannot be inflicted
serve as the basis for determining the is no.2: when the guilty person is more than 70 years of
convicts eligibility for pardon or the age (Art. 47, Revised Penal Code). Instead, the penalty
application of the three-fold rule in the shall be commuted to reclusion perpetua, with the
service of penalties. Since, however, in all accessory penalties provided in Article 40, RPC.
the graduated scales of penalties in the
Code, as set out in Article 25, 70 and 21, In circumstance no.1 when the guilty person is at least 18
reclusion perpetua is the penalty years of age at the time of the commission of the crime,
immediately next higher to reclusion the death penalty can be imposed since the offender is
temporal, it follows by necessary implication already of legal age when he committed the crime.
that the minimum of reclusion perpetua is
twenty (20) years and one (1) day with a Circumstance no. 3 no longer operates, considering the
maximum duration thereafter to last for the decision of the Supreme Court in People v. Efren Mateo
rest of the convicts natural life, although (G.R. No. 147678-87, July 7, 2004) providing an
pursuant to Article 70 , it appears that the intermediate review for such cases where the penalty
maximum period for the service of the imposed us death, reclusin perpetua or life imprisonment
penalties shall not exceed forty (40) years. before they are elevated to the Supreme Court.
It would be legally absurd and violative of
the scales of penalties in the Code to reckon In circumstances no. 4 & 5, the death penalty can be
the minimum of Reclusion Perpetua at thirty imposed if prescribed by the law violated although its
(30) years since there would thereby be a execution shall be suspended when the convict becomes
resultant lacuna whenever the penalty insane before it could be executed and while he is insane.
exceeds the maximum twenty (20) years of
Reclusion Temporal but is less than thirty Likewise, the death penalty can be imposed upon a woman
(30) years. but its execution shall be suspended during her pregnancy
and for one year after her delivery.
Innovations in the imposition of the death penalty
A (Alternative): The word INFLICTED is found only in Art.
Aside from restoring the death penalty for certain 83 to the effect that the death penalty may not be
heinous crimes, Republic Act No. 7659 and Republic Act INFLICTED upon a pregnant woman, such penalty is to
No. 8177 made innovations on the provisions of RPC be suspended.
regarding the imposition of the death penalty:
If INFLICTED is to be construed as EXECUTION, then
(1) Article 47 (amended by R.A. No. 7659) has been No.5 is the choice.
reworded to expressly include among the instances
where the death penalty shall not be imposed, the Subsidiary penalty
case of an offender who is below 18 years old at the
time of the commission of the offense. But even Is subsidiary penalty an accessory penalty?
without this amendment, the death penalty may not No.
be meted out on an offender who was below 18
years of age at the time of the commission of the If the convict does not want to pay a fine and has so
crime because Article 68 lowers the imposable many friends and wants to prolong his stay in jail, can he
penalty upon such offenders by at least one degree stay there and not pay the fine? No.
than that prescribed for the crime.
After undergoing subsidiary penalty and convict is already
(2) In the matter of executing the death penalty, Article
released from the jail and his financial circumstances
81 has been amended by R.A. No. 81 and, thus,
 50

improve, can he made to pay? Yes, for the full amount not be higher than six years or prision correccional.
with deduction. Otherwise, there is no subsidiary penalty.

When is subsidiary penalty applied

Article 39 deals with subsidiary penalty. There are two
situations there: (1) If the subsidiary penalty prescribed for the non-
payment of the which goes with the principal penalty,
(1) When there is a penalty of imprisonment or any the maximum duration of the subsidiary penalty is one
other principal penalty and it carries with it a fine; year, so there is no subsidiary that goes beyond one
and year. But this will only be true if the one year period is
(2) When penalty is only a fine. higher than 1/3 of the principal penalty, the convict
cannot be made to undergo subsidiary penalty more
Therefore, there shall be no subsidiary penalty for the than 1/3 of the duration of the principal penalty and in
non-payment of damages to the offended party. no case will it be more than 1 year get 1/3 of the
principal penalty whichever is lower.
This subsidiary penalty is one of important matter under (2) If the subsidiary penalty is to be imposed for non
the title of penalty. A subsidiary penalty in not an payment of fine and the principal penalty imposed be
accessory penalty. Since it is not an accessory penalty, it fine only, which is a single penalty, that means it does
must be expressly stated in the sentence, but the not go with another principal penalty, the most that
sentence does not specify the period of subsidiary the convict will be required to undergo subsidiary
penalty because it will only be known if the convict imprisonment is six months, if the felony committed is
cannot pay the fine. The sentence will merely provide grave or less grave, otherwise, if the felony committed
that in case of non-payment of fine, the convict shall be is slight, the maximum duration of the subsidiary
required to serve subsidiary penalty. It will then be the penalty is only 15 days.
prison authority who will compute this.
There are some who use the term subsidiary
So even if subsidiary penalty is proper in a case, if the imprisonment. The term is wrong because the penalty is
judge failed to state in the sentence that the convict shall not only served by imprisonment. The subsidiary penalty
be required to suffer subsidiary penalty in case of follows the nature of the principal penalty. If the principal
insolvency to pay the fine, that convict cannot be penalty is destierro, this being a divisible penalty, and a
required to suffer the accessory penalty. This particular penalty with a fixed duration, the non-payment of the fine
legal point is a bar problem. Therefore, the judgment of will bring about subsidiary penalty. This being a restriction
the court must state this. If the judgment is silent, he of liberty with a fixed duration under Article 39 for the
cannot suffer any subsidiary penalty. nonpayment of fine that goes with the destierro, the
convict will be required to undergo subsidiary penalty and
The subsidiary penalty is not an accessory penalty that it will also be in the form of destierro.
follows the principal penalty as a matter of course. It is
not within the control of the convict to pay the fine or not Illustration:
and once the sentence becomes final and executory and
a writ of execution is issued to collect the fine, if the A convict was sentenced to suspension and fine. This is a
convict has a property to levy upon, the same shall penalty where a public officer anticipates public duties, he
answer for the fine, whether he likes it or not. It must be entered into the performance of public office even before
that the convict is insolvent to pay the fine. That means he has complied with the required to undergo subsidiary
that the writ of execution issued against the property of penalty?
the convict, if any, is returned unsatisfied.
Yes, because the penalty of suspension has a fixed
In People v. Subido, it was held that the convict cannot duration. Under Article 27, suspension and destierro have
choose not to serve, or not to pay the fine and instead the same duration as prision correccional. So the duration
serve the subsidiary penalty. A subsidiary penalty will does not exceed six years. Since it is a penalty with a
only be served if the sheriff should return the execution fixed duration under Article 39, when there is a subsidiary
for the fine on the property of the convict and does not penalty, such shall be 1/3 of the period of suspension
have the properties to satisfy the writ. which in no case beyond one year. But the subsidiary
penalty will be served not by imprisonment but by
continued suspension.
Question and Answer
If the penalty is public censure and fine even if the public
The penalty imposed by the judge is fine only. The sheriff censure is a light penalty, the convict cannot be required
then tried to levy the property of the defendant after it to pay the fine for subsidiary penalty for the non-p0ayment
has become final and executory, but it was returned of the fine because public censure is a penalty that has no
unsatisfied. The court then issued an order for said fixed duration.
convict to suffer the subsidiary penalty. The convict was
detained, for which reason he filed a petition for habeas Do not consider the totality of the imprisonment the
corpus contending that his detention is illegal. Will the convict is sentenced to but consider the totality or the
petition prosper? duration of the imprisonment that the convict will be
required to serve under the Three-Fold Rule. If the totality
Yes. The judgment became final without statement as to of the imprisonment under this rule does not exceed six
subsidiary penalty, so that even if the convict has no years, then, even if the totality of all the sentences without
money or property to satisfy the fine, he cannot suffer applying the Three-Fold Rule will go beyond six years, the
subsidiary penalty because the latter is not an accessory convict shall be required to undergo subsidiary penalty if
and so it must be expressly stated. If the court he could not pay the fine.
overlooked to provide for subsidiary penalty in the
sentence and its attention was later called to that effect, Illustration:
thereafter, it tried to modify the sentence to include
subsidiary penalty after period to appeal had already A collector of NAWASA collected from 50 houses within a
elapsed, the addition of subsidiary penalty will be null certain locality. When he was collecting NAWASA bills, the
and void. This is tantamount to double jeopardy. charges of all these consumers was a minimum of 10. The
collector appropriated the amount collected and so was
If the fine is prescribed with the penalty of imprisonment charged with estafa. He was convicted. Penalty imposed
or any deprivation of liberty, such imprisonment should was arresto mayor and a fine of P200.00 in each count. If
you were the judge, what penalty would you impose? May
 51

