Criminal Law Book 1 Articles 11 – 20

Art. 11: Justifying Circumstances – those wherein the acts of the

actor are in accordance with law, hence, he is justified. There is no
criminal and civil liability because there is no crime.
 Self-defense
1. Reason for lawfulness of self-defense: because it would be
impossible for the State to protect all its citizens. Also a person
cannot just give up his rights without any resistance being offered.
2. Rights included in self-defense:

1. Defense of person

2. Defense of rights protected by law

1. Defense of property:
a. The owner or lawful possessor of a thing has a right to exclude any
person from the enjoyment or disposal thereof. For this purpose, he may
use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property. (Art. 429, New Civil Code)

b. defense of chastity

3. Elements:
1. 1. Unlawful Aggression– is a physical act manifesting danger to
life or limb; it is either actual or imminent.
1. Actual/real aggression – Real aggression presupposes an act
positively strong, showing the wrongful intent of the aggressor,
which is not merely threatening or intimidating attitude, but a
material attack. There must be real danger to life a personal
safety.
2. Imminent unlawful aggression – it is an attack that is impending
or on the point of happening. It must not consist in a mere
threatening attitude, nor must it be merely imaginary. The
intimidating attitude must be offensive and positively strong.
3. Where there is an agreement to fight, there is no unlawful
aggression. Each of the protagonists is at once assailant and
assaulted, and neither can invoke the right of self-defense,
because aggression which is an incident in the fight is bound to
arise from one or the other of the combatants.

32
 Exception: Where the attack is made in violation of the
conditions agreed upon, there may be unlawful aggression.
4. Unlawful aggression in self-defense, to be justifying, must exist
at the time the defense is made. It may no longer exist if the
aggressor runs away after the attack or he has manifested a
refusal to continue fighting. If the person attacked allowed
some time to elapse after he suffered the injury before hitting
back, his act of hitting back would not constitute self-defense,
but revenge.
 A light push on the head with the hand is not unlawful aggression,
but a slap on the face is, because his dignity is in danger.
 A police officer exceeding his authority may become an unlawful
aggressor.
 The nature, character, location, and extent of the wound may belie
claim of self-defense.
2. Reasonable necessity of the means employed to prevent
or repel it;
a. Requisites:
 Means were used to prevent or repel
 Means must be necessary and there is no other way to prevent or
repel it
 Means must be reasonable – depending on the circumstances, but
generally proportionate to the force of the aggressor.
1. The rule here is to stand your ground when in the right which may
invoked when the defender is unlawfully assaulted and the aggressor
is armed with a weapon.
2. The rule is more liberal when the accused is a peace officer who,
unlike a private person, cannot run away.
3. The reasonable necessity of the means employed to put up the
defense.
 The gauge of reasonable necessity is the instinct of self-
preservation, i.e. a person did not use his rational mind to pick a
means of defense but acted out of self-preservation, using the
nearest or only means available to defend himself, even if such
means be disproportionately advantageous as compared with the
means of violence employed by the aggressor.
 Reasonableness of the means depends on the nature and the quality
of the weapon used, physical condition, character, size and other
circumstances.

33
3. Lack of sufficient provocation on the part of the person defending
himself.
1. When no provocation at all was given to the aggressor by the person
defending himself.
2. When even if provocation was given by the person defending himself,
such was not sufficient to cause violent aggression on the part of the
attacker, i.e. the amount of provocation was not sufficient to stir
the aggressor into the acts which led the accused to defend himself.
3. When even if the provocation were sufficient, it was not given by the
person defending himself.
4. When even if provocation was given by the person defending himself,
the attack was not proximate or immediate to the act of
provocation.
5. Sufficient means proportionate to the damage caused by the act,
and adequate to stir one to its commission.
1. Kinds of Self-Defense
1. Self-defense of chastity – to be entitled to complete self-
defense of chastity, there must be an attempt to rape, mere
imminence thereof will suffice.
2. Defense of property – an attack on the property must be
coupled with an attack on the person of the owner, or of one
entrusted with the care of such property.
3. Self-defense in libel – physical assault may be justified when
the libel is aimed at a person’s good name, and while the libel
is in progress, one libel deserves another.

*Burden of proof – on the accused (sufficient, clear and convincing

evidence; must rely on the strength of his own evidence and not on the
weakness of the prosecution).

 Defense of Relative
A. Elements:
1. unlawful aggression
2. reasonable necessity of the means employed to prevent or repel the
attack;
3. in case provocation was given by the person attacked, that the
person making the defense had no part in such provocation.
B. Relatives entitled to the defense:
1. spouse
2. ascendants

34
 3. descendants
4. legitimate, natural or adopted brothers or sisters
5. relatives by affinity in the same degree
6. relatives by consanguinity within the 4th civil degree.
 The third element need not take place. The relative defended may
even be the original aggressor. All that is required to justify the act
of the relative defending is that he takes no part in such
provocation.
 General opinion is to the effect that all relatives mentioned must be
legitimate, except in cases of brothers and sisters who, by relatives
by nature, may be illegitimate.
 The unlawful aggression may depend on the honest belief of the
person making the defense.
 Defense of Stranger
A. Elements
1. unlawful aggression
2. reasonable necessity of the means employed to prevent or repel the
attack;
3. the person defending be not induced by revenge, resentment or
other evil motive.
2. A relative not included in defense of relative is included in defense
of stranger.
3. Be not induced by evil motive means that even an enemy of the
aggressor who comes to the defense of a stranger may invoke this
justifying circumstances so long as he is not induced by a motive that
is evil.
 State of Necessity
1. Art. 11, Par. a provides:
Any person who, in order to avoid an evil or injury, does an act which
causes damage to another, provided that the following requisites are
present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to
avoid it; and
Third. That there be no other practical and less harmful means
of preventing it.
1. A state of necessity exists when there is a clash between unequal
rights, the lesser right giving way to the greater right. Aside from
the 3 requisites stated in the law, it should also be added that the

35
 necessity must not be due to the negligence or violation of any law
by the actor.
2. The person for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which may have been
received. This is the only justifying circumstance which provides for
the payment of civil indemnity. Under the other justifying
circumstances, no civil liability attaches. The courts shall
determine, in their sound discretion, the proportionate amount for
which law one is liable
 Fulfillment of Duty or Lawful Exercise of a Right or Office
1. Elements:
1. that the accused acted in the performance of a duty, or in the lawful
exercise of a right or office;
2. that the injury caused or offense committed be the necessary
consequence of the due performance of the duty, or the lawful
exercise of such right or office.
2. A police officer is justified in shooting and killing a criminal who
refuses to stop when ordered to do so, and after such officer fired
warning shots in the air.
 shooting an offender who refused to surrender is justified, but not a
thief who refused to be arrested.
3. The accused must prove that he was duly appointed to the position
he claimed he was discharging at the time of the commission of the
offense. It must be made to appear not only that the injury caused
or the offense committed was done in the fulfillment of a duty, or in
the lawful exercise of a right or office, but that the offense
committed was a necessary consequence of such fulfillment of duty,
or lawful exercise of a right or office.
4. A mere security guard has no authority or duty to fire at a thief,
resulting in the latter’s death.
 Obedience to a Superior Order
1. Elements:
1. there is an order;
2. the order is for a legal purpose;
3. the means used to carry out said order is lawful.
2. The subordinate who is made to comply with the order is the party
which may avail of this circumstance. The officer giving the order
may not invoke this.

