REVISED PENAL CODE OF THE PHILIPPINES

ACT NO. 3185

AN ACT REVISING THE PENAL CODE AND OTHER
PENAL LAWS

BOOK ONE

GENERAL PROVISIONS REGARDING THE DATE OF ENFORCEMENT

AND APPLICATION OF THE PROVISIONS OF THIS CODE, AND
REGARDING THE OFFENSES, THE PERSONS LIABLE AND THE
PENALTIES

 Felonies and circumstances which affect criminal liability

 Persons criminally liable for felonies
 Penalties
 Extinction of Criminal Liability
 Civil Liability
 Indeterminate Sentence Law (Act No. 4103 as amended by Act. No.
4225)
 Probation Law (Presidential Decree No. 1257, and as further
amended by Batas Pambansa Blg. 76 and Presidential Decree No.
1990)

BOOK TWO

CRIMES AND PENALTIES

 Murder punishable by reclusion perpetua

 Homicide punishable by reclusion temporal

PRELIMINARY

Criminal Law is that branch or division of law which defines crimes, treats
of their nature, and provides for their punishment.

It defines crimes

 A criminal law provides for the elements of the crime. It provides

what acts or omissions are punishable

 Nullum crimen, nulla poena sine lege. There is no crime where there
is no law punishing an act or omission as a crime.

Treats of their nature

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  In Book 1, felonies are classified according to their level of execution,
offenders are differentiated according to their degree of participation,
penalties are classified into principal or accessory, etc.

 Book 2, crimes are classified into 14 classifications—from Crimes

Against National Security and Law of Nations to Quasi-Offenses.

Provides for their penalty

 For crimes punished by the RPC, the range of penalties are from fine
to death. For crimes punished by special laws, the penalties are
usually stated in specific number of days, months or years.

What are the sources of criminal law?

1. Revised Penal Code

2. Special Laws
3. Presidential Decrees issued during Martial Law

Q: Is there such thing as common law crime in the Philippines?

Q: Is the Constitution a source of criminal law?

CHARACTERISTICS OF CRIMINAL LAW

1. General
2. Territorial
3. Prospective

GENERALITY—Criminal law is binding on all persons who live or sojourn

in the Philippine territory, (Art. 14, New Civil Code).

 Filipino citizens
 Foreigners
 Transients/Tourists

Example: An American citizen prosecuted for illegal possession of

firearm in the Philippines, even if he has a constitutional right in the US
“to keep and bear arms.”’

Exceptions

 Article 2. Application of its provisions. - Except as provided in the

treaties and laws of preferential application, the provisions of this
Code shall be enforced not only within the Philippine Archipelago,
xxxxxxx

 Article 14 (NCC): Penal laws and those of public security and

safety shall be obligatory upon all who live or sojourn in Philippine
territory, subject to the principles of public international law and to
treaty stipulations.

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Exemption by virtue of the principles of public international law:

1. Heads of State
2. Ambassadors, ministers plenipotentiary, ministers resident, and
charges d’ affaires.

They possess immunity from criminal jurisdiction of the country of their

sojourn and they cannot be sued, arrested or punished by the law of that
country.

 Vienna Convention on Diplomatic Relations .

Exemption by Treaty Stipulations

 Doctrine of incorporation—the country is bound by generally

accepted principles of international law, which are considered to be
automatically part of our own laws.

 Pacta Sunt Servanda—a fundamental rule in the international law

which provides that international agreements must be performed in
good faith.

1. US-RP Military Bases Agreement—where for certain crimes

committed in the Philippines by American servicemen who were
discharging their official duties.

2. Visiting Forces Agreement (VFA). Example: U.S. military personal

shall have the primary right to exercise jurisdiction over U.S.
personnel subject to the military law of the U.S. in relation to: (1)
offenses solely against the property or security of the U.S. or against
the property or person of U.S. personnel; and (2) offenses arising out
of any act or omission done in the performance of official duty.

3. Agreement between the Asian Development Bank and the

Philippines: Experts and consultants performing missions for the
Bank enjoy immunity from legal processes with respect to acts
performed by them in their official capacity except when the Bank
waives its immunity.

Q: Are consuls exempt?

A: No. They do not represent the diplomatic interests of their

countries. (Schneckenburger vs. Moran, 63 Phil. 250)

Exemption by law of preferential application

 R.A. 75—special law in favour of diplomatic representatives and their

domestic servants. Exemption from writs or process for the arrest,
imprisonment or seizure or attachment of goods or chattels.

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  Violations of the Articles of War—Under Republic Act No. 7055,
members of the AFP and other persons subject of the military law
including CAFGU are under the jurisdiction of the proper civil court
unless the offense charged, as determined before arraignment by the
civil court, is “service-connected offense or crime.” When it is
service-connected offense or crime, C.A. No. 408 (Articles of War)
applies in which case the military courts have jurisdiction over these
crimes or offenses.

TERRITORIALITY— Penal laws of the Philippines are enforceable only

within its territory.

 A Filipino committing a crime against a Filipino abroad. Crime not

triable in the Philippines.

Extent of Territory for purposes of criminal law

Article 2, RPC:

“the provisions of this Code shall be enforced not only within

the Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone.”

Article I of the 1987 Constitution:

“The national territory comprises the Philippine archipelago,

with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.”

Generality vs. Territoriality

 In Generality, the emphasis is on the offender; in Territoriality, the

emphasis is on the place of the commission of the offense.

Exceptions: There are five exceptions found in Article 2, RPC.

PROSPECTIVITY—Crimes are punished under the law in force at the time

of the commission.

 The law looks forward, never backward. Lex prospicit, non respicit. A
new law has a prospective, not retroactive, effect.

 To give a law retroactive application to the prejudice of the accused is

to make it an ex post facto law.

 Article 366, RPC Application of laws enacted prior to this Code. -

Without prejudice to the provisions contained in Article 22 of this
Code, felonies and misdemeanors, committed prior to the date of

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 effectiveness of this Code shall be punished in accordance with the
Code or Acts in force at the time of their commission.

Exceptions: Retroactivity of penal laws—When the new law is more

lenient or favourable to the accused.

Example:

Ordonez vs. Vinaro

Facts: Accused was found guilty of selling marijuana under the old
Dangerous Drugs Act (R.A. 6425), which penalizes the selling of marijuana
with life imprisonment. In 1995, R.A. 7659 (Heinous Crime Law) was
passed which amended, among others, R.A. 6425. The penalty is now
based on the number of grams or sticks of marijuana sold. This law had
the effect of reducing the sentence of the accused having sold only two
sticks of marijuana.

Held: The new law should be given retroactive effect as it was

favourable to the accused/convict. The Director of the Bureau of Prisons
was ordered to release the convict from the National Penitentiary.

Republic Act No. 10951 entitled an “Act Adjusting the Amount or the
Value of Property and Damage on which a Penalty is Based and the Fines
Imposed Under the Revised Penal Code Amending for the Purpose Act No.
3815 Otherwise Known as The Revised Penal Code.”

Hernan v. Sandiganbayan
G.R. No. 217874, 5 December 2017

Held: We have here a novel situation wherein the

judgment convicting the accused, petitioner herein, has
already become final and executory and yet the penalty
imposed thereon has been reduced by virtue of the passage
of the said law. Because of this, not only must petitioner’s
sentence be modified respecting the settled rule on
retroactivity of laws, the sentencing being favourable to the
accused, she may even apply for probation, as long as she
does not possess any ground for disqualification.

 A judicial decision may also be given retroactive application.

Decisions of the Supreme Court, although in themselves not laws,
are nevertheless evidence of what the laws mean, and this is the
reason why under Article 8 of the New Civil Code, “Judicial
decisions applying or interpreting laws or the Constitution shall form
part of the legal system.” (People vs. Jabinal, 55 SCRA 607)

 Remedial statutes or statues relating to remedies or modes of

procedure, which do not create new or take away vested rights, but
only operate in furtherance of the remedy or confirmation of rights

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 already existing, do not come within the legal conception of
retroactive law, or the general rule against retroactive operation of
statutes. (Tan, Jr. vs. CA, G.R. No. 136368, Jan. 16, 2002).

 Administrative Circular 12-2000, establishing the rule of preference

in imposing penalties in violations of Batas Pambansa Blg. 22 is not
a penal law; hence, Article 22 of the RPC is not applicable. The
circular applies only to those cases pending as of the date of its
effectivity and not to cases already terminated by final judgment (Go
vs. Dimagiba, G.R. No. 151876, June 21, 2005).

Exceptions to the exception:

1. Where the new law is expressly made inapplicable to pending actions

or existing causes of action (Tavera v. Valdez, 1 Phil. 463); and

2. Where the offender is a habitual criminal under Rule 5, Article 62, RPC
(Art. 22, RPC).

Article 22. Retroactive effect of penal laws. - Penal Laws shall have

a retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal, as this term is defined in Rule 5
of Article 62 of this Code, although at the time of the publication of
such laws a final sentence has been pronounced and the convict is
serving the same.

Article 62, RPC:

“For the purpose of this article, a person shall be deemed to be

habitual delinquent, if within a period of ten years from the date of his
release or last conviction of the crimes of serious or less serious
physical injuries, robo (robbery), hurto (theft), estafa or falsification,
he is found guilty of any of said crimes a third time or oftener.”

EFFECTS OF PEPEAL ON PENAL LAW

1. If the repeal makes the penalty lighter in the new law, the new law
shall be applied, except when the offender is a habitual delinquent
or when the new law is made not applicable to pending action or
existing cause of action;

2. If the new law imposes a heavier penalty, the new law in force at
the time of the commission of the offense shall be applied; and

3. If the new law totally repeals the existing law so that the act which
was penalized under the old law is no longer punishable, the crime
is obliterated.

CONSTRUCTION OF PENAL LAWS

1. Penal laws are strictly construed against the Government, and

liberally in favour of the accused. If there is doubt, the doubt is

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 resolved in favour of the accused. But this rule can be invoked
only where the law is ambiguous and there is doubt as to its
interpretation;

2. If the statue is ambiguous and admits of two reasonable but

contradictory constructions that which operates in favour of a party
accused under its provisions is to be preferred (Centeno v. People,
G.R. No. 113092, Sep. 1, 1994);

3. Doctrine of in dubio pro reo (when in doubt, for the accused)—

Whenever a penal law is to be construed or applied and the law
admits of two interpretations—one lenient to the offender and one
strict to the offender—that interpretation which is lenient or
favourable to the offender will be adopted (People v. Temporada,
G.R. No. 173473, December 17, 2008).

4. In the construction and interpretation of the provisions of the RPC,

the Spanish text is controlling, because it was approved by the
Philippine Legislature in its Spanish text (People vs. Manaba, 58
Phil. 665).

People vs. Mangulaban

(99 Phil. 992)

Facts: During the robbery in a dwelling house, a

robber fired his gun upward in the ceiling, not knowing that
there was a person in the ceiling of the house. The owner
who was up in the ceiling was hit by the slug that passed
through it and was killed.

Held:

Article 294, par. 1 of RPC provides, according to its

English text, that the crime of robbery is Robbery with
Homicide “when by reason or on occasion of the robbery
the crime of homicide shall have been committed.”

The Spanish text of the same provision reads, as

follows: “Cuando con motive o con occasion del robo
resultare homicido.”

While the English text seems to convey that the

homicide should be intentionally committed, the Spanish
text means that it is sufficient that the homicide shall be
resulted, even if mere accident.

HISTORY OF THE REVISED PENAL CODE

 The royal Order dated December 17, 1886, directed the execution of
the royal decree of September 4, 1884, wherein it was ordered that
the Penal Code in force in the Peninsula, as amended in accordance
with the recommendations of the code committee, be published and
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 applied in the Philippine Islands. The law having been published in
the Official Gazette of Manila on March 13 and 14, 1887, became
effective four months thereafter (US v. Tamparong, 31 Phil. 321).

 Old Penal Code took effect on July 14, 1887, and was in force up to
December 31, 1931.

 The R.P.C., as enacted by the Philippine Legislature, was approved

on December 8, 1930. It took effect on January 1, 1932.

 The RPC has undergone several amendments, but the basic

structure remained the same.

 There were attempts to revise the RPC or come up with a Code of

Crimes, but all were unsuccessful.

 On July 25, 2017, R.A. No. 10951 was passed. It is an act adjusting
the amount or the value of the property and damage on which a
penalty is based, and the fines imposed under the RPC.

THEORIES UNDERLYING THE REVISED PENAL CODE

Every country in the world has its own theory of what is crime. It
depends on its orientation. Around the world, there are two schools of
thought or theories underlying criminal law.

Classical Theory-- also known as the Old or the Traditional Theory or

Juristic Theory.

Characteristics:

 The basis of criminal liability is human free will and purpose of

the penalty is retribution;

 The man is essentially a moral creature with an absolute free

will to choose between good and evil, thereby placing more
stress upon the effect or result of the felonious act than upon
the man, the criminal himself;

 It has endeavoured to establish a mechanical and direct

proportion between crime and penalty; and

 There is a scant regard to the human element.

Positivist Theory—

Characteristics:

 The man is subdued occasionally by a strange and morbid

phenomenon which conditions him to do wrong, in spite of or
contrary to his volition.

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  That crime is essentially a social and natural phenomenon, and
as such, it cannot be treated and checked by the application of
abstract principles of law and jurisprudence nor by the
imposition of punishment, fixed and determined a priori; but
rather through the enforcement of individual measures in each
particular case after a thorough, personal and individual
investigation conducted by a competent body of psychiatrists
and social scientists.

 Criminal laws must be viewed as means to reform and that

penalties must be corrective or curative. Offender is regarded
as socially sick who needs treatment, not punishment.

Classical v. Positivist

The Classical Theory gives more emphasis upon the ACT committed
rather than the ACTOR. Focus is on what the ACTOR did. Whereas, the
Positivist Theory gives more emphasis on the ACTOR rather than the ACT.
Focus is on the DOER rather than what he did.

Q: Upon which school of thought is the RPC based?

A: The Classical Theory. The RPC is about 80% reproduction of the

Penal Code of Spain which is based on the Classical Theory. But some
positivist provisions were incorporated (impossible crimes, juvenile
delinquency, mitigating circumstances on voluntary surrender and plea of
guilty, etc.)

DATE OF EFFECTIVENESS AND APPLICATION OF THE PROVISIONS

OF THIS CODE

Article 1. Time when Act takes effect. - This Code shall take effect on
the first day of January, nineteen hundred and thirty-two.

SCOPE OF APPLICATION OF THE PROVISIONS OF THE RPC

Article 2. Application of its provisions. - Except as provided in the

treaties and laws of preferential application, the provisions of this Code
shall be enforced not only within the Philippine Archipelago, including
its atmosphere, its interior waters and maritime zone, but also outside
of its jurisdiction, against those who:

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

2. Should forge or counterfeit any coin or currency note of the

Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;

3. Should be liable for acts connected with the introduction into

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 these islands of the obligations and securities mentioned in the
presiding number;

4. While being public officers or employees, should commit an

offense in the exercise of their functions; or

5. Should commit any of the crimes against national security and

the law of nations, defined in Title One of Book Two of this Code.

“Except as provided in treaties and laws of preferential application..”

 This phrase refers to exceptions to the General Characteristics of

criminal law. The RPC is binding on all who live and sojourn in the
Philippines except those who are not covered by the RPC due to
treaty stipulations and laws of preferential application.

“shall be enforced not only within the Philippine Archipelago,

including its atmosphere, its interior waters and maritime zone”

 This phrase expresses the Territorial Principle of criminal law.

 Territory comprises the Philippine Archipelago, its atmosphere, its

interior waters, and maritime zone.

Exceptions to the Territorial Principle—

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

airship.

Q: Why “airship” instead of “airplane”?

A: When the RPC was enacted, there were no commercial planes yet.
What they had was an airship or dirigible balloon.

 The vessel or airplane must be registered or licensed in the

Philippines. Citizenship of the owner is immaterial.

Q: Mr. A, while on board a Philippine vessel anchored at the Sasa

Wharf, commits a crime against Mr. B who is also on board that vessel.
Are the provisions of the RPC applicable?

A: Yes, not because the crime is committed on a board a Philippine

ship, but because the crime is committed in Philippine territory.

 Exception 1 only applies if the ship or airplane is outside

Philippine territory, like in the middle of the Pacific Ocean or
over the Pacific Ocean.

 It does not apply when the Philippine vessel or aircraft is in the

territory of a foreign country.

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Q: A Japanese vessel is in the middle of Pacific Ocean, and Japanese
crewmember killed another Japanese crewmember. Whose law shall be
applied in the prosecution of the crime?

What happens if a crime is committed on board a Philippine vessel

while it is in the territory of a foreign country?

English Rule-- crimes are triable in that country, unless they merely affect
things within the vessel or they refer to the internal management thereof.

French Rule— crimes are not triable in the courts of that country, unless
their commission affects the peace and security of the territory or the safety
of the state endangered.

Q: Which Rules is followed in the Philippines?

A: English Rule (U.S. vs. Bull, 15 Phil. 7).

Q: Do Philippine courts have jurisdiction over the crime of homicide

committed on board a foreign merchant vessel by a member of a crew
against another?
A: Yes. Homicide is a serious offense. It does not refer to minor things
within the vessel or to an internal management of the vessel.

Q: Does the Philippine court have jurisdiction over the crime of

possession of opium aboard a foreign merchant vessel in transit?
A: No. That act alone does not constitute breach of public order (U.S.
vs. Look Chaw, 18 Phil. 573).

Q: What if the Philippines is the terminal port of the vessel?

A: Yes. The crime is triable in the Philippines. The person in possession
of opium on board that vessel may be prosecuted for illegal importation of
opium (U.S. v. Ah Sing, 36 Phil. 978).

Q: What if smoking of opium is committed aboard a foreign merchant

vessel while anchored two and one-half miles in Manila bay?
A: Yes. It is already a breach of public order. The primary object of the
law in punishing the use of opium is to protect the inhabitants of this
country against the disastrous effects entailed by the use of such drug.
(People v. Wong Cheng, 46 Phil. 729.)

Q: Does the same Rule apply to offenses committed on board foreign

warships in territorial waters?
A: No. Warships are reputed to be the territory of the country to which
they belong and cannot be subjected to the laws of another state (U.S. v.
Fowler, 1 Phil. 64).

Q: Will the immunity apply if the crew violate the laws while they are off-
duty?
A: No.

Q: What is the rule with respect to foreign aircraft?

A: Crimes committed aboard the foreign aircraft travelling in the
Philippine airspace are not triable in the Philippines. It is the state of
registration which has jurisdiction over the same while it in flight over the
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high seas or any other area outside the territory of any state (Convention
on Offenses and Certain Acts Committed On Board Aircraft)

SOME SPECIAL LAWS WITH EXTRA-TERRITORIAL APPLICATION

1. Human Security Act of 2007 (R.A. 9372)

2. The Terrorism Financing Prevention and Suppression Act (R.A.
10168)
3. Trafficking in Person (R.A. 9208 as amended by R.A. 10364)
4. Data Privacy Act (R.A. 10173)

2. Should forge or counterfeit any coin or currency note of the

Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;

 Forging or counterfeiting of coins, currency notes, government

bonds, treasury warrants, etc. done in a foreign country. (see Article
163 and 166, RPC)

3. Should be liable for acts connected with the introduction into

these islands of the obligations and securities mentioned in the
presiding number;

 Refers to importer of forged or counterfeit currencies and securities.

Those acts are dangerous to the economic interest of the country.

4. While being public officers or employees, should commit an

offense in the exercise of their functions; or

 This applies more particularly to those in the foreign service.

Examples are malversation of public funds, bribery, falsification of
public document, etc.

Note: Crimes committed by public officers not in the exercise of

official functions are not covered.

4. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of this Code.

Examples of crimes against the national security:

1. Treason (Art. 114)

2. Espionage (Art. 117)

Examples of crimes against the law of nations:

1. piracy (Art. 121)

2. mutiny

Q: Groups of pirates committed piracy in the waters of Indonesia. They

were apprehended while in Philippine waters. Can they be prosecuted
here?

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A: Yes. Piracy is a crime against the laws of nations and the offenders
can be apprehended and tried under the law of the country where they are
caught.

Crimes under International Law;

1. Genocide
2. Crimes Against Humanity
3. War Crimes
4. Crimes of Aggression (Bayan Muna vs. Romulo, GR No. 159618,
Feb. 1, 2011)

Title One

FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL

LIABILITY

Chapter One
FELONIES

Article 3. Definitions. - Acts and omissions punishable by law are

felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also by
means of fault (culpa).

There is deceit when the act is performed with deliberate intent and
there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill

Q: Define felonies?

A: Felonies are acts or omissions punishable by the Revised Penal

Code which can be committed not only by means of deceit (dolo) when the
act is performed with deliberate intent but also by means of fault (culpa)
when the wrongful act results from imprudence, negligence, lack of
foresight, or lack of skill.

Elements of Felony:

1. There must be act or omission

2. That the act or omission must be punishably by the RPC
3. That the act is performed or the omission incurred by means of
dolo or culpa.

First Element: Act or Omission

Act—a physical movement, a physical activity of the human body

which tends to influence the outside world.

Omission—Inaction, the exact opposite of action. Failure to do a

positive duty which the law commands to be done.

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 Examples:

1. Article 116-- Misprision of treason—

2. Article 275, par. 1--. Abandonment of persons in danger—

Classification of Felonies Based On First Element:

1. Felonies by Act
2. Felonies by Omission

Second Element: the Act or Omission must be punishable by RPC

“Nullum crimen, nulla poena sine lege”—There is no crime if there is

no law punishing it.

Q: Are acts punished under special laws considered felonies?

A: No. Only those punishable under the RPC are called felonies.

Crime vs. Felony

Crime is generic, because it refers to all acts or omissions punishable

by any law. Felony refers only to acts or omissions punished by the RPC.

Third Element: there is Deceit (dolo) or Fault (culpa)

“Deceit” is a wrong translation for dolo. When we say “deceit”, it

means you were fooled or defrauded like in the case of estafa, swindling, or
malversation. But there are felonies where deceit is not an element like
Robbery, Grave Threats, etc. The better translation is “intent” or “malice”.

“Culpa”—when there is negligence, imprudence, lack of foresight or

lack of skill.

Classification of Felonies Based on Third Element—according to the

means by which they are committed.