the convict be required to undergo subsidiary penalty in the imposable fine on the basis of the financial resources
case he is insolvent to pay the fine? or means of the offender. But if the penalty would be
lowered by degree, there is a privileged mitigating
The Three-Fold Rule should not applied by the court. In circumstance or the felony committed is attempted or
this case of 50 counts of estafa, the penalty imposed was frustrated, provided it is not a light felony against persons
arresto mayor and a fie of P200.00. Arresto mayor + or property, because if it is a light felony and punishable by
P200.00 x 50. Arresto Mayor is six months x 50 = 25 fine, it is not a crime at all unless it is consummated. So,
years. P200.00 x 50 = P10,000.00. Thus, I would if it is attempted or frustrated, do not go one degree lower
impose a penalty of arresto mayor and a fine of P200.00 because it is not punishable unless it is a light felony
multiplied by 50 counts and state further that as a against person or property where the imposable penalty
judge, I am not in the position to apply the Three-Fold will be lowered by one degree or two degrees.
Rule because the Three-Fold Rule is to be given effect
when the convict is already serving sentence in the
penitentiary. It is the prison authority who will apply the Penalty prescribed to a crime is lowered by degrees in the
Three-Fold Rule. As far as the court is concerned, that following cases:
will be the penalty to be imposed.
(1) When the crime is only attempted or frustrated.
For the purposes of subsidiary penalty, apply the Three-
Fold Rule if the penalty is arresto mayor and a fine of If it is frustrated, penalty is one degree lower than that
P200.00 multiplied by 3. This means one year and six prescribed by law.
months only. So, applying the Three-Fold Rule, the
penalty does not go beyond six years. Hence, for the If it is attempted, penalty is two degrees lower than
non-payment of the fine of P10,000.00, the convict shall that prescribed by law.
be required to undergo subsidiary penalty. This is
because the imprisonment that will be served will not go His is so because the penalty prescribed by law for a
beyond six years. It will only be one year and six crime refers to the consummated stage.
months, since in the service of the sentence, the Three-
Fold Rule will apply. (2) When the offender is an accomplice or accessory only

It is clearly provided under Article 39 that if the means of Penalty is one degree lower in the case of an
the convict should improve, even if he has already served accomplice.
subsidiary penalty, he shall still be required to pay the
fine and there is no deduction for that amount which the Penalty is two degrees lower in the case of an
convict has already served by way of subsidiary penalty. accessory.

Articles 63 and 64 This is so because the penalty prescribed by law for a

given crime refers to the consummated stage.
If crime committed is parricide, penalty is reclusion
perpetua. The accused, after committing parricide, (3) When there is a privilege mitigating circumstance in
voluntarily surrendered and pleaded guilty of the crime favor of the offender, it will lower the penalty by one
charged upon arraignment. It was also established that or two degrees than that prescribed by law depending
he was intoxicated, and no aggravating circumstances on what the particular provision of the Revised Penal
were present. What penalty would you impose? Code states.

Reclusion perpetua, because it is an indivisible penalty. (4) When the penalty prescribed for the crime committed
is a divisible penalty and there are two or more
When there are two or more mitigating circumstances ordinary mitigating circumstances and no aggravating
and there is no aggravating circumstance, penalty to be circumstances whatsoever, the penalty next lower in
imposed shall be one degree lower to be imposed in the degree shall be the one imposed.
proper period. Do not apply this when there is one
aggravating circumstance. (5) Whenever the provision of the Revised Penal Code
specifically lowers the penalty by one or two degrees
Illustration: than what is ordinarily prescribed for the crime
committed.
There are about four mitigating circumstances and one
aggravating circumstance. Court offsets the aggravating Penalty commonly imposed by the Revised Penal Code may
circumstance against the mitigating circumstance and be by way of imprisonment or by way of fine or, to a
there still remains three mitigating circumstances. limited extent, by way6 of destierro or disqualification,
Because of that, the judge lowered the penalty by one whether absolute or special.
degree. Is the judge correct?
In the matter of lowering the penalty by degree, the
No. In such a case when there are aggravating reference is Article 71. It is necessary to know the
circumstances, no matter how many mitigating chronology under Article 71 by simply knowing the scale.
circumstances there are, after offsetting, do not go down Take note that destierro comes after arresto mayor so the
any degree lower. The penalty prescribed by law will be penalty one degree lower than arresto mayor is not arresto
the penalty to be imposed, but in the minimum period. menor, but destierro. Memorize the scale in Article 71.
Cannot go below the minimum period when there is an
aggravating circumstance. In Article 37, with respect to the range of each penalty, the
range of arresto menor follows arresto mayor, since
Go into the lowering of the penalty by one degree if the arresto menor is one to 30 days or one month, while
penalty is divisible. So do not apply the rule in arresto mayor is one month and one day to six months.
paragraph 5 of Article 64 to a case where the penalty is On the other hand, the duration of destierro is the same as
divisible. prision correccional which is six months and one day to six
years. But be this as it is, under Article 71, in the scale of
Article 66 penalties graduated according to degrees, arresto mayor is
higher than diestierro.
When there are mitigating circumstance and aggravating
circumstance and the penalty is only fine, when it is only In homicide under Article 249, the penalty is reclusion
ordinary mitigating circumstance and aggravating temporal. One degree lower, if homicide is frustrated, or
circumstance, apply Article 66. Because you determine
 52

there is an accomplice participating in homicide, is prision

mayor, and two degrees lower is prision correccional. If the penalty prescribed is a fine ranging from P200.00 to
P500.00, but the felony is frustrated so that the penalty
This is true if the penalty prescribed by the Revised Penal should be imposed one degree lower, of P500.00, shall
Code is a whole divisible penalty one degree or 2 be deducted therefrom. This is done by deducting P125.00
degrees lower will also be punished as a whole. But from P500.00, leaving a difference of P375.00. The
generally, the penalties prescribed by the Revised Penal penalty one degree lower is P375.00. To go another
Code are only in periods, like prision correccional degree lower, P125.00 shall again be deducted from
minimum, or prision correccional minimum to medium. P375.00 and that would leave a difference of P250.00.
Hence, the penalty another degree lower is a fine ranging
Although the penalty is prescribed by the Revised Penal from P200.00 to P250.00. If at all, the fine has to be
Code as a period, such penalty should be understood as a lowered further, it cannot go lower than P200.00. So, the
degree in itself and the following rules shall govern: fine will be imposed at P200.00. This rule applies when
the fine has to be lowered by degree.
(1) When the penalty prescribed by the Reised Code is
made up of a period, like prision correccional Article 66
medium, the penalty one degree lower is prision
correccional minimum, and the penalty two degrees In so far as ordinary mitigating or aggravating
lower is arresto mayor maximum. In other words, circumstance would affect the penalty which is in the form
each degree will be made up of only one period of a fine, Article 66 of the Revised Penal Code shall govern.
because the penalty prescribed is also made up only Under this article, it is discretionary upon the court to
of one period. apply the fine taking into consideration the financial means
of the offender to pay the same. In other words, it is not
(2) When the penalty prescribed by the Code is made up only the mitigating and/or aggravating circumstances that
of two periods of a given penalty, every time such the court shall take into consideration, but primarily, the
penalty is lowered by one degree you have to go financial capability of the offender to pay the fine. For the
down also by two periods. same crime, the penalty upon an accused who I poor may
be less than the penalty upon an accused committing the
Illustration: same crime but who is wealthy.

If the penalty prescribed for the crime is prision For instance, when there are two offenders who are co-
correccional medium to maximum, the penalty one conspirators to a crime, and their penalty consists of a fine
degree lower will be arresto mayor maximum to only, and one of them is wealthy while the other is a
prision correccional minimum, and the penalty pauper, the court may impose a higher penalty upon the
another degree lower will be arresto mayor minimum wealthy person and a lower fine for the pauper.
to medium. Every degree will be composed of two
periods. Penalty for murder under the Revised Penal Code is
reclusion temporal maximum to death. So, the penalty
(3) When the penalty prescribed by the Revised Penal would be reclusion temporal maximum reclusion
Code is made up fo three periods of different perpetua death. This penalty made up of three periods.
penalties, every time you go down one degree lower,
you have to go down by three periods. The Three-Fold Rule