36
 3. The subordinate’s good faith is material here. If he obeyed an order
in good faith, not being aware of its illegality, he is not
liable. However, the order must not be patently illegal. If the order
is patently illegal this circumstance cannot be validly invoked.
4. The reason for this justifying circumstance is the subordinate’s
mistake of fact in good faith.
5. Even if the order be patently illegal, the subordinate may yet be
able to invoke the exempting circumstances of having acted under
the compulsion of an irresistible force, or under the impulse of an
uncontrollable fear.
EXEMPTING CIRCUMSTANCES
 Exempting circumstances (non-imputability) are those ground for
exemption from punishment because there is wanting in the agent of
the crime of any of the conditions which make the act voluntary, or
negligent.
 Basis: The exemption from punishment is based on the complete
absence of intelligence, freedom of action, or intent, or on the
absence of negligence on the part of the accused.
 A person who acts WITHOUT MALICE (without intelligence, freedom
of action or intent) or WITHOUT NEGLIGENCE (without intelligence,
freedom of action or fault) is NOT CRIMINALLY LIABLE or is EXEMPT
FROM PUNISHMENT.
 There is a crime committed but no criminal liability arises from it
because of the complete absence of any of the conditions which
constitute free will or voluntariness of the act.
 Burden of proof: Any of the circumstances is a matter of defense and
must be proved by the defendant to the satisfaction of the court.
Art. 12. CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL
LIABILITY. The following are exempt from criminal liability:
1. An imbecile or insane person, unless the latter has acted during a
lucid interval.
 When the imbecile or an insane person has committed an act which
the law defines as a felony (delito), the court shall order his
confinement on one of the hospital or asylums established for
persons thus afflicted. He shall not be permitted to leave without
first obtaining the permission of the same court.
 Requisites:
1. Offender is an imbecile
2. Offender was insane at the time of the commission of the crime
37
 IMBECILITY OR INSANITY
 An imbecile is exempt in all cases from criminal
liability. The insane is not so exempt if it can be shown that he
acted during a lucid interval. In the latter, loss of consciousness of
ones acts and not merely abnormality of mental faculties will qualify
ones acts as those of an insane.
 Procedure: court is to order the confinement of such persons in the
hospitals or asylums established. Such persons will not be permitted
to leave without permission from the court. The court, on the other
hand, has no power to order such permission without first obtaining
the opinion of the DOH that such persons may be released without
danger.
 Presumption is always in favor of sanity. The defense has the burden
to prove that the accused was insane at the time of the commission
of the crime. For the ascertainment such mental condition of the
accused, it is permissible to receive evidence of the condition of his
mind during a reasonable period both before and after that
time. Circumstantial evidence which is clear and convincing will
suffice. An examination of the outward acts will help reveal the
thoughts, motives and emotions of a person and if such acts conform
to those of people of sound mind.
 Insanity at the time of the commission of the crime and not that at
the time of the trial will exempt one from criminal liability. In case
of insanity at the time of the trial, there will be a suspension of the
trial until the mental capacity of the accused is restored to afford
him a fair trial.
 Evidence of insanity must refer to the time preceding the act under
prosecution or to the very moment of its execution. Without such
evidence, the accused is presumed to be sane when he committed
the crime. Continuance of insanity which is occasional or
intermittent in nature will not be presumed. Insanity at another
time must be proved to exist at the time of the commission of the
crime. A person is also presumed to have committed a crime in one
of the lucid intervals. Continuance of insanity will only be presumed
in cases wherein the accused has been adjudged insane or has been
committed to a hospital or an asylum for the insane.
 Instances of Insanity:

38
  Reyes: Feeblemindedness is not imbecility because the offender can
distinguish right from wrong. An imbecile and an insane to be
exempted must not be able to distinguish right from wrong.
 Relova: Feeblemindedness is imbecility.
 Crimes committed while in a dream, by a somnambulist are
embraced in the plea of insanity. Hypnotism, however, is a
debatable issue.
 Crime committed while suffering from malignant malaria is
characterized by insanity at times thus such person is not criminally
liable.
1. Basis: complete absence of intelligence, and element of
voluntariness.
2. Definition : An imbecile is one who while advanced in age has a
mental development comparable to that of children between 2 and 7
years of age. An insane is one who acts with complete deprivation of
intelligence/reason or without the least discernment or with total
deprivation of freedom of the will.
1. Dementia praecox is covered by the term insanity because homicidal
attack is common in such form of psychosis. It is characterized by
delusions that he is being interfered with sexually, or that his
property is being taken, thus the person has no control over his acts.
2. Kleptomania or presence of abnormal, persistent impulse or
tendency to steal, to be considered exempting, will still have to be
investigated by competent psychiatrist to determine if the unlawful
act is due to the irresistible impulse produced by his mental
defect, thus loss of will-power. If such mental defect only
diminishes the exercise of his willpower and did not deprive him of
the consciousness of his acts, it is only mitigating.
3. Epilepsy which is a chronic nervous disease characterized by
convulsive motions of the muscles and loss of consciousness may be
covered by the term insanity. However, it must be shown that
commission of the offense is during one of those epileptic attacks.

2. A person under nine years of age.

 MINORITY
 Under nine years to be construed nine years or less. Such was
inferred from the next subsequent paragraph which does not totally
exempt those over nine years of age if he acted with discernment.
 Presumptions of incapability of committing a crime is absolute.

39
  Age is computed up to the time of the commission of the crime. Age
can be established by the testimonies of families and relatives.
 Senility or second childhood is only mitigating.
 4 periods of the life of a human being:
1. Requisite: Offender is under 9 years of age at the time of the
commission of the crime. There is absolute criminal irresponsibility
in the case of a minor under 9-years of age.
2. Basis: complete absence of intelligence.
Age Criminal Responsibility
9 years and
below Absolute irresponsibility

Conditional responsibility
Between 9
and 15 years Without discernment – no liability With Discernment
old – mitigated liability

Between 15
and 18 years
old Mitigated responsibility

Between 18
and 70 years
old Full responsibility

Over 70 years
old Mitigated responsibilit

3. A person over nine years of age and under fifteen, unless he

has acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of article 80 of
this Code.
When such minor is adjudged to be criminally irresponsible, the court,
in conformity with the provisions of this and the preceding paragraph,
shall commit him to the care and custody of his family who shall be
charged with his surveillance and education; otherwise, he shall be

40
committed to the care of some institution or person mentioned in said
article 80.
 QUALIFIED MINORITY: Basis: complete absence of intelligence
 Such minor over 9 years and under 15 years of age must have acted
without discernment to be exempted from criminal liability. If with
discernment, he is criminally liable.
 Presumption is always that such minor has acted without
discernment. The prosecution is burdened to prove if otherwise.
 Discernment means the mental capacity of a minor between 9 and 15
years of age to fully appreciate the consequences of his unlawful
act. Such is shown by: (1) manner the crime was committed (i.e.
commission of the crime during nighttime to avoid detection; taking
the loot to another town to avoid discovery), or (2) the conduct of
the offender after its commission (i.e. elation of satisfaction upon
the commission of his criminal act as shown by the accused cursing
at the victim).
 Facts or particular facts concerning personal appearance which lead
officers or the court to believe that his age was as stated by said
officer or court should be stated in the record.
 If such minor is adjudged to be criminally liable, he is charged to the
custody of his family, otherwise, to the care of some institution or
person mentioned in article 80. This is because of the court’s
presupposition that the minor committed the crime without
discernment.
 Allegation of “with intent to kill” in the information is sufficient
allegation of discernment as such conveys the idea that he knew
what would be the consequences of his unlawful act. Thus is the
case wherein the information alleges that the accused, with intent
to kill, willfully, criminally and feloniously pushed a child of 8 1/2
years of age into a deep place. It was held that the requirement that
there should be an allegation that she acted with discernment should
be deemed amply met.

4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of causing it.

 ACCIDENT: Basis: lack of negligence and intent.

 Elements:
 Discharge of a firearm in a thickly populated place in the City of
Manila being prohibited by Art. 155 of the RPC is not a performance

41
 of a lawful act when such led to the accidental hitting and wounding
of 2 persons.
 Drawing a weapon/gun in the course of self-defense even if such
fired and seriously injured the assailant is a lawful act and can be
considered as done with due care since it could not have been done
in any other manner.
 With the fact duly established by the prosecution that the appellant
was guilty of negligence, this exempting circumstance cannot be
applied because application presupposes that there is no fault or
negligence on the part of the person performing the lawful act.
 Accident happens outside the sway of our will, and although it comes
about some act of our will, lies beyond the bounds of humanly
foreseeable consequences.
 The accused, who, while hunting saw wild chickens and fired a shot
can be considered to be in the performance of a lawful act executed
with due care and without intention of doing harm when such short
recoiled and accidentally wounded another. Such was established
because the deceased was not in the direction at which the accused
fired his gun.
 The chauffeur, who while driving on the proper side of the road at a
moderate speed and with due diligence, suddenly and unexpectedly
saw a man in front of his vehicle coming from the sidewalk and
crossing the street without any warning that he would do so, in
effect being run over by the said chauffeur, was held not criminally
liable, it being by mere accident.
1. A person is performing a lawful act
2. Exercise of due dare
3. He causes injury to another by mere accident
4. Without fault or intention of causing it.

5. Any person who acts under the compulsion of an irresistible

force.