1. Intentional Felonies
2. Culpable Felonies

Intentional Felonies v. Culpable Felonies

In Intentional Felonies, the act or omission of the offender is

malicious or with deliberate intent; whereas, in Culpable Felonies, the
offender, in performing the act or incurring the omission, has no intention to
cause injury to another. The injury caused by the offender to another is
unintentional, it being simply the incident of another act performed without
malice.

Requisites of Dolo or Malice (Elements of voluntariness)

1. Freedom
2. Intelligence

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 3. Intent

Freedom—When a person acts without freedom, he is no longer a human

being but a tool.

Examples of action without freedom:

Article 12 (5)—Any person who acts under the compulsion of an

irresistible force;

Article 12 (6)—Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.

“Actus Me Invito Factus Non Est Meus Actus”-- An act done by me

against my will is not my act.

Intelligence—The power to determine the morality of human acts.

Article 12 (1)—An imbecile or insane person

Article 12 (2)—A person 15 years or under
Article 12 (3)—A person above 15 but below 18 years of age who
acted without discernment (R.A. 9344)

Intent—Involves an aim or determination to do a certain act.

Q: How do you prove intent?

A: There is no need to prove it. It is difficult to prove what is the mind of
the offender. There is a presumption in law that criminal intent is presumed
from the commission of a criminal act. The presumption is based on the
Classical Theory that man is a rational being, so that when he commits a
criminal act, it is presumed that he did it knowingly, and therefore criminal
intent is presumed from the commission of a criminal act. But the
presumption can be rebutted.

Cases:

1. People v. Sia Teb Ban, 54 Phil. 52)

2. US v. Catolico, 18 Phil. 504

“Actus non facit reum, nisi mens sit rea”—a crime is not committed if
the mind of the person performing to act complained be innocent.
Otherwise stated, the act itself does not make a man guilty unless his
intention were so.

Q: Distinguish motive from intent?

A: Both are in the mind. Motive is the moving power that impels a
person to commit a crime; while Intent is the purpose to use a particular
means to achieve a particular result. Intent is an element of an intentional
felony, Motive is completely immaterial.

Example: A shoots B to death.

Intent: To kill B
Motive: Revenge, anger, jealousy

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 Motive is immaterial, and is not an element of a crime. It need not be
proven.

Motive becomes important only in procedural law, particularly in the

Law on Evidence. Motive may constitute circumstantial evidence, where
there is no direct evidence to identify the assailant or prove the case.

Instances when Motive is Relevant

1. Where the identity of a person accused of having committed the

crime is in dispute, or when there is doubt as to the identity of the
assailant;

2. When there is a need to ascertain the truth between two

antagonistic theories or versions of the killing;

3. Where there are no witnesses to the crime, and where suspicion is

likely to fall upon a number of persons; and

4. If the evidence is merely circumstantial.

When there is no intent, there is no criminal liability

Mistake of Fact; Requisites.

1. That the act done would have been lawful had the facts been as
the accused believed them to be;

2. That the intention of the accused in performing the act should be

lawful; and

3. That the mistake must be without fault or carelessness on the part

of the accused.

 Lack of intent to kill the deceased, because his intention was to kill
another, does not relieve the accused from criminal responsibility.

 In mistake of fact, the intention of the accused in performing the acts

should be lawful. Thus, in error in personae, the principle of mistake
of fact does not apply.

 When the accused is negligent, mistake of fact is not a defense.

 Ignorance of the law excuses no one from compliance therewith

(ignorantia legis non exusat); ignorance or mistake of fact relieves
the accused from criminal liability (ignorantia facti excusat).

Cases:
1. US v. Ah Chong, 15 Phil. 488
2. People v. Oanis, 74 Phil. 257
3. Magsumbol v. People, G.R. No. 207175, Nov. 26, 2014
4. US v. Penalosa, 1 Phil. 109)
16
 5. People v. Taneo, 58 Phil. 255
6. People v. Del Fernando, 49 Phil. 75

Q: Can a person be held criminally liable under the RPC even if he has
no criminal intent?

A: Yes, in the following instances:

1. If it is committed by means of fault (culpa). Examples are felonies

under Art. 217 (malversation thru negligence), Art. 224 (evasion
thru negligence) and Article 365 (Quasi-Offenses).

2. If the crime is classified as malum prohibitum.

Requisites of Dolo or Malice (Elements of voluntariness)

1. Freedom
4. Intelligence
5. Imprudence, Negligence or Lack of Foresight or Skill

Article 365: “Reckless imprudence consists in voluntarily, but without

malice, doing or failing to do an act …….”

Imprudence—deficiency of action; lacks of skill

Test: The failure to do what any ordinary person would have ordinarily
done.

Negligence—deficiency of perception; lack of foresight

Test: The failure to foresee what any ordinary would have ordinarily
foreseen.

Q: Why does the law punish people who commit culpable felonies, when
actually there is no criminal intent?

A: It is very dangerous if a person can get away with a criminal act

simply because he did not have the intent. Society will be at great risk if
people can be careless anytime.

Mistake in the identity of the intended victim is not reckless

imprudence.

Case:

1. People v. Guillen, 85 Phil. 307 (page 51, Book)

What about accident?

Art. 12 (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.

Case:

17
 1. US vs. Catangay, 28 Phil. 490 (pages 51-52, Book)

Crimes punished by special laws, which include municipal or city

ordinances.

 Intent is not required in crimes punished by special laws. It is

sufficient that the offender has the intent to perpetrate the act
prohibited by special law.

Case:
1. People v. Bayona, 61 Phil. 181 (page 52, Book)

 In those crimes punished by special laws, the act alone, irrespective

of its motives, constitutes the offense.

Case:
1. U.S. v. Siy Chong Bieng, et al., 30 Phil. 577 (page 53, Book)

 Good faith and absence of criminal intent not valid defenses in

crimes punished by special laws.

Example: Possession of firearm based on the Memorandum

Order issued by the Provincial Governor.

Reason: When the doing of an act is prohibited by a special

law, it is considered that the act is injurious to public welfare and the
doing of the prohibited act is the crime itself.

MALA IN SE MALA PROHIBITA

Crimes so serious in their effects to Violations of mere rules of
society as to call for unanimous convenience designed to secure a
condemnation to its members. more orderly regulation of the
affairs of society
Criminal intent is necessary Criminal intent is immaterial. The
only inquiry is: has the law been
violated?
Generally, refers to those acts or Generally, refers to acts or
omissions punished by the RPC. omissions made criminal by special
laws.

 When the acts are inherently immoral, they are mala in se, even if
punished under special laws.

Cases:
1. Violation of the Electoral Reform Law by decreasing the votes of a
candidate (Garcia v. CA and People, G.R. No. 157171 (2006)
(page 57, Book)

2. Plunder under R.A. 7080 (Estrada v. Sandiganbayan, 421 Phil.

290)

 There are mala prohibita crimes defined in the RPC.

18
 Case:
1. Technical malversation (Ysidoro vs. People, G.R. No. 192330,
Nov. 14, 2012.

------

A typhoon destroyed the houses of many of the inhabitants of X

Municipality. Thereafter, X Municipality operated a shelter assistance
program whereby construction materials were provided to the
calamity victims, and the beneficiaries provided the labor. The
construction was partially done when the beneficiaries stopped
helping with the construction for the reason that they needed to earn
income to provide food for their families. When informed of the
situation, Mayor Maawain approved the withdrawal of ten boxes of
food from X Municipality’s feeding program, which were given to the
families of the beneficiaries of the shelter assistance program. The
appropriations for the fundings for the shelter assistance program
and those for the feeding program were separate items on X
Municipality’s annual budget.

Mayor Maawain was charged for technical malverasation. May Mayor

Maawain invoke the defense of good faith and that he had no evil
intent when he approved the transfer of the boxes of food from the
feeding program to the shelter assistance program?

A: No. Mayor Maawain cannot invoke good faith when he approved

the transfer of boxes of food from the feeding program to the Shelter
Assistance program. Criminal intent is not an element of technical
malversation. The law punishes the act of diverting public property
earmarked by law or ordinance for a particular purpose to another
public purpose. The offense is mala prohibita, meaning that the
prohibited act is not inherebtly immoral, but becomes a criminal
offense because positive law forbids its commission based on
considerations of public policy, order, and convenience. It is the
commission of an act as defined by the law, and not the character or
effect thereof that determines whether or not the provision has been
violated. Hence, malice or criminal intent is completely irrelevant
(Ysidoro v. People, G.R. No. 192330, November 14, 2012)

Article 4. Criminal liability. - Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful

act done be different from that which he intended.

2. By any person performing an act which would be an offense

19
 against persons or property, were it not for the inherent impossibility
of its accomplishment or an account of the employment of
inadequate or ineffectual means.

Q: Suppose a person commits a felony and the wrongful act done is

precisely what he intended. Is he liable under Article 4?

 Article 4 enumerates the EXTRAORDINARY manner of

committing a crime or incurring criminal liability.

“By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.”

Rationale: “el que es causa dela causa es causa del mal causado” (he
who is the cause of the cause is the caused of the evil caused)

 Applies only to intentional felonies; does not apply to culpable

felonies and those punished by special laws;

 When the person has not committed a felony, he is not criminally

liable for the result which is not intended.

Requisites:
1. The act committed must be a felony
2. That the wrong done to the aggrieved person be the direct
consequence of the crime committed by the perpetrator.

First Requisite; Not Present

Q: The accused wanted to play a joke with his friend. One night, the
accused waited for his friend to pass by. When the victim arrived, the
accused surprised him. The friend died of heart attack. Is the accused
liable?

A: No. Playing a joke is not a felony.

Other instances when the First Element is Absent

1. When the act or omission is not punishable by the RPC;

Examples:
1. Attempting to commit suicide
2. Act of snatching the property of another just to satisfy
curiosity (U.S. v. Villanueva, 31 Phil. 412; page 64, Book)
3. Using necessary force to retain one’s property (People v.
Bindoy, 56 Phil. 15; page 64, Book)

2. When the act is covered by any of the justifying circumstances

enumerated in Art. 11.

20
 Example: One who shoots another in self-defense, defense of
relative, defense of stranger, or in the fulfilment of duty.

Note: The offender must not have acted with recklessness

Examples:
1. Act of firing although committed through in self-defense was
not aimed at the assailant but indiscriminately fired upon
innocent persons.

2. Although the killing of the paramour caught having sexual

intercourse with the accused wife is not unlawful act
pursuant to Art. 247 of the RPC, the accused can be held
criminally liable for the injuries sustained by other persons.

3. When the crime committed is punished by special law.

Case:
1. Case of illegal practice of medicine (US v. Divino, 12 Phil.
175) (page 63, Book)

Second Element:

 That the wrong done to the aggrieved party be the direct,

natural and logical consequence of the felony committed by the
offender.

Three situations contemplated by par. 1:

1. Error in personae—mistake in the identity of the victim.

2. Abberatio ictus—mistake in the blow.

3. Praeter intentionem—the injurious result is greater than that

intended.

Error in personae v. Aberratio ictus

In error in personae, aim is correct; in aberratio ictus, the aim is

faulty.

Prater intentionem--

 A person committing a felony is liable for the direct, logical and

natural consequences of his criminal act.

 Doctrine of proximate cause—that cause, which, in the

natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the
result would not have occured.

21
  Efficient intervening cause—something absolutely foreign
and totally unexpected which intervened and which breaks the
relation of cause and effect, between the original felonious act
and the result.

Illustration:

Punch victim------------- head hits rock------------------- victim dies

(proximate cause) (fractured skull) effect
(Immediate cause)

Cases for Praeter intentionem:

1. People v. Cagoco, 58 Phil. 524 (page 65, Book)

2. US v. Valdez, 41 Phil. 497 (page 69, Book)
3. People v. Quianson, 62 Phil. 162 (page 72, Book)
4. US v. Marasigan, 27 Phil. 504 (page 72, Book)
5. People v. Martin, 98 Phil. 18 (page 76, Book)
6. Vda. De Bataclan v. Medina, 102 Phil. 181 (page 75, Book)
7. US v. Delos Santos, G.R. No. 13309, (page 79, Book)
8. Urbano v. IAC, 157 SCRA 10 (page 80, Book)
9. People v. Palalon, 49 Phil. 177 (page 79, Book)

“By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of its
accomplishment or an account of the employment of inadequate or
ineffectual means.”

Impossible Crime—crime committed by a person who performs an act,

which would be an offense against the persons or property, were it not for
the inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

 There is no impossible crime by omission

 “performing an act”—there is no known felony

Requisites of Impossible crime

1. That the act performed would be an offense against persons

or property;

Examples:

 Stabbing someone not known to be already dead.

 Stealing a ballpen from someone not knowing that the

said ballpen was the accused’s lost ballpen.

2. That the act was done with evil intent;

22
  No criminal intent if one stabs another person known to
be already dead.

3. That its accomplishment is inherently impossible, or that the

means employed is either inadequate or ineffectual;

a. Inherent impossibility of accomplishment—

i. Legal impossibility—occurs where the intended acts,

even if completed, would not amount to a crime.

Example: The impossibility of killing a person

already dead.

ii. Factual impossibility—occurs when extraneous

circumstances unknown to the actor or beyond his
control prevent the consummation of the intended
crime.

Examples:

a. A man who puts his hand in the coat pocket of

another with the intention to steal the latter’s
wallet and finds the pocket empty (US v.
Berringan, 482 F. 2nd 171).

b. The offender shoots the place of where he

thought he victim would be, although in reality,
the victim was not present in the said place (Intod
v. CA, G.R. No. 103119, Oct. 21, 1992).

c. A collector received the post-dated check in

payment of a merchandise. Instead of remitting
the same, she deposited it in the account of her
brother-in-law. The check however was
dishonoured (Jacinto v. People, G.R. No.
162540, July 13, 2009).

b. Employment of inadequate means--

Example:

A, determined to poison B, uses a small quantity of arsenic

by mixing it with food given to B, believing that the quantity
employed by him is sufficient. B is not killed.

But when the means employed is adequate and the result

expected is not produced, it is not an impossible crime, but a
frustrated felony. The offender has performed all the acts of
execution which would produce a felony as a consequence
but which, nevertheless, do not produce it by causes

23
 independent of the will of the perpetrator. For example—the
victim has developed a strong resistance to poison because
he has been working in a mine.

c. Employment of ineffectual means--

Examples:

i. A tried to kill B by putting in his soup a substance

which he thought was arsenic when in fact it was
sugar.

ii. A, with intent to kill B, aimed his revolver at the back

of B. Not knowing that the revolver was empty, A
pressed the trigger and it did not fire.

4. That the act performed should not constitute a violation of

another provision of the RPC.

Example:

A, who knew that B owned and always carried a watch,

decided to rob B of said watch. When A met B for that
purpose, B did not have the watch because he forgot to
carry it with him. Thinking that B had the watch with him,
A pointed his gun at him and asked for the watch.
Finding that B did not have the watch, A allowed B to go
without further molestation.

Not an impossible crime. First, the cause is not of

inherent impossibility of accomplishment, but a cause
other than A’s own spontaneous desistance. Second,
pointing a gun is a crime of grave threats under Art. 282,
subd. 2, RPC.

There is no attempted or frustrated impossible crime because the

acts performed are believed by the accused to be capable of
consummation.

Purpose of the law in punishing impossible crime— to suppress

criminal propensity or criminal tendencies. Objectively, the offender has not
committed a felony, but subjectively, he is a criminal. Article 4(2) of the
RPC is one of the few provisions of the RPC which is positivist-oriented.

Penalty for Impossible Crime:

Article 59. Penalty to be imposed in case of failure to commit the

crime because the means employed or the aims sought are
impossible. - When the person intending to commit an offense has
already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that
the act intended was by its nature one of impossible accomplishment
or because the means employed by such person are essentially
inadequate to produce the result desired by him, the court, having in

24
 mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine
from 200 to 500 pesos.

--

Filipino citizens Hector and Wendy were married in New York, and have
been living happily in Manila for the last three years. Hector was removing
junk from his basement when he came across an unlabelled recordable
CD. He put it in his computer’s DVD drive to check its contents. To his
surprise, he saw a video of Wendy and another man Ariel, in the act of
sexual intercourse in the master’s bedroom of his house. Angered by what
he saw, he filed a complaint for adultery against Wendy and Ariel. During
the course of the trial, and again to the surprise of Hector, it was proven
that Wendy was born male and underwent sex reassignment later in life.

a. May Hector’s charge of adultery against Wendy and Ariel prosper?

Answer: (for Crim. 2)

b. What is an impossible crime? Can there be an impossible crime of

adultery?

Answer:

An impossible crime is an act which would be an offense against persons

or property, were it not for the inherent impossibility of its accomplishment
or on account of the employment of inadequate or ineffectual means.

There is no impossible crime of adultery since this is a crime against

chastity, and not against person or property.

-----

Pretty was a campus beauty queen who, because of her looks and charms,
attracted many suitors. Having decided that she become a nun, Pretty
turned down all her suitors. Guapo, one of her most persistent suitors,
could not handle rejection and one night, decided to accost Pretty as she
walked home. Together with Pogi, Guapo forced Pretty into his car and
drove her to an abandoned warehouse where he and Pogi forced Pretty to
dance for them. Later, the two took turns in raping her. After satisfying their
lusts, Guapo and Pogi dropped her off at her house.

a. What crime or crimes did Guapo and Pogi commit? (for Crim. 2)

b. Pretty, after the ordeal, decided to take her own life by hanging
herself one hour after the rape. Would Guapo and Pogi be liable
for Pretty’s death?

Answer: Guapo and Pogi cannot be held liable for the death of
Pretty due to suicide committed by reason of the rapes. Suicide is an
intervening cause that breaks the connection between the rapes and death.
The death resulting from suicide cannot be considered as direct, natural
and logical consequence of the rapes committed by Guapo and Pogi.

25
 ---

Q: Is the penalty for impossible crime applicable to one who attempts to

commit a light felony of impossible materialization?

A: The penalty for impossible crime is arresto mayor or a fine from 200
to 500 pesos (Art. 59 of the RPC) while the penalty for light felony is arresto
menor or a fine not exceeding P 200 or both. Article 59 should not be made
applicable to one who attempts to commit a light felony of impossible
materialization since the penalty for the former is graver than that for the
latter. It would be unfair to punish a person, who failed to commit a light
felony since it is impossible to accomplish it, for a graver penalty than that
for a person who committed a light felony.

Article 5. Duty of the court in connection with acts which should be

repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act which
it may deem proper to repress and which is not punishable by law, it shall
render the proper decision, and shall report to the Chief Executive,
through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of legislation.

In the same way, the court shall submit to the Chief Executive, through
the Department of Justice, such statement as may be deemed proper,
without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition
of a clearly excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.

First Paragraph:

“Render the proper decision”—Dismiss the case or acquit the accused

based on the maxim nullum crimen, nulla poena sine lege.

Second Paragraph:

The court should convict the accused and impose the penalty provided by
law.

 Courts have the duty to apply the penalty provided by law.

 Judge has the duty to apply the law as interpreted by the

Supreme Court. DURA LEX SED LEX.

 Article 5, par. 2, also applies to violation of special laws.

Bases for recommendation for executive clemency/action in case of

excessive penalty:

26
 1. The accused acted with lesser degree of malice.
2. There is no injury or the injury caused is of lesser gravity.

Cases:

1. People v. Monleon, 74 SCRA 263 (page 89, Book)

2. People v. Acbangin, G.R. No. 117216, Aug. 9, 2000 (page 90,
Book)
3. People v. Cabagsan and Montano, 57 Phil. 598. (page 90, Book)
4. People v. Limaco, 88 Phil. 35 (Page 92, Book)
5. People v. Amigo, G.R. No. 116719, Jan. 18, 1996 (Page 93, Book)
6. Mendoza v. People, G.R. No. 183891, October 19, 2011 (Page 94,
Book).

Article 6. Consummated, frustrated, and attempted felonies. -

Consummated felonies as well as those which are frustrated and
attempted, are punishable.

A felony is consummated when all the elements necessary for its

execution and accomplishment are present; and it is frustrated when the
offender performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a

felony directly by over acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident
other than this own spontaneous desistance.

How a felony develops?

1. Mental Process/Internal Acts Not punishable

2. External/Physical Acts:

a. Preparatory acts General rule: Not punishable

Exception: If the RPC penalizes it.

Example: Article 304 (Possession
of picklocks or false keys)

b. Acts of Execution Punishable

--Attempted

-Frustrated

-Consummated

27
Article 304, RPC.—Possession of picklocks or similar tools.—Any person
who shall, without lawful cause, have in his possession picklocks or similar
tools specially adopted to the commission of the crime of robbery……

Phases of Execution

a. Subjective phase. It is that period between the point where the

offender begins and the point where he voluntarily desists. If
between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase
has not been passed and it is an attempt. If he is not stopped but
continues until he performs the last act, it is frustrated (US v. Eduave,
G.R. No. 12155, Feb. 2, 1917).

b. Objective phase. It is the result of the acts of execution, or the

accomplishment of the crime. If subjective and objective phases are
present, there is consummated felony.

Stages of Execution

a. Attempted stage
b. Frustrated stage
c. Consummated stage

Attempted stage—There is an attempt when the offender commences the

commission of a felony directly by overt acts, and does not perform all the
acts of execution which would produce the felony by reason of some cause
or accident other than his own spontaneous desistance.

Elements:

a. The offender commences the commission of the felony

directly by over acts;

“Directly”—this means that the offender must commence the

commission of the felony by taking direct part in the execution of the
act.

Q: A induced B to kill C, but B refused to do it. Is A liable for

attempted homicide?

A: No. The attempt was not done by A with physical activity.

Overt acts--some physical activity or deed, indicating the intention

to commit a particular crime, more than a mere planning or
preparation, which if carried out to is complete termination following
its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.

Q: Is there an attempted felony by omission?

A: There is no attempted felony by omission because overt

acts are not performed.
28
 Elements of overt acts:

1. That there be external acts.

2. Such external acts have direct connection with the crime

intended to be committed.

Cases.

1. Making an opening with an iron bar on the wall of a store is

not an over act of robbery. (People v. Lamahang, 61 Phil.
707) (Page 100, Book).

2. Drawing or trying to draw a pistol is not an overt act of

homicide (People v. Tabago, C.A. 48 O.G. 3419) (pages 98-
99, Book)
3. Raising a bolo as if to strike the offended party with it is not
an over act of homicide (U.S. v. Simeon, 3 Phil. 688) (Page
99, Book).

b. He does not perform all the acts of execution which would

produce the felony.