Illustration: Under this rule, when a convict is to serve successive

penalties, he will not actually serve the penalties imposed
The penalty prescribed by the Revised Penal Code is by law. Instead, the most severe of the penalties imposed
prision mayor maximum to reclusion temporal on him shall be multiplied by three and the period will be
medium, the penalty one degree lower is prision the only term of the penalty to be served by him.
correccional maximum to prision mayor medium. However, in no case should the penalty exceed 40 years.
Another degree lower will be arresto mayor
maximum to prision correccional medium. This rule is intended for the benefit of the convict and so,
you will only apply this provided the sum total of all the
These rules have nothing to do with mitigating or penalties imposed would be greater than the product of the
aggravating circumstances. These rules refer to the most severe penalty multiplied by three but in no case will
lowering of penalty by one or two degrees. As to how the penalties to be served by the convict be more than 40
mitigating or aggravating circumstances may affect the years.
penalty, the rules are found in Articles 63 and 64. Article
63 governs when the penalty prescribed by the Revised Although this rule is known as the Three-Fold Rule, you
Penal Code is divisible. When the penalty is indivisible, cannot actually apply this if the convict is to serve only
no matter how many ordinary mitigating circumstances three successive penalties. The Three-Fold Rule can only
there are, the prescribed penalty is never lowered by be applied if the convict I to serve four or more sentences
degree. It takes a privileged mitigating circumstance to successively. If the sentences would be served
lower such penalty by degree. On the other hand, when simultaneously, the Three-Fold Rule does not govern.
the penalty prescribed by the Revised Penal Code is
divisible, such penalty shall be lowered by one degree The chronology of the penalties as provided in Article 70 of
only but imposed in the proper period, when there are the Revised Penal Code shall be followed.
two or more ordinary mitigating circumstance and there It is in the service of the penalty, not in the imposition of
is no aggravating circumstance whatsoever. the penalty, that the Three-Fold Rule is to be applied. The
Three-Fold Rule will apply whether the sentences are the
Article 75 - Fines product of one information in one court, whether the
sentences are promulgated in one day or whether the
With respect to the penalty of fine, if the fine sentences are promulgated by different courts on different
has to be lowered by degree either because the felony days. What is material is that the convict shall serve more
committed is only attempted or frustrated or because than three successive sentences.
there is an accomplice or an accessory participation, the
fine is lowered by deducting of the maximum amount For purposes of the Three-fold Rule, even perpetual
of the fine from such maximum without changing the penalties are taken into account. So not only penalties
minimum amount prescribed by law. with fixed duration, even penalties without any fixed
duration or indivisible penalties are taken into account.
Illustration: For purposes of the Three-Fold Rule, indivisible penalties
 53

are given equivalent of 30 years. If the penalty is government expenses of maintaining the convicts on a
perpetual disqualification, it will be given and equivalent prolonged confinement in jail.
duration of 30 years, so that if he will have to suffer
several perpetual disqualification, under the Three-Fold If the crime is a violation of the Revised Penal Code, the
Rule, you take the most severe and multiply it by three. court will impose a sentence that has a minimum and
The Three-Fold Rule does not apply to the penalty maximum. The maximum of the indeterminate sentence
prescribed but to the penalty imposed as determined by will be arrived at by taking into account the attendant
the court. mitigating and/or aggravating circumstances according to
Article 64 of the Revised penal Code. In arriving at the
Illustration: minimum of the indeterminate sentence, the court will take
into account the penalty prescribed for the crime and go
Penalties imposed are one degree lower. Within the range of one degree lower,
the court will fix the minimum for the indeterminate
One prision correccional minimum 2 years sentence, and within the range of the penalty arrived at as
and 4 months the maximum in the indeterminate sentence, the court will
fix the maximum of the sentence. If there is a privilege
One arresto mayor 1 month and 1 day to 6 mitigating circumstance which has been taken in
months consideration in fixing the maximum of the indeterminate
sentence, the minimum shall be based on the penalty as
One prision mayor 6 years and 1 day to 12 reduced by the privilege mitigating circumstance within the
years range of the penalty next lower in degree.

Do not commit the mistake of applying the Three-Fold If the crime is a violation of a special law, in fixing the
Rule in this case. Never apply the Three-Fold Rule when maximum of the indeterminate sentence, the court will
there are only three sentences. Even if you add the impose the penalty within the range of the penalty
penalties, you can never arrive at a sum higher than the prescribed by the special law, as long as it will not exceed
product of the most severe multiplied by three. the limit of the penalty. In fixing the minimum, the court
The common mistake is, if given a situation, whether the can fix a penalty anywhere within the range of penalty
Three-Fold Rule could be applied. If asked, if you were prescribed by the special law, as long as it will not be less
the judge, what penalty would you impose, for purposes than the minimum limit of the penalty under said law. No
of imposing the penalty, the court is not at liberty to mitigating and aggravating circumstances are taken into
apply the Three-Fold Rule, whatever the sum total of account.
penalty for each crime committed, even if it would
amount to 1,000 years or more. It is only when the The minimum and the maximum referred to in the
convict is serving sentence that the prison authorities Indeterminate Sentence Law are not periods. So, do not
should determine how long he should stay in jail. say, maximum or minimum period. For the purposes of
the indeterminate Sentence Law, use the term minimum to
Illustration: refer to the duration of the sentence which the convict
shall serve as a minimum, and when we say maximum, for
A distinct engineer was sentenced by the court to a term purposes of ISLAW, we refer to the maximum limit of the
of 914 years in prison. duration that the convict may be held in jail. We are not
referring to any period of the penalty as enumerated in
A person was sentenced to three death sentences. Article 71.
Significance: If ever granted pardon for 1 crime, the two
remaining penalties must still be executed. Courts are required to fix a minimum and a maximum of
the sentence that they are to impose upon an offender
This rule will apply only if sentences are to be served when found guilty of the crime charged. So, whenever the
successively. Indeterminate Sentence Law is applicable, there is always
a minimum and maximum of the sentence that the convict
shall serve. If the crime is punished by the Revised Penal
ACT NO. 4013 (INDETERMINATE SENTENCE LAW),
Code, the law provides that the maximum shall be arrived
AS AMENDED
at by considering the mitigating and aggravating
Three things to know about the Indeterminate Sentence
circumstances in the commission of the crime according to
Law:
the proper rules of the Revised Penal Code. To fix the
(1) Its purpose;
maximum, consider the mitigating and aggravating
(2) Instances when it does not apply; and
circumstances according to the rules found in Article 64.
(3) How it operates This means
Indeterminate Sentence Law governs whether the crime (1) Penalties prescribed by the law for the crime
is punishable under the Revised Penal Code or a special committed shall be imposed in the medium period if no
Law. It is not limited to violations of the Revised Penal mitigating or aggravating circumstance;
Code. (2) If there is aggravating circumstance, no mitigating,
penalty shall be imposed in the maximum;
It applies only when the penalty served is imprisonment. (3) If there is mitigating circumstance, no aggravating,
If not by imprisonment, then it does not apply. penalty shall be in the minimum;
(4) If there are several mitigating and aggravating
Purpose
circumstances, they shall offset against each other.
Whatever remains, apply the rules.
The purpose of the Indeterminate Sentence
(5) If there are two or more mitigating circumstance and
law is to avoid prolonged imprisonment, because it is
no aggravating circumstance, penalty next lower in
proven to be more destructive than constructive to the
degree shall be the one imposed.
offender. So, the purpose of the Indeterminate Sentence
Law in shortening the possible detention of the convict in
Rule under Art 64 shall apply in determining the maximum
jail is to save valuable human resources. I other words,
but not in determining the minimum.
if the valuable human resources were allowed prolonged
confinement in jail, they would deteriorate. Purpose is to
In determining the applicable penalty according to the
preserve economic usefulness for these people for having
Indeterminate Sentence Law, there is no need to mention
committed a crime to reform them rather than to
the number of years, months and days; it is enough that
deteriorate them and, at the same time, saving the
the name of the penalty is mentioned while the
Indeterminate Sentence Law. The attendant mitigating
 54