 IRRESISTIBLE FORCE: Basis: complete absence of freedom, an

element of voluntariness
 Elements:
 Force, to be irresistible, must produce such an effect on an
individual that despite of his resistance, it reduces him to a mere
instrument and, as such, incapable of committing a crime. It

42
 compels his member to act and his mind to obey. It must act upon
him from the outside and by a third person.
 Baculi, who was accused but not a member of a band which
murdered some American school teachers and was seen and
compelled by the leaders of the band to bury the bodies, was not
criminally liable as accessory for concealing the body of the
crime. Baculi acted under the compulsion of an irresistible force.
 Irresistible force can never consist in an impulse or passion, or
obfuscation. It must consist of an extraneous force coming from a
third person.
1. That the compulsion is by means of physical force
2. That the physical force must be irresistible.
3. That the physical force must come from a third person
6. Any person who acts under the impulse of an uncontrollable fear
of an equal or greater injury.
 UNCONTROLLABLE FEAR: Basis: complete absence of freedom
 Elements
1. that the threat which causes the fear is of an evil greater than, or at
least equal to that w/c he is required to commit
2. that it promises an evil of such gravity and imminence that the
ordinary man would have succumbed to it.
 Duress, to be a valid defense, should be based on real, imminent or
reasonable fear for one’s life or limb. It should not be inspired by
speculative, fanciful or remote fear.
 Threat of future injury is not enough. The compulsion must leave no
opportunity to the accused for escape or self-defense in equal
combat.
 Duress is the use of violence or physical force.
 There is uncontrollable fear is when the offender employs
intimidation or threat in compelling another to commit a crime,
while irresistible force is when the offender uses violence or physical
force to compel another person to commit a crime.
 “an act done by me against my will is not my act”
7. Any person who fails to perform an act required by law, when
prevented by some lawful or insuperable cause.
 LAWFUL OR INSUPERABLE CAUSE: Basis: acts without intent, the
third condition of voluntariness in intentional felony
 Elements:
1. That an act is required by law to be done

43
 2. That a person fails to perform such act
3. That his failure to perform such act was due to some lawful or
insuperable cause
 Examples of lawful cause:
 To be an EXEMPTING circumstance – INTENT IS WANTING
 INTENT – presupposes the exercise of freedom and the use of
intelligence
 Distinction between justifying and exempting circumstance:
1. Priest can’t be compelled to reveal what was confessed to him
2. No available transportation – officer not liable for arbitrary
detention
3. Mother who was overcome by severe dizziness and extreme debility,
leaving child to die – not liable for infanticide
1. Exempting – there is a crime but there is no criminal. Act is not
justified but the actor is not criminally liable.

General Rule: There is civil liability

Exception: Par 4 (causing an injury by mere accident) and Par 7 (lawful

cause)

b. Justifying – person does not transgress the law, does not commit any
crime because there is nothing unlawful in the act as well as the
intention of the actor.

Distinction between Exempting and Justifying Circumstances

Exempting
Circumstance Justifying Circumstance
There is a crime but
Existence there is no criminal, the
of a actor is exempted from There is no crime, the act is
crime liability of his act justified

 Absolutory Causes – are those where the act committed is a crime

but for some reason of public policy and sentiment, there is no
penalty imposed.
 Exempting and Justifying Circumstances are absolutory causes.
 Other examples of absolutory causes:

44
1) Art 6 – spontaneous desistance

2) Art 20 – accessories exempt from criminal liability

3) Art 19 par 1 – profiting one’s self or assisting offenders to profit by

the effects of the crime

 Instigation v. Entrapment
INSTIGATION ENTRAPMENT
The ways and means are
Instigator practically induces resorted to for the purpose of
the would-be accused into the trapping and capturing the
commission of the offense and lawbreaker in the execution of
himself becomes co-principal his criminal plan.

NOT a bar to accused’s

Accused will be acquitted prosecution and conviction

Absolutory cause NOT an absolutory cause

MITIGATING CIRCUMSTANCES
 Definition – Those circumstance which reduce the penalty of a crime
 Effect – Reduces the penalty of the crime but does not erase criminal
liability nor change the nature of the crime
 Kinds of Mitigating Circumstance:

 Privileged Mitigating Ordinary Mitigating

Offset by
any Can be offset by a
aggravating Cannot be offset by any generic aggravating
circumstance aggravating circumstance circumstance

Has the effect of imposing If not offset, has the

the penalty by 1 or 2 effect of imposing the
Effect on the degrees than that penalty in the minimum
penalty provided by law period

45
 Minority, Incomplete Self-
defense, two or more
mitigating circumstances
without any aggravating Those circumstances
circumstance (has the enumerated in
effect of lowering the paragraph 1 to 10 of
Kinds penalty by one degree) Article 13

Article 13.
1. Those mentioned in the preceding chapter, when all the requisites
necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant
 Justifying circumstances
1. Self-defense/defense of relative/defense of stranger – unlawful
aggression must be present for Art 13 to be applicable. Other 2
elements not necessary. If 2 requisites are present – considered a
privileged mitigating circumstance.
Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and
tries to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete
self-defense because although there was unlawful aggression and
reasonable means to repel was taken, there was sufficient provocation on
the part of Juan. But since 2 elements are present, it considered as
privileged mitigating.
b. State of Necessity (par 4) avoidance of greater evil or injury; if any
of the last 2 requisites is absent, there’s only an ordinary Mitigating
Circumstance.
Example: While driving his car, Juan sees Pedro carelessly crossing the
street. Juan swerves to avoid him, thus hitting a motorbike with 2
passengers, killing them instantly. Not all requisites to justify act were
present because harm done to avoid injury is greater. Considered as
mitigating.
c. Performance of Duty (par 5)
Example: Juan is supposed to arrest Pedro. He thus goes to Pedro’s
hideout. Juan sees a man asleep. Thinking it was Pedro, Juan shot him.
Juan may have acted in the performance of his duty but the crime was
not a necessary consequence thereof. Considered as mitigating.
 Exempting circumstance
a. Minority over 9 and under 15 – if minor acted with discernment,
considered mitigating
46
Example: 13 year old stole goods at nighttime. Acted with discernment as
shown by the manner in which the act was committed.
b. Causing injury by mere accident – if 2nd requisite (due care) and
1st part of 4th requisite (without fault – thus negligence only) are ABSENT,
considered as mitigating because the penalty is lower than that provided
for intentional felony.
Example: Police officer tries to stop a fight between Juan and Pedro by
firing his gun in the air. Bullet ricocheted and killed Petra. Officer
willfully discharged his gun but was unmindful of the fact that area was
populated.
c. Uncontrollable fear – only one requisite present, considered
mitigating
Example: Under threat that their farm will be burned, Pedro and Juan
took turns guarding it at night. Pedro fired in the air when a person in the
shadows refused to reveal his identity. Juan was awakened and shot the
unidentified person. Turned out to be a neighbor looking for is pet. Juan
may have acted under the influence of fear but such fear was not entirely
uncontrollable. Considered mitigating
2. That the offender is under 18 years of age or over 70 years. In the
case of a minor, he shall be proceeded against in accordance with the
provisions of Art 192 of PD 903
 Applicable to:

a. Offender over 9, under 15 who acted with discernment

b. Offender over 15, under 18

c. Offender over 70 years

 Age of accused which should be determined as his age at the date of

commission of crime, not date of trial
 Various Ages and their Legal Effects

a. under 9 – exemptive circumstance

b. over 9, below 15 – exemptive; except if acted with discernment

c. minor delinquent under 18 – sentence may be suspended (PD 603)

d. under 18 – privileged mitigating circumstance

e. 18 and above – full criminal responsibility

47
f. 70 and above – mitigating circumstance; no imposition of death
penalty; execution g. of death sentence if already imposed is suspended
and commuted.

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

that committed (praeter intentionam)
 Can be used only when the facts prove to show that there is
a notable and evident disproportion between means employed to
execute the criminal act and its consequences
 Intention: as an internal act, is judged by the proportion of the
means employed to the evil produced by the act, and also by the
fact that the blow was or was not aimed at a vital part of the body.
 Judge by considering (1) the weapon used, (2) the injury inflicted
and (3) the attitude of mind when the accuser attacked the other.
Example: Pedro stabbed Tomas on the arm. Tomas did not have the
wound treated, so he died from loss of blood.
 Not applicable when offender employed brute force
Example: Rapist choked victim. Brute force of choking contradicts claim
that he had no intention to kill the girl.
 Art 13, par 3 addresses itself to the intention of the offender at the
particular moment when he executes or commits the criminal act,
not to his intention during the planning stage.
 In crimes against persons – if victim does not die, the absence of the
intent to kill reduces the felony to mere physical injuries. It is not
considered as mitigating. Mitigating only when the victim dies.
Example: As part of fun-making, Juan merely intended to burn Pedro’s
clothes. Pedro received minor burns. Juan is charged with physical
injuries. Had Pedro died, Juan would be entitled to the mitigating
circumstance.
 Not applicable to felonies by negligence. Why? In felonies through
negligence, the offender acts without intent. The intent in
intentional felonies is replaced by negligence, imprudence, lack of
foresight or lack of skill in culpable felonies. There is no intent on
the part of the offender which may be considered as diminished.
 Basis of par 3: intent, an element of voluntariness in intentional
felony, is diminished
4. That the sufficient provocation or threat on the part of the
offended party immediately preceded the act.
 Provocation – any unjust or improper conduct or act of the offended
party, capable of exciting, inciting or irritating anyone.
48
  Basis: diminution of intelligence and intent
 Requisites:

a. Provocation must be sufficient.

1. Sufficient – adequate enough to excite a person to commit the wrong

and must accordingly be proportionate to its gravity.

2. Sufficiency depends on:

 the act constituting the provocation

 the social standing of the person provoked
 time and place provocation took place
3. Example: Juan likes to hit and curse his servant. His servant thus killed
him. There’s mitigating circumstance because of sufficient provocation.