If the offender has performed all the acts of execution, the

offender has committed either a frustrated offense or a
consummated offense.

c. The offender’s act is not stopped by his own spontaneous

desistance;

Effect of spontaneous desistance—The spontaneous

desistance of a malefactor exempts him from criminal liability for the
intended crime but it does not exempt from the crime committed by
him prior to desistance (Valenzuela v. People, G.R. No. 160188, June
21, 2007)

Reason: A person who is already on the verge of committing a

crime but desists or decides not to pursue it because his conscience
bothers him should not be penalized. He should be appreciated for
hearkening to his conscience.

Q: A intended to kill B. With a rifle, he positioned himself in a

place where he had a good view of B. When he aimed his rifle at B,
he realized that there were so many people around. He desisted. Is
A liable for attempted murder?

A: No. A desisted even before he started to perform the acts

of execution. Regardless of the reason for his desistance, A did not
incur any criminal liability.

29
 Q: A took the wallet of B without B’s consent. Bothered by
his conscience, A returned the wallet of B. Is A liable for attempted
theft?

A: He is liable for consummated theft. All the acts of

execution of the crime of theft were already committed prior to the
desistance.

d. The non-performance of the all the acts of execution was due

to cause or accident other than his own spontaneous
desistance.

Cause--
The thief tried to lift the wallet inside the bag of another
person. The owner of the bag detected it, and held the hands of
the thief. The thief was in the act of taking the wallet but failed
to take possession of the wallet. Cause: the owner detected
and prevented the taking.
Accident--
Intending to kill B, A fired his gun at B. The gun jammed.
A failed to kill B. Accident: jamming of the gun.

Frustrated stage—There is a frustrated felony when the offender

performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
Nature. In case of frustrated crimes, the subjective phase is
completely passed. Subjectively, the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender.
Elements:
1. The offender performs all the acts of execution;
Q: With intent to kill, A shot B. The gun jammed. B was not filled.
Is it attempted or frustrated?
A: It is attempted. The jamming of the gun is an accident other
than A’s spontaneous desistance.
Q: With intent to kill, A shot B. B was not hit. Is it attempted or
frustrated?
A: It is attempted. The poor aim is a cause other than A’s
spontaneous desistance.
Q: With intent to kill, A shot B. B sustained wounds non-mortal
non-fatal wounds. Is it attempted or frustrated?

30
 A: It is still attempted. A has not performed all the acts of
execution. Until the offender inflicts a fatal wound which would
normally kill, he can rightfully claim that he has not performed all
the acts of execution which would produce the felony as a
consequence.

2. All the acts performed would produce a felony as a

consequence;

3. The felony is not produced;

4. By reason or causes independent of the will of the offender.

Q: With intent to kill, A shot B several times blowing off his brain,
blasting his heart and liver. B was rushed to the hospital where
he was treated using modern apparatus. B survived. Is the crime
attempted or frustrated?
A: It is frustrated. A already performed all acts of execution
which would produce the felony of murder. But the use of modern
science is the cause independent of the will of the perpetrator
which prevented the death of B.

If the crime is not produced because the offender himself

prevented its consummation, there is no frustrated felony.

Q: Wanting to poison his wife, a doctor placed poison in her food.

The wife ate the food with poison. When the wife had already
swallowed the food, the doctor was bothered by his conscience.
He administered first aid and forced her wife to vomit. The wife
survived. Is the crime attempted or frustrated parricide
A: It is not attempted parricide because the doctor has already
performed all the acts of execution. It is not frustrated parricide
because the cause which prevented the consummation of the
offense was not independent of the will of the doctor. In fact, it was
the doctor who prevented the death of his wife.
Q: What was the crime committed?
A: The crime of administering injurious beverage under Article 364
of the RPC.

Distinctions between Frustrated Felony and Attempted Felony (page

111, Book)
Distinctions between Attempted or Frustrated Felony and Impossible
Crime (page 111, Book)

31
Interesting Case of Intod v. Court of Appeals, 212 SCRA 52.
Facts: Intod and his companions, with intent to kill, fired at the bedroom
where they thought the victim was sleeping. It turned out, however, the
victim was in another city and no one was in the room when the accused
fired the shots. No one was hit by the gun fire.
Accused contended that the crime is impossible crime under Article 4(2).
They performed an act which would be an offense against person (Murder)
were it not for the inherent impossibility of its accomplishment (victim was
not there).
The prosecution argued that it was a case of attempted murder because
the accused failed to perform all the acts of execution because of a cause
(victim was not there) other than their own spontaneous desistance.
Held:
It is a case of impossible crime. To uphold the contention of the prosecution
that the offense was attempted murder because the absence of the victim
was the supervening cause independent of the actor’s will will render
useless the provision of the RPC on impossible crime. In that case, all
circumstances, which prevented the consummation of the offense will be
treated as an accident independent of the actor’s will.

Interesting case of Arson (Arts. 320-326).

Q: A burned the building owned by B. Out of 30 rooms, only two are
totally burned. The fire was extinguished. Is it attempted, frustrated or
consummated?
A: Counting the number of rooms or percentage of the building which
was burned is not the way to determine the stage of execution of the crime
of arson. No matter how small is the portion burned it is already consumed.
The consummation of the crime of arson does not depend upon the extent
of the damaged caused (Peope v. Hernandez, 54 Phil. 122).
Q: Suppose no part of the building was burned. But A was caught after
he set fire to some rugs already soaked in kerosene oil and placed them
near the wooden wall house of the house. Is it also consummated arson?
A: No. It is only frustrated arson (U.S. v. Valles, 39 Phil. 240). If there
was blaze, but no part of the house is burned, the crime is frustrated arson.
Q: Suppose A was caught while he about to strike a match to set the
building on fire. Is it also frustrated arson?
A: No. It is attempted arson. There was no blaze yet. So A has not yet
performed all the acts of execution.

No frustrated stage in the following felonies:

32
a. Theft. Unlawful taking is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity
to dispose of the same (Valenzuela v. People, G.R. No. 160188,
June 21, 2007.

b. Rape. In the crime of rape, from the moment the offender has carnal
knowledge of his victim, he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Rape is attempted if there is no penetration of the
female organ because not all acts of execution was performed. The
offender merely commenced the commission of the felony directly by
overt acts.

Q: The girl testified that there was partial penetration of the male
organ in her private parts and that she felt intense pain. During the
trial, it was shown that the hymen was not ruptured or the vagina was
not lacerated. Is the crime consummated rape?

A: Entry of the labia or lips of the female organ without rupture of

the hymen or laceration of the vagina is sufficient to consummate the
crime of rape (People v. Hernandez, 49 Phil. 980).

Q: Suppose during the trial, it was not established beyond doubt

that the accused succeeded in penetrating the vagina of the victim.
The accused contended that in the absence of conclusive evidence of
penetration, he could only be found guilty of frustrated rape. Is he
correct?

A: It is already a consummated rape. In consummated rape,

perfect penetration is not essential. Any penetration of the female
organ is sufficient. Entry of the labia or lips of the female organ
without rupture of the hymen or laceration of the vagina is sufficient to
consummate the crime of rape (Pp. v. Orita, 184 SCRA 114).

In the same case of Orita, the SC said: “Taking into account the
nature, elements, and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly inconceivable how the
frustrated stage in rape can be committed.”
In other words, if there is sexual intercourse between the rapist
and the victim, even how fleeting, or how shallow the penetration, that
is already consummated.
Q: Suppose the girl was awakened when she felt that the
accused, who was only wearing only briefs and crouching over her,
was pulling down her pajamas and panties. She resisted and pulled
up her pajamas and panties, but the accused pulled them down to
her knees and smashed her breasts. When the accused went to play
a CD, the woman escaped. Is the crime consummated rape?

33
 A: It is only attempted rape (Tibong v. People, G.R. No.
19100, September 15, 2010).

c. Adultery and concubinage. There is no frustrated stage as it is

either that the accused was able to engage in sex or not. However,
some authors opine that there is attempted adultery as when the
couple was surprised in the room of a hotel both already undressed.

d. Bribery and corruption of public official. There is no frustrated or

attempted stage since the crime is consummated at the moment the
agreement between the briber and the corruptor is made.

e. Physical injuries. There is no crime of attempted or frustrated

psychical injuries because the mere inflicting of injuries already
consummates the crime.

If there is intent to kill, the crime could either be attempted homicide

or murder or frustrated homicide or murder.

f. Acts of lasciviousness. There is no crime of attempted or frustrated

acts of lasciviousness. From the moment the offender performs all
the elements necessary for the execution of the felony, he actually
attains his purpose and all the elements of the crime have been
accomplished.

Consummated stage.-- A felony is consummated when all the elements

necessary for its execution and accomplishment are present.
Example:
With intent to kill, A shot B. B died. That is consummated homicide.
All the elements of homicide are present.

Q: What happens if some elements are present and some are

absent?
A: There are at least three possibilities.
1. The accused can be found guilty only of either frustrated or
attempted felony.

Q: With intent to kill, A shot. B did not die because the doctor saved
his life. Is the crime consummated homicide?
A. Not. One of the elements of consummated homicide is the victim
died. A is only guilty of either attempted or frustrated homicide.

34
 2. The accused cannot be convicted of the felony charged in its
consummated stage, but he can be convicted of another
felony in its consummated stage.

Q: With intent to gain, A took the property belonging to B with the

use of violence or intimidation. But during the trial, the employment of
violence, force or intimation was not proven. Is A liable for
consummated Robbery?
A: No. The element of use of violence, force or intimidation is
absent. A only committed the offense of simple theft, which is
committed by simply the taking, with intent to gain, the property
belonging to another without the latter’s consent.

Q: With intent to kill, A shot B. The prosecution alleged that the

killing was by means of treachery. During the trial, the element of
treachery was not proven. Is A liable for consummated murder?
A: No. He is liable for homicide which is committed without the
attendance of qualifying circumstances.

3. In most cases, when some of the elements are proven but the
others are not, the accused should be acquitted because no
crime was established.

Q: A accused B of Estafa under the RPC. The elements of Estafa

are: (a) Misappropriation; (b) Deceit or abuse of confidence; and (c)
Pecuniary damage suffered by the plaintiff.
During the trial, the prosecution proved that the accused was able to
get money from the victim and he did not return it. But the
prosecution failed to prove deceit or abuse of confidence. Is A liable
for Estafa?
A: No. A should be acquitted because not all the elements of
estafa are present. The obligation was purely civil. So there was only
civil liability.

No attempted or frustrated stage in the following crimes:

1. Crimes punishable by special laws, unless the law provides

otherwise.

2. Formal crimes, or those which are always consummated.

Examples of formal crimes:

35
 a. Acts of lasciviousness
b. Threats
c. Coercion
d. Slander
e. False Testimony
f. Alarms and scandals
Formal crimes vs. Material Crimes
A formal crime has one stage (consummated) of execution, while a
material crime is composed of several stages.
3. Impossible Crimes. In impossible crime, the person intending to
commit an offense has already performed all the acts for the
execution of the offense.

4. Crimes consummated by mere attempt.

Examples:

1. Attempt to flee to an enemy country (Art. 121)

Article 121. Flight to enemy’s country.—The penalty of

arresto mayor shall be inflicted upon any person who, owing
allegiance to the Government, attempts to flee or go to an
enemy country when prohibited by competent authority.

2. Corruption of minors (Art. 340). A mere proposal to the minor

to satisfy the lust of another consummates the offense.

5. Felonies by Omission. In this kind of felony, the offender does

not execute acts.
6. Crimes committed by mere agreement .
Examples:
1. Betting in sports contest (Art. 197)
2. Corruption of public officer (Art. 212)

-------------------

Q: If the slightest penetration of the female genitalia consummates

rape by carnal knowledge, how does the accused commit attempted
rape by carnal knowledge?

A: To be held liable for attempted rape by carnal knowledge, the

penis of the accused must not touch the labia of the pudendum of the
victim but his acts must be committed with clear intention to have

36
sexual intercourse. Intent to have intercourse is present if it is shown
that the erectile penis of the accused is in the position to penetrate
(Cruz v. People, G.R. No. 166441, Oct. 8, 2014) or the accused actually
commenced to force his penis in the victim’s sexual organ (People vs.
Banzuela, G.R. No. 202060, Dec. 11, 2013). If the offender touches the
body of the victim through force with lewd design but without clear
intention to have sexual intercourse, the crime committed is acts of
lasciviousness (People v. Sanico, G.R. No. 208469, August 13, 2014).

---

Q: Why is there no crime of frustrated serious physical injuries?

A: The crime of physical injuries is a formal crime since a single act

consummates as a matter of law; it has not attempted or frustrated
state. Once the injuries are consummated, the offense is
consummated.

----

Q: Senio planned to Burn Bal’s house. One evening, during a

drinking spree at his house, Senio told his friends what he intended to
do and even showed them the gasoline in cans that he would use for
the purpose. Carlo, a common friend of Senio and Bal, was present at
the drinking spree. He was still sober when Senio told them his plans.
Before going home, Carlo warned Bal that Senio would burn his
house and had already bought gasoline that would be used for the
purpose. Bal reported the matter to police authorities. Meanwhile,
Senio went to Bal’s house and proceeded to pour gasoline around the
walls of the house and it was at that point when he was caught by the
police. What crime did Senio commit, if any?

A: Senio is liable for attempted arson. He manifested his intention

to burn the house of Bal to his friends. He then performed the act of
pouring gasoline around the walls of the house to execute his
criminal design to commit arson. This is not just a preparatory act,
because it already ceased to be equivocal and revealed a clear
intention to burn the house. In sum, he already commenced the
commission of the crime of arson directly by overt acts, but he did
not perform all the acts to execute his criminal design to commit
arson by setting the house on fire due to a cause other than his
spontaneous desistance, and that is, having been caught by the
police.

Article 7. When light felonies are punishable. - Light felonies are

punishable only when they have been consummated, with the exception

37
of those committed against person or property.

Art. 9, par. 3-- Light felonies are those infractions of law for the commission
of which a penalty of arrest menor or a fine not exceeding 200 pesos or
both is provided.

Examples of Light Felonies under R.P.C.

1. Slight physical injuries (Art. 266)
2. Theft (Art. 309, pars. 7 and 8)
3. Alteration of boundary marks (Art. 313)
4. Malicious mischief (Art. 328, par. 3; Art. 329, par. 3)
5. Intriguing against honor (Art. 364)

General Rule: Light felonies under Article 9 are only punishable if they are
consummated.

Exceptions:
1. Light felonies committed against persons

a. Slight physical injuries and maltreatment (Art. 266)

2. Light felonies committed against properties

a. Theft (Art. 309, No.7)

b. Theft (Art. 309, No. 8)
c. Alteration of boundaries (Art. 313)
d. Malicious Mischiefs (Art. 328, No. 3; Art. 329, No. 30)

Reason: A light felony is merely an infraction of the law. The penalty for
consummated light felony is only arresto menor ( 1 day to 30 days) or a
fine not exceeding Php 200.00. Damage or injury to society or public order
is negligible. If it is negligible, there is very little damage or injury to society
if the light felony is only attempted or frustrated.

But with respect to light felonies considered as crimes against persons or

properties, attempted and frustrated stages are punishable. This means
that those who commit crimes against persons or properties are more
perverse than those who violate other Titles of the RPC.

Article 8. Conspiracy and proposal to commit felony. - Conspiracy and

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

A conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.

There is proposal when the person who has decided to commit a felony

38
proposes its execution to some other person or persons.

In both Conspiracy and Proposal, at least two persons are involved. As a

general rule, they are not punishable as they are only preparatory acts

In proposal, the person proposing is not only joking. He has already

decided to commit the offense.

Q: Suppose A approached B (gunman) and offered to pay the latter Php

1,000,000.00 if he agrees to kill C. B rejects the proposal. Is there already
a proposal?

A: Yes. Proposal is unilateral. It is not dependent on the decision of the

person to whom it is made.

Q. Since there is already a proposal, is A now criminally liable? Can he

be charged with attempted murder?

A: No. The offender has not yet started to perform acts of execution
directly by overt acts.

Q: What happens if B accepted the proposal and agreed to kill C for and
consideration of a fee of Php 1,000,000.00?

A: Once the proposal is accepted, it now reaches the stage of

conspiracy.

Q: Can A and B be now charged with conspiracy to commit murder?

A: No. There is no article in the RPC that punishes the conspiracy to

commit murder. Conspiracy is merely a preparatory act which is not
punishable.

Felonies which are consummated by mere proposals:

1. Proposal to commit treason (Art. 115)

2. Proposal to commit coup d’etat, rebellion or insurrection (Art. 136)

Felonies which are consummated by mere conspiracy:

1. Conspiracy to commit treason (Art. 115)

2. Conspiracy to commit coup d’ etat, rebellion or insurrection (Art. 136)
3. Conspiracy to commit sedition (Art. 141)

Note that all these felonies are against the State. The State is the victim.
The State has the absolute power to prosecute those preparing to commit
these kinds of felonies. If the persons planning to commit these offenses

39
against the State succeed, they would obtain power and therefore immunity
for the crime committed.

Q: Suppose the conspirators have committed the offense of treason.

Can they be charged with both conspiracy to commit treason and treason?

A: No. They can only be charged with treason, and the conspiracy
which they had before committing treason is only a manner of incurring
criminal liability.

Q: Suppose the conspirators have conspired and succeeded to kill A. Is

conspiracy in this case considered also a manner of incurring criminal
liability?

A: Yes.

Distinctions between conspiracy as a felony and conspiracy as a

manner of incurring criminal liability (page. 128).

Q: What is the effect of conspiracy as a manner of incurring criminal

liability?

A: When there is conspiracy, the act of one is the act of all. All the
conspirators are liable as co-principals regardless of the extent and
character of their respective participation in the commission of the crime or
crimes perpetrated in furtherance of the conspiracy.

Requisites of conspiracy:

1. That two or more persons came to an agreement;

2. That the agreement concerned the commission of a felony; and
3. That the execution of felony be decided upon.

What are the kinds of conspiracy as to its nature?

1. Wheel conspiracy—The wheel conspiracy occurs when there is a

single person or group (the hub) dealing individually with two or more
other persons or groups (the spokes). The spoke typically interacts
with the hub rather than with another spoke. In the event the spoke
shares a common purpose to succeed, there is a single conspiracy.
However, in the instances when each spoke is unconcerned with the
success of the other spokes, there are multiple conspiracies (Estrada
v. Sandiganbayan, G.R. No. 148965, Feb. 26, 2002); and

2. Chain conspiracy—Chain conspiracy exists when there is

successive communication and cooperation in much the same way
as with legitimate business operations between manufacturer and

40
 wholesaler, then wholesaler and retailer, and then retailer and
consumer. This involves individuals linked together in a vertical chain
to achieve a criminal objective.

Proposal as an overt act of Corruption of Public Officer.

One who offers money to a public officer to induce him not to perform
his duties, but the offer is rejected by the public officer is liable for
attempted bribery (U.S. v. Gloria, 4 Phil. 341). Proposal in this case is an
overt act of the crime of corruption of public officer (Art. 212).

Article 9. Grave felonies, less grave felonies and light felonies. - Grave
felonies are those to which the law attaches the capital punishment or
penalties which in any of their periods are afflictive, in accordance with
Art. 25 of this Code.

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

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

Section 1. Article 9 of Act No. 3815, otherwise known as "The Revised

Penal Code" is hereby amended to read as follows:

"Art. 9. Grave felonies, less grave felonies and light felonies. - Grave felonies are
those to which the law attaches the capital punishment or penalties which in any
of their periods are afflictive, in accordance with Article 25 of this Code.

"Less gave felonies are those which the law punishes with penalties which in
their maximum period are correctional in accordance with abovementioned
article.

"Light felonies are those infractions of law or the commission of which the penalty
of arresto menor or a fine not exceeding Forty thousand pesos (₱40,000) or both
is provided."

Article 25. Penalties which may be imposed. - The penalties which may

be imposed according to this Code, and their different classes, are those
included in the following:

Scale

Principal Penalties

Capital punishment:

41
 Death.

Afflictive penalties:

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

Correctional penalties:

Prision correccional, 
Arresto mayor, 
Suspension, 
Destierro.

Light penalties:

Arresto menor, 
Public censure.

Penalties common to the three preceding classes:

Fine, and 
Bond to keep the peace.

Accessory Penalties

Perpetual or temporary absolute disqualification, 

Perpetual or temporary special disqualification, 
Suspension from public office, the right to vote and be voted for, the
profession or calling. 
Civil interdiction, 
Indemnification, 
Forfeiture or confiscation of instruments and proceeds of the
offense, 
Payment of costs.

Q: What are the classification of felonies according to their gravity?

A: According to their gravity, the felonies are either:

1. Grave
2. Less Grave
3. Light

This classification is based on the penalty attached to the crime

committed. This is a manifestation of the classical theory of criminal law.

42
There must be a proportion between the seriousness of the crime and the
penalty.

Summary of Classifications of Felonies under the RPC:

1. Based on Article 3:
a. Felonies by Act
b. Felonies by Omission

2. Based on Art. 3:
a. Intentional Felonies
b. Culpable Felonies

3. Based on Art. 6:
a. Attempted
b. Frustrated
c. Consummated

4. Based on Art. 9
a. Grave
b. Less Grave
c. Light

“To which the law attaches the capital punishment”

Capital punishment is death penalty.

“Or penalties which in any of their periods are afflictive.”

Example: A felony punishable by prision correctional to prision mayor

is a grave felony.

Example: A felony is punishable by prision correctional in its

maximum period to prision mayor in its minimum period is a grave felony.

Example: A felony is punishable by the medium and maximum

periods of prision mayor or by prision mayor in its maximum period to
reclusion temporal in its minimum period is a grave felony.

“Penalties which in their maximum period are correctional”

Example: A felony punishable by arresto menor to destierro is a less

grave felony.

Example: A felony punishable by arresto menor in its maximum

period to destierro in its minimum period is a less grave felony.

43
“The penalty of arresto menor or a fine not exceeding Forty thousand
Pesos (P40,000.00), or both, is provided.”

Article 26. When afflictive, correctional, or light penalty. - A fine, whether

imposed as a single of as an alternative penalty, shall be considered an
afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does
not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty
if it be less than 200 pesos.