and/or aggravating circumstances in the commission of (9) Those already sentenced by final judgment at the time
the crime are taken into consideration only when the of the approval of Indeterminate Sentence Law;
maximum of the penalty is to be fixed. But in so far as (10) Those whose sentence imposes penalties which do not
the minimum is concerned, the basis of the penalty involve imprisonment, like destierro;
prescribed by the Revised Penal Code, and go one degree
lower than that. But penalty one degree lower shall be Reclusion perpetua is equated to life imprisonment for
applied in the same manner that the maximum is also purposes of the Indeterminate Sentence Law. There the
fixed based only on ordinary mitigating circumstances. said law will be inapplicable to persons convicted of
This is true only if the mitigating circumstance taken into offenses punishable with the said penalty (People v.
account is only an ordinary mitigating circumstance. If Enriquez, Jr.).
the mitigating circumstance is privileged, you cannot
follow the law in so far as fixing the minimum of the Although the penalty prescribed for the felony committed is
indeterminate sentence is concerned; otherwise, it may death or reclusion perpetua, if after considering the
happen that the maximum of the indeterminate sentence attendant circumstances, the imposable penalty is
is lower than its minimum. reclusion temporal or less, the Indeterminate Sentence
Law applies (People v. Cempron, 187 SCRA 278).
In one Supreme Court ruling, it was held that for
purposes of applying the Indeterminate Sentence Law,
the penalty prescribed by the Revised Penal Code and not PRESIDENTIAL DECREE NO. 968 (PROBATION LAW)
that which may be imposed by court. This ruling,
however, is obviously erroneous. This is so because such Among the different grounds of partial extinction of
an interpretation runs contrary to the rule of pro reo, criminal liability, the most important is probation.
which provides that the penal laws should always be Probation is a manner of disposing of an accused who have
construed an applied in a manner liberal or lenient to the been convicted by a trial court by placing him under
offender. Therefore, the rule is, in applying the supervision of a probation officer, under such terms and
Indeterminate Sentence Law, it is that penalty arrived at conditions that the court may fix. This may be availed of
by the court after applying the mitigating and before the convict begins serving sentence by final
aggravating circumstances that should be the basis. judgment and provided that he did not appeal anymore
from conviction.
Crimes punished under special law carry only one
penalty; there are no degree or periods. Moreover, Without regard to the nature of the crime, only those
crimes under special law do not consider mitigating or whose penalty does not exceed six years of imprisonment
aggravating circumstance present in the commission of are those qualified for probation. If the penalty is six years
the crime. So in the case of statutory offense, no plus one day, he is no longer qualified for probation.
mitigating and no aggravating circumstances will be
taken into account. Just the same, courts are required in If the offender was convicted of several offenses which
imposing the penalty upon the offender to fix a minimum were tried jointly and one decision was rendered where
that the convict should serve, and to set a maximum as multiple sentences imposed several prison terms as
the limit of that sentence. Under the law, when the penalty, the basis for determining whether the penalty
crime is punished under a special law, the court may fix disqualifies the offender from probation or not is the term
any penalty as the maximum without exceeding the of the individual imprisonment and not the totality of all
penalty prescribed by special law for the crime the prison terms imposed in the decision. So even if the
committed. In the same manner, courts are given prison term would sum up to more than six years, if none
discretion to fix a minimum anywhere within the range of of the individual penalties exceeds six years, the offender
the penalty prescribed by special law, as long as it will is not disqualified by such penalty from applying for
not be lower than the penalty prescribed. probation.

Disqualification may be divided into three, according to On the other hand, without regard to the penalty, those
(1) The time committed; who are convicted of subversion or any crime against the
(2) The penalty imposed; and public order are not qualified for probation. So know the
(3) The offender involved. crimes under Title III, Book 2 of the Revised Penal code.
Among these crimes is Alarms and Scandals, the penalty of
which is only arresto menor or a fine. Under the
Question and Answer amendment to the Probation Law, those convicted of a
crime against public order regardless of the penalty are not
qualified for probation.
Q: When would the Indeterminate Sentence Law be
inapplicable? May a recidivist be given the benefit of Probation Law?

A: The Indeterminate Sentence Law is not inapplicable As a general rule, no.

to:
Exception: If the earlier conviction refers to a crime the
penalty of which does not exceed 30 days imprisonment or
(1) Persons convicted of offense punishable with death a fine of not more than P200.000, such convict is not
penalty or life imprisonment; disqualified of the benefit of probation. So even if he
(2) Persons convicted of treason, conspiracy or proposal would be convicted subsequently of a crime embraced in
to commit treason; the same title of the Revised Penal Code as that of the
(3) Persons convicted of misprision of treason, rebellion, earlier conviction, he is not disqualified from probation
sedition, espionage; provided that the penalty for the current crime committed
(4) Persons convicted of piracy; does not go beyond six years and the nature of the crime
(5) Persons who are habitual delinquents; committed by him is not against public order, national
(6) Persons who shall have escaped from confinement or security or subversion (Sec.9, Probation Law).
evaded sentence;
(7) Those who have been granted conditional pardon by
the Chief Executive and shall have violated the term Although a person may be eligible for probation, the
thereto; moment he perfects an appeal from the judgment of
(8) Those whose maximum term of imprisonment does conviction, he cannot avail of probation anymore. So the
not exceed one year; benefit of probation must be invoked at the earliest
instance after conviction. He should not wait up to the
time when he interposes an appeal or the sentence has
 55

become final and executory. The idea is that probation

has to be invoked at the earliest opportunity. Question and Answer

Q: Juan was convicted by the RTC of a crime and

An application for probation is exclusively within the sentenced to suffer a penalty of imprisonment for a
jurisdiction of the trial court that renders the judgment. minimum of eight years. He appealed both his conviction
For the offender to apply in such court, he should not and the penalty imposed upon him to the CA. CA sustained
appeal such judgment. his conviction but reduced his sentence to a max. of 4
years and 8 months. Could Juan forthwith file an
If the offender would appeal the conviction of the trial application for probation? Explain.
court and the appellate court reduced the penalty to say,
less than six years, that convict can still file an
application for probation, because the earliest A: No. Juan can no longer apply for probation because he
opportunity for him to avail of probation came only after appealed from the judgment of conviction of the trial court.
judgment by the appellate court. Sec. 4 of the Probation Law mandates that no application
Whether a convict who is otherwise qualified for for probation shall be entertained or granted if the accused
probation may be give the benefit of probation or not, has perfected an appeal from a judgment of conviction.
the courts are always required to conduct a hearing. If
the court denied the application for probation without the Probation shall be denied if the court finds:
benefit of the hearing, where as the applicant is not
disqualified under the provision of the Probation Law, but (1) That the offender is in need of correctional treatment
only based on the report of the probation officer, the that can be provided most effectively by his
denial is correctible by certiorari, because it is an act of commitment to an institution;
the court in excess of jurisdiction or without jurisdiction, (2) That there is undue risk that during the period of
the order denying the application therefore is null and probation the offender will commit another crime; or
void. (3) Probation will depreciate the seriousness of the crime.

Probation is intended to promote the correction and

rehabilitation of an offender by providing him with The probation law imposes two kinds of conditions:
individualized treatment; to provide an opportunity for (1) Mandatory conditions; and
the reformation of a penitent offender which might be (2) Discretionary conditions.
less probable if he were to serve a prison sentence; to
prevent the commission of offenses; to decongest our
jails; and to save the government much needed finance Mandatory conditions:
for maintaining convicts in jail.
(1) The convict must report to the Probation Officer (PO)
Probation is only a privilege. So even if the offender may designated in the court order approving his application
not be disqualified of probation, yet the court believes for Probation within 72 hours from receipt of Notice of
that because of the crime committed it was not advisable such order approving his application; and
to give probation because it would depreciate the effect (2) The convict, as a probationer, must report to the PO at
of the crime, the court may refuse or deny an application least once a month during the period of probation
for probation. unless sooner required by the PO.

Moreover, the Dangerous Drugs Act of 2002 (Section 24) These conditions being mandatory, the moment any of
expressly provides that Any person convicted for drug these is violate, the probation is cancelled.
trafficking or pushing under the Act, regardless of the
penalty imposed by the Court, cannot avail of the Discretionary conditions:
privilege granted by the Probation Law.
The trial court which approved the application for probation
Consider not only the probationable crime, but also the may impose any condition which may be constructive to
probationable penalty. If it were the non-probationable the correction of the offender, provided the same would
crime, then regardless of the penalty, the convict cannot not violate the constitutional rights of the offender and
avail of probation. Generally, the penalty which is not subject ot this two restrictions: (1) the conditions imposed
probationable is any penalty exceeding six years of should not be unduly restrictive of the probationer, and (2)
imprisonment. Offenses which are not probationable are such condition should not be incompatible with the
those against natural security, those against public order freedom of conscience of the probationer.
and those with reference to subversion.
EXTINCTION OF CRIMINAL LIABILITY
Persons who have been granted of the benefit of
probation cannot avail thereof for the second time. Always provide two classifications when answering this
Probation is only available once and this may be availed question.
only where the convict starts serving sentence and
provided he has not perfected an appeal. If the convict Criminal liability is totally extinguished as follows:
perfected an appeal, he forfeits his right to apply for
probation. As far as offenders who are under preventive (1) By the death of the convict as to personal penalties;
imprisonment, that because a crime committed is not and as to pecuniary penalties, liability therefore is
bailable or the crime committed, although bailable, they extinguished only when the death of the offender
cannot afford to put up a bail, upon promulgation of the occurs before final judgment.
sentence, naturally he goes back to detention, that does (2) By service of sentence;
not mean that they already start serving the sentence (3) By amnesty which completely extinguished the penalty
even after promulgation of the sentence, sentence will and all its effects;
only become final and executory after the lapse of the (4) By absolute pardon;
15-day period, unless the convict has waived expressly (5) By prescription of the crime;
his right to appeal or otherwise, he has partly started (6) By prescription of the penalty;
serving sentence and in that case, the penalty will (7) By the marriage of the offended women as in the
already be final and executory, no right to probation can crimes of rape, abduction, seduction and acts of
be applied for. lasciviousness.
 56

Criminal liability is partially extinguished as follows:

Pedro was prosecuted and convicted of the crime of
(1) By conditional pardon; robbery and was sentenced to six years imprisonment or
prision correccional. After serving sentence for three
(2) By commutation of sentence; years, he was granted absolute pardon. Ten years later,
(3) Fr good conduct, allowances which the culprit may Pedro was again prosecuted and convicted of the crime of
earn while he is serving sentence; theft, a crime embraced in the same title, this time he shall
(4) Parole; and be a recidivist. On the other hand, if he has served all six
(5) Probation. years of the first sentence, and his name was included in
the list of all those granted absolute pardon, pardon shall
Total extinction of criminal liability relieve him of the effects of the crime, and therefore even
if he commits theft again, he shall not be considered a
Among the grounds for total extinction as well as those recidivist.
for partial extinction, you cannot find among them the
election to public office. In one case, a public official was In Monsanto V. Factoran, Jr., 170 SCRA 191, it was
charged before the Sandiganbayan for violation of Anti- held that absolute pardon does not ipso facto entitle the
Graft and Corrupt Practices Act. During the ensuing convict to reinstatement to the public office forfeited by
election, he was nevertheless re-elected by the reason of his conviction. Although pardon restores his
constituents, one of the defenses raised was that of eligibility for appointment to that office, the pardoned
condonation of the crime by his constituents, that his convict must reapply for the new appointment.
constituents have pardoned him. The Supreme Court
ruled that the re-election to public office is not one of the Pardon becomes valid only when there is a final judgment.
grounds by which criminal liability is extinguished. This If given before this, it is premature and hence void. There
is only true to administrative cases but not criminal is no such thing as a premature amnesty, because it does
cases. not require a final judgment; it may be given before final
judgment or after it.
Death of the offender

Where the offender dies before final judgment, his death Question and Answer
extinguishes both his criminal and civil liabilities. So TRY was sentenced to death by final judgment.
while a case is on appeal, the offender dies, the case on
But subsequently he was granted pardon by the President.
appeal will be dismissed. The offended party may file a
The pardon was silent on the perpetual disqualification of
separate civil action under the Civil Code if any other
TRY to hold any public office.
basis for recovery of civil liability exists as provided under
Art 1157 Civil Code. (People v. Bayotas, decided on After his pardon, TRY ran for office as Mayor of APP, his
September 2, 1994) hometown. His opponent sought to disqualify him. TRY
contended that he is not disqualified because he was
Amnesty and pardon already pardoned by the President unconditionally.

The effects of amnesty as well as absolute pardon are not Is TRYs contention correct? Reason briefly.
the same. Amnesty erases not only the conviction but A: No, TRYs contention is not correct. Article 40 of the
also the crime itself. So that if an offender was convicted Revised Penal Code expressly provides that when the
for rebellion and he qualified for amnesty, and so he was death penalty is not executed by reason of commutation or
given an amnesty, then years later he rebelled again and pardon, the accessory penalties of perpetual absolute
convicted, is he a recidivist? No. Because the amnesty disqualification and civil interdiction during thirty (30)
granted to him erased not only the conviction but also years from the date of the sentence shall remain as the
the effects of the conviction itself. effects thereof, unless such accessory penalties have been
expressly remitted in the pardon. This is because pardon
Supposed, instead of amnesty, what was given was only excuses the convict from serving the sentence but
absolute pardon, then years later, the offended was does not relieve him of the effects of the conviction unless
again captured and charged for rebellion, he was expressly remitted in the pardon.
convicted, is he a recidivist? Yes. Pardon, although
absolute does not erase the effects of conviction. Pardon
only excuses the convict from serving the sentence. Prescription of crime and prescription of the penalty
There is an exception to this and that is when the pardon
was granted when the convict had already served the Prescription of the crime begins, as a general rule on the
sentence such that there is no more service of sentence day the crime was committed, unless the crime was
to be executed then the pardon shall be understood as concealed, not public, in which case, the prescription
intended to erase the effects of the conviction. thereof would only commence from the time the offended
party or the government learns of the commission of the
So if the convict has already served the sentence and in crime.
spite of that he was given a pardon that pardon will cover
the effects of the crime and therefore, if he will be
subsequently convicted for a felony embracing the same Question and Answer
title as that crime, he cannot be considered a recidivist,
because the pardon wipes out the effects of the crime.
OW is a private person engaged in cattle ranching. One
But if he was serving sentence when he was pardoned, night, he saw AM stab CV treacherously, then throw the
that pardon will not wipe out the effects of the crime, mans body into a ravine. For 25 years, CVs body was
unless the language of the pardon absolutely relieve the never seen nor found; and OW told no one what he had
offender of all the effects thereof. Considering that witnessed.
recidivism does not prescribe, no matter how long ago
was the first conviction, he shall still be a recidivist. Yesterday, after consulting the parish priest, OW decided
to tell the authorities what he witnessed, and revealed that
Illustration: AM killed CV 25 years ago.

When the crime carries with it moral turpitude, the Can AM be prosecuted for murder despite the lapse of 25
offender even if granted pardon shall still remain years? Reason briefly.
disqualified from those falling in cases where moral
turpitude is a bar.
 57

A: Yes, AM can be prosecuted for murder despite the (2) When criminal case is filed in the prosecutors office,
lapse of 25 years, because the crime has not yet the prescription of the crime is suspended until the
prescribed and legally, its prescriptive period has not accused is convicted or the proceeding is terminated
even commenced to run. for a cause not attributable to the accused.

The period of prescription of a crime shall commence to But where the crime is subject to Summary Procedure, the
run only from the day on which the crime has been prescription of the crime will be suspended only when the
discovered by the offended party, the authorities or their information is already filed with the trial court. It is not
agents (Article 91, RPC). OW, a private person who saw the filing of the complaint, but the filing of the information
the killing but never disclosed it, is not the offended in the trial which will suspend the prescription of the crime.
party nor has the crime been discovered by the
authorities or their agents.
On the prescription of the penalty, the period will only
commence to run when the convict has begun to serve the
Commission of the crime is public This does not mean
sentence. Actually, the penalty will prescribe from the
alone that the crime was within public knowledge or
moment the convict evades the service of the sentence.
committed in public.
Illustration: So if an accused was convicted in the trial court, and the
conviction becomes final and executory, so this fellow was
arrested to serve the sentence, on the way to the
In the crime of falsification of a document that was
penitentiary, the vehicle carrying him collided with another
registered in the proper registry of the government like
vehicle and overturned, thus enabling the prisoner to
the Registry of Property or the Registry of Deeds of the
escape, no matter how long such convict has been a
Civil registry, the falsification is deemed public from the
fugitive from justice, the penalty imposed by the trial court
time the falsified document was registered or recorded in
will never prescribe because he has not yet commenced
such public office so even though, the offended party
the service of his sentence. For the penalty to prescribe,
may not really know of the falsification, the prescriptive
he must be brought to Muntinlupa, booked thee, placed
period of the crime shall already run from the moment
inside the cell and thereafter he escapes.
the falsified document was recorded in the public
registry. So in the case where a deed of sale of a parcel
of land which was falsified was recorded in the Whether it is prescription of crime or prescription of
corresponding Registry of Property, the owner of the land penalty, if the subject could leave the Philippines and go to
came to know of the falsified transaction only after 10 a country with whom the Philippines has no extradition
years, so he brought the criminal action only then. The treaty, the prescriptive period of the crime or penalty shall
Supreme Court ruled that the crime has already remain suspended whenever he is out of the country.
prescribed. From the moment the falsified document is
registered in the Registry of Property, the prescriptive When the offender leaves for a country to which the
period already commenced to run. Philippines has an extradition treaty, the running of the
prescriptive period will go on even if the offender leaves
When a crime prescribes, the State loses the right to Philippine territory for that country. Presently the
prosecute the offender, hence, even though the offender Philippines has an extradition treaty with Taiwan,
may not have filed a motion to quash on this ground the Indonesia, Canada, Australia, USA and Switzerland. So if
trial court, but after conviction and during the appeal he the offender goes to any of these countries, the
learned that at the time the case was filed, the crime has prescriptive period still continues to run.
already prescribed, such accused can raise the question
of prescription even for the first time on appeal, and the In the case of the prescription of the penalty, the moment
appellate court shall have no jurisdiction to continue, if the convict commits another crime while he is fugitive from
legally, the crime has indeed prescribed. justice, prescriptive period of the penalty shall be
suspended and shall not run in the meantime. The crime
committed does not include the initial evasion of service of
The prevailing rule now is, prescription of the crime is not
sentence that the convict must perform before the penalty
waivable, the earlier jurisprudence to the contrary had
shall begin to prescribe, so that the initial crime of evasion
already been abrogated or overruled. Moreover, for
of service of sentence does not suspend the prescription of
purposes of prescription, the period for filing a complaint
penalty, it is the commission of other crime, after the
or information may not be extended at all, even though
convict has evaded the service of penalty that will suspend
the last day such prescriptive period falls on a holiday or
such period.
a Sunday.