4. When it was the defendant who sought the deceased, the challenge to
fight by the deceased is NOT sufficient provocation.

b. It must originate from the offended party

1. Why? Law says the provocation is “on the part of the offended party”

2. Example: Tomas’ mother insulted Petra. Petra kills Tomas because of

the insults. No Mitigating Circumstance because it was the mother who
insulted her, not Tomas.

3. Provocation by the deceased in the first stage of the fight is

not Mitigating

Circumstance when the accused killed him after he had fled because the
deceased from the moment he fled did not give any provocation for the
accused to pursue and attack him.

c. Provocation must be immediate to the act., i.e., to the commission of

the crime by the person who is provoked

1. Why? If there was an interval of time, the conduct of the offended

party could not have excited the accused to the commission of the
crime, he having had time to regain his reason and to exercise self-
control.
2. Threat should not be offensive and positively strong because if it
was, the threat to inflict real injury is an unlawful aggression which
49
 may give rise to self-defense and thus no longer a Mitigating
Circumstance
5. That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural or adopted brother or
sisters, or relatives by affinity within the same degree.
1. Requisites:
 there’s a grave offense done to the one committing the felony etc.
 that the felony is committed in vindication of such grave offense.

2. Lapse of time is allowed between the vindication and the one doing
the offense (proximate time, not just immediately after)

3. Example: Juan caught his wife and his friend in a compromising

situation. Juan kills his friend the next day – still considered proximate.

PROVOCATION VINDICATION

Grave offense may be also

Made directly only to the against the offender’s relatives
person committing the felony mentioned by law

Cause that brought about the Offended party must have done
provocation need not be a a grave offense to the offender
grave offense or his relatives

Necessary that provocation or

threat immediately preceded May be proximate. Time
the act. No time interval interval allowed

 More lenient in vindication because offense concerns the honor of

the person. Such is more worthy of consideration than mere spite
against the one giving the provocation or threat.
 Vindication of a grave offense and passion and obfuscation can’t be
counted separately and independently
6. That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation
 Passion and obfuscation is mitigating: when there are causes
naturally producing in a person powerful excitement, he loses his

50
 reason and self-control. Thereby dismissing the exercise of his will
power.
 PASSION AND OBFUSCATION are Mitigating Circumstances only when
the same arise from lawful sentiments (not Mitigating Circumstance
when done in the spirit of revenge or lawlessness)
 Requisites for Passion & Obfuscation

a. The offender acted on impulse powerful enough to produce passion or

obfuscation

b. That the act was committed not in the spirit of lawlessness or revenge

c. The act must come from lawful sentiments

 Act which gave rise to passion and obfuscation

a. That there be an act, both unlawful and unjust

b. The act be sufficient to produce a condition of mind

c. That the act was proximate to the criminal act

d. The victim must be the one who caused the passion or obfuscation

 Example: Juan saw Tomas hitting his (Juan) son. Juan stabbed
Tomas. Juan is entitled to Mitigating Circumstance of P&O as his
actuation arose from a natural instinct that impels a father to rush
to the rescue of his son.
 The exercise of a right or a fulfillment of a duty is not the proper
source of P&O.
Example: A policeman arrested Juan as he was making a public
disturbance on the streets. Juan’s anger and indignation resulting from
the arrest can’t be considered passionate obfuscation because the
policeman was doing a lawful act.
 The act must be sufficient to produce a condition of mind. If the
cause of the loss of self-control was trivial and slight, the
obfuscation is not mitigating.
Example: Juan’s boss punched him for not going to work he other day.
Cause is slight.
 There could have been no Mitigating Circumstance of P&O when
more than 24 hours elapsed between the alleged insult and the
commission of the felony, or several hours have passed between the
51
 cause of the P&O and the commission of the crime, or at least ½
hours intervened between the previous fight and subsequent killing
of deceased by accused.
 Not mitigating if relationship is illegitimate
 The passion or obfuscation will be considered even if it is based only
on the honest belief of the offender, even if facts turn out to prove
that his beliefs were wrong.
 Passion and obfuscation cannot co-exist with treachery since the
means that the offender has had time to ponder his course of action.
 PASSION AND OBFUSCATION arising from one and the same cause
should be treated as only one mitigating circumstance
 Vindication of grave offense can’t co-exist w/ PASSION AND
OBFUSCATION
PASSION AND OBFUSCATION IRRESITIBLE FORCE

Mitigating Exempting

No physical force needed Requires physical force

From the offender himself Must come from a 3rd person

Must come from lawful

sentiments Unlawful

PASSION AND
OBFUSCATION PROVOCATION

Produced by an impulse
which may be caused by
provocation Comes from injured party

Offense, which engenders

perturbation of mind,
Must immediately
need not be immediate.
precede the commission
It is only required that
of the crime
the influence thereof

52
 lasts until the crime is
committed

Effect is loss of reason

and self-control on the
part of the offender Same

7. That the offender had voluntarily surrendered himself to a person

in authority or his agents, or that he had voluntarily confessed his guilt
before the court prior to the presentation of the evidence for the
prosecution.
 2 Mitigating Circumstances present:

a) voluntarily surrendered

b) voluntarily confessed his guilt

 If both are present, considered as 2 independent mitigating

circumstances. Mitigate penalty to a greater extent
 Requisites of voluntary surrender:

a) offender not actually arrested

b) offender surrendered to a person in authority or the latter’s agent

c) surrender was voluntary

 Surrender must be spontaneous – shows his interest to surrender

unconditionally to the authorities
 Spontaneous – emphasizes the idea of inner impulse, acting without
external stimulus. The conduct of the accused, not his intention
alone, after the commission of the offense, determines the
spontaneity of the surrender.
Example: Surrendered after 5 years, not spontaneous anymore.
Example: Surrendered after talking to town councilor. Not V.S. because
there’s an external stimulus
 Conduct must indicate a desire to own the responsibility
 Not mitigating when warrant already served. Surrender may be
considered mitigating if warrant not served or returned unserved
because accused can’t be located.
 Surrender of person required. Not just of weapon.

53
  Person in authority – one directly vested with jurisdiction, whether
as an individual or as a member of some
court/government/corporation/board/commission. Barrio
captain/chairman included.
 Agent of person in authority – person who by direct provision of law,
or be election, or by appointment by competent authority is charged
with the maintenance of public order and the protection and
security of life and property and any person who comes to the aid of
persons in authority.
 RPC does not make distinction among the various moments when
surrender may occur.
 Surrender must be by reason of the commission of the crime for
which defendant is charged
 Requisites for plea of guilty

a) offender spontaneously confessed his guilt

b) confession of guilt was made in open court (competent court)

c) confession of guilt was made prior to the presentation of evidence

for the prosecution

 plea made after arraignment and after trial has begun does not
entitle accused to have plea considered as Mitigating Circumstance
 plea in the RTC in a case appealed from the MTC is not mitigating –
must make plea at the first opportunity
 plea during the preliminary investigation is no plea at all
 even if during arraignment, accused pleaded not guilty, he is
entitled to Mitigating Circumstance as long as withdraws his plea of
not guilty to the charge before the fiscal could present his evidence
 plea to a lesser charge is not Mitigating Circumstance because to be
voluntary plea of guilty, must be to the offense charged
 plea to the offense charged in the amended info, lesser than that
charged in the original info, is Mitigating Circumstance
 present Rules of Court require that even if accused pleaded guilty to
a capital offense, its mandatory for court to require the prosecution
to prove the guilt of the accused being likewise entitled to present
evidence to prove, inter alia, Mitigating Circumstance

54
8. That the offender is deaf and dumb, blind or otherwise suffering from
some physical defect w/c thus restricts his means of action, defense or
communication w/ his fellow beings.

 Basis: one suffering from physical defect which restricts him does
not have complete freedom of action and therefore, there is
diminution of that element of voluntariness.
 No distinction between educated and uneducated deaf-mute or blind
persons
 The physical defect of the offender should restrict his means of
action, defense or communication with fellow beings, this has been
extended to cover cripples, armless people even stutterers.
 The circumstance assumes that with their physical defect, the
offenders do not have a complete freedom of action therefore
diminishing the element of voluntariness in the commission of a
crime.

9. Such illness of the offender as would diminish the exercise of the will-
power of the offender w/o depriving him of consciousness of his acts.