Section 2. Article 26 of the same Act is hereby amended to read as

follows:

"Art. 26. When afflictive, correctional, or light penalty. - A fine, whether imposed as a

single or as an alternative penalty, shall be considered an afflictive penalty, if it
exceeds One million two hundred thousand (₱1,200,000); a correctional penalty, if it
does not exceed One million two hundred thousand pesos (₱1,200,000) but is not
less than Forty thousand pesos (₱40,000); and a light penalty, if it be less than Forty
thousand pesos (₱40,000)."

1. Fine of more than Php 40,000.00—less grave felony because a fine

not exceeding Php 1,200,000.00 is a correctional penalty.

2. Fine of more than Php 1,200,000.00— grave felony because a fine

exceeding Php 1,200,000.00 is an afflictive penalty.

3. Fine of exactly Php 40,000.00—light felony. Although Art. 26 provides

that a fine not less than Php 40,000.00 is a correctional penalty, Art. 9
which defines light felonies should prevail, because the classifies
penalties according to their gravity, while the former classifies the fine
according to the amount thereof.

Article 10. Offenses not subject to the provisions of this Code. - Offenses

which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the contrary.

Q: What are the major sources of criminal law?

A: 1. The Revised Penal Code

2. Special penal laws.

Q: How do you define a special penal law?

A: It has two definitions:

44
 1. A special penal law is a law, which punishes acts or omissions not
defined and penalized by the RPC.

Examples: Illegal possession or sale of drugs under R.A. 9165

and illegal possession of firearms under PD 1866.

2. It is a statute enacted by the legislative branch, penal in character,

which is not an amendment to the RPC.

Example of an amendment: Law on coup d’etat (Amendment

to Art. 135, RPC).

Q: Does the RPC apply to crimes punished by special laws?

A: As rule, No. The provisions of RPC apply only to special laws

because the provisions of RPC, as a rule, apply only to felonies. However,
if the law is deficient, the provisions of RPC can apply suppletorily to crimes
punished by special laws. In case of conflict between the RPC and special
law, the latter shall prevail.

Q: Is there a crime of attempted or frustrated violation of R.A. 3019 (Anti-

graft Law)?

A: Art. 6 of the RPC does not apply to special laws. Also, the penalties
under the RPC have specific nomenclatures such as reclusion perpetua,
prision mayor, etc., and there is a scale of penalties. As a general rule, the
penalty for attempted felony is two degrees lower than the penalty
prescribed for the consummated felony, and the penalty for frustrated stage
is one degree lower than the penalty prescribed for the consummated
felony.

Q: Can there be an accessory or accomplice for violation of R.A. 3019?

A: No, for the same reason as above. There is no basis for fixing the
penalty for an accessory or accomplish in the absence of rules on
graduation of penalties.

Q: Can one avail of mitigating or aggravating circumstance in case of

violation of R.A. 3019?

A: No, for the same reason that the provisions of the RPC on mitigating
and aggravating circumstances do not apply to crimes punished under
special laws. Moreover, the penalties under the special laws do not have
minimum, medium or maximum periods.

Q: What if the special penal law borrows or adopts the same penalties
under the RPC, can there be an attempted or frustrated crime?

A: Yes. The RPC can be applied in a suppletory manner. For example,

R.A. 7659 (Heinous Crime Law) adopts the penalties under the RPC.

45
Another examples of suppletory applications of the RPC in case the
special penal law is silent on the matter:

1. Article 22 on retroactive effect of penal laws if they favour the

accused (People v. Parel, 44 Phil. 437);
2. Article 39 with respect to subsidiary imprisonment in case of
insolvency to pay the fine (People v. Abedes, 268 SCRA 619);
3. Article 45 with reference to confiscation of instruments used in the
commission of the crime (U.S. v. Bruhez, 28 Phil. 305);
4. Article 100 on civil liability (Copiaco v. Luzon Brokerage, G.R. No.
46135, September 19, 19380;
5. Article 70 on Rules on Service of Sentence (People v. Li Wai
Cheung, 214 SCRA 504);
6. Article 8 on the definition of conspiracy (Ladonga v. People, 451
SCRA 673).

Chapter Two
JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH
EXEMPT FROM CRIMINAL LIABILITY

Article 11. Justifying circumstances. - The following do not incur any

criminal liability:

1. Anyone who acts in defense of his person or rights, provided that

the following circumstances concur;

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to

prevent or repel it.

Third. Lack of sufficient provocation on the part of the person

defending himself.

2. Any one who acts in defense of the person or rights of his

spouse, ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same degrees
and those consanguinity within the fourth civil degree, provided that
the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the
revocation was given by the person attacked, that the one making
defense had no part therein.

3. Anyone who acts in defense of the person or rights of a stranger,

provided that the first and second requisites mentioned in the first
circumstance of this Article are present and that the person
defending be not induced by revenge, resentment, or other evil
motive.

46
 4. Any person who, in order to avoid an evil or injury, does not 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;

Third. That there be no other practical and less harmful

means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the lawful

exercise of a right or office.

6. Any person who acts in obedience to an order issued by a

superior for some lawful purpose.

Q: Define justifying circumstances?

A: Justifying circumstances are those, which if attending the commission

of an act, make the act lawful. The act is justified; it is in accordance
with law. It is not a crime.

“do not incur any criminal liability”

In justifying circumstances:

a. The circumstance affects the act, not the actor;

b. The act is done within legal grounds, hence considered as not a
crime;
c. Since the act is not a crime, there is no criminal offender;
d. There being no crime nor criminal, there is no criminal nor civil
liability on the part of the actor.

Q: Who has the burden to prove the circumstances mentioned in Article

11?

A: The accused. A justifying circumstance is a matter of defense. It is

incumbent upon the accused, in order to avoid criminal liability, to prove the
justifying circumstance claimed by him to the satisfaction of the court.
Normally, when the accused invokes a justifying circumstance, the court
will order a reverse trial.

SELF-DEFENSE

47
Q: Why does the law allow self-defense?

A: There are two reasons:

1. It is the duty of the State to defend its citizens. But the State
recognizes that it could not protect everybody 24 hours a day. It is
tantamount to asking the State to assign one policeman for every
citizen. So when a person is attacked, and there is no policeman
to defend him, he has the right to defend himself. He is simply
doing what the State is supposed to be doing for him. So the State
cannot take that act of self-defense against the person defending
himself.

2. It is in recognition of the natural law of self-preservation. Every

living creature has the natural instinct of self-preservation. The
concept of self-defense simply acknowledges the natural instincts
of man. It is absurd to expect a person not to defend himself when
he is under attack.

Requisites of Self-defense

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel

it; and

3. Lack of sufficient provocation on the part of the person defending

himself.

“defense of his person”

Unlawful aggression— this refers to physical attack which can cause

injury or even death. There is danger to life or limb. It does not include
verbal attack. Insulting words, no matter how slanderous, cannot cause
death or injury.

For the justifying circumstance of self-defense, the presence of unlawful

aggression is a condition sine qua non. There can be no self-defense,
complete or incomplete, unless the victim has committed un unlawful
aggression against the person defending himself.

Q: Suppose a policeman threw a stone at the accused when the latter

was running away from him to elude arrest for a crime committed in his
presence. The accused drew his knife and stabbed the policeman causing
the latter’s serious physical injuries. Can the accused invoke self-defense?

A: The aggression in the problem is not unlawful. Fulfilment of a duty or

exercise of a right in a more or less violent manner is an aggression, but it
is lawful.

48
Q: Suppose a landowner while defending his property uses force to
prevent a person from dispossessing him of his property. The intruder then
retaliates and injures the landowner. Charged with serious physical
injuries, can the intruder invoke self-defense?

A: No. The use of force does not amount to unlawful aggression. It is an

aggression that is done in the exercise of a right under Article 249 of the
New Civil Code.

“defense of his rights”

Q: Suppose a woman killed the person who was about to rape her.
Prosecuted for the death of the would-be rapist, can the woman interpose
self-defense?

A: The right to chastity of a woman is considered as a right similar to

defending one’s person under Article 11(1).

Q: Suppose a thief took your wallet and ran away, and in order stop him,
you fired at him causing his death. Can you claim self-defense?

A: No. There was no unlawful aggression on your person. Unlawful

aggression on your property right is not covered by Article 11(1).

Q: Suppose the robber entered your house with intention to rob, and
when he saw you he started to run away. When he was about to jump out
the window, you shot him. Was it an act of self-defense?

A: No, because there was no assault on your person.

Q: Suppose a robber entered your house holding a gun with intent to

rob, and when he saw you, he aimed his gun at you, but you were quick to
fire at him first killing him. Can you claim self-defense?

A: Yes. Defense of property can give rise to self-defense under Article

11(1) only if the attack on one’s property is coupled with an attack on his
person. The value of property can never be equated to human life, which is
supposed to be priceless.

Q: Suppose two persons agree to a fight. In the course of the fight, each
sustained injuries. Both filed cases against each other. Who can invoke
self-defense?

A: No one. Both are aggressors. No one can claim self-defense. Each of

them is liable for the other’s injury.

Q: Can one invoke self-defense even if he did not exert any effort to
escape or avoid physical confrontation?

49
A: No. A person does not have to be cornered against the wall before he
can lawfully defend himself from an unlawful aggression. The principle of
“retreat to the wall” has already been discarded. The person attacked has
no obligation to run. He has the right to defend himself right at the place
where he is attacked. The new rule is “stand your ground when in the right”.

Kinds of Unlawful Aggression:

1. Actual or material unlawful aggression—the danger must be

present, that is, actually in existence. It means an attack with
physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause injury.

2. Threatened or imminent unlawful aggression—the danger is on

the point of happening. It is not required that the attack already
begins, for it may be too late. But it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must be
offensive and positively strong (like aiming a revolver at another
with intent to shoot or opening a knife and making a motion as if to
attack).

Read:

1. People v. Cabungcal, 51 Phil. 803 (page 158)

Q: Suppose you are inside the second floor of your house. Your
neighbour from below shouts at you challenging you to a fight, and tells you
“wait there and I will kill”. Immediately you shoot him. Prosecuted for his
death, can you claim self-defense?

A: No. The threatened harm is not at the point of realization. A

threatening attitude does not amount to actual aggression. But you can
avail of mitigating circumstance of sufficient provocation or threat on the
part of the offended party immediately preceding the act under Art. 13(4).

Q: Suppose A attacked B causing the latter to fall on ground after

sustaining many blows. Then A left. When A left, B stood up and he
chased, attacked, and killed A. Prosecuted for A’s death, can B invoke
self-defense?

A: No. Self-defense is only available while aggression is still ongoing or

about to start. When aggression has ceased, there is no more unlawful
aggression because the danger to life and limb has ended.

People vs. Alconga, et.al.

79 Phil. 366

Facts: Deceased Barion and Rapose were playing cards (black-jack).

Barion, the banker or dealer, started losing money. He suspected accused
Alconga as the spotter of his cards and giving signal to Rapose. Barion got

50
angry and a physical confrontation almost ensued. Before leaving, Barion
threatened Alconga saying “tomorrow morning I will give you a breakfast”.

Two days after, they met. Barion started to attack Alconga with his
“pingahan”. Aloanga evaded the two blows, and while Barion was
delivering the third blow, he fired at him with his revolver, causing him to
stagger and to fall on the ground. Barion drew his dagger and directed a
blow at Alconga who was able to parry the same. A hand-to-hand fight
ensued. Having sustained several wounds, Barion ran away but was
followed by Alconga. After running a distance of about 200 meters,
Alconga overtook Barion, and then another fight ensued during which
Alconga delivered mortal bolo blow which caused Barion’s death.
Prosecuted for Barion’s death, Alconga interposed self-defense?

Held: There was no self-defense. When Barion started to hit Alconga with
his weapon, there was unlawful aggression. So Alconga was justified in
firing at Barion as he was acting in self-defense. But from the moment
Barion ran away, the danger to the life and limb of Alconga has ceased.
The unlawful aggression has ended. When Alconga gave chase and
overtook Barion he was no longer acting in self-defense. At that stage of
the fact, Alconga became the unlawful aggressor. That was already an act
of retaliation.

Reasonable Necessity of the Means Employed to Prevent the

Aggression.

Q: What do you mean by reasonable means?

A: It refers to two means:

1. The course of action is reasonable; and

2. The weapon used to defend is reasonable.

Reasonable of the course of action—It depends on several factors. It

depends on circumstances of the person, time and place.

Q: Suppose you were walking in a very dark alley known to be a

dangerous area, and all of a sudden somebody in the dark held you tightly
at the back, and you responded by hitting the attacker. Was your reaction
reasonable?

A: Yes, because of the circumstances of time and place.

Q: Suppose you were inside the classroom, and then you felt that
somebody behind you was touching you. You turned around and threw a
punch on his face. Was your reaction reasonable?

A: No.

Read:

51
 1. People v. Jaurigue (76 Phil. 174) (pages 174-175)

Reasonableness of the weapon used—The law does not require perfect

equality of weapons. It only requires reasonable equality. When a person
is under attack, instinctively he will use the first available means at his
disposal to defend himself. He cannot be expected to think coolly and to
choose what kind of weapon to use.

In determining the reasonableness of the weapon used, the following

factors may also be considered:

1. Size or power of the weapon

2. The character of the parties
3. Their relative standing

Size or power of the weapon

Q: Suppose somebody attacks you with a stick can you use a gun to
defend yourself? If you are attacked with a cane, can you use machine
gun to defend yourself?

A: No. There is no proportion between the weapon used by the

aggressor and the one used by the person defending himself.

Q: If you are attacked with a knife, can you use a gun to defend
yourself?

A: Yes. When a one is placed in danger because of the aggression, he

can use a more powerful weapon to defend himself. The law only requires
reasonable equality of weapons.

Character of the parties and their relative standing

Q: Suppose you are hit with a fist by another person, can you defend
yourself with a knife?

A: No. It is unreasonable.

Q: Suppose it was Manny Paquiao who hit you with his fist, can you use
a knife to defend yourself?

A: You should not use your first. You have no chance. You can use a
knife.

Q: If 5 or more people attack you with their fists, can you use a knife
against them?

52
A: Yes. It is already reasonable. You have no chance if you use your fist
only, unless you are Jacky Chan.

Lack of Sufficient Provocation on the Part of the Person Defending

Himself.

One cannot claim self-defense if he gave sufficient provocation that was

the cause of the unlawful aggression. He is the party to blame for the other
party’s reaction.

Instances When the Third Element can be said to exist:

1. There was no provocation at all on the part of the person defending

himself;

2. The person defending himself might have given some provocation but
it was not sufficient;

3. That the provocation was sufficient but it was not given by the person
defending himself;

4. The person defending himself night have given sufficient provocation,

but his provocation was not proximate and immediate to the act of
aggression.

Q: How to determine sufficiency of provocation?

A: The provocation is sufficient if it is proportionate to the act of

aggression and adequate to stir the aggressor to its commission.

But it is not necessary that the one who gave provocation must have
been guilty of using violence and thus becoming an unlawful aggressor
himself.

The acts of challenging another to a fight, hurling insults at another,

and trying to forcibly kiss the sister of the accused are considered sufficient
provocation.

Close Correlation Between the First and Third Elements

People vs. Alconga, et.al.
79 Phil. 366

Q: When Barion started to attack Alconga, was there unlawful

aggression on the part of Alconga?

A: No. Barion immediately attacked Alconga when he saw him two days
after they had a verbal confrontation during a cards game.

53
Q: When Alconga defended himself by shooting Barion, was there
sufficient provocation on the part of Alconga?

A: The provocation was given two days earlier. So if he had killed Barion
at the first stage of the fight Alconga can claim self-defense.

Q: Suppose in the ensuing fight Barion killed Alconga, can Barion claim
self-defense?

A: No. There was sufficient provocation on his part at the first stage of
the fight when he attacked Alconga with a “pingahan” three times.

Barion’s unlawful aggression at the first stage of the fight became his
sufficient provocation that caused the unlawful aggression of Alconga at the
second stage of the fight.

Battered Woman Syndrome as a defense.

Section 26, R.A. 9262 otherwise known as “Ant-Violence Against

Women and Their Children Act of 2004”—

Section 26. Battered Woman Syndrome as a Defense--

Victim-survivors who are found by the courts to be suffering

from battered woman syndrome do not incur criminal liability and civil
liability notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the R.P.C.

In the determination of the state of mind of the woman who was

suffering from battered woman syndrome at the time of the
commission of the crime, the courts shall be assisted by expert
psychiatrists/psychologists.”

Section 3(c) of R.A. 9262 defines Battered Women Syndrome—

Battered Women Syndrome refers to a scientifically defined pattern of

psychological and behavioural symptoms found in women living in battering
relationships as a result of cumulative abuse.

People v. Genosa
G.R. No. 135982, Jan. 15, 2004

A battered woman has been defined as a woman "who is repeatedly

subjected to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without concern for
her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it

54
occurs a second time, and she remains in the situation, she is defined as a
battered woman."

Battered women exhibit common personality traits, such as low self-

esteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterer's actions; and false hopes that the
relationship will improve.

More graphically, the battered woman syndrome is characterized by

the so-called "cycle of violence," which has three phases: (1) the tension-
building phase; (2) the acute battering incident; and (3) the tranquil,
loving (or, at least, nonviolent) phase.

During the tension-building phase, minor battering occurs -- it could

be verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited
by the batterer. This wish, however, proves to be double-edged, because
her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to

placate him are not usually successful, and the verbal and/or physical
abuse worsens. Each partner senses the imminent loss of control and the
growing tension and despair. Exhausted from the persistent stress, the
battered woman soon withdraws emotionally. But the more she becomes
emotionally unavailable, the more the batterer becomes angry, oppressive
and abusive. Often, at some unpredictable point, the violence "spirals out of
control" and leads to an acute battering incident.

The acute battering incident is said to be characterized by brutality,

destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be
as unpredictable as the time of its explosion, and so are his reasons for
ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus:
the batterer is almost always much stronger physically, and she knows
from her past painful experience that it is futile to fight back. Acute battering
incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.

The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple experience
profound relief. On the one hand, the batterer may show a tender and
nurturing behavior towards his partner. He knows that he has been
viciously cruel and tries to make up for it, begging for her forgiveness and

55
promising never to beat her again. On the other hand, the battered woman
also tries to convince herself that the battery will never happen again; that
her partner will change for the better; and that this "good, gentle and caring
man" is the real person whom she loves.

2. Any one who acts in defense of the person or rights of his

spouse, ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same degrees
and those consanguinity within the fourth civil degree, provided that
the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the
revocation was given by the person attacked, that the one making
defense had no part therein.

Basis—

Defense of relatives is founded not only upon humanitarian sentiment, but

also upon the impulse of blood which impels men to rush, on the occasion
of great perils, to the rescue of those close to them by ties of blood.

Defense of Relatives

Q: Who are considered relatives within the contemplation of the

“defense of relatives”?

A: There are:

1. Spouse
2. Ascendants
3. Descendants
4. Brothers and sisters, whether legitimate, illegitimate, natural or
adopted
5. Relatives by affinity within the same degrees:
a. Parents-in-law
b. Son-in-law
c. Daughter-in-law
d. Brother-in-law/Sister-in-law
6. Relatives of consanguinity within the 4th degree.

Elements

1. The relative must be a victim of unlawful aggression;

56
 2. There is reasonable necessity of the means employed by the person
defending a relative to prevent or repel the aggression; and

3. In case the provocation was given by the person attacked, the one
making a defense had no part therein.

Q: Must unlawful aggression in a defense of relative exist as a matter of

fact, or can it be made to depend upon the honest belief of the one making
defense?
A: It can be made to depend upon the honest belief of the one making a
defense (US v. Esmedia, 17 Phil. 260.) For example, when the sons saw
their father lying on the ground already bloodied, and they believed in good
faith that their father was the victim of unlawful aggression, they are
justified to kill the person who beat their father. There was mistake of fact
on the part of the sons.

“the one making defense had no part therein”

The law does not say that the relative must have given provocation. It
is better if he has not given sufficient provocation and is attacked, you can
defend him. But if your relative has provoked somebody and is attacked, he
cannot invoke complete self-defense because his provocation will prejudice
him.
However, even your relative’s provocation will prejudice him, it will not
prejudice you. You may still act in lawful defense of your relative because
what is important is that you have no part in the provocation.

3. Anyone who acts in defense of the person or rights of a stranger,

provided that the first and second requisites mentioned in the first
circumstance of this Article are present and that the person
defending be not induced by revenge, resentment, or other evil
motive.

Defense of Strangers

Basis-
Humanitarian reasons. What you can do for yourself, the law allows you to
do it for others. The ordinary man would not stand idly by and see his

57
companion killed without attempting to save his life (US v. Aviado, 38 Phil.
10).

Q: Who are “strangers” within the contemplation of defense of

strangers?
A: A stranger is not among the relatives mentioned in paragraph 2.
Thus, even a girlfriend or a best friend is considered a stranger within the
meaning of paragraph 3.

Elements

1. The stranger must be a victim of unlawful aggression;

2. There is reasonable necessity of the means employed by the person

defending a stranger to prevent or repel the aggression; and

3. The person defending a stranger be not induced by revenge,

resentment or other evil motive.

Q: Suppose A was looking for his enemy (B) to kill him, and when he
saw B, B was attacking somebody. A killed B. Can he claim defense of
stranger?
A: No. It was apparent that he was induced by revenge, resentment or
other evil motive.

Note: Even if a person has a standing grudge against the assailant, if he

enters upon the defense of a stranger out of generous motive to save the
stranger from serious bodily harm or possible death, the third requisite still
exists.

4. Any person who, in order to avoid an evil or injury, does not 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;

Third. That there be no other practical and less harmful

means of preventing it.

58
Defense of State of Necessity

Concepts—

1. A state of necessity exists when there is a clash between unequal

rights, the lesser right giving way to the greater right.

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 (Art. 101, RPC). This is the only justifying circumstance
which provides for the payment of civil indemnity.

3. The necessity must not be due to negligence or violation of any

law by the actor.

Requisites

1. The evil sought to be avoided actually exists;

2. The injury feared be greater than that done to avoid it;

3. There be no other practical and less harmful means of preventing

it.

Illustrations:

1. To save one’s own life.

You are driving your car in a highway fully observing traffic rules and
regulations. Several cars are also following your car. All of a sudden an
overspeeding truck overtook your car, and you are left with the following
options:
a. You will not apply the brake and continue driving—your car
will bump into the truck and you will get killed;

b. You will apply sudden brake—your car will be bumped by

another car from behind and you will get killed;

c. You will turn left--- you will fall into a cliff and will surely die; and

59
 d. You will turn right—you will run over several people walking or
standing by the side of the road.