For instance, light felony prescribes in 60 days or two Marriage

months. If the 60th day falls on a Sunday, the filing of
the complaint on the succeeding Monday is already fatal In the case of marriage, do not say that it is applicable for
to the prosecution of the crime because the crime has the crimes under Article 344. It is only true in the crimes
already prescribed. of rape, abduction, seduction and acts of lasciviousness.
Do not say that it is applicable to private crimes because
The rules on Criminal Procedure for purposes of the term includes adultery and concubinage. Marriages in
prescription is that the filing of the complaint even at the these cases may even compound the crime of adultery or
public prosecutors office suspends the running of the concubinage. It is only in the crimes of rape, abduction,
prescriptive period, but not the filing with the barangays. seduction and acts of lasciviousness that the marriage by
So the earlier rulings to the contrary are already the offender with the offended woman shall extinguish civil
abrogated by express provision of the Revised Rules on liability, not only criminal liability of the principal who
Criminal Procedure. marries the offended woman, but also that of the
accomplice and accessory, if there are any.
The prescription of the crime is interrupted or suspended
Co-principals who did not themselves directly participate in
the execution of the crime but who only cooperated, will
(1) When a complaint is filed in a proper barangay for also benefit from such marriage, but not when such co-
conciliation or mediation as required by Chapter 7, principal himself took direct part in the execution of the
Local government Code, but the suspension of the crime.
prescriptive period is good only for 60 days. After
Marriage as a ground for extinguishing civil liability must
which the prescription will resume to run, whether
the conciliation or mediation is terminated for not; have been contracted in good faith. The offender who
marries the offended woman must be sincere in the
 58

marriage and therefore must actually perform the duties against property, this is a crime against personal security
of a husband after the marriage, otherwise, and liberty under Title IX of Book II of the RPC. And yet,
notwithstanding such marriage, the offended woman, the offender was required to restore or restitute the
although already his wife can still prosecute him again, earning to the offended woman.
although the marriage remains is avoided or annulled.
The marriage still subsists although the offended woman Property will have to be restored to the offended party
may re-file the complaint. The Supreme Court ruled that even this would require the taking of the property was
marriage contemplated must be a real marriage and not divested from the offended party pursuant to the
one entered to and not just to evade punishment for the commission of the crime, the one who took the same or
crime committed because the offender will be accepted the same would be doing so without the benefit
compounding the wrong he has committed. of the just title. So even if the property may have been
bought by the third person, the same may be taken from
Partial extinction of criminal liability him and restored to the offended party without an
obligation on the part of the offended party to pay him
Good conduct allowance whatever he paid.

This includes the allowance for loyalty under Article 98, in The right to recover what he has paid will be against the
relation to Article 158. A convict who escapes the place offender who sold it ot him. On the other hand, if the
of confinement on the occasion of disorder resulting from crime was theft or robbery, the one who received the
a conflagration, earthquake or similar catastrophe or personal property becomes a fence, he is not only required
during a mutiny in which he has not participated and he to restitute the personal property but he incurs criminal
returned within 48 hours after the proclamation that the liability in violation of the Anti-Fencing Law.
calamity had already passed, such convict shall be given
credit of 1/5 of the original sentence from that allowance If the property cannot be restituted anymore, then the
for his loyalty of coming back. Those who did not leave damage must be repaired, requiring the offender to pay
the penitentiary under such circumstances do not get the value thereof, as determined by the court. That value
such allowance for loyalty. Article 158 refers only to includes the sentimental value to the offended party, not
those who leave and return. only the replacement cost. In most cases, the sentimental
value is higher than the replacement value. But if what
Parole would be restored is brand new, then there will be an
allowance for depreciation, otherwise, the offended party is
This correspondingly extinguishes service of sentence up allowed to enrich himself at the expense of the offender.
to the maximum of the indeterminate sentence. This is So there will be a corresponding depreciation and the
the partial extinction referred to, so that if the convict offended party may even be required to pay something
was never given parole, no partial extinction. just to cover the difference of the value of what was
restored to him.

CIVIL LIABILITY OF THE OFFENDER The obligation of the offender transcends to his heirs, even
if the offender dies, provided he died after judgment
Civil liability of the offender falls under three categories: became final, the heirs shall assume the burden of the civil
liability, but this is only to the extent that they inherit
Restitution or restoration property from the deceased, if they do not inherit, they
cannot inherit the obligations.
Restitution or restoration presupposes that the offended
party was divested of property, and such property must The right of the offended party transcends to heirs upon
be returned. If the property is in the hands of a third death. The heirs of the offended party step into the shoes
party, the same shall nevertheless be taken away from of the latter to demand civil liability from the offender.
him and restored to the offended party, even though
such third party may be a holder for value and a buyer in Reparation of the damage caused
good faith of the property, except when such third party
buys the property from a public sale where the law In case of human life, reparation of the damage cause is
protects the buyer. basically P50,000.00 value of human life, exclusive of
other forms of damages. This P50,000.00 may also
For example, if a third party bought a property in a public increase whether such life was lost through intentional
auction conducted by the sheriff levied on the property of felony or criminal negligence, whether the result of dolo or
a judgment creditor for an obligation, the buyer of the culpa.
property at such execution sale is protected by law. The
offended party cannot divest him thereof. So the It was held in the case of Espaa v. People (2005) that
offended party may only resort to reparation of the the award for civil indemnity ex delicto is mandatory and is
damage done from the offender. granted to the heirs of the victim without need of proof
other than the commission of the crime.
Some believed that this civil liability is true only in crimes
against property, this is not correct. Regardless of the Also in the crime of rape, the damages awarded to the
crime committed, if the property is illegally taken from offended woman is generally P30,000.00 for the damage to
the offended party during the commission of the crime, her honor. In earlier rulings, the amount varied, whether
the court may direct the offender to restore or restitute the offended woman is younger or a married woman.
such property to the offended party. It can only be done Supreme Court ruled that even if the offended woman does
if the property is brought within the jurisdiction of that not adduce evidence or such damage, court can take
court. judicial notice of the fact that if a woman was raped, she
inevitably suffers damages. Under the Revised Rules on
For example, in a case where the offender committed Criminal Procedure, a private prosecutor can recover all
rape, during the rape, the offender got on of the earnings kinds of damages including attorneys fee. The only
of the victim. When apprehended, the offender was limitation is that the amount and the nature of the
prosecuted for rape and theft. When the offender was damages should be specified. The present procedural law
asked why he got on of the earnings of the victim, the does not allow a blanket recovery of damages. Each kind
offender disclosed that he took one of the earnings in of damages must be specified and the amount duly proven.
order to have a souvenir of the sexual intercourse.
Supreme Court ruled that the crime committed is not Indemnification of consequential damages
theft and rape but rape and unjust vexation for the
taking of the earning. The latter crime is not a crime
 59

Indemnification of consequential damages refers to the have the property to pay his civil liability, since it is the law
loss of earnings, loss of profits. This does not refer only itself that, provides that such subsidiary liability exists and
to consequential damages suffered by the offended party, ignorance of the law is not an excuse.
this also includes consequential damages to third party
who also suffer because of the commission of the crime. Civil liability of the offender is extinguished in the same
manner as civil obligation is extinguished but this is not
The offender carnapped a bridal car while the newly-weds absolutely true. Under civil law, a civil obligation is
were inside the church. Since the car was only rented, extinguished upon loss of the thing due when the things
consequential damage not only to the newly-weds but involved is specific. This is not a ground applicable to
also to the entity which rented the car to them. extinction of civil liability in criminal case if the thing due is
lost, the offender shall repair the damages caused.
Most importantly, refer to the persons who are civilly
liable under Articles 102 and 103. This pertains to the When there are several offenders, the court in the exercise
owner, proprietor of hotels, inns, taverns and similar of its discretion shall determine what shall be the share f
establishments, an obligation to answer civilly for the loss each offender depending upon the degree of participation
or property of their guests. as principal, accomplice or accessory. If within each class
of offender, there are more of them, such as more than
Under Article 102, two conditions must be present before one principal or more than one accomplice or accessory,
liability attaches to the innkeepers, tavern keepers and the liability in each class of offender shall be subsidiary.
proprietors: Anyone of them may be required to pay the civil liability
pertaining to such offender without prejudice to recovery
(1) The guest must have informed the management in from those whose share have been paid by another.
advance of his having brought to the premises
certain valuables aside from the usual personal If all the principals are insolvent, the obligation shall
belongings of the guest; and devolve upon the accomplice(s) or accessory(s). But
whoever pays shall have the right of covering the share of
(2) The guest must have followed the rules and the obligation from those who did not pay but are civilly
regulations prescribed by the management of such liable.
inn, tavern, or similar establishment regarding the
safekeeping of said valuables. To relate with Article 38, when there is an order or
preference of pecuniary (monetary) liability, therefore,
The Supreme Court ruled that even though the guest did restitution is not included here.
not obey the rules and regulations prescribed by the
management for safekeeping of the valuables, this does To relate with Article 38, when there is an order or
not absolve management from the subsidiary civil preference of pecuniary (monetary) liability, therefore,
liability. Non-compliance with such rules and regulations restitution is not included here.
but the guests will only be regarded as contributory
negligence, but it wont absolve the management from There is not subsidiary penalty for non-payment of civil
civil liability. liability.