 Basis: diminution of intelligence and intent

 Requisites:

a) illness of the offender must diminish the exercise of his will-power

b) such illness should not deprive the offender of consciousness of his

acts

 when the offender completely lost the exercise of will-power, it may

be an exempting circumstance
 deceased mind, not amounting to insanity, may give place to
mitigation
10. And any other circumstance of a similar nature and analogous to
those above-mentioned
 Examples of “any other circumstance”:

a) defendant who is 60 years old with failing eyesight is similar to a

case of one over 70 years old

b) outraged feeling of owner of animal taken for ransom is analogous

to vindication of grave offense

55
c) impulse of jealous feeling, similar to PASSION AND OBFUSCATION

d) voluntary restitution of property, similar to voluntary surrender

e) extreme poverty, similar to incomplete justification based on state

of necessity

 NOT analogous:

a) killing wrong person

b) not resisting arrest not the same as voluntary surrender

c) running amuck is not mitigating

 MITIGATING CIRCUMSTANCE which arise from:

a) moral attributes of the offender

Example: Juan and Tomas killed Pedro. Juan acted w/ PASSION AND
OBFUSCATION. Only Juan will be entitled to Mitigating Circumstance
b) private relations with the offended party
Example: Juan stole his brother’s watch. Juan sold it to Pedro, who knew
it was stolen. The circumstance of relation arose from private relation of
Juan and the brother. Does not mitigate Pedro.
c) other personal cause
Example: Minor, acting with discernment robbed Juan. Pedro, passing by,
helped the minor. Circumstance of minority, mitigates liability of minor
only.
 Shall serve to mitigate the liability of the principals, accomplices
and accessories to whom the circumstances are attendant.
 Circumstances which are neither exempting nor mitigating

a) mistake in the blow

b) mistake in the identity of the victim

c) entrapment of the accused

d) accused is over 18 years old

e) performance of a righteous action

56
Example: Juan saved the lives of 99 people but caused the death of the
last person, he is still criminally liable
AGGRAVATING CIRCUMSTANCES
 Definition – Those circumstance which raise the penalty for a crime
without exceeding the maximum applicable to that crime.
 Basis: The greater perversity of the offense as shown by:

a) the motivating power behind the act

b) the place where the act was committed

c) the means and ways used

d) the time

e) the personal circumstance of the offender

f) the personal circumstance of the victim

 Kinds:

a) Generic – generally applicable to all crimes

b) Specific – apply only to specific crimes (ignominy – for chastity

crimes; treachery – for persons crimes)

c) Qualifying – those that change the nature of the crime (evident

premeditation – becomes murder)

d) Inherent – necessarily accompanies the commission of the crime

(evident premeditation in theft, estafa)

QUALIFYING AGGRAVATING GENERIC AGGRAVATING

CIRCUMSTANCE CIRCUMSTANCE
Gives the proper and exclusive
name, places the author
thereof in such a situation as to
deserve no other penalty than Increase penalty to the
that specifically prescribed by maximum, without exceeding
law limit prescribed by law

57
 Can’t be offset by Mitigating May be compensated by
Circumstance Mitigating Circumstance

Need not be alleged. May be

Must be alleged in the proved over the objection of
information. Integral part of the defense. Qualifying if not
the offense alleged will make it generic

 Aggravating Circumstances which DO NOT have the effect of

increasing the penalty:

1) which themselves constitute a crime specifically punishable by law

or which are included in the law defining a crime and prescribing the
penalty thereof

Example: breaking a window to get inside the house and rob it

2) aggravating circumstance inherent in the crime to such degree that

it must of necessity accompany the commission thereof

Example: evident premeditation inherent in theft, robbery, estafa,

adultery and concubinage
 Aggravating circumstances are not presumed. Must be proved as fully
as the crime itself in order to increase the penalty.
Art 14. Aggravating circumstances. — The following are aggravating
circumstances:
1. 1. That advantage be taken by the offender of his public
position
 Requisites:
1. The offender is a public officer
2. The commission of the crime would not have been possible without
the powers, resources and influence of the office he holds.
 Essential – Public officer used the influence, prestige or ascendancy
which his office gives him as the means by which he realized his
purpose.
 Failure in official is tantamount to abusing of office
 Wearing of uniform is immaterial – what matters is the proof that he
indeed took advantage of his position
1. 2. That the crime be committed in contempt of or with insult
to the public authorities
58
  Requisites:
1. The offender knows that a public authority is present
2. The public authority is engaged in the exercise of his functions
3. The public authority is not the victim of the crime
4. The public authority’s presence did not prevent the criminal act
 Example: Juan and Pedro are quarrelling and the municipal mayor,
upon passing by, attempts to stop them. Notwithstanding the
intervention and the presence of the mayor, Juan and Pedro
continue to quarrel until Juan succeeds in killing Pedro.
 Person in authority – public authority who is directly vested with
jurisdiction, has the power to govern and execute the laws
 Examples of Persons in Authority
1. Governor
2. Mayor
3. Barangay captain
4. Councilors
5. Government agents
6. Chief of Police
 Rule not applicable when committed in the presence of a mere
agent.
 Agent – subordinate public officer charged with the maintenance of
public order and protection and security of life and property
Example: barrio vice lieutenant, barrio councilman
1. 3. That the act be committed:
(1) with insult or in disregard of the respect due to the offended
party on account of his (a) rank, (b) age, (c) sex or
(2) that it be committed in the dwelling of the offended party, if the
latter has not given provocation.
 circumstances (rank, age, sex) may be taken into account only in
crimes against persons or honor, it cannot be invoked in crimes
against property
 Rank – refers to a high social position or standing by which to
determine one’s pay and emoluments in any scale of comparison
within a position
 Age – the circumstance of lack of respect due to age applies in case
where the victim is of tender age as well as of old age
 Sex – refers to the female sex, not to the male sex; not applicable
when
1. The offender acted w/ PASSION AND OBFUSCATION

59
2. there exists a relation between the offender and the victim (but in
cases of divorce decrees where there is a direct bearing on their
child, it is applicable)
3. the condition of being a woman is indispensable in the commission of
the crime (Ex. Parricide, rape, abduction)
 Requisite of disregard to rank, age, or sex
1. Crimes must be against the victim’s person or his honor
2. There is deliberate intent to offend or insult the respect due to the
victim’s rank, age, or sex
 Disregard to rank, age, or sex is absorbed by treachery or abuse of
strength
 Dwelling – must be a building or structure exclusively used for rest
and comfort (combination house and store not included)
1. may be temporary as in the case of guests in a house or bedspacers
2. basis for this is the sanctity of privacy the law accords to human
abode
 dwelling includes dependencies, the foot of the staircase and the
enclosure under the house
 Elements of the aggravating circumstance of dwelling
1. Crime occurred in the dwelling of the victim
2. No provocation on the part of the victim
 Requisites for Provocation: ALL MUST CONCUR
1. given by the owner of the dwelling
2. sufficient
3. immediate to the commission of the crime
When dwelling may and may not be considered
When it may not be
When it may be considered considered
 although the offender fired
the shot from outside the
house, as long as his victim
was inside
 even if the killing took place
outside the dwelling, so long
as the commission began
inside the dwelling
 when adultery is committed
in the dwelling of the 

60
 husband, even if it is also the
dwelling of the wife, it is still
aggravating because she and
her paramour committed a
grave offense to the head of
the house
 In robbery with violence
against persons, robbery with
homicide, abduction, or
illegal detention
 If the offended party has
given provocation
 If both the offender and the
offended party are occupants
of the same dwelling
 In robbery with force upon
things, it is inherent
4. That the act be committed with (1) abuse of confidence or (2)
obvious ungratefulness
Requisites of Abuse of Requisite of Obvious
Confidence Ungratefulness

a) ungratefulness must be
a) Offended party has obvious, that is, there must be
trusted the offender something which the offender
should owe the victim a debt of
b) Offender abused such gratitude for
trust
Note: robbery or theft committed
c) Abuse of confidence by a visitor in the house of the
facilitated the commission of offended party is aggravated by
the crime obvious ungratefulness

 Example: A jealous lover, already determined to kill his sweetheart,

invited her for a ride and during that ride, he stabbed her
 Abuse of confidence is inherent in:
1. malversation
2. qualified theft

61
 3. estafa by conversion
4. misappropriation
5. qualified seduction

5. That the crime be committed in the palace of the Chief Executive, or

in his presence, or when public authorities are engaged in the discharge
of their duties, or in a place dedicated to religious worship.