In the problem, you are justified to adopt the only alternative through
which you can save your own life, and for the death of the people you
would run over, you could invoke the emergency rule or state of necessity.
However, if your act of speeding created an emergency situation, and
you killed somebody in order to save your life. You are criminally liable
because you brought out the emergency yourself.

2. To save more properties, a property will be sacrificed.

3. To save a vessel and the passengers’ lives, the cargoes will be

jettisoned.

5. Any person who acts in the fulfillment of a duty or in the lawful

exercise of a right or office.

Three separate justifying circumstances:

1. One who acts in the fulfilment of a duty
2. One who acts in the exercise of a right
3. One who acts in the exercise of an office

Requisites
1. The accused acted in the performance of a duty or in lawful
exercise of a right or office.

2. The injury caused or the offense committed is the necessary

consequence of the due performance of duty or the lawful exercise
of such right or office.

In the fulfilment of a duty

This is best illustrated in the case of law enforcement officers. In the

performance of their duties, law enforcement officers can use reasonable
force and naturally can hurt people.

60
Q: If an arresting officer caused injury on a person he was arresting what
would be his defense if he is sued for such injury?
A: He acted in fulfilment of his duty.
However, it should be shown that he was properly fulfilling his duty.
The use of force would be improper if the person to be arrested is already
peacefully surrendering. The use of force must be reasonable.
Rule 113, Section 2, par. 2 of the Rules of Court provides: “No
violence or unnecessary force shall be used in making an arrest, and the
person arrested shall not be subject to any greater restraint than is
necessary for his detention.”

Read:
1. People v. Delima, 46 Phil. 738 (page 212)
2. People vs. Lagata, 83 Phil. 159 (page 214)

Facts: Policeman Delima was tasked to arrest a dangerous escapee-

convict. When he tried to apprehend the convict, the latter fought back with
a sharpened bamboo pole. But Delima was able to evade the attack and
the convict turned around and ran away. Delima shot him. Could Delima
claim he acted in fulfilment of his duty?

Held: Yes. The killing was done in the performance of a duty. The
deceased is under obligation to surrender, and had no right, after evading
service of his sentence, to commit assault and disobedience with a weapon
on his hand, which compelled the policeman to resort to such extreme
means, which, although it proved to be fatal, was justified under the
circumstances.

Q: Is there a conflict between the Delima ruling and Alconga ruling?

A: No. The Alconga case was decided under paragraph 1 on self-
defense, while the Delima case was decided under paragraph 5 on
fulfilment of duty. In self-defense, unlawful aggression is indispensable. In
fulfilment of duty, the officer fulfilling a duty need not be a victim of unlawful
aggression.

In the exercise of a right

Under Article 429 of the New Civil Code, the owner or lawful possessor of a
thing has the right to exclude any person from the enjoyment and 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.

61
Q: Suppose a group of people tried to forcibly occupy your land and you
forcibly drove them out and in the process caused on them physical
injuries. Are you criminally liable for such injuries?
A: No. You were acting in the lawful exercise of your right under Article
429 of the NCC.

Q: Suppose a pickpocket grabbed your Rolex watch and ran away. You
chased him, and in order to prevent him from further escaping, you shot
him at his leg. If sued, can you claim self-defense?
A. No. Self-defense under Article 11(1) only applies if the attack on
one’s property is coupled with an attack on his person. The proper defense
is lawful exercise of a right under Article 11(5).
Q: Suppose you shot the thief in his body and killed him. Can you set up
the defense of lawful exercise of a right?
A: No. Article 429 of the Civil Code states that you can only use “such
force as may be reasonably necessary to prevent or repel an actual or
threatened unlawful physical invasion or usurpation of his property”.
Shooting the thief in his body amounts to a use of unreasonable force.

In the exercise of office

Examples:

1. Executioner of the National Bilibid Prison cannot be held liable for

murder.

2. Surgeon who amputated the leg of a patient to save him from

gangrene is not liable for the crime of mutilation.
But take note that the law says “lawful exercise of a right or office””. So if
the execution of a death convict is set at 3:00 PM, the executioner should
not execute at any other earlier time. The President might grant him pardon
or commutation of sentence prior to the time set for his execution.

6. Any person who acts in obedience to an order issued by a

superior for some lawful purpose.

Requisites:
62
 1. That an order has been issued by a superior;
2. That such order must be for some lawful purpose;
3. That the means used by the subordinate to carry out said order is
lawful.
Principles:
1. When the order is not for a lawful purse, the subordinate who
obeyed it is criminally liable;

2. The subordinate is not liable for carrying out an illegal order of his
superior, if he is not aware of the illegality of the order and he is
not negligent.

-------

Porthos made a sudden turn on a dark street, and his Rills-Royce SUV
bumped the rear of a parked Cadillac Sedan inside which Aramis was
then taking a nap. Angered by the violent impact, Aramis alighted and
confronted Porthos: Putang ina mo! Porthos, displaying fearlessness,
aggressively shouted back at Aramis: Wag kang magtapang-tapangan
dyan, papatayin kita! Without saying anything more, Aramis drew his
gun from his waist and shot Porthos in the leg. Portho’s wound was
not life threatening.

a. What are the kinds of unlawful aggression, and which kind was
displayed in this case? Explain your answer.

Answer:

Unlawful aggression is of two kinds: (a) actual or material

unlawful aggression; and (b) imminent unlawful aggression (Rustia v.
People, G.R. No. 208351, Oct. 5, 2016).

In this case, there is neither actual nor imminent unlawful

aggression. The statement “papatayin kita” neither constitutes an
attack with physical force or with a weapon, an offensive act that
positively determines the intent of the aggressor to cause the injury
nor an impending attack, which is offensive and positively strong.

b. Standing trial for frustrated murder, Aramis pleaded self-

defense. The prosecution’s contention was that the plea of self-
defense applies only to consummated killings. Rule, with explanation

63
on the tenability of Arami’s claim of self-defense, and on the
Prosecution’s contention.

Answer:

The prosecution’s contention is not tenable. Shooting the leg of

the victim without killing him may be a reasonable means to prevent
or repel an actual or imminent unlawful aggression; hence, self-
defense is not confined to consummated killing.

C. Porthos insisted that the element of treachery was present. To

rule out treachery, Aramis asserted that both he and Porthos were
then facing and confronting each other when he fired the shot. Rule,
with reasons, on the respective contentions?

Answer:

There is no treachery as the attack was preceded by heated

words. The act was spontaneous, arising from the said circumstance.
The sudden attack was not preconceived and deliberately adopted but
was just triggered by the sudden infuriation on the part of the
accused, because of the provocative act of the victim, where their
meeting was purely accidental.

----

Jack and Jill have been married for seven years. One night, Jack
came home drunk. Finding no food on the table, Jack started hitting
Jill only to apologize the following day. A week later, the same
episode occurred—Jack came home drunk and stared hitting Jill.

Fearing for her life, Jill left and stayed with her sister. To woo Jill
back, Jack sent her floral arrangements of spotted lilies and
confectioneries. Two days later, Jill returned home and decided to
give Jack another chance. After several days, however, Jack again
came home drunk. The following day, he was found dead.

Jill was charged with parricide but raised the defense of

“battered woman syndrome”

A. Define “battered woman syndrome”.

Answer: Battered woman syndrome refers to a scientifically

defined pattern of psychological and behavioural symptoms
found in women living in battering relationships as a result of
cumulative abuse (Section 3(d), R.A. 9262).

B. Would the defense prosper despite the absence of any of the

elements for justifying circumstances of self-defense under
the Revised Penal Code? Explain.

64
 Answer: Yes. Section 26 of R.A. 9262 provides that victim-
survivors who are found by the courts to be suffering from
battered woman syndrome do not incur any criminal and civil
liability notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the Revised
Penal Code.

Article 12. Circumstances which exempt from criminal liability. - the

following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted

during a lucid interval.

When the imbecile or an insane person has committed an act which

the law defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court.

Exempting Circumstances-- are those which, if present in the

commission of a crime, make the offender exempt from criminal liability due
to the absence of any of all the conditions that would make an act
voluntary. There is, however, civil liability.

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.

In exempting circumstances—

1. The circumstances affect the actor, not the act;

2. The act is felonious and hence a crime but the actor acted
without voluntariness;

3. Although there is a crime, there is no criminal liability because

the actor is regarded only as an instrument of the crime;

4. There being a wrong done, but no criminal.

5. There is civil liability, except in paragraphs 4 and 7 (causing an

injury by mere accident; and failing to perform an act required

65
 by law when prevented by some lawful or insuperable cause) of
Article 12 (See Art. 101, RPC).

Insanity and Imbecility

Basis—Complete absence of intelligence, an element of voluntariness.

Insanity has been defined as a manifestation in language or conduct

of disease or defect of the brain, or a more or less permanently diseased or
disordered condition of the mentality, functional or organic, and
characterized by perversion, inhibition, or disordered function of the
sensory or of the intellectual faculties, or by impaired or disordered volition
(Section 1039, Revised Administrative Code, cited in People v. Austria,
G.R. No. 1111517-19, July 31, 1996). In legal understanding, it is the
inability to distinguish what is right from what is wrong.

Imbecility is one marked with mental deficiency. An imbecile is one,

while advanced in his age, having a mental development comparable to
that of children two and seven years old.

Principles:

1. Imbecility is exempt in all cases while insanity is not exempt if it

can be shown that he acted during lucid interval;

2. Insanity and imbecility must exist at the time of the commission of

the crime;

3. Insanity exists when there is complete deprivation of intelligence in

committing the act, that is, the accused is deprived of reason, he
acts without least discernment because there is complete absence
of the power to discern, or that there is total deprivation of freedom
of the will. Mere abnormality of the mental faculties will not exclude
imputability (People v. Ambre, G.R. No. 52688, Oct. 17, 1980).

4. Insanity must relate to the time immediately preceding or

simultaneous with the commission of the offense with which the
accused is charged (People v. Isla, G.R. No. 199875, Nov. 21,
2012).

Two tests of insanity:

a. Test of cognition—complete deprivation of intelligence in

committing the criminal act; and

b. Test of volition—there be a total deprivation of freedom of the will.

Formigones doctrine—The so-called Formigones doctrine enunciates that it

is necessary that there be a complete deprivation of intelligence in

66
committing the act, that is, that the accused be deprived of reason; that
there be no responsibility for his own acts; that he acts without the least
discernment; that there be a complete absence of the power to discern, or
that there be a total deprivation of freedom of the will. For this reason, it
was held that the imbecility or insanity at the time of the commission of the
act should absolutely deprive a person of intelligence or freedom of will,
because mere abnormality of his mental faculties does not exclude
imputability. (People v. Formigones, G.R. No. L-3246, November 29, 1950).

Q: What is the test adopted in our jurisprudence?

A: The standards set out in Formigones were commonly adopted in

subsequent cases.  A linguistic or grammatical analysis of those standards
suggests that Formigones established two (2) distinguishable tests: (a) the
test of cognition — "complete deprivation of intelligence in committing the
[criminal] act," and (b) the test of volition — "or that there be a total
deprivation freedom of the will." But our case law shows common reliance
on the test of cognition, rather than on a test relating to "freedom of the
will;" examination of our case law has failed to turn up any case where this
Court has exempted an accused on the sole ground that he was totally
deprived of "freedom of the will," i.e., without an accompanying "complete
deprivation of intelligence." This is perhaps to be expected since a person's
volition naturally reaches out only towards that which is presented as
desirable by his intelligence, whether that intelligence be diseased or
healthy. In any case, where the accused failed to show complete
impairment or loss of intelligence, the Court has recognized at most a
mitigating, not an exempting, circumstance in accord with Article 13(9) of
the Revised Penal Code: "Such illness of the offender as would diminish
the exercise of the will-power of the offender without however depriving him
of the consciousness of his acts."( People v. Rafanan, G.R. No. L-54135,
November 21, 1991).

Q: Who has the burden to prove insanity or imbecility?

A: The presumption is that every human is sane and that every act
penalized by law is done with voluntariness. The accused has the burden
to prove insanity or imbecility. Such defense is one of confession and
avoidance and as such must be proved with clear and convincing evidence.

Examples of mental disorders which negate criminal liability:

1. Dementia praecox/ Schizoprenia—Schizoprenia has been

described as a chronic mental disorder characterized by inability
to distinguish between fantasy and reality, and often accompanied
by hallucinations and delusions (Pp. vs. Rafanan, G.R. No. L-
54135, Nov. 21, 1991).

2. Epilepsy— Epilepsy is a chronic nervous disease characterized by

fits and attended by convulsive motions of the muscles and loss of
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 consciousness. Where the accused claimed that he was epileptic
but it was not shown that he was under the influence of epileptic fit
when he committed the crime, he is not exempt.

3. Somnambulism-- If it had been proven in the case that the

defendant when he committed these crimes was really asleep, or
in a state of somnambulism, or unconscious of his acts, then
instead of coming under paragraph 1 of article 8 of the Penal
Code this case would come under the provisions of article 1 of the
Penal code, because a somnambulist does not act voluntarily and
therefore his acts do not constitute a crime (US v. Odicta, G.R.
No. 1749, March 21, 1905).

Insanity was not established in the following cases:

1. The fact that the accused threatened the victim with death in case
she reported her ravishment indicated that he was aware of the
reprehensible moral depravity of that assault and that he was not
deprived of intelligence (People v. Rafanan)

2. The accused knew the nature of what he had done negated his
claim that he was insane when he fatally stabbed his victim. This
was manifested at the time of the incident when he shouted,
“Napatay ko si Mrs. Sigua.” (People v. Dungo, G.R. No. 894240,
July 31, 1991);

3. The accused took 120 cc of cough syrup and consumed three

sticks of marijuana before raping his victim and hitting her head
with a stone, had some form of mental illness which did not totally
deprive him of intelligence. (People v. Aguino, 186 SCRA 851).

Q: What happens if the accused becomes insane at the time of the

trial? Is he also exempt from criminal liability?

A: No. He is criminally liable. The trial, however, will be suspended

until the mental capacity of the accused be restored to afford him
a fair trial.

2. A person under nine (fifteen) years of age.

3. A person over nine (fifteen) years of age and under fifteen

(eighteen), unless he has acted with discernment, in which case,
such minor shall be proceeded against in accordance with the
provisions of Art. 80 of this Code.

When such minor is adjudged to be criminally irresponsible, the

court, in conformably 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,

68
 he shall be committed to the care of some institution or person
mentioned in said Art. 80.

**Republic Act No. 9344 (Juvenile Justice and Welfare Act of

2006).

R.A. No. 9344—Enacted into law on April 28, 2006, and took effect on May
20, 2006, this law establishes a comprehensive system to manage children
in conflict with the law (CICL) and children at risk with child-appropriate
procedures and comprehensive programs and services such as prevention,
intervention, diversion, rehabilitation, re-integration and after-care programs
geared towards their development (Ortega v. People, G.R. No. 151085,
August 20, 2008).

R.A. No. 9344 was amended by R.A. 10630 which was passed on July 23,
2012.

Q: What is the minimum age of criminal responsibility?

A: Section 6 of R.A. 9344, as amended, provides the answer.

SEC. 6. Minimum Age of Criminal Responsibility. – A child

fifteen (15) years of age or under at the time of the commission of the
offense shall be exempt from criminal liability. However, the child
shall be subjected to an intervention program pursuant to Section 20
of this Act.

A child is deemed to be fifteen (15) years of age on the day of

the fifteenth anniversary of his/her birthdate.

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

The exemption from criminal liability herein established does

not include exemption from civil liability, which shall be enforced in
accordance with existing laws.

Periods of Criminal Responsibility

1. Age of absolute irresponsibility (age of doli incapax)-- 15 years and

below. But CICL must undergo intervention program. Lack of
discernment is conclusively presumed.

2. Age of conditional responsibility-- above 15 years but below 18 years

of age. Lack of discernment is presumed but rebuttable. If the CICL

69
 acted without discernment, he/she incurs no criminal liability but
subject to intervention program;

3. Age of full responsibility-- 18 years or over to 70 years old;

4. Age of mitigated responsibility-- Above 15 years but below 18 years

of age if the offender acted with discernment subject to diversion
program; and over 70 years of age (senility).

Discernment—has been defined as the mental capacity of a minor to

fully grasp the consequences of his act, known and determined by taking
into account all the facts and circumstances presented by the records of
each case.

Discernment and Intent Distinguished—Both convey two distinct

thoughts. While both are products of the mental processes within a person,
intent refers to the desired act of the person while discernment refers to the
mortal significance that a person ascribes to the said act. Hence, a person
may not intend to shoot another but may be aware of the consequences of
his negligent act which may cause injury to the same person in negligently
handling an air rifle (Guevarra v. Almodovar, 196 SCRA 476).

Intelligence embraces the concept of discernment. Discernment is not

equivalent to intent. Intelligence and intent are both elements of
voluntariness in intentional felonies. In culpable felonies, intent is not an
element of voluntariness as it is replaced with negligence. But intelligence
which includes discernment is an element of voluntariness in culpable
felonies.

Examples of Act of Discernment:

a. Choosing an isolated and dark place to perpetrate the crime, to

prevent detection;
b. Boxing the victim to weaken her defense;
c. The victim was a helpless minor;
d. The accused secured the consummation of the offense with a
weapon;
e. The accused penetrated satisfied his lust by penetrating the victim
from behind;
f. The accused threatened the victim not to report what happened.

Q: How is the age of a child in conflict with the law determined?

A: The CICL enjoys the presumption of minority. Section 7 of RA 9344

provides:

SEC. 7. Determination of Age. - The child in conflict with the

law shall enjoy the presumption of minority. He/She shall enjoy all the
rights of a child in conflict with the law until he/she is proven to be
eighteen (18) years old or older. The age of a child may be

70
 determined from the child's birth certificate, baptismal certificate or
any other pertinent documents. In the absence of these documents,
age may be based on information from the child himself/herself,
testimonies of other persons, the physical appearance of the child
and other relevant evidence. In case of doubt as to the age of the
child, it shall be resolved in his/her favor.

Any person contesting the age of the child in conflict with the law prior
to the filing of the information in any appropriate court may file a case
in a summary proceeding for the determination of age before the
Family Court which shall decide the case within twenty-four (24)
hours from receipt of the appropriate pleadings of all interested
parties.

If a case has been filed against the child in conflict with the law and is
pending in the appropriate court, the person shall file a motion to
determine the age of the child in the same court where the case is
pending. Pending hearing on the said motion, proceedings on the
main case shall be suspended.

In all proceedings, law enforcement officers, prosecutors, judges and

other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law.

Q: How is a child below the age of responsibility be treated?

A: The child shall be released to his/her parents or guardian or guardian,

or in their absence, the child’s nearest relative, and shall be made to
undergo a community-based intervention program or referred to a child
care facility or Bahay Pag-asa (Section 20, R.A. 9344 as amended).

SEC. 20. Children Below the Age of Criminal Responsibility. – If

it has been determined that the child taken into custody is fifteen (15)
years old or below, the authority which will have an initial contact with
the child, in consultation with the local social welfare and
development officer, has the duty to immediately release the child to
the custody of his/her parents or guardian, or in the absence thereof,
the child’s nearest relative. The child shall be subjected to a
community-based intervention program supervised by the local social
welfare and development officer, unless the best interest of the child
requires the referral of the child to a youth care facility or ‘Bahay Pag-
asa’ managed by LGUs or licensed and/or accredited NGOs
monitored by the DSWD.

The local social welfare and development officer shall

determine the appropriate programs for the child who has been
released, in consultation with the child and the person having custody
over the child. If the parents, guardians or nearest relatives cannot be
located, or if they refuse to take custody, the child may be released to
any of the following:

(a) A duly registered nongovernmental or religious organization;

71
 (b) A barangay official or a member of the Barangay Council for
the Protection of Children (BCPC);

(c) A local social welfare and development officer; or, when and
where appropriate, the DSWD.

If the child has been found by the local social welfare and
development officer to be dependent, abandoned, neglected or
abused by his/her parents and the best interest of the child requires
that he/she be placed in a youth care facility or ‘Bahay Pag-asa’, the
child’s parents or guardians shall execute a written authorization for
the voluntary commitment of the child: Provided, That if the child has
no parents or guardians or if they refuse or fail to execute the written
authorization for voluntary commitment, the proper petition for
involuntary commitment shall be immediately filed by the DSWD or
the Local Social Welfare and Development Office (LSWDO) pursuant
to Presidential Decree No. 603, as amended, otherwise known as
‘The Child and Youth Welfare Code’ and the Supreme Court rule on
commitment of children: Provided, further, That the minimum age for
children committed to a youth care facility or ‘Bahay Pag-asa’ shall be
twelve (12) years old."

Q: How does the law treat children who are exempt from criminal
responsibility when they commit serious crimes?

A: A child over 12 years of age up to 15 years of age is deemed a

neglected child under PD 603 and shall be placed in the special facility
(Bahay Pag-asa) if he/she commits any of the serious crimes mentioned in
Section 20-A of R.A. 9344.

SEC. 20-A. Serious Crimes Committed by Children Who Are

Exempt From Criminal Responsibility. – A child who is above twelve
(12) years of age up to fifteen (15) years of age and who commits
parricide, murder, infanticide, kidnapping and serious illegal detention
where the victim is killed or raped, robbery, with homicide or rape,
destructive arson, rape, or carnapping where the driver or occupant is
killed or raped or offenses under Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002) punishable by more
than twelve (12) years of imprisonment, shall be deemed a neglected
child under Presidential Decree No. 603, as amended, and shall be
mandatorily placed in a special facility within the youth care faculty or
‘Bahay Pag-asa’ called the Intensive Juvenile Intervention and
Support Center (IJISC).

In accordance with existing laws, rules, procedures and

guidelines, the proper petition for involuntary commitment and
placement under the IJISC shall be filed by the local social welfare
and development officer of the LGU where the offense was
committed, or by the DSWD social worker in the local social welfare
and development officer’s absence, within twenty-four (24) hours
from the time of the receipt of a report on the alleged commission of
said child. The court, where the petition for involuntary commitment

72
 has been filed shall decide on the petition within seventy-two (72)
hours from the time the said petition has been filed by the
DSWD/LSWDO. The court will determine the initial period of
placement of the child within the IJISC which shall not be less than
one (1) year. The multi-disciplinary team of the IJISC will submit to
the court a case study and progress report, to include a psychiatric
evaluation report and recommend the reintegration of the child to
his/her family or the extension of the placement under the IJISC. The
multi-disciplinary team will also submit a report to the court on the
services extended to the parents and family of the child and the
compliance of the parents in the intervention program. The court will
decide whether the child has successfully completed the center-
based intervention program and is already prepared to be
reintegrated with his/her family or if there is a need for the
continuation of the center-based rehabilitation of the child. The court
will determine the next period of assessment or hearing on the
commitment of the child.