Liability specially attaches when the management is

found to have violated any law or ordinance, rule or Subsidiary civil liability is imposed in the following:
regulation governing such establishment.
(1) In case of a felony committed under the compulsion of
Even if the crime is robbery with violence against or an irresistible force. The person who employed the
intimidation of persons or committed by the innkeepers irresistible force is subsidiarily liable;
employees, management will be liable, otherwise, not (2) In case of a felony committed under an impulse of an
liable because there is duress from the offender, liable equal or greater injury.
only for theft and force upon things.
The person who generated such an impulse is
Under Article 103, the subsidiary liability of an employer subsidiarily liable.
or master for the crime committed by his employee or
servant may attach only when the following requisites
The owners of taverns, inns, motels, hotels, where the
concur.
crime is committed within their establishment due to
noncompliance with general police regulations, if the
(1) The employer must be engaged in business or in
offender who is primarily liable cannot pay, the proprietor,
trade or industry while the accused was his employee
or owner is subsidiarily liable.
(2) At the time the crime was committed, the employee-
Felonies committed by employees, pupils, servants in the
employer relationship must be existing between the
course of their employment, schooling or household
two;
chores. The employer, master, teacher is subsidiarily
liable civilly, while the offender is primarily liable.
(3) The employee must have been found guilty of the
crime charged and accordingly held civilly liable;
In case the accomplice and the principal cannot pay, the
liability of those subsidiarily liable is absolute.
(4) The writ of execution for the satisfaction of the civil
liability was returned unsatisfied because the
accused-employee does not have enough property to In People vs. Tupal, 2003, exemplary damages were
pay the civil liability. awarded when the offense was committed with at least 1
aggravating circumstance.
When these requisites concur, the employer will be
subsidiarily, civilly liable for the full amount that his COMPLEX CRIME
employee was adjudged civilly liable. It is already settled
in jurisprudence that there is no need to file a civil action Philosophy behind plural crimes: The treatment of plural
against the employer in order to enforce the subsidiary crimes as one is to be lenient to the offender, who, instead
civil liability for the crime committed by his employee, it of being made to suffer distinct penalties for every
is enough that the writ of execution is returned resulting crime is made to suffer one penalty only,
unsatisfied. There is no denial of due process of law although it is the penalty for the most serious one and is in
because the liability of the employer is subsidiary and not
primary. He will only be liable if his employee does not
 60

the maximum period. Purpose is in the pursuance of the brings about two or more crimes. Strictly speaking,
rule of pro reo. compound crimes are not limited to grave less grave
felonies but covers all single act that results in two or more
If be complexing the crime, the penalty would turn out to crimes.
be higher, do not complex anymore.
Illustration:
Example: Murder and theft (killed with treachery, then
stole the right). A person threw a hand grenade and the people started
Penalty: If complex Reclusion temporal maximum to scampering. When the hand grenade exploded, no on was
death. seriously wounded all were mere wounded. It was held
If treated individually Reclusion temporal to Reclusion that this is a compound crime, although the resulting
Perpetua felonies are only slight.

Complex-crime is not just a matter of penalty, but of Illustration of a situation where the term necessary in
substance under the Revised Penal Code. complex crime should not be understood as indispensable:

Plurality of crimes my be in the form of: Abetting committed during the encounter between rebels
(1) Compound Crime, and government troops such that the homicide committed
(2) Complex crime; and cannot be complexed with rebellion. This is because they
(3) Composite crime. are indispensable part of rebellion. (Caveat: Ortega says
rebellion can be complexed with common crimes in
A compound crime is one where a single act produces discussion on Rebellion)
two or more crimes.
The complex crime lies actually in the first form under
A complex crime strictly speaking is one where the Article 148.
offender has to commit an offense as a means for the
commission of another offense. It is said that the offense The first form of the complex crime is actually a compound
is committed as a necessary means to commit the other crime, is one where a single act constitutes two or more
offense. Necessary should not be understood as grave and/or less grave felonies. The basis in complexing
indispensable, otherwise, it shall be considered absorbed or compounding the crime is the act. So that when an
and not giving rise to a complex crime. offender performed more than one act, although similar, if
A composite crime is one in which substance is made up they result in separate crimes, there is no complex crime
of more than one crime, but which in the eyes of the law at all, instead, the offender shall be prosecuted for as
is only a single indivisible offense. This is also known as many crimes as are committed under separate
special complex crime. Examples are robbery with information.
homicide, robbery with rape, rape with homicide. These
are crimes which in the eye of the law are regarded only When the single act brings about two or more crimes, the
as a single indivisible offense. offender is punished with only one penalty, although in the
maximum period, because he acted only with single
criminal impulse. The presumption is that, since there is
Question and Answer only one criminal impulse and correctly, only one penalty
should be imposed.

Q: Distinguish between an ordinary complex crime and a Conversely, when there are several acts performed, the
special complex crime as to their concepts and as to the assumption is that each act is impelled by a distinct
imposition of penalties. criminal impulse, a separate penalty. However, it may
happen that the offender is impelled only by a single
criminal impulse in committing a series of acts that
A: An ordinary complex crime is made up of 2 or more
brought about more than one crime, considering that
crimes being punished in distinct provisions of the RPC
Criminal Law, if there is only one criminal impulse which
but alleged in one information, so that only 1 penalty will
brought about the commission of the crime, the offender
be imposed, because either they were brought about by
should be penalized only once.
a single act or one offense was a necessary means to
commit another. The penalty for the most serious crime
There are in fact cases decided by the Supreme Court
shall be imposed in its maximum period.
where the offender has performed as series of acts but the
On the other hand, a special complex crime is made up of
acts appeared to be impelled by one and the same
2 or more crimes that are considered only as components
impulse, the ruling is that a complex crime is committed.
of a single indivisible offense punished in one provision of
In this case it is not the singleness of the act but the
the RPC. The component crimes are not regarded as
singlessness of the impulse that has been considered.
distinct crimes so only one penalty is specifically
There are cases where the Supreme Court held that the
prescribed for all of them.
crime committed is complex even though the offender
performed not a single act but a series of acts. The only
reason is that the series of acts are impelled by a single
Composite Crime/Special Complex Crime
criminal impulse.
This is one which is substance is made up of more than
one crime but which in the eyes of the law is only a Question and Answer
single indivisible offense. This is also known as a special
complex crime. Example are robbery with homicide, Q: A learned two days ago that B received dollar bills
robbery with rape, and rape with homicide. worth $10,000 from his daughter working in the US. With
the intention of robbing B, A entered Bs house at
The compound crime and the complex crime are treated midnight, armed with a knife used to gain entry and began
in Article 48 of the Revised Penal Code. But in such quietly searching the drawers and other likely receptacles
article, a compound crime is also designated as a for cash. While doing that, B awoke, rushed out of his
complex crime, but complex crimes are limited only to room and grappled with A for the possession of the knife. A
a situation where the resulting felonies are grave and/or stabbed B to death, found the latters wallet beneath the
less grave. pillow, which was bulging with the dollar bills he was
looking for. A took the bills and left the house. What
Whereas in a compound crime, there is no limit as to the crime/s was/were committed?
gravity of the resulting crimes as long as a single act
 61