 Requirements of the aggravating circumstance of public office:

 A polling precinct is a public office during election day
 Nature of public office should be taken into account, like a police
station which is on duty 24 hrs. a day
 place of the commission of the felony (par 5): if it is Malacañang
palace or a church is aggravating, regardless of whether State or
official; functions are being held.
 as regards other places where public authorities are engaged in the
discharge of their duties, there must be some performance of public
functions
 the offender must have intention to commit a crime when he
entered the place
 Requisites for aggravating circumstances for place of worship:
1. The crime occurred in the public office
2. Public authorities are actually performing their public duties
1. The crime occurred in a place dedicated to the worship of God
regardless of religion
2. Offender must have decided to commit the crime when he entered
the place of worship
When Paragraph 2 and 5 of Article 14 are applicable
Committed in the presence of Committed in contempt of
the Chief Executive, in the Public Authority
Presidential Palace or a place
of worship(Par. 5, Art. 14) (Par. 2, Art 14)

Public authorities are

performing of their duties when
the crime is committed Same

62
 When crime is committed in the
public office, the officer must
be performing his duties,
except in the Presidential Outside the office (still
Palace performing duty)

Public authority may be the Public authority is not be the

offended party offended party

6a. That the crime be committed (1) in the nighttime, or (2) in an

uninhabited place (3) by a band, whenever such circumstances may
facilitate the commission of the offense.
 Nighttime, Uninhabited Place or By a Bang Aggravating when:
 Impunity – means to prevent the accused’s being recognized or
to secure himself against detection or punishment
 Nighttime begins at the end of dusk and ending at dawn; from sunset
to sunrise
 Uninhabited Place – one where there are no houses at all, a place at
a considerable distance from town, where the houses are scattered
at a great distance from each other
1. it facilitated the commission of the crime
2. especially sought for by the offender to insure the commission of the
crime or for the purpose of impunity
3. when the offender took the advantage thereof for the purpose of
impunity
4. commission of the crime must have began and accomplished at
nighttime
1. commission of the crime must begin and be accomplished in the
nighttime
2. when the place of the crime is illuminated by light, nighttime is not
aggravating
3. absorbed by Treachery
Requisites:
1. The place facilitated the commission or omission of the crime
2. Deliberately sought and not incidental to the commission or omission
of the crime
3. Taken advantage of for the purpose of impunity

63
  what should be considered here is whether in the place of the
commission of the offense, there was a reasonable possibility of the
victim receiving some help
6b. – Whenever more than 3 armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have
been committed by a band.
 Requisites:
 if one of the four-armed malefactors is a principal by inducement,
they do not form a band because it is undoubtedly connoted that he
had no direct participation,
 Band is inherent in robbery committed in band and brigandage
 It is not considered in the crime of rape
 It has been applied in treason and in robbery with homicide
1. Facilitated the commission of the crime
2. Deliberately sought
3. Taken advantage of for the purposes of impunity
4. There must be four or more armed men

7. That the crime be committed on the occasion of a conflagration,

shipwreck, earthquake, epidemic or other calamity or misfortune

 Requisites:
1. Committed when there is a calamity or misfortune
1. Conflagration
2. Shipwreck
3. Epidemic
2. Offender took advantage of the state of confusion or chaotic
condition from such misfortune
 Basis: Commission of the crime adds to the suffering by taking
advantage of the misfortune.
 based on time
 offender must take advantage of the calamity or misfortune
Distinction between Paragraphs 7 and 12 of Article 14

Committed during a calamity or Committed with the use of

misfortune wasteful means

64
 Crime is committed BY using fire,
Crime is committed DURING any inundation, explosion or other
of the calamities wasteful means

8. That the crime be committed with the aid of (1) armed men or (2)
persons who insure or afford impunity
 based on the means and ways
 Requisites:
 Exceptions:
1. that armed men or persons took part in the commission of the crime,
directly or indirectly
2. that the accused availed himself of their aid or relied upon them
when the crime was committed
1. when both the attacking party and the party attacked were equally
armed
2. not present when the accused as well as those who cooperated with
him in the commission of the crime acted under the same plan and
for the same purpose.
3. Casual presence, or when the offender did not avail himself of any of
their aid nor did not knowingly count upon their assistance in the
commission of the crime
WITH THE AID OF ARMED MEN BY A BAND
Requires more than 3 armed
Present even if one of the malefactors who all acted
offenders merely relied on their together in the commission of
aid. Actual aid is not necessary an offense

 if there are more than 3 armed men, aid of armed men is absorbed
in the employment of a band.
9. That the accused is a recidivist
 Recidivist – one who at the time of his trial for one crime, shall have
been previously convicted by final judgment of another crime
embraced in the same title of the RPC
 Basis: Greater perversity of the offender as shown by his inclination
to commit crimes
 Requisites:
 What is controlling is the time of the trial, not the time of the
commission of the offense. At the time of the trial means from the

65
 arraignment until after sentence is announced by the judge in open
court.
 When does judgment become final? (Rules of Court)
 Example of Crimes embraced in the Same title of the RPC
 Q: The accused was prosecuted and tried for theft, robbery and
estafa. Judgments were read on the same day. Is he a recidivist?
1. offender is on trial for an offense
2. he was previously convicted by final judgment of another crime
3. that both the first and the second offenses are embraced in the
same title of the RPC
4. the offender is convicted of the new offense
1. after the lapse of a period for perfecting an appeal
2. when the sentence has been partially or totally satisfied or served
3. defendant has expressly waived in writing his right to appeal
4. the accused has applied for probation
1. robbery and theft – title 10
2. homicide and physical injuries – title 8

A: No. Because the judgment in any of the first two offenses was not yet
final when he was tried for the third offense

 Recidivism must be taken into account no matter how many years

have intervened between the first and second felonies
 Pardon does not obliterate the fact that the accused was a
recidivist, but amnesty extinguishes the penalty and its effects
 To prove recidivism, it must be alleged in the information and with
attached certified copies of the sentences rendered against the
accused
 Exceptions: if the accused does not object and when he admits in his
confession and on the witness stand.

10. That the offender has been previously punished for an offense to
which the law attaches an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty

 Reiteracion or Habituality – it is essential that the offender be

previously punished; that is, he has served sentence.
 Par. 10 speaks of penalty attached to the offense, not the penalty
actually imposed
REITERACION RECIDIVISM

66
 Necessary that offender shall Enough that final judgment
have served out his sentence has been rendered in the first
for the first sentence offense

Previous and subsequent

offenses must not be embraced
in the same title of the Code Same title

Not always an aggravating

circumstance Always aggravating

 4 Forms of Repetition
 Habitual Delinquency – when a person within a period of 10 years
from the date of his release or last conviction of the crimes of
serious or less serious physical injuries, robbery, theft, estafa or
falsification is found guilty of any of said crimes a third time or
oftener.
 Quasi-Recidivism – any person who shall commit a felony after having
been convicted by final judgment, before beginning to serve such
sentence, or while serving the same, shall be punished by the
maximum period of the penalty prescribed by law for the new felony
1. Recidivism – generic
2. Reiteracion or Habituality – generic
3. Multiple recidivism or Habitual delinquency – extraordinary
aggravating
4. Quasi-Recidivism – special aggravating
11. That the crime be committed in consideration of a price, reward
or promise.
 Requisites:
1. At least 2 principals

1. The principal by inducement

2. The principal by direct participation

2. the price, reward, or promise should be previous to and in

consideration of the commission of the criminal act
 Applicable to both principals.

67
12. That the crime be committed by means of inundation, fire, poison,
explosion, stranding a vessel or intentional damage thereto, or
derailment of a locomotive, or by use of any other artifice involving
great waste or ruin.
 Requisite: The wasteful means were used by the offender to
accomplish a criminal purpose
13. That the act be committed with evident premeditation
 Essence of premeditation: the execution of the criminal act must be
preceded by cool thought and reflection upon the resolution to carry
out the criminal intent during the space of time sufficient to arrive
at a calm judgment
 Requisites:
 Conspiracy generally presupposes premeditation
 When victim is different from that intended, premeditation is not
aggravating. Although it is not necessary that there is a plan to kill a
particular person for premeditation to exist (e.g. plan to kill first 2
persons one meets, general attack on a village…for as long as it was
planned)
 The premeditation must be based upon external facts, and must be
evident, not merely suspected indicating deliberate planning
 Evident premeditation is inherent in robbery, adultery, theft, estafa,
falsification, and etc.
1. the time when the offender determined to commit the crime
2. an act manifestly indicating that the culprit has clung to his
determination
3. a sufficient lapse of time between the determination and execution
to allow him to reflect upon the consequences of his act and to allow
his conscience to overcome the resolution of his will
14. That (1) craft, (2) fraud, or (3) disguise be employed
 Craft – involves intellectual trickery and cunning on the part of the
accused.

It is employed as a scheme in the execution of the crime (e.g. accused

pretended to be members of the constabulary, accused in order to
perpetrate rape, used chocolates containing drugs)

 Fraud –involves insidious words or machinations used to induce

victim to act in a manner which would enable the offender to carry
out his design.