Q: How does the law treat a child who is a repeat offender?

A: A child over 12 years of age up to 15 years of age and commits an

offense for the second time or oftener and who has been previously
subjected to a community-based intervention program is deemed a
neglected child under PD No. 603 and shall undergo an intensive
intervention program or be referred to youth care facility or Bahay Pag-asa
(Section 20-B, R.A. 9344).

SEC. 20-B. Repetition of Offenses. – A child who is above

twelve (12) years of age up to fifteen (15) years of age and who
commits an offense for the second time or oftener: Provided, That the
child was previously subjected to a community-based intervention
program, shall be deemed a neglected child under Presidential
Decree No. 603, as amended, and shall undergo an intensive
intervention program supervised by the local social welfare and
development officer: Provided, further, That, if the best interest of the
child requires that he/she be placed in a youth care facility or ‘Bahay
Pag-asa’, the child’s parents or guardians shall execute a written
authorization for the voluntary commitment of the child: Provided,
finally, That if the child has no parents or guardians or if they refuse
or fail to execute the written authorization for voluntary commitment,
the proper petition for involuntary commitment shall be immediately
filed by the DSWD or the LSWDO pursuant to Presidential Decree
No. 603, as amended.

Q: What does the law state about status offenses?

A: Any conduct not considered an offense or not penalized if committed

by an adult shall not be considered an offense and shall not be punished if
committed by a child. (Section 57, R.A. 9344)

73
Q: Should children be penalized for violations of local ordinances
concerning juvenile status offenses?

A: No. The said ordinances are considered for the protection of children.
The penalty for such offenses shall not be imposed on children (Section 57-
A, R.A. 9344).

SEC. 57-A. Violations of Local Ordinances. – Ordinances

enacted by local governments concerning juvenile status offenses
such as, but not limited to, curfew violations, truancy, parental
disobedience, anti-smoking and anti-drinking laws, as well as light
offenses and misdemeanors against public order or safety such as,
but not limited to, disorderly conduct, public scandal, harassment,
drunkenness, public intoxication, criminal nuisance, vandalism,
gambling, mendicancy, littering, public urination, and trespassing,
shall be for the protection of children. No penalty shall be imposed on
children for said violations, and they shall instead be brought to their
residence or to any barangay official at the barangay hall to be
released to the custody of their parents. Appropriate intervention
programs shall be provided for in such ordinances. The child shall
also be recorded as a ‘child at risk’ and not as a ‘child in conflict with
the law’. The ordinance shall also provide for intervention programs,
such as counseling, attendance in group activities for children, and
for the parents, attendance in parenting education seminars.

Q: Are minors exempt from local ordinances?

A: No. They are not exempt. They are only exempted from imposition of
penalties.

Admonition under local ordinances is not a penalty; hence, valid. But

reprimand or fine is considered a penalty.

In Samahan ng Progresibong Kabataan (SPARK) vs. Quezon

City (G.R. No. 225442, August 8, 2077), the Supreme Court said:

“Thus springs the question of whether local governments could

validly impose on minors these sanctions - i.e., (a) community .
service; (b) reprimand and admonition; (c) fine; and (d)
imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as
amended, prohibit the imposition of penalties on minors for
status offenses such as curfew violations, viz.:

“SEC. 57. Status Offenses. - Any conduct not considered an

offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed
by a child.

“SEC. 57-A. Violations of Local Ordinances. - Ordinances

enacted by local governments concerning juvenile status
offenses such as but not limited to, curfew violations, truancy,
parental disobedience, anti-smoking and anti-drinking laws, as well

74
as light offenses and misdemeanors against public order or safety
such as, but not limited to, disorderly conduct, public scandal,
harassment, drunkenness, public intoxication, criminal nuisance,
vandalism, gambling, mendicancy, littering, public urination, and
trespassing, shall be for the protection of children. No penalty
shall be imposed on children for said violations, and they shall
instead be brought to their residence or to any barangay official at the
barangay hall to be released to the custody of their
parents. Appropriate intervention programs shall be provided for
in such ordinances. The child shall also be recorded as a "child at
risk" and not as a "child in conflict with the law." The ordinance shall
also provide for intervention programs, such as counseling,
attendance in group activities for children, and for the parents,
attendance in parenting education seminars. (Emphases and
underscoring supplied.)

“To clarify, these provisions do not prohibit the enactment

of regulations that curtail the conduct of minors, when the similar
conduct of adults are not considered as an offense or penalized
(i.e., status offenses). Instead, what they prohibit is the imposition
of penalties on minors for violations of these regulations.
Consequently, the enactment of curfew ordinances on minors,
without penalizing them for violations thereof, is not violative of
Section 57-A.

"Penalty””  is defined as "[p]unishment imposed on a wrongdoer

usually in the form of imprisonment or fine";158 "[p ]unishment imposed
by lawful authority upon a person who commits a deliberate or
negligent act."159 Punishment, in tum, is defined as "[a] sanction -
such as fine, penalty, confinement, or loss of property, right, or
privilege - assessed against a person who has violated the law." 160

The provisions of RA 9344, as amended, should not be read to

mean that all the actions of the minor in violation of the regulations
are without legal consequences. Section 57-A thereof empowers
local governments to adopt appropriate intervention programs, such
as community-based programs recognized under Section 54 of the
same law.

In this regard, requiring the minor to perform community service

is a valid form of intervention program that a local government (such
as Navotas City in this case) could appropriately adopt in an
ordinance to promote the welfare of minors. For one, the community
service programs provide minors an alternative mode of rehabilitation
as they promote accountability for their delinquent acts without the
moral and social stigma caused by jail detention.

In the same light, these programs help inculcate discipline and

compliance with the law and legal orders. More importantly, they give
them the opportunity to become productive members of society and
thereby promote their integration to and solidarity with their
community.

75
 The sanction of admonition imposed by the City of Manila is
likewise consistent with Sections 57 and 57-A of RA 9344 as it is
merely a formal way of giving warnings and expressing disapproval to
the minor's misdemeanor. Admonition is generally defined as a
"gentle or friendly reproof' or "counsel or warning against fault or
oversight.” The Black's Law Dictionary defines admonition as "[a]n
authoritatively issued warning or censure"; while the Philippine Law
Dictionary defines it as a "gentle or friendly reproof, a mild rebuke,
warning or reminder, [counseling], on a fault, error or oversight, an
expression of authoritative advice or warning." Notably, the Revised
Rules on Administrative Cases in the Civil Service (RRACCS) and
our jurisprudence in administrative cases explicitly declare that "a
warning or admonition shall not be considered a penalty."

In other words, the disciplinary measures of community-based

programs and admonition are clearly not penalties - as they are not
punitive in nature - and are generally less intrusive on the rights and
conduct of the minor. To be clear, their objectives are to formally
inform and educate the minor, and for the latter to understand, what
actions must be avoided so as to aid him in his future conduct.

A different conclusion, however, is reached with regard to

reprimand and fines and/or imprisonment imposed by the City of
Manila on the minor. Reprimand is generally defined as "a severe or
formal reproof."167 The Black's Law Dictionary defines it as "a mild
form of lawyer discipline that does not restrict the lawyer's ability to
practice law";168 while the Philippine Law Dictionary defines it as a
"public and formal censure or severe reproof, administered to a
person in fault by his superior officer or body to which he belongs. It
is more than just a warning or admonition." 169 In other words,
reprimand is a formal and public pronouncement made to denounce
the error or violation committed, to sharply criticize and rebuke the
erring individual, and to sternly warn the erring individual including the
public against repeating or committing the same, and thus, may
unwittingly subject the erring individual or violator to unwarranted
censure or sharp disapproval from others. In fact, the RRACCS and
our jurisprudence explicitly indicate that reprimand is a
penalty,170 hence, prohibited by Section 57-A of RA 9344, as
amended.

Fines and/or imprisonment, on the other hand, undeniably

constitute penalties - as provided in our various criminal and
administrative laws and jurisprudence - that Section 57-A of RA 9344,
as amended, evidently prohibits.

As worded, the prohibition in Section 57-A is clear, categorical,

and unambiguous. It states that "[n]o penalty shall be imposed on
children for x x x violations [of] juvenile status offenses]." Thus,
for imposing the sanctions of reprimand, fine, and/or imprisonment on
minors for curfew violations, portions of Section 4 of the Manila
Ordinance directly and irreconcilably conflict with the clear language
of Section 57-A of RA 9344, as amended, and hence, invalid. On the
other hand, the impositions of community service programs and

76
 admonition on the minors are allowed as they do not constitute
penalties.

Q: What are the programs or actions that may be undertaken for CICL?

A: These are:

1. Intervention-- refers to a series of activities which are designed

to address issues that caused the child to commit an offense. It may take
the form of an individualized treatment program which may include
counseling, skills training, education, and other activities that will enhance
his/her psychological, emotional and psycho-social well-being.

Community service is a valid form of intervention program. For one,

community service programs provide minors an alternative mode of
rehabilitation as they promote accountability for their delinquent acts
without the moral and social stigma caused by jail detention. These
programs help inculcate discipline and compliance with the law and legal
orders. More importantly, they give them the opportunity to become
productive members of society and thereby promote their integration to and
solidarity with their community (SPARK vs. Quezon City).

CICL who is less than 15 years old or CICL who is 15 years old and
one day to 17 years who did not act with discernment shall undergo
intervention program. If the minor acted with discernment, he should
undergo diversion program.

2. Diversion Program-- refers to the program that the child in

conflict with the law is required to undergo after he/she is found responsible
for an offense without resorting to formal court proceedings (Section 23,
RA. 9344)

SEC. 23. System of Diversion. - Children in conflict with the law

shall undergo diversion programs without undergoing court proceedings
subject to the conditions herein provided:

(a) Where the imposable penalty for the crime committed is not more
than six (6) years imprisonment, the law enforcement officer or
Punong Barangay with the assistance of the local social welfare and
development officer or other members of the LCPC shall conduct
mediation, family conferencing and conciliation and, where
appropriate, adopt indigenous modes of conflict resolution in
accordance with the best interest of the child with a view to
accomplishing the objectives of restorative justice and the formulation
of a diversion program. The child and his/her family shall be present
in these activities.

(b) In victimless crimes where the imposable penalty is not more than
six (6) years imprisonment, the local social welfare and development
officer shall meet with the child and his/her parents or guardians for
the development of the appropriate diversion and rehabilitation
program, in coordination with the BCPC;

77
 (c) Where the imposable penalty for the crime committed exceeds six
(6) years imprisonment, diversion measures may be resorted to only
by the court.

Q: What happens if a child is found guilty of the offense charged?

A: A CICL under 18 years of age at the time of the commission of the

crime who is found guilty of the offense charged shall be placed under
suspended sentence without the need of application even if the child is
already 18 or more at the time of the pronouncement of guilt (Section 38,
RA 9344)

SEC. 38. Automatic Suspension of Sentence. - Once the

child who is under eighteen (18) years of age at the time of the
commission of the offense is found guilty of the offense charged, the
court shall determine and ascertain any civil liability which may have
resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child
in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall
still be applied even if the juvenile is already eighteen years (18) of
age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various

circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the Law.

Q: Does the rule on suspension of sentence under Section 38 of R.A.

9344 apply if the minor is convicted of an offense punishable by reclusion
perpetua?

A: Yes. The provision makes no distinction as to the nature of the

offense committed by the child in conflict with the law (People vs. Sarcia,
G.R. No. 169641, September 10, 2009).

Q: Up to what time shall the minor enjoy suspended sentence?

A: As provided in Section 40 of R.A. 9344, suspension is only until the

minor reaches the maximum age of 21. However, in order to give meaning
to the legislative intent of the Act, the promotion of the welfare of the child
in conflict with the law should extend even to one who has exceeded the
age limit of 21 years old, so long as he/she committed the crime when
he/she was still a child (People v. Ancajas, G.R. No. 199270, October 21,
2015).

SEC. 40. Return of the Child in Conflict with the Law to

Court. - If the court finds that the objective of the disposition
measures imposed upon the child in conflict with the law have not
been fulfilled, or if the child in conflict with the law has willfully failed
to comply with the conditions of his/her disposition or rehabilitation

78
 program, the child in conflict with the law shall be brought before the
court for execution of judgment.

If said child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with this Act,
to order execution of sentence, or to extend the suspended sentence
for a certain specified period or until the child reaches the maximum
age of twenty-one (21) years.

Q: Can a sentence imposed on a minor be served in agricultural camp or

training facilities?

A: Yes. A child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an agricultural camp and other
training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD (Sec. 51, R.A.
9344).

Q: Can the minor avail of probation any time instead of imprisonment?

A: Yes. The court may, after it shall have convicted and sentenced a
child in conflict with the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence taking into account
the best interest of the child. For this purpose, Section 4 of Presidential
Decree No. 968, otherwise known as the "Probation Law of 1976", is
hereby amended accordingly (Section 42, R.A. 9344).

Q: Are there offenses not applicable to children?

A: Persons below eighteen (18) years of age shall be exempt from

prosecution for the crime of vagrancy and prostitution under Section 202 of
the Revised Penal Code, of mendicancy under Presidential Decree No.
1563, and sniffing of rugby under Presidential Decree No. 1619, such
prosecution being inconsistent with the United Nations Convention on the
Rights of the Child: Provided, That said persons shall undergo appropriate
counseling and treatment program (Section 58, R.A. 9344).

Q: Are children exempt from the application of death penalty?

A: Yes. The provisions of the Revised Penal Code, as amended,

Republic Act No. 9165, otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, and other special laws notwithstanding, no death
penalty shall be imposed upon children in conflict with the law (Section 59,
R.A. 9344).

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.

79
Defense of Accident

Basis—lack of intent and absence of negligence.

Accident—something that happens outside the sway of our will, and

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

Requisites:

1. A person performing a lawful act;

2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.

Principles:

1. Exemption from criminal liability proceeds from a finding that the harm to
the victim was not due to the fault or negligence of the accused, but to
circumstances that could not have been foreseen or controlled. Thus, in
determining whether an “accident” attended the incident, courts must
take into account the dual standards of lack of intent and absence of
fault or negligence (Pomoy v. People, G.R. No. 150647, September 29,
2004);

2. Accident presupposes lack of intention to commit the wrong done

(Talampas v. People, G.R. No. 180219, Nov. 23, 2011).

Illustrations:

Q: In defending yourself against an unjustified assault on your person by

another, you fired your revolver at random, wounding two innocent
persons. Can you set up defense of accident?

A: No. Discharge of firearm is prohibited and penalized by Art. 155 of

the RPC. When you fired your gun at random in a crowded place you were
committing an unlawful act. (See People v. Galacgac, 54 O.G. 1027).

Q: Suppose two persons are fighting and you wanted them to stop. You
drew your pistol and shot twice in the air. When their bout continued, you
fired another shot at the hard pavement of the street. Unfortunately, the
bullet ricocheted and hit one of the bystanders who died thereafter. Can
you set up the defense of accident?

A: No. Firing a shot at the ground can be considered lawful, but it was
done with carelessness, considering that the street was populated. The
likelihood that the bullet would ricochet from a hard pavement is not

80
something that could not have been foreseen. As you are negligent, you
cannot set up the defense of accident (see People v. Nocum, 77 Phil.
1018).

Q: Suppose you were attacked by another, and to defend yourself, you

drew your gun which was already cocked, and with your finger on the
trigger, struck the assailant with such gun. Unfortunately, the gun fired and
seriously wounded the assailant. Can you invoke defense of accident?

A: Yes. The striking of the gun was an act of self-defense, which is

lawful. There was due care---whether the gun was cocked or uncocked, the
striking could not have been done in any manner. Striking the assailant with
a gun was the most prudent and reasonable thing to do, whether the gun
was cocked or uncocked (see People v. Vitug, 8 CA. Rep. 905; People v.
Tiongco, CA 63 O.G. 3610).

Q: Suppose the accused, while hunting, saw wild chickens and fired a
shot. The slug, after hitting a wild chicken, recoiled and struck the tenant
who was a relative of the accused. The man died. Can the accused set up
the defense of accident?

A: Firing at wild chickens is a lawful act. It was done with due care and
without fault or negligence. The deceased was not in the direction at which
the accused fired his gun. It was not foreseeable that the slug would recoil
after hitting the wild chicken (U.S. v. Tanedo, 15 Phil. 196).

Q: Suppose you were driving your car on the proper side of the road at
moderate speed, suddenly and unexpectedly a man from the sidewalk
crossed the street without warning. As it was not physically possible to
avoid hitting him, you ran over the man with your car. Sued for his death,
can you claim the defense of accident?

A: Yes. Driving your car was a lawful act. You did so with care because
you observed all the traffic rules and regulations. You were not at fault or
negligent (See US v. Tayongyong, 21 Phil. 476).

5. Any person who act under the compulsion of irresistible

force.

Defense of Compulsion of Irresistible Force.

Basis—complete absence of freedom, an element of voluntariness. Actus

me invito factus non set meus actus (An act done by me against my will is
not my act).

81
Elements:

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.

Principles:

1. Irresistible force must be one which must produce such an

effect upon the individual that, in spite of all resistance, it reduces him to a
mere instrument, and such, incapable of committing a crime. It must be
such that, in spite of the resistance of the person on whom it operates, it
compels his members to act and his mind to obey. Such a force can never
consist in anything which springs primarily from the man himself; it must be
a force which acts upon him from outside and by a third person (U.S. v.
Elicanal, 35 Phil. 209).

2. The compulsion must be of such character as to leave no

opportunity to the accused for escape or self-defense in equal combat
(People v. Loreno, G.R. No. L-54414, July 9, 1984).

Example:

U.S. v. Caballeros, 4 Phil. 350 (page 243)

6. Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.

Impulse of Uncontrollable Fear

Basis—complete absence of freedom, which is an element of

voluntariness. Actus me invito factus non set meus actus (An act done by
me against my will is not my act).

Requisites:

1. The existence of an uncontrollable fear;

2. That the fear must be real and imminent; and
3. The fear of an injury is greater than, or at least equal to, that
committed.

Principles:

1. The threat promises an evil of such gravity and imminence that the
ordinary man would have succumbed to it (US v. Elicanal, 35 Phil.
209);

82
 2. A threat of future injury is not enough. The compulsion must be of
such character as to leave no opportunity to the accused for escape
or self-defense in equal combat;

3. Duress as a valid defense should be based on real, imminent, or

reasonable fear for one’s life or limb and should not be speculative,
fanciful, or remote fear (People v. Borja, No. L-22947, July 12, 1979,
91 SCRA 340);

Illustrations:

Q: Suppose you were compelled under fear of death to swear allegiance

to a communist organization whose purpose is to overthrow the
government by force of arms. Can you be held liable for rebellion?

A: No. Ýou joined the communist group under the impulse of an

uncontrollable fear of an equal or greater injury. You did not commit the
crime, you would be killed. Your death is much greater injury than
imprisonment of 12 years and fine for the committing the crime of rebellion
(see U.S. v. Exaltacion, 3 Phil. 339).

Q: Suppose somebody threatened to burn your house should you not kill
your own father. If you killed your father for fear that your house might get
burned, can you be exempt from criminal liability?

A: No. Losing one’s house is a much lesser injury than the death of
one’s father.

Q: The accused killed another person. Prosecuted for murder, he

claimed that he had been ordered by Major Sasaki to kill the deceased. He
testified that: “As they insisted and I informed them that I could not do it,
then Captain Susuki told me, ‘Ýou have to comply with that order of Major
Sasaki; otherwise, you have to come along with us.’” Is his defense
tenable?

A: No. The threat is not of such a serious character and imminence as to

create in the mind of the accused an uncontrollable fear that an equal or
greater evil or injury would be inflicted upon him if he did not comply with
the alleged order to kill the deceased (Read People v. Moreno, 77 Phil.
549).

Distinction between irresistible force and uncontrollable fear

In irresistible force, the offender uses violence or physical force to compel

another to commit a crime; in uncontrollable fear, the offender employs
intimidation or threat in compelling another to commit a crime.

7. Any person who fails to perform an act required by law,

when prevented by some lawful or insuperable cause.

83
Basis—Absence of intent, the third element of voluntariness in intentional
felony.

Elements:

1. That an act is required by law to be done;

2. That a person fails to perform such act;
3. That his failure to perform such act was due to some lawful or
insuperable cause.

Principles:

1. This exempting circumstance applies to felonies by omission. It is

based on the lack of criminal intent on the part of the accused;

2. This exempting circumstance implies knowledge of the precept of the

law to be complied with but is prevented by some lawful or
insuperable cause that is by some motive which has lawfully, morally
or physically prevented one to do what the law commands (People v.
Bandian, G.R. No. 45186, September 30, 1936).

Lawful cause

1. A priest cannot be liable for misprision of treason under Article 116

for not reporting to the governor or fiscal of the province what learned
from someone who confessed to him about a conspiracy against the
government. Under the law, a priest cannot be compelled to reveal
any information which he came to know by reason of the confession
made to him in his professional capacity (Section 24[d], Rule 130 of
the Rules of Court;

Insuperable Cause

1. A police offer who detained another for more than 3 days for
committing the crime of homicide in the hinterlands cannot be held
liable for delay in the delivery of the said detained person to judicial
authorities under Article 125 of the Revised Penal Code if it would
take more than 3 days to reach the town proper from the place where
the accused was arrested.

Absolutory causes—refer to those where the act committed is a

crime but for reasons of public policy and sentiment there is no penalty
imposed.

1. Spontaneous desistance during attempted stage (Art. 6), and

no crime under another provision of the Code or other penal law is
committed;

84
 2. Light felony is only attempted or frustrated, and is not against
persons or property (Art. 7).

3. Accessory is a relative of the principal (Art. 20).

4. Legal grounds for arbitrary detention (Art. 124).

5. Legal grounds for trespass (Art. 280).

6. The crime of theft, swindling or malicious mischief is committed

against a relative (Art. 332).

7. When only slight or less serious physical injuries are inflicted by

the person who surprised his spouse or daughter in the act of sexual
intercourse with another (Art. 247).