The definition in Article 48 is not honored because the

A: The crime committed was robbery with homicide, a accused did not perform a single act. There were a series
composite crime. As primordial criminal intent is to of acts, but the decision in the Lawas case is correct. The
commit a robbery and in the course of the robbery, B confusion lies in this. While Article 48 speaks of a complex
was killed. Both robbery and the killing were crime where a single act constitutes two or more grave or
consummated, thus giving rise to the special complex less grave offenses, event hose cases when the act is not a
crime of robbery with homicide. The primary criminal single but a series of acts resulting to two or more grave
intent being to commit a robbery, any killing on the and less grave felonies, the Supreme Court considered this
occasion of the robbery, though not by reason thereof, a complex crime when the act is the product of one single
is considered a component of the crime of robbery with criminal impulse.
homicide as a single indivisible offense.
If confronted with a problem, use the standard or condition
CONTINUED AND CONTINUING CRIMES that it refers not only to the singleness of the act which
brought two or more grave and/less grave felonies. The
In criminal law, when a series of acts are perpetrated in Supreme Court has extended this class of complex crime to
pursuance of a single criminal impulse, there is what is those cases when the offender performed not a single act
called a continued crime. In criminal procedure for but a series of acts as long as it is the product of a single
purposes of venue, this is referred to as a continuing criminal impulse.
crime.
You cannot find an article in the Revised Penal Code with
The term continuing crimes as sometimes used in lieu respect to the continued crime or continuing crime. The
of the term continued crimes, however, although both nearest article is Article 48. Such situation is also brought
terms are analogous, they are not really used with the under the operation of Article 48.
same import. Continuing crime is the term used in
criminal procedure to denote that a certain crime may be In People v. Garcia, the accused were convicts who were
prosecuted and tried not only before the court of the members of a certain gang and they conspired to kill the
place where it was originally committed or began, but other gang. Some of the accused killed their victims in
also before the court of the place where the crime was one place within the same penitentiary, some killed the
continued. Hence, the term continuing crime is used in others in another place within the same penitentiary. The
criminal procedure when any of the material ingredients Supreme Court ruled that all accused should be punished
of the crime was committed in different places. under one information because they acted in conspiracy.
The act of one is the act of all. Because there were several
victims killed and some were mortally wounded, the
A continued crime is one where the offender performs a accused should be held for the complex crime of multiple
series of acts violating one and the same penal provision homicide with multiple frustrated homicide. There is a
committed at the same place and about the same time complex crime not only when there is a single act but a
for the same criminal purpose, regardless of a series of series of acts. It is correct that when the offender acted in
acts done, it is regarded in law as one. conspiracy, this crime is considered as one and prosecuted
under one information. Although in this case, the
In People v. de Leon, where the accused took five offenders did not only kills one person but killed different
roosters from one and the same chicken coop, although persons, so it is clear that in killing of one victim or the
the roosters were owned by different persons, it was held killing of another victim, another act out of this is done
that there is only one crime of theft committed because simultaneously. Supreme Court considered this as
the accused acted out of a single criminal impulse only. complex. Although the killings did not result from one
However performing a series of acts but this is one and single act.
the same intent Supreme Court ruled that only one crime
is committed under one information. In criminal procedure, it is prohibited to charge more than
one offense in an information, except when the crimes is
In People v. Lawas, the accused constabulary soldiers one information constitute a complex crime or a special
were ordered to march with several muslims from one complex crime.
barrio to another place. These soldiers feared that on
the way some of the Muslims may escape. So Lawas So whenever the Supreme Court concludes that the
ordered the men to tie the Muslims by the hand criminal should be punished only once, because they acted
connecting one with the other, so on one would run in conspiracy or under the same criminal impulse, it is
away. When the hands of the Muslims were tied, one of necessary to embody these crimes under one single
them protested, he did not want to be included among information. It is necessary to consider them as complex
those who were tied because he was a Hajjii, so the Hajji crimes even if the essence of the crime does not fit the
remonstrated and there was commotion. At the height of definition of Art 48, because there is no other provision in
the commotion, Lawas ordered his men to fire, and the the RPC.
soldiers mechanically fired. Eleven were killed and
several others were wounded. The question of whether Duplicity of offenses, in order not to violate this rule, it
the constabulary soldiers should be prosecuted for the must be called a complex crime.
killing of each under a separate information has reached
the Supreme Court. The Supreme Court ruled that the In earlier rulings on abduction with rape, if several
accused should be prosecuted only in one information, offenders abducted the woman and abused her, there is
because a complex crime of multiple homicide was multiple rape. The offenders are to be convicted of one
committed by them. count of rape and separately charged of the other rapes.
In People v. Jose, there were four participants here.
In another case, a band of robbers came across a They abducted the woman, after which, the four took turns
compound where a sugar mill is located. The workers of in abusing her. It was held that each one of the four
said mill have their quarters within the compound. The became liable not only for his own rape but also for those
band of robbers ransacked the different quarters therein. committed by the others. Each of the four offenders was
It was held that there is only one crime committed convicted of four rapes. In the eyes of the law, each
multiple robbery, not because of Article 48 but because committed four crimes of rape. One of the four rapes
this is a continued crime. When the robbers entered the committed by one of them was complexed with the crime
compound, they were moved by a single criminal intent. of abduction. The other three rapes are distinct counts or
Not because there were several quarter robbed. This rape. The three rapes are not necessary to commit the
becomes a complex crime. other rapes. Therefore, separate complaints/information.
 62

In People v. Pabasa, the Supreme Court through Applying the concept of the continued crime, the
Jusitce Aquino ruled that there is only one count of following cases have been treated as constituting one
forcible abduction with rape committed by the offenders crime only:
who abducted the two women and abused them several
times. This was only a dissenting opinion of Justice (1) The theft of 13 cows belonging to two different
Aquino, that there could be only one complex crime of persons committed by the accused at the same place
abduction with rape, regardless of the number of rapes and period of time (People v. Tumlos, 67 Phil. 320);
committed because all the rapes are but committed out (2) The theft of six roosters belonging to two different
of one and the same lewd design which impelled the owners from the same coop and at the same period of
offender to abduct the victim. time (People v. Jaranilla);
(3) The illegal charging of fees for service rendered by a
In People v. Bojas, the Supreme Court followed the lawyer every time he collected veterans benefits on
ruling in People v. Jose that the four men who abducted behalf of a client who agreed that attorneys fees shall
and abused the offended women were held liable for one be paid out of such benefits (People v. Sabbun, 10
crime one count or forcible abduction with rape and SCRA 156). The collections of legal fees were impelled
distinct charges for rape for the other rapes committed by the same motive, that of collecting fees for services
by them. rendered, and all acts of collection were made under
the same criminal impulse.
In People v. Bulaong, the Supreme Court adopted the
dissenting opinion of Justice Aquino in People v. Pabasa, On the other hand, the Supreme Court declined to apply
that when several persons abducted a woman and the concept in the following cases:
abused her, regardless of the number of rapes
committed, there should only be one complex crime of (1) Two Estafa cases, one which was committed during the
forcible abduction with rape. The rapes committed were period from January 19 to December, 1955 and the
in the nature of a continued crime characterized by the other from January 1956 to July 1956 (People v.
same lewd design which is an essential element in the Dichupa, 13 Phil 306). Said acts were committed on
crime of forcible abduction. two different occasions;

The abuse amounting to rape is complexed with forcible (2) Several malversations committed in May, June and
abduction because the abduction was already July 1936 and falsifications to conceal said offenses
consummated when the victim was raped. The forcible committed in August and October, 1936. The
abduction must be complexed therewith. But the malversations and falsifications were not the result of
multiple rapes should be considered only as one because one resolution to embezzle and falsity (People v. CIV,
they are in the nature of a continued crime. 66 Phil. 351);

Note: This is a dangerous view because the abductors (3) Seventy-five estafa cases committed by the conversion
will commit as much rape as they can, after all, only one by the agents of collections from the customers of the
complex crime of rape would arise. employers made on different dates.

In adultery, each intercourse constitutes one crime.

Apparently, the singleness of the act is not considered a In the theft cases, the trend is to follow the single larceny
single crime. Each intercourse bring with it the danger of doctrine, that is taking of several things, whether
bringing one stranger in the family of the husband. belonging to the same or different owners, at the same
time and place, constitutes one larceny only. Many courts
Article 48 also applies in cases when out a single act of have abandoned the separate larceny doctrine, under
negligence or imprudence, two or more grave or less which there was distinct larceny as to the property of each
grave felonies resulted, although only the first part victim:
thereof (compound crime). The second part of Article 48
does not apply, referring to the complex crime proper
Also abandoned is the doctrine that the government has
because this applies or refers only to a deliberate
the discretion to prosecute the accused for one offense or
commission of one offense to commit another offense.
for as many distinct offenses as there are victims
However, a light felony may result from criminal (Santiago v. Justice Garchitorena, decided on
negligence or imprudence, together with other grave or December 2, 1993). Here, the accused was charged with
less grave felonies resulting therefrom and the Supreme performing a single act that of approving the legalization
Court held that all felonies resulting from criminal of aliens not qualified under the law. The prosecution
negligence should be made subject of one information manifested that they would only file one information.
only. The reason being that, there is only one Subsequently, 32 amended informations were filed. The
information and prosecution only. Otherwise, it would be Supreme Court directed the prosecution to consolidate the
tantamount to splitting the criminal negligence similar to cases into one offense because (1) they were in violation
splitting a cause of action which is prohibited in civil of the same law Executive Order No. 324; (2) caused
cases. injury to one party only the government; and (3) they
were done in the same day. The concept of delito
Although under Article 48, a light felony should not be continuado has been applied to crimes under special laws
included in a complex crime, yet by virtue of this ruling of since in Article 10, the Revised Penal Code shall be
the Supreme Court, the light felony shall be included in supplementary to special laws, unless the latter provides
the same information charging the offender with grave the contrary.
and/or less grave felonies resulting from the negligence
of reckless imprudence and this runs counter to the
provision of Article 48. So while the Supreme Court ruled
that the light felony resulting from the same criminal
negligence should be complexed with the other felonies
because that would be a blatant violation of Article 48,
instead the Supreme Court stated that an additional
penalty should be imposed for the light felony. This
would mean two penalties to be imposed, one for the
complex crime and one for the light felony. It cannot
separate the light felony because it appears that the
culpa is crime itself and you cannot split the crime.