68
  as distinguished from craft which involves acts done in order not to
arouse the suspicion of the victim, fraud involves a direct
inducement through entrapping or beguiling language or
machinations
 Disguise – resorting to any device to conceal identity. Purpose of
concealing identity is a must.
Distinction between Craft, Fraud, and Disguise

Craft Fraud Disguise

Involves the use of
intellectual trickery Involves the use of
and cunning to arouse direct inducement by Involves the use
suspicion of the insidious words or of devise to
victim machinations conceal identity

 Requisite: The offender must have actually taken advantage of craft,

fraud, or disguise to facilitate the commission of the crime.
 Inherent in: estafa and falsification.
15. That (1) advantage be taken of superior strength, or (2) means be
employed to weaken the defense
 To purposely use excessive force out of the proportion to the means
of defense available to the person attacked.
 Requisite of Means to Weaken Defense
 To weaken the defense – illustrated in the case where one struggling
with another suddenly throws a cloak over the head of his opponent
and while in the said situation, he wounds or kills him. Other means
of weakening the defense would be intoxication or disabling thru the
senses (casting dirt of sand upon another’s eyes)
1. Superiority may arise from aggressor’s sex, weapon or number as
compared to that of the victim (e.g. accused attacked an unarmed
girl with a knife; 3 men stabbed to death the female victim).
2. No advantage of superior strength when one who attacks is overcome
with passion and obfuscation or when quarrel arose unexpectedly
and the fatal blow was struck while victim and accused were
struggling.
3. Vs. by a band : circumstance of abuse of superior strength, what is
taken into account is not the number of aggressors nor the fact that

69
 they are armed but their relative physical might vis-à-vis the
offended party
1. Means were purposely sought to weaken the defense of the victim to
resist the assault
2. The means used must not totally eliminate possible defense of the
victim, otherwise it will fall under treachery
16. That the act be committed with treachery (alevosia)
 TREACHERY: when the offender commits any of the crime against
the person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution
without risk to himself arising from the defense which the offended
party might make.
 Requisites:
 Treachery – can’t be considered when there is no evidence that the
accused, prior to the moment of the killing, resolved to commit to
crime, or there is no proof that the death of the victim was the
result of meditation, calculation or reflection.
 Examples: victim asleep, half-awake or just awakened, victim
grappling or being held, stacks from behind
 But treachery may exist even if attack is face-to-face – as long as
victim was not given any chance to prepare defense
1. that at the time of the attack, the victim was not in the position to
defend himself
2. that the offender consciously adopted the particular means, method
or form of attack employed by him
1. does not exist if the accused gave the deceased chance to prepare or
there was warning given or that it was preceded by a heated
argument
2. there is always treachery in the killing of child
3. generally characterized by the deliberate and sudden and
unexpected attack of the victim from behind, without any warning
and without giving the victim an opportunity to defend himself
ABUSE OF MEANS EMPLOYED
SUPERIOR TO WEAKEN
TREACHERY STRENGTH DEFENSE
Means, methods or Offender does not Means are employed
forms are employed employ means, but it only
by the offender to methods or forms of materially weakens

70
 make it impossible attack, he only the resisting power
or hard for the takes advantage of of the offended
offended party to his superior party
put any sort of strength
resistance

 Where there is conspiracy, treachery is considered against all the

offenders
 Treachery absorbs abuse of strength, aid of armed men, by a band
and means to weaken the defense

17. That the means be employed or circumstances brought about which

add ignominy to the natural effects of the acts

 IGNOMINY – is a circumstance pertaining to the moral order, which

adds disgrace and obloquy to the material injury caused by the crime

Applicable to crimes against chastity (rape included), less serious physical

injuries, light or grave coercion and murder

 Requisites:
 Examples: accused embraced and kissed the offended party not out
of lust but out of anger in front of many people, raped in front of the
husband, raped successively by five men
 tend to make the effects of the crime more humiliating
 Ignominy not present where the victim was already dead when such
acts were committed against his body or person
1. Crime must be against chastity, less serious physical injuries, light or
grave coercion, and murder
2. The circumstance made the crime more humiliating and shameful for
the victim
18. That the crime be committed after an unlawful entry
 Unlawful entry – when an entrance is effected by a way not intended
for the purpose. Meant to effect entrance and NOT exit.
 Why aggravating? One who acts, not respecting the walls erected by
men to guard their property and provide for their personal safety,
shows greater perversity, a greater audacity and hence the law
punishes him with more severity
 Example: Rapist gains entrance thru the window

71
  Inherent in: Trespass to dwelling, robbery with force upon things,
and robbery with violence or intimidation against persons.
19. That as a means to the commission of the crime, a wall, roof, door
or window be broken
 Requisites:
 Applicable only if such acts were done by the offender to effect
entrance.
 Breaking is lawful in the following instances:
1. A wall, roof, window, or door was broken
2. They were broken to effect entrance
1. an officer in order to make an arrest may break open a door or
window of any building in which the person to be arrested is or is
reasonably believed to be;
2. an officer if refused admittance may break open any door or window
to execute the search warrant or liberate himself,

20. That the crime be committed (1) with the aid of persons under 15
years of age, or (2) by means of motor vehicles, airships or other similar
means.

 Reason for #1: to repress, so far as possible, the frequent practice

resorted to by professional criminals to avail themselves of minors
taking advantage of their responsibility (remember that minors are
given leniency when they commit a crime)
Example: Juan instructed a 14-year old to climb up the fence and open
the gate for him so that he may rob the house
 Reason for #2: to counteract the great facilities found by modern
criminals in said means to commit crime and flee and abscond once
the same is committed. Necessary that the motor vehicle be an
important tool to the consummation of the crime (bicycles not
included)
Example: Juan and Pedro, in committing theft, used a truck to haul the
appliances from the mansion.

21. That the wrong done in the commission of the crime be deliberately
augmented by causing other wrong not necessary for its commission

 Cruelty: when the culprit enjoys and delights in making his victim
suffer slowly and gradually, causing him unnecessary physical pain in

72
 the consummation of the criminal act. Cruelty cannot be presumed
nor merely inferred from the body of the deceased. Has to be
proven.
1. mere plurality of words do not show cruelty
2. no cruelty when the other wrong was done after the victim was dead
 Requisites:
1. that the injury caused be deliberately increased by causing other
wrong
2. that the other wrong be unnecessary for the execution of the
purpose of the offender
IGNOMINY CRUELTY

Moral suffering – subjected to

humiliation Physical suffering

Art 15. ALTERNATIVE CIRCUMSTANCES. Their concept. — Alternative

circumstances are those which must be taken into consideration as
aggravating or mitigating according to the nature and effects of the
crime and the other conditions attending its commission. They are the
relationship, intoxication and the degree of instruction and education
of the offender.
The alternative circumstance of relationship shall be taken into
consideration when the offended party in the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into
consideration as a mitigating circumstances when the offender has
committed a felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said felony but when the
intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.
 Alternative Circumstances – those which must be taken into
consideration as aggravating or mitigating according to the nature
and effects of the crime and other conditions attending its
commission.
 They are:
1. relationship – taken into consideration when offended party is the
spouse, ascendant, descendant, legitimate, natural or adopted

73
 brother or sister, or relative by affinity in the same degree of the
offender
2. intoxication – mitigating when the offender has committed a felony
in the state of intoxication, if the same is not habitual or subsequent
to the plan to commit the said felony. Aggravating if habitual or
intentional
3. degree of instruction and education of the offender
RELATIONSHIP
Mitigating Circumstance Aggravating Circumstance
In crimes against persons – in
cases where the offender, or
when the offender and the
offended party are relatives of
the same level, as killing a
brother, adopted brother or
half-brother.
In crimes against property
(robbery, usurpation, Always aggravating in crimes
fraudulent insolvency, arson) against chastity.

Exception: Art 332 of CC – no

criminal liability, civil liability
only for the crimes of theft,
swindling or malicious mischief
committed or caused mutually
by spouses, ascendants,
descendants or relatives by
affinity (also brothers, sisters,
brothers-in-law or sisters-in-law
if living together). It becomes
an EXEMPTING circumstance.

 Relationship neither mitigating nor aggravating when relationship is

an element of the offense.

Example: parricide, adultery, concubinage.

INTOXICATION
74
 MITIGATING CIRCUMSTANCE AGGRAVATING CIRCUMSTANCE
a) if intoxication is habitual
a) if intoxication is not – such habit must be actual and
habitual confirmed

b) if intoxication is not b) if its intentional

subsequent to the plan to (subsequent to the plan to
commit a felony commit a felony)

 Must show that he has taken such quantity so as to blur his reason
and deprive him of a certain degree of control
 A habitual drunkard is given to inebriety or the excessive use of
intoxicating drinks.
 Habitual drunkenness must be shown to be an actual and confirmed
habit of the offender, but not necessarily of daily occurrence.
DEGREE OF INSTRUCTION AND EDUCATION
MITIGATING CIRCUMSTANCE AGGRAVATING CIRCUMSTANCE
Low degree of instruction
education or the lack of it.
Because he does not fully
realize the consequences of his High degree of instruction and
criminal act. Not just mere education – offender avails
illiteracy but lack of himself of his learning in
intelligence. committing the offense.

 Determined by: the court must consider the circumstance of lack of

instruction
 Exceptions (not mitigating):
1. crimes against property
2. crimes against chastity (rape included)
3. crime of treason
Art 16. Who are criminally liable. — The following are criminally liable
for grave and less grave felonies:

1. Principals.

2. Accomplices.

75
3. Accessories.