8. Marriage of offender with the offended party when the crime

committed is rape, abduction, seduction, or acts of lasciviousness.

9. Instigation.

Instigation—the means by which the accused is lured into the commission

of the offense charged in order to prosecute him. The officers of the law or
their agents incite, induce, instigate or lure an accused into committing an
offense which he or she would otherwise not commit and has no intention
of committing (People v. Gatong-o, G.R. No. L-78698, 29 December 1988).

Instigation absolves the accused of any guilt, given the spontaneous moral
revulsion from using the powers of government to beguile innocent but
ductile persons into lapses that they might otherwise resist (People v.
Doria, G.R. No. 125299, 22 January 1999).

Instigation distinguished from Entrapment

Distinctions Instigation Entrapment

Concept Accused is lured into Employment of such
the commission of the ways and means for
offense charged in the purpose of trapping
order to prosecute him. or capturing a
lawbreaker.
Manner Officers of the law The criminal intent or
incite, instigate or lure design to commit the
accused to commit the offense charged
offense. Thus, the originates in the mind
criminal intent of the accused, and
originates from the law enforcement
officers of the law. officials merely
facilitate the
apprehension of the
criminal by employing
ruses and schemes.

85
 Legal Effect Law enforces act as Entrapment cannot bar
co-principals, the prosecution and
accused will have to be conviction.
acquitted.
Also known as Instigation is a “trap for Entrapment is a “trap
the unwary innocent.” for the unwary
criminal.”

Buy-bust Operation, a form of entrapment

A buy-bust operation, considered as a form of entrapment, is a valid means

of arresting violators of R.A. 9165. It is an effective way of apprehending
law offenders in the act of committing a crime. In a buy-bust operation, the
idea to commit a crime originates from the offender, without anybody
inducing or prodding him to commit the offense. A police officer’s act of
soliciting drugs from the accused during a buy-bust operation, or what is
know as a “decoy solicitation”, is not prohibited by law and does not render
invalid the buy-bust operations. The sale of contraband is a kind of offense
habitually committed, and the solicitation simply furnishes evidence of the
criminal’s course of conduct. (People v. Bartolome, G.R. No. 191726, Feb.
6, 2013).

----------------------------------------------------------------------------------------------

Q: What is now the age of doli incapax in the Philippines?

A: If the accused is 15 years or below, minority is an exempting

circumstance (Sec. 6, R.A. 9344). With or without discernment, the
accused of such age is exempt from criminal liability. Lack of
discernment is conclusively presumed. Hence, the age of doli incapax
in the Philippines is below 15 years of age or under.

----

Q: Macho married Ganda, a transgender. Macho was not aware that

Ganda was a transgender. On their first night, after their marriage,
Macho discovered Ganda was a transgender. Macho confronted
Ganda and a heated argument ensued. In the course of the heated
argument, a fight took place wherein Ganda got hold of a knife to stab
Macho. Macho ran away from the stabbing thrusts and got his gun
which he pointed at Ganda just to frighten and stop Ganda from
continuing with the attack. Macho had no intention at all to kill Ganda.
Unfamiliar with guns, Macho accidentally pulled the trigger and hit
Ganda that caused the latter’s death. What was the crime committed?

A: Macho did not commit a crime. His act of pointing a gun at

Ganda is a reasonable means to repel an unprovoked unlawful
aggression committed by the latter. Since his act of pointing the gun
is lawful, the firing thereof, which hit Ganda causing her death, should
86
be treated as accident, which is an exempting circumstance. In
People v. Tiongco (C.A. 63 O.G. 3610), the accused, who accidentally
fired his gun while exercising his right of self-defense was acquitted.
His act of confronting Ganda about his real gender cannot be
considered sufficient provocation on his part.

------------------------------------------------------------------------------

Chapter Three
CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

Article 13. Mitigating circumstances. - The following are mitigating

circumstances;

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

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

Mitigating Circumstances—those which, if present in the commission of

the crime, do not entirely free the actor criminal liability, but serve only to
reduce the penalty.

In mitigating circumstances:

a. The offender commits a crime;

b. There is criminal liability;
c. The effect is to reduce the penalty; and
d. It does not change the nature of the crime.

Basis—There is diminution of either freedom of action, intelligence or

intent, or on the lesser perversity of the offender.

Classes of Mitigating Circumstances:

1. Ordinary mitigating circumstance—This has the effect of

imposing a lesser penalty. This can be offset by a generic
aggravating circumstance.

These mitigating circumstances are enumerated in subsections 1

to 10 of Article 13.

2. Privileged mitigating circumstance—This has the effect of

imposing the penalty by one or two degrees lower than that
provided by law. This cannot be offset by a generic aggravating
circumstance.

These are found in other provisions of the RPC such as:

87
 a. Art. 68—Penalty to be imposed upon a person over 15 years
and under 18 years of age who acted with discernment, the
penalty next lower that that prescribed by law shall be imposed,
but always in the proper period (As amended by R.A. 9344).

b. Art. 69.—A penalty lower by one or two degrees than that

prescribed by law shall be imposed if the deed is not wholly
excusable by reason of lack of some of the conditions required
to justify the same or exempt from the criminal liability xxxx,
Provided, That the majority of the such conditions be present.

c. Art. 64 (5)--- Where there two or more mitigating circumstances

and no aggravating circumstances are present, the court shall
impose the penalty next lower to that prescribed by law, in the
period that it may deem appropriate, according to the number
and nature of such circumstances.

Article 13, par. 1 refer to the following:

1. Incomplete self-defense (Art. 11, par. 1)

2. Incomplete defense of relatives (Art. 11, par. 2)
3. Incompete defense of stranger (Art. 11, par. 3)
4. Incomplete State Necessity (Art. 11, par. 4)
5. Incomplete Performance of Duty (Art. 11, par. 5)
6. Incomplete Obedience to Order of Superior (Art. 11, par. 6)
7. Minority above 15 but below 18 years of age, if child acted with
discernment (R.A. No. 9344);
8. Incomplete defense of Accident (Art. 12, par. 4); and
9. Incomplete defense of uncontrollable fear (Art. 12, par. 6).

There is no incomplete defense of insanity and imbecility and minority (15

years and below).

Incomplete self-defense, defense of relatives, and defense of

stranger.

Principles:

1. The ordinary mitigating circumstance under Art. 13, par. 1 applies

only when unlawful aggression is present, and the other two
requisites of self-defense are not present. If unlawful aggression and
any of the two are present, it becomes a privileged mitigating
circumstance under Art. 69;

2. If there is no unlawful aggression, there could be no self-defense or

defense of relative or defense of stranger, whether complete or
incomplete, because if there is nothing to prevent or repel, the two
other requisites of defense will have no basis;

3. If the justifying or exempting circumstance only has two requisites,

the presence of one requisite makes the circumstance a privileged
mitigating circumstance under Art. 69 (see People v. Oanis).

88
 2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80.

Rules:

1. Section 6 of RA 9344 exempts a child above 15 years but

below 18 years of age from criminal liability, unless the child is found to
have acted with discernment, in which case, the appropriate proceedings
(diversion programs) in accordance with the Act be observed.

2. When the offender is a minor over 15 and under 18 years, and

he acted with discernment, the penalty next lower in degree than that
prescribed by law shall be imposed on the accused but always in the
proper period (People v. Agacer, G.R. No. 177751, Jan. 7, 2013.)

3. The fact that the offender is over 70 years old is only an

ordinary mitigating circumstance.

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

that committed.

Basis—In this circumstance, intent, an element of voluntariness in

intentional felony, is diminished.

Principles:

1. This circumstance addresses itself to the intention of the offender

at the particular moment when the offender executes or commits
the criminal act, not to his intention during the planning stage;

2. The allowance of this mitigating circumstance is consistent with

the rule that criminal liability shall be incurred by any person
committing a felony although the wrongful act done be different
from that which he indented (praeter intentionem);

3. This circumstance is obtaining when there is notable disparity and

evident disproportion between means employed by the accused to
commit a wrong and the resulting crime committed;

4. In determining the presence of this circumstance, it must be

considered that since intention is a mental process and is an
89
 internal state of mind, the accused’s intention must be judged by
his conduct and external overt acts;

5. The weapon used, the part of the body injured, the injury inflicted,
and the manner it is inflicted may show that the accused intended
the wrong committed;

6. Lack of intent to kill, not mitigating in physical injuries;

7. This circumstance is not applicable to felonies by negligence;

8. As a general rule, this circumstance is applicable only to offenses

resulting in physical injuries or material harm.

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

party immediately preceded the act.

To follow

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

grave offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.

To follow

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

have produced passion or obfuscation.

To follow

Q: Suppose a person became a victim of a terrible act committed by

another person against him. He retaliated by killing the person. He asserted
that he is entitled to 3 mitigating circumstances: (1) he killed him because
of sufficient provocation or threat on the part of the offended party
immediately preceding the act; (2) he committed the act in the immediate

90
vindication of a grave offense committed against him; and (3) he acted on
impulse so powerful as would naturally produce passion. Is he correct?

A: No. All the mentioned mitigating circumstances have common

denominator—that the mind is overwhelmed by anger or emotion. He is
entitled to only one mitigating circumstance.

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;

Two Mitigating Circumstances

1. Voluntary surrender to a person in authority or his agents.

2. Voluntary confession of guilt before the court prior to presentation of
evidence for the prosecution.

Basis—Lesser perversity of the offender.

Requisites for voluntary surrender:

1. The accused has not been actually arrested;

2. The accused surrenders himself to a person in authority or the latter’s
agent; and
3. The surrender is voluntary.

The accused has not been arrested

1. There was no voluntary surrender if the warrant of arrest showed that

the defendant was in fact arrested (People v. Conwi, 71 Phil. 595);

2. When the accused surrendered only after the warrant of arrest had
been served upon him, there is no voluntary surrender (People v.
Roldan, G.R. No. L-22030, May 29, 1968).

3. The accused can avail of the mitigating circumstance of voluntary

surrender if, after committing the offense and having opportunity to
escape, voluntarily waited for the agents of the authorities and gave
himself up, even if he was placed under arrest by a policeman then
there and then (People v. Parana, 64 Phil. 331).

4. The accused fled and hid himself to avoid reprisals from the
companions of the accused, but upon meeting a policeman
voluntarily went with him to the jail is entitled to the benefit of
mitigating circumstance of voluntary surrender (People v. Dayrit, G.R.
No. L-14388, May 20, 1960);

5. There is voluntary surrender when there is nothing on record to show

that the warrant for the arrest of the accused had actually been

91
 served on him, or that it had been returned unserved for failure of the
server to locate the accused, and there is direct evidence to show
that he voluntarily presented himself to the police when he was taken
into custody (People v. Brana, 30 SCRA 307).

The accused surrenders himself to a person in authority or the

latter’s agent-

Q: Who are persons in authority and agents of persons in authority?

A: Article 152 of the RPC provides:

Article 152. Persons in authority and agents of persons in

authority; Who shall be deemed as such. - In applying the provisions
of the preceding and other articles of this Code, any person directly
vested with jurisdiction, whether as an individual or as a member of
some court or governmental corporation, board, or commission, shall
be deemed a person in authority. A barrio captain and a barangay
chairman shall also be deemed a person in authority.

A person who, by direct provision of law or by election or by

appointment by competent authority, is charged with the maintenance
of public order and the protection and security of life and property,
such as a barrio councilman, barrio policeman and barangay leader
and any person who comes to the aid of persons in authority, shall be
deemed an agent of a person in authority.

In applying the provisions of Articles 148 and 151 of this Code,

teachers, professors and persons charged with the supervision of
public or duly recognized private schools, colleges and universities,
and lawyers in the actual performance of their professional duties or
on the occasion of such performance, shall be deemed persons in
authority. (As amended by PD No. 299, Sept. 19, 1973 and Batas
Pambansa Blg. 873, June 12, 1985).

1. There is no voluntary surrender if the accused surrendered the bolo—

not his person—to the chief of police (People v. Jose de Ramos, CA-
GR No. 15010-R, April 26, 1956);

2. There is no voluntary surrender if the accused went to the PC

headquarters after the shooting not to surrender himself but only to
report the incident (People v. Rogales, 6 SCRA 830);

The surrender is voluntary. To be voluntary, the surrender must be

spontaneous.

1. The essence of voluntary surrender is spontaneity and the intent of

the accused to give himself up and submit himself to the authorities
either because he acknowledges his guilt or he wishes to save the
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 authorities the trouble and expense that may be incurred for his
search and capture (People v. Garcia, G.R. No. 174479, June 17,
2008).

2. Without these elements, and where the clear reasons for the
supposed surrender are the inevitability of arrest and the need to
secure his safety, the surrender is not spontaneous and, therefore,
cannot be characterized as voluntary surrender to serve as a
mitigating circumstance (People v. Garcia);

3. When the accused gives himself up to ensure his safety, there is no

voluntary surrender. For a surrender to be spontaneous, it must be
spontaneous, and should show the intent of the accused to submit
himself unconditionally to the authorities, either because he
acknowledges his guilt or because he wishes to save the police and
government the trouble and expenses for his search and capture
(People v. Lee, 204 SCRA 900);

4. There is no voluntary surrender when the accused surrendered after

2 years and 5 months after the issuance of the warrant of arrest, it
appearing that he had gotten tired of the life of a fugitive or saw no
other reasonable alternative to continue absence from his home
(People v. Pagsanjan (221 SCRA 735);

5. After the shooting incident, the accused ran to the upper portion of
the cemetery where a police officer caught up with him. Thereupon,
he voluntarily gave himself up. The Court held that if the accused did
there and there surrender, it was because he was left with no choice.
Thus, the surrender was not voluntary (People v. Cagas, G.R. No.
145504, June 30, 2004);

6. The accused surrendered to the authorities after more than one year
from the incident in order to disclaim responsibility over the killing of
the victim. The Court refused to mitigate the accused’s liability
because there was no acknowledgment of the commission of the
crime or the intention to save the government the trouble and
expense in his search and capture; and there was a pending warrant
for his arrest (67 Phil. 709);

7. When after the commission of the crime and the issuance of warrant
of arrest, the accused presented himself in the municipal building to
post bond for his temporary release, voluntary surrender is mitigating.
The law does not require that the surrender be prior to the order of
arrest (Rivera v. CA, G.R. No. 125867);

8. That the surrender was induced by fear of retaliation by the victim’s

relatives does not gainsay the spontaneity of the surrender, nor alter
the fact that by giving himself up, this accused saved the State the
time and trouble of searching for him until arrested (People v.
Clemente, 21 SCRA 261);

9. There is voluntary surrender even if the accused surrendered after

he was persuaded by his employer and after the issuance of a shoot-
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 to-kill order by the Provincial Commander, if he was not arrested and
he presented himself to the Provincial Commander (People v.
Morato, 224 SCRA 361).

Requisites of plea of guilty:

1. That the offender spontaneously confessed his guilty;
2. That the confession of guilt was made in open court, that is, before
the competent court that is to try the case; and
3. That the confession of guilt was made prior to the presentation of
evidence for the prosecution.

That the confession of guilt was made in open court, that is, before
the competent court that is to try the case.

1. Plea of not guilty at the preliminary investigation is no plea at all.

(People v. Oandasan, 25 SCRA 277);

2. Extra-judicial confession, or confession made outside of the court,

made by the accused is not voluntary confession (People v. Prado,
79 Phil. 568).

That the confession of guilt was made prior to the presentation of

evidence for the prosecution.

1. Plea of guilty on appeal is not mitigating (People v. Herminio, 64 Phil.

403);

2. It is not necessary that all the evidence of the prosecution have been
presented. Even if the first witness of the prosecution had not finished
testifying on direct examination when the accused withdrew his
former plea of “not guilty’ and substituted it with plea of “guilty”, the
plea of guilty is not mitigating (People v. Lambino, 103 Phil. 504);

3. Plea of guilty to an amended information even if trial had begun on

the original information is still mitigating if no evidence was presented
in connection with the new charge (People v. Ortiz, 15 SCRA 352);

4. Plea of guilty to a lesser offense than that charged is not mitigating.

To be voluntary, the plea of guilty must be to the offense charged
(People v.Noble, 77 Phil. 93).

5. A conditional plea of guilty is not mitigating. A conditional plea is

considered a plea of not guilty (People v. Moro Sabilul, 89 Phil. 282).

94
 8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.

The Offender is deaf and dumb.

Basis: Diminution of Freedom of Action.

Principles:

1. Deaf and dumb and the blind are entitled to mitigating circumstance
even if they are educated;

2. The physical defect contemplated in this mitigating circumstance

must affect the means of action, defense of communication of the
offender with his fellow beings. The nature of the offense is to be
considered as to whether such defect is mitigating.

9. Such illness of the offender as would diminish the exercise of the

will-power of the offender without however depriving him of the
consciousness of his acts.

Illness that Diminishes the Exercise of Will-power

Requisites:

1. Illness of the offender must diminish the exercise of will-power;

2. Such illness should not deprive the offender of consciousness of his
acts.

Principles:

1. When the offender completely lost the exercise of will-power, it may

be an exempting circumstance. It is mitigating if the illness only
diminishes the exercise of will-power.

2. Schizophrenia may be considered mitigating under Art. 13(9) if it

diminishes the exercise of the willpower of the accused (People v.
Villanueva, G.R. No. 172697, September 25, 2007).

3. An accused found to be suffering from chronic mental disease called

schizo-affective disorder or psychosis is entitled only to a mitigating
circumstance. Such impairment was not so complete as to deprive
him of his intelligence or the consciousness of his acts;

95
 4. The fact that the accused is feeble-minded warrants the finding in his
favour of the mitigating circumstance either under paragraph 8 or
under paragraph 9 of Article 13.

10. And, finally, any other circumstances of a similar nature and

analogous to those above mentioned.

Analogous and Similar Mitigating Circumstances

Examples:

1. Defendant who is 60 years old with failing eyesight is similar to a

case of one over 70 years old (People v. Reantillo and Ruiz, CA GR
No. 301, July 27, 1938);

2. Jealousy similar to passion and obfuscation (People v. Ubengen, CA,

36 O.G. 763);

3. Outraged feeling of owner of animal taken for ransom analogous to

vindication of a grave offense (People v.Managa, 118 SCRA 466);

4. Voluntary restitution of property, similar to voluntary surrender

(People v. Luntao, CA 50 O.G. 1182);

5. Manifestation of Battered Wife Syndrome, analogous to an illness

that diminishes the exercise of will-power (People v. Genosa, G.R.
No. 135981, January 14, 2004);

5. Extreme poverty and necessity, similar to incomplete justification

based on state of necessity. (People v. Macbul, G.R. No. L-48976,
October 11, 1943);

6. Testifying for the prosecution, without previous discharge, is

analogous to plea of guilty (People v. Navasca, 76 SCRA 70);

7. Esprit de corps, similar to passion and obfuscation (People v.

Villamora, 86 Phil. 287);

8. Restitution in malversataion case, similar to voluntary surrender

(Perez v. People, G.R. No. 164763, Feb. 12, 2008).

Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY

Article 14. Aggravating circumstances. - The following are aggravating

circumstances:

96
Aggravating Circumstances—refer to those circumstances which, if
attending the commission of a felony, would tend to increase the imposable
penalty to the maximum of the prescribed penalty.

Basis: The greater perversity of the offender as shown by:

a. Time of the commission of the crime;

b. Place of the commission of the crime;
c. Ways and means employed or involved in the commission of the
crime;
d. Motivation or motive behind the crime;
e. Personal circumstances of the offender, or of the offended party.

Kinds of Aggravating Circumstances

a. Generic—those that can generally apply to all crimes

b. Specific—those that apply only to particular crimes
c. Qualifying—those that change the nature of the crime
d. Inherent—those that must of necessity accompany the commission of
the crime.

Generic and Qualifying Circumstances, distinguished.

1. As to offsetting: A generic aggravating circumstance can be offset

by an ordinary mitigating circumstance, which is not so in the case of
qualifying aggravating circumstances;

2. As to effect: A generic aggravating circumstance does not change

the nature of the offense but has the effect of increasing the penalty to
the maximum but not beyond that provided by law. A qualifying
aggravating circumstance changes not only the nature but also the
nature of the crime and the offender becomes liable for the new offense
which is more serious in nature.

3. As to need to specifically allege: Both generic and qualifying

circumstances must be alleged in the Information, and must be proven
during the trial in order to be appreciated.

Generic and Special Aggravating Circumstances, distinguished.

1. As to concept: Generic aggravating circumstances are those that

generally apply to all crimes such as those in Article 14 of the
RPC. Special aggravating circumstances are those which arise
under special conditions such as the following:

a. Quasi-recidivism under Art. 160;

b. Complex crimes under Art. 48;
c. Use of loose firearms in the commission of the crime
(R.A. 10591).

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 2. As to effect: Both generic aggravating circumstances and special
aggravating circumstances have the effect of increasing the
penalty to its maximum period, but it cannot increase the same to
the next higher degree.

3. As to offsetting: Generic aggravating circumstance can be offset

by an ordinary mitigating circumstance. A special aggravating
circumstance cannot be offset by an ordinary mitigating
circumstance.

4. As to need to specifically allege: Both generic and special

aggravating circumstances must be specifically alleged in the
Information, and must be proven during the trial in order to be
appreciated.

IMPORTANT: Pursuant to the 2000 Revised Rules of Criminal Procedure,

every complaint or Information must state not only the qualifying but also
the generic aggravating circumstances. If not alleged, even if proven, both
qualifying and generic aggravating circumstances cannot be appreciated to
enhance the liability of the accused (People v. Antonio, G.R. No. 144266,
November 27, 2002).

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

Basis: Greater perversity of the offender, as shown by the personal

circumstance of the offender and also by means used to secure the
commission of the crime.

Requisites:

1. The offender is a public officer; and

2. He used the influence, prestige and ascendancy of his officer in the
commission of the crime.

Principles:

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

falsification of public document by a public officer who took
advantage of his position, bribery or malversation, this circumstance
is not considered. This circumstance is inherent in the crime since it
cannot be committed except by a public officer (People v. Teves, 44
Phil. 275);

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 2. This circumstance cannot also be appreciated in the case of
accessories under Art. 19, paragraph 3, and in crimes committed by
public officers (Arts. 204-245).

3. There is no aggravating circumstance of taking advantage of public

position if the accused could have perpetrated the crime without
occupying a public position (People v. Villamor, G.R. No. 140407-08,
Jan. 15, 2002).

4. This circumstance cannot be offset by a mitigating circumstance.

Article 62, paragraph 1-a, RPC: “When in the commission of the crime,
advantage was taken by the offender of his public position, the penalty to
be imposed shall be in its maximum period regardless of mitigating
circumstances.”

Read:

1. People v. Torrida, 23 Phil. 189 (page 348, Book)

2. US v. Dacuycuy, 9 Phil. 84 (pages 348-349, Book)

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

public authorities.

Basis: Greater perversity of the offender as shown by his lack of respect

for public authorities.

Requisites:

1. That the public authority is engaged in the exercise of his functions;

2. That he who is thus engaged in the exercise of said functions is not
the person against whom the crime is committed.
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from committing the act.

Principles:

1. “Public authorities” refer to both persons in authority and agents of

persons in authority (People v. Rodil, 109 SCRA 308);

2. If the crime is committed against the public authority, the crime

committed is direct assault. This circumstance is absorbed (People v.
Siojo, 81 Phil. 367).

3. That the act be committed with insult or in disregard of the respect

due the offended party on account of his rank, age, or sex, or that is be
committed in the dwelling of the offended party, if the latter has not given
provocation.
99
Basis: Greater perversity of the offender, as shown by personal
circumstances of the offended party and the place of the commission of the
crime.

There are four aggravating circumstances under paragraph 3.

1. That the crime be committed with insult or in disregard of the respect

due the offender party on account of his rank;

2. That the crime be committed with insult or in disregard of the respect

due the offender party on account of his age;

3. That the crime be committed with insult or in disregard of the respect

due the offender party on account of his sex; and

4. That the crime be committed in the dwelling of the offended party, if

the latter has not given provocation.

Q: If all the four circumstances are present, can the accused avail of four
aggravating circumstances?
A: The first three circumstances, which are based on the personal
background of the victim, must be treated as one. Dwelling, which is based
on the place of the commission of the offense, should be treated as a
separate aggravating circumstance.

Rank-- refers to a high position or standing, or difference in the social

condition of the offender and the offended party.

Age—tender age or old age of the offended party. The wider is the gap
between the age of the offended party and the offender, this circumstance
becomes clearer.

Sex—applies only to the female sex. To be aggravating, it must be shown

that the accused deliberately intended to offend or insult the sex of the
victim, or showed manifest disrespect for her womanhood (Mari v. CA, G.R.
No. 127694, May 31, 2000).

But this circumstance is not to be appreciated in the following cases:

a. if sex of the offended party is an element of the offense such as rape

and seduction; parricide, and abduction;

b. When the offender acted with passion and obfuscation;

c. When there exists a relationship between the offended party and the
offender (like former spouses, employer-employee relationship);

Dwelling- One’s dwelling place is a sanctuary worthy of respect. The

home is a sort of a sacred place for its owner. He who goes to another’s
house to slander him, hurt him, or do him wrong, is more guilty than he who
offends him elsewhere.

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Dwelling includes dependencies, the foot of the staircase and enclosures
under the house. It includes the car garage beside one’s house.

Q: Is it necessary for the offender to go inside the house to commit a

crime?

A: No. It is not necessary. Dwelling is aggravating even if the offender

fired his pistol from the street hitting the victim inside his house.

It is not also required that the crime is finally consummated inside the
house of the victim. If the initial attack started in the residence of the victim,
dwelling is aggravating.

Dwelling is not aggravating in the following instances:

1. If the offended party has given provocation provided that the

provocation is sufficient and immediate to the commission of the crime;

2. When both the offender and the offended party are occupants of the
same house, and this is true even if the offender is a servant in the
house.

Exception: when the crime is committed by a boarder in the room of

another boarder.

3. When dwelling is an inherent element of the crime such as robbery

committed by force upon things in an inhabited house, and trespass to
dwelling;

4. When the dwelling does not belong to the offended party.

Exception: when the offended party temporarily stays as guest in the

house of another.

5. When the building has many floors and the crime took place in a floor
not used as private place of abode or residence.

4.That the act be committed with abuse of confidence or obvious

ungratefulness.

Basis: Greater perversity of the offender, as shown by the means and

ways employed.

Two situations contemplated:

1. The act is committed with abuse of confidence; and

2. The act is committed with obvious ungratefulness.

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Abuse of Confidence: Requisites

1. The offended party trusted the offender;

2. The offender abused such trust;
3. The abuse of confidence facilitated the commission of the crime.

Examples:

1. A jealous lover, who had already determined to kill his sweetheart,

invited her to a ride in the country. The girl, unsuspecting of his plans,
went with him. While they were in the car, the jealous lover stabbed
her (People v. Marasigan, 70 Phil. 583).

2. When the killer of the child is the domestic servant of the family
(People v. Caliso, 58 Phil. 283).

This circumstance of abuse of confidence is not to be appreciated if the

abuse of confidence is an element of the crime such as malversation (Art.
217), qualified theft (Art. 310), estafa by conversion or misappropriation
(Art. 315), and qualified seduction (Art. 337).

Obvious Ungratefulness

Examples:

1. When the accused killed his father-in-law in whose house he lived

and who partially supported him (People v. Floresca, 99 Phil. 1044);

2. Where a security guard killed a bank officer and robbed the bank
(Peope v. Nismal, 114 SCRA 487);

3. When a visitor commits robbery or theft in the house of his host.

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

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

6. That the crime be committed in the night time, or in an

uninhabited place, or by a band, whenever such circumstances may
facilitate the commission of the offense.

Whenever more than three armed malefactors shall have acted

102
 together in the commission of an offense, it shall be deemed to have
been committed by a band.

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

shipwreck, earthquake, epidemic or other calamity or misfortune.

8. That the crime be committed with the aid of armed men or persons who
insure or afford impunity.

9. That the accused is a recidivist.

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

10. That the offender has been previously punished by 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.

11. That the crime be committed in consideration of a price,

reward, or promise.

103
12. That the crime be committed by means of inundation, fire,
poison, explosion, stranding of a vessel or international damage
thereto, derailment of a locomotive, or by the use of any other
artifice involving great waste and ruin.

13. That the act be committed with evidence premeditation.

14. That the craft, fraud or disguise be employed.

15. That advantage be taken of superior strength, or means

be employed to weaken the defense.

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the

crimes against the person, employing means, methods, or
forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.

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17. That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.

18. That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance of a crime a wall,

roof, floor, door, or window be broken.

20. That the crime be committed with the aid of persons under
fifteen years of age or by means of motor vehicles, motorized
watercraft, airships, or other similar means. (As amended by
RA 5438).

21. That the wrong done in the commission of the crime be

deliberately augmented by causing other wrong not
necessary for its commissions.

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 --------

Bernardo was enraged by his conviction for robbery by Judge

Samonte despite insufficient evidence. Pending appeal, Bernardo escaped
in order to get even with Judge Samonte. Bernardo learned that Judge
Samonte regularly slept in his mistress’ house every weekend. Thus, he
waited for the Judge to arrive on Saturday evening at the house of his
mistress. It was about 8:00 p.m. when Bernardo entered the house of the
mistress. He found the Judge and his mistress having coffee in the kitchen
and engaging in small talk. Without warning, Bernardo stabbed the judge at
least 10 times. The Judge instantly died.

Prosecuted and tried, Bernardo was convicted of direct assault with

murder. Rule whether or not the trial court should appreciate the following
aggravating circumstances against Bernardo, to wit: (1) disregard of rank
and age of victim, who was 68 years old; (2) dwelling; (3) nightitme; (4)
cruelty; and (5) quasi-recidivism.

` A: Disregard rank, being inherent in direct assault is absorbed.

Disregard of age shall not be considered for lack of showing sufficient

intent to offend or insult the age of Judge Samonte (People v. Onabia, G.R.
No. 128288, April 20, 1999).

Dwelling and nightime shall not be appreciated because the

presence of treachery in the instant case absorbs these aggravating
circumstances.

The crime is not aggravated by cruelty simply because Judge

Samonte sustained 10 stab wounds. For cruelty to be considered as an
aggravating circumstance, it must be proven that in inflicting several stab
wounds on the victim, the perpetrator intended to exacerbate the pain and
suffering of the victim. The number of wounds inflicted on the victim is not
proof of cruelty (Simangan v. People, G.R. No. 157984, July 8, 2004).
Unless there is proof that when the 2nd or subsequent stabs were made, the
Judge was still alive, there is no cruelty to speak of.

A quasi-recidivist is a person who shall commit a felony after having

been convicted by final judgment, before beginning to serve such sentence,
or while serving the same (Art. 160, RPC). In this case, Bernardo
committed the crime when the judgment of conviction is on appeal.

Chapter Five
ALTERNATIVE CIRCUMSTANCES

Article 15. 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.

106
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.

Title Two

PERSONS CRIMINALLY LIABLE FOR FELONIES

Article 16. Who are criminally liable. - The following are criminally liable for
grave and less grave felonies:

1. Principals.

2. Accomplices.

3. Accessories.

The following are criminally liable for light felonies:

1. Principals

2. Accomplices.

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

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it;

3. Those who cooperate in the commission of the offense by another

act without which it would not have been accomplished.

Article 18. Accomplices. - Accomplices are those persons who, not being

included in Article 17, cooperate in the execution of the offense by previous
or simultaneous acts.

Article 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
107
 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.

Article 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.

Title Three

PENALTIES

Chapter One
PENALTIES IN GENERAL

Article 21. Penalties that may be imposed. - No felony shall be punishable

by any penalty not prescribed by law prior to its commission.

Article 22. Retroactive effect of penal laws. - Penal Laws shall have a

retroactive effect insofar as they favor the persons guilty of a felony, who is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving the same.

Article 23. Effect of pardon by the offended party. - A pardon of the

offended party does not extinguish criminal action except as provided in
Article 344 of this Code; but civil liability with regard to the interest of the
injured party is extinguished by his express waiver.

Article 24. Measures of prevention or safety which are nor considered

penalties. - The following shall not be considered as penalties:

1. The arrest and temporary detention of accused persons, as well as

their detention by reason of insanity or imbecility, or illness requiring
their confinement in a hospital.

2. The commitment of a minor to any of the institutions mentioned in

Article 80 and for the purposes specified therein.

3. Suspension from the employment of public office during the trial or

in order to institute proceedings.

4. Fines and other corrective measures which, in the exercise of their

administrative disciplinary powers, superior officials may impose upon
their subordinates.

5. Deprivation of rights and the reparations which the civil laws may
establish in penal form.

Chapter Two
CLASSIFICATION OF PENALTIES

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Article 25. Penalties which may be imposed. - The penalties which may be
imposed according to this Code, and their different classes, are those
included in the following:

Scale

Principal Penalties

Capital punishment:

Death.

Afflictive penalties:

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

Correctional penalties:

Prision correccional, 
Arresto mayor, 
Suspension, 
Destierro.

Light penalties:

Arresto menor, 
Public censure.

Penalties common to the three preceding classes:

Fine, and 
Bond to keep the peace.

Accessory Penalties

Perpetual or temporary absolute disqualification, 

Perpetual or temporary special disqualification, 
Suspension from public office, the right to vote and be voted for, the
profession or calling. 
Civil interdiction, 
Indemnification, 
Forfeiture or confiscation of instruments and proceeds of the offense, 
Payment of costs.

Article 26. When afflictive, correctional, or light penalty. - A fine, whether

imposed as a single of as an alternative penalty, shall be considered an
afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does
not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty
if it less than 200 pesos.

109
Chapter Three
DURATION AND EFFECTS OF PENALTIES

Section One. - Duration of Penalties

Article 27. Reclusion perpetua. - Any person sentenced to any of the

perpetual penalties shall be pardoned after undergoing the penalty for thirty
years, unless such person by reason of his conduct or some other serious
cause shall be considered by the Chief Executive as unworthy of pardon.

Reclusion temporal. - The penalty of reclusion temporal shall be from

twelve years and one day to twenty years.

Prision mayor and temporary disqualification. - The duration of the

penalties of prision mayor and temporary disqualification shall be from six
years and one day to twelve years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case its
duration shall be that of the principal penalty.

Prision correccional, suspension, and destierro. - The duration of the

penalties of prision correccional, suspension and destierro shall be from six
months and one day to six years, except when suspension is imposed as
an accessory penalty, in which case, its duration shall be that of the
principal penalty.

Arresto mayor. - The duration of the penalty of arresto mayor shall be from

one month and one day to six months.

Arresto menor. - The duration of the penalty of arresto menor shall be from

one day to thirty days.

Bond to keep the peace. - The bond to keep the peace shall be required to
cover such period of time as the court may determine.

Article 28. Computation of penalties. - If the offender shall be in prison, the

term of the duration of the temporary penalties shall be computed from the
day on which the judgment of conviction shall have become final.

If the offender be not in prison, the term of the duration of the penalty
consisting of deprivation of liberty shall be computed from the day that the
offender is placed at the disposal of the judicial authorities for the
enforcement of the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant commences to serve
his sentence.

Article 29. Period of preventive imprisonment deducted from term of

imprisonment. - Offenders who have undergone preventive imprisonment
shall be credited in the service of their sentence consisting of deprivation of
liberty, with the full time during which they have undergone preventive
imprisonment, if the detention prisoner agrees voluntarily in writing to abide
by the same disciplinary rules imposed upon convicted prisoners, except in
the following cases:

1. When they are recidivists or have been convicted previously twice

or more times of any crime; and
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 2. When upon being summoned for the execution of their sentence
they have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall be credited in the service
of his sentence with four-fifths of the time during which he has undergone
preventive imprisonment. (As amended by Republic Act 6127, June 17,
1970).

Whenever an accused has undergone preventive imprisonment for a period

equal to or more than the possible maximum imprisonment of the offense
charged to which he may be sentenced and his case is not yet terminated,
he shall be released immediately without prejudice to the continuation of
the trial thereof or the proceeding on appeal, if the same is under review. In
case the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after thirty (30) days of preventive
imprisonment. (As amended by E.O. No. 214, July 10, 1988).

Section Two. - Effects of the penalties according to their respective nature

Article 30. Effects of the penalties of perpetual or temporary absolute

disqualification. - The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the

offender >may have held even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular
office or to be elected to such office.

3. The disqualification for the offices or public employments and for

the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is

comprised in paragraphs 2 and 3 of this article shall last during the
term of the sentence.

4. The loss of all rights to retirement pay or other pension for any
office formerly held.

Article 31. Effect of the penalties of perpetual or temporary special

disqualification. - The penalties of perpetual or temporal special
disqualification for public office, profession or calling shall produce the
following effects:

1. The deprivation of the office, employment, profession or calling

affected;

2. The disqualification for holding similar offices or employments

either perpetually or during the term of the sentence according to the
extent of such disqualification.

Article 32. Effect of the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. - The perpetual or
temporary special disqualification for the exercise of the right of suffrage

111
shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the
offender shall not be permitted to hold any public office during the period of
his disqualification.

Article 33. Effects of the penalties of suspension from any public office,

profession or calling, or the right of suffrage.- The suspension from public
office, profession or calling, and the exercise of the right of suffrage shall
disqualify the offender from holding such office or exercising such
profession or calling or right of suffrage during the term of the sentence.

The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.

Article 34. Civil interdiction. - Civil interdiction shall deprive the offender

during the time of his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any ward, of marital
authority, of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos.

Article 35. Effects of bond to keep the peace. - It shall be the duty of any
person sentenced to give bond to keep the peace, to present two sufficient
sureties who shall undertake that such person will not commit the offense
sought to be prevented, and that in case such offense be committed they
will pay the amount determined by the court in the judgment, or otherwise
to deposit such amount in the office of the clerk of the court to guarantee
said undertaking.

The court shall determine, according to its discretion, the period of duration
of the bond.

Should the person sentenced fail to give the bond as required he shall be
detained for a period which shall in no case exceed six months, is he shall
have been prosecuted for a grave or less grave felony, and shall not
exceed thirty days, if for a light felony.

Article 36. Pardon; its effect. - A pardon shall not work the restoration of
the right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.

Article 37. Cost; What are included. - Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they be fixed
or unalterable amounts previously determined by law or regulations in
force, or amounts not subject to schedule.

Article 38. Pecuniary liabilities; Order of payment. - In case the property of

the offender should not be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following order:

1. The reparation of the damage caused.

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 2. Indemnification of consequential damages.

3. The fine.

4. The cost of the proceedings.

Article 39. Subsidiary penalty. - If the convict has no property with which to

meet the fine mentioned in the paragraph 3 of the nest preceding article, he
shall be subject to a subsidiary personal liability at the rate of one day for
each eight pesos, subject to the following rules:

1. If the principal penalty imposed be prision correccional or arresto

and fine, he shall remain under confinement until his fine referred to
in the preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term of the sentence,
and in no case shall it continue for more than one year, and no
fraction or part of a day shall be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary

imprisonment shall not exceed six months, if the culprit shall have
been prosecuted for a grave or less grave felony, and shall not
exceed fifteen days, if for a light felony.

3. When the principal imposed is higher than prision correccional, no

subsidiary imprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by

confinement in a penal institution, but such penalty is of fixed
duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivations as
those of which the principal penalty consists.

5. The subsidiary personal liability which the convict may have

suffered by reason of his insolvency shall not relieve him, from the
fine in case his financial circumstances should improve. (As amended
by RA 5465, April 21, 1969).

Section Three. - Penalties in which other accessory penalties are inherent

Article 40. Death; Its accessory penalties. - The death penalty, when it is

not executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date sentence, unless such accessory penalties have
been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal; Their accessory

penalties. - The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the period of
the sentence as the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted
in the pardon.

Article 42. Prision mayor; Its accessory penalties. - The penalty of prision

mayor, shall carry with it that of temporary absolute disqualification and that
113
of perpetual special disqualification from the right of suffrage which the
offender shall suffer although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional; Its accessory penalties. - The penalty of

prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in the article although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 44. Arresto; Its accessory penalties. - The penalty of arresto shall

carry with it that of suspension of the right too hold office and the right of
suffrage during the term of the sentence.

Article 45. Confiscation and forfeiture of the proceeds or instruments of the

crime. - Every penalty imposed for the commission of a felony shall carry
with it the forfeiture of the proceeds of the crime and the instruments or
tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited

in favor of the Government, unless they be property of a third person not
liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.

Chapter Four
APPLICATION OF PENALTIES

Section One. - Rules for the application of penalties to the persons

criminally liable and for the graduation of the same.

Article 46. Penalty to be imposed upon principals in general. - The penalty

prescribed by law for the commission of a felony shall be imposed upon the
principals in the commission of such felony.

Whenever the law prescribes a penalty for a felony is general terms, it shall
be understood as applicable to the consummated felony.

Article 47. In what cases the death penalty shall not be imposed. - The
death penalty shall be imposed in all cases in which it must be imposed
under existing laws, except in the following cases:

1. When the guilty person be more than seventy years of age.

2. When upon appeal or revision of the case by the Supreme court,

all the members thereof are not unanimous in their voting as to the
propriety of the imposition of the death penalty. For the imposition of
said penalty or for the confirmation of a judgment of the inferior court
imposing the death sentence, the Supreme Court shall render its
decision per curiam, which shall be signed by all justices of said
court, unless some member or members thereof shall have been
disqualified from taking part in the consideration of the case, in which
even the unanimous vote and signature of only the remaining justices
shall be required.
114
Article 48. Penalty for complex crimes. - When a single act constitutes two
or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall
be imposed, the same to be applied in its maximum period.

Article 49. Penalty to be imposed upon the principals when the crime

committed is different from that intended. - In cases in which the felony
committed is different from that which the offender intended to commit, the
following rules shall be observed:

1. If the penalty prescribed for the felony committed be higher than

that corresponding to the offense which the accused intended to
commit, the penalty corresponding to the latter shall be imposed in its
maximum period.

2. If the penalty prescribed for the felony committed be lower than

that corresponding to the one which the accused intended to commit,
the penalty for the former shall be imposed in its maximum period.

3. The rule established by the next preceding paragraph shall not be

applicable if the acts committed by the guilty person shall also
constitute an attempt or frustration of another crime, if the law
prescribes a higher penalty for either of the latter offenses, in which
case the penalty provided for the attempted or the frustrated crime
shall be imposed in its maximum period.

Article 50. Penalty to be imposed upon principals of a frustrated crime. -

The penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the principal in a frustrated
felony.

Article 51. Penalty to be imposed upon principals of attempted crimes. - A

penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to
commit a felony.

Article 52. Penalty to be imposed upon accomplices in consummated

crime. - The penalty next lower in degree than that prescribed by law for
the consummated shall be imposed upon the accomplices in the
commission of a consummated felony.

Article 53. Penalty to be imposed upon accessories to the commission of a

consummated felony. - The penalty lower by two degrees than that
prescribed by law for the consummated felony shall be imposed upon the
accessories to the commission of a consummated felony.

Article 54. Penalty to imposed upon accomplices in a frustrated crime. -

The penalty next lower in degree than prescribed by law for the frustrated
felony shall be imposed upon the accomplices in the commission of a
frustrated felony.

Article 55. Penalty to be imposed upon accessories of a frustrated crime. -

The penalty lower by two degrees than that prescribed by law for the

115
frustrated felony shall be imposed upon the accessories to the commission
of a frustrated felony.

Article 56. Penalty to be imposed upon accomplices in an attempted

crime. - The penalty next lower in degree than that prescribed by law for an
attempt to commit a felony shall be imposed upon the accomplices in an
attempt to commit the felony.

Article 57. Penalty to be imposed upon accessories of an attempted

crime. - The penalty lower by two degrees than that prescribed by law for
the attempted felony shall be imposed upon the accessories to the attempt
to commit a felony.

Article 58. Additional penalty to be imposed upon certain accessories. -

Those accessories falling within the terms of paragraphs 3 of Article 19 of
this Code who should act with abuse of their public functions, shall suffer
the additional penalty of absolute perpetual disqualification if the principal
offender shall be guilty of a grave felony, and that of absolute temporary
disqualification if he shall be guilty of a less grave felony.

Article 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. - When
the person intending to commit an offense has already performed the acts
for the execution of the same but nevertheless the crime was not produced
by reason of the fact that the act intended was by its nature one of
impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the
court, having in mind the social danger and the degree of criminality shown
by the offender, shall impose upon him the penalty of arresto mayor or a
fine from 200 to 500 pesos.

Article 60. Exception to the rules established in Articles