The following are criminally liable for light felonies:

1. Principals
2. Accomplices.
 Accessories – not liable for light felonies because the individual
prejudice is so small that penal sanction is not necessary
 Only natural persons can be criminals as only they can act with
malice or negligence and can be subsequently deprived of liberty.
Juridical persons are liable under special laws.
 Manager of a partnership is liable even if there is no evidence of his
direct participation in the crime.
 Corporations may be the injured party
 General Rule: Corpses and animals have no rights that may be
injured.
 Exception: defamation of the dead is punishable when it blackens
the memory of one who is dead.
Art 17. Principals. — The following are considered principals:
1. 1. Those who take a direct part in the execution of the act;
2. 2. Those who directly force or induce others to commit it;
3. 3. Those who cooperate in the commission of the offense by
another act without which it would not have been accomplished.
Principals by Direct Participation
Requisites for 2 or more to be principals by direct participation:
1. participated in the criminal resolution (conspiracy)
2. carried out their plan and personally took part in its execution by
acts which directly tended to the same end
 Conspiracy – Is unity of purpose and intention.
Establishment of Conspiracy
1. proven by overt act
2. Not mere knowledge or approval
3. It is not necessary that there be formal agreement.
4. Must prove beyond reasonable doubt
5. Conspiracy is implied when the accused had a common purpose and
were united in execution.
6. Unity of purpose and intention in the commission of the crime may
be shown in the following cases:

76
 1. Spontaneous agreement at the moment of the commission of
the crime
2. Active Cooperation by all the offenders in the perpetration of
the crime
3. Contributing by positive acts to the realization of a common
criminal intent
4. Presence during the commission of the crime by a band and
lending moral support thereto.
5. While conspiracy may be implied from the circumstances
attending the commission of the crime, it is nevertheless a rule
that conspiracy must be established by positive and conclusive
evidence.
 Conspirator not liable for the crimes of the other which is not the
object of the conspiracy or is not a logical or necessary consequence
thereof
 Multiple rape – each rapist is liable for another’s crime because each
cooperated in the commission of the rapes perpetrated by the others
 Exception: in the crime of murder with treachery – all the offenders
must at least know that there will be treachery in executing the
crime or cooperate therein.

Example: Juan and Pedro conspired to kill Tomas without the previous
plan of treachery. In the crime scene, Juan used treachery in the
presence of Pedro and Pedro knew such. Both are liable for murder. But
if Pedro stayed by the gate while Juan alone killed Tomas with treachery,
so that Pedro didn’t know how it was carried out, Juan is liable for
murder while Pedro for homicide.

 No such thing as conspiracy to commit an offense through

negligence. However, special laws may make one a co-principal.
Example: Under the Pure Food and Drug Act, a storeowner is liable
for the act of his employees of selling adulterated coffee, although
he didn’t know that coffee was being sold.
 Conspiracy is negatived by the acquittal of co-defendant.
 That the culprits “carried out the plan and personally took part in
the execution, by acts which directly tended to the same end”:
1. The principals by direct participation must be at the scene of the
crime, personally taking part, although he was not present in the
scene of the crime, he is equally liable as a principal by direct
participation.

77
 2. One serving as guard pursuant to the conspiracy is a principal direct
participation.
 If the second element is missing, those who did not participate in the
commission of the acts of execution cannot be held criminally liable,
unless the crime agreed to be committed is treason, sedition, or
rebellion.
Principals by Induction
a. “Those who directly force or induce others to commit it”
2. Principal by induction liable only when principal by direct
participation committed the act induced
3. Requisites:
1. inducement be made directly with the intention of procuring the
commission of the crime
2. such inducement be the determining cause of the commission of the
crime by the material executor
d. Forms of Inducements
1. By Price, reward or promise
2. By irresistible force or uncontrollable fear
3. Commander has the intention of procuring the commission of the
crime
4. Commander has ascendancy or influence
5. Words used be so direct, so efficacious, so powerful
6. Command be uttered prior to the commission
7. Executor had no personal reason
4. Imprudent advice does not constitute sufficient inducement
5. Requisites for words of command to be considered inducement:
6. Words uttered in the heat of anger and in the nature of the
command that had to be obeyed do not make one an inductor.
INDUCTOR PROPOSES TO COMMIT A FELONY
Induce others Same
Punishable at once when proposes
to commit rebellion or treason. The
person to whom one proposed
should not commit the crime,
Liable only when the crime otherwise the latter becomes an
is executed inductor

78
 Covers any crime Covers only treason and rebelli

Effects of Acquittal of Principal by direct participation on liability of

principal by inducement
1. Conspiracy is negated by the acquittal of the co-defendant.
2. One can not be held guilty of instigating the commission of the crime
without first showing that the crime has been actually committed by
another. But if the one charged as principal by direct participation
be acquitted because he acted without criminal intent or malice, it
is not a ground for the acquittal of the principal by inducement.
Principals by Indispensable Cooperation
1. “Those who cooperate in the commission of the offense by another
act without which it would not have been accomplished”
2. Requisites:
1. Participation in the criminal resolution
2. Cooperation through another act (includes negligence)
 *there is collective criminal responsibility when the offenders are
criminally liable in the same manner and to the same extent. The
penalty is the same for all.
 there is individual criminal responsibility when there is no
conspiracy.
Art. 18. Accomplices. — Accomplices are those persons who, not
being included in Art. 17, cooperate in the execution of the offense by
previous or simultaneous acts.
 Requisites:
 Examples: a) Juan was choking Pedro. Then Tomas ran up and hit
Pedro with a bamboo stick. Juan continued to choke Pedro until he
was dead. Tomas is only an accomplice because the fatal blow came
from Juan. b) Lending a dagger to a killer, knowing the latter’s
purpose.
 An accomplice has knowledge of the criminal design of the principal
and all he does is concur with his purpose.
 There must be a relation between the acts done by the principal and
those attributed to the person charges as accomplice
 In homicide or murder, the accomplice must not have inflicted the
mortal wound.
1. there be a community of design (principal originates the design,
accomplice only concurs)

79
 2. he cooperates in the execution by previous or simultaneous acts,
intending to give material and moral aid (cooperation must be
knowingly done, it must also be necessary and not indispensable
3. There be a relation between the acts of the principal and the alleged
accomplice
Art. 19. Accessories. — Accessories are those who, having
knowledge of the commission of the crime, and without having
participated therein, either as principals or accomplices, take part
subsequent to its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals
of the crime, provided the accessory acts with abuse of his public
functions or whenever the author of the crime is guilty of treason,
parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other crime.
 Example of Par 1: person received and used property from another,
knowing it was stolen
 Example of Par 2: placing a weapon in the hand of the dead who was
unlawfully killed to plant evidence, or burying the deceased who was
killed by the principals
 Example of Par 3: a) public officers who harbor, conceal or assist in
the escape of the principal of any crime (not light felony) with abuse
of his public functions, b) private persons who harbor, conceal or
assist in the escape of the author of the crime – guilty of treason,
parricide, murder or an attempt against the life of the President, or
who is known to be habitually guilty of some crime.
 General Rule: Principal acquitted, Accessory also acquitted
 Exception: when the crime was in fact committed but the principal is
covered by exempting circumstances.

Example: Minor stole a ring and Juan, knowing it was stolen, bought it.
Minor is exempt. Juan liable as accessory

 Trial of accessory may proceed without awaiting the result of the

separate charge against the principal because the criminal
responsibilities are distinct from each other

80
  Liability of the accessory – the responsibility of the accessory is
subordinate to that of a principal in a crime because the
accessory’s participation therein is subsequent to its commission,
and his guilt is directly related to the principal. If the principal was
acquitted by an exempting circumstance the accessory may still be
held liable.
 Difference of accessory from principal and accomplice:
1. Accessory does not take direct part or cooperate in, or induce the
commission of the crime
2. Accessory does not cooperate in the commission of the offense by
acts either prior thereto or simultaneous therewith
3. Participation of the accessory in all cases always takes place after
the commission of the crime
4. Takes part in the crime through his knowledge of the commission of
the offense.
Art. 20. Accessories who are exempt from criminal liability. —
The penalties prescribed for accessories shall not be imposed upon
those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters, or
relatives by affinity within the same degrees, with the single
exception of accessories falling within the provisions of paragraph 1 of
the next preceding article.
 Basis: Ties of blood and the preservation of the cleanliness of one’s
name which compels one to conceal crimes committed by relatives
so near as those mentioned.
 Nephew and Niece not included
 Accessory not exempt when helped a relative-principal by profiting
from the effects of the crime, or assisted the offender to profit from
the effects of the crime.
 Only accessories covered by par 2 and 3 are exempted.
 Public officer who helped his guilty brother escape does not incur
criminal liability as ties of blood constitutes a more powerful
incentive than the call of duty.
 PENALTY – suffering inflicted by the State for the transgression of a
law.
 3 fold purpose:
 Juridical Conditions of Penalty
1. retribution or expiation – penalty commensurate with the gravity of
the offense

81
 2. correction or reformation – rules which regulate the execution of
penalties consisting of deprivation of liberty
3. social defense – inflexible severity to recidivists and habitual
delinquents

a. Must be productive of suffering – limited by the integrity of human

personality

b. Must be proportionate to the crime

c. Must be personal – imposed only upon the criminal

d. Must be legal – according to a judgment of fact and law

e. Must be equal – applies to everyone regardless of the circumstance

f. Must bee correctional – to rehabilitate the offender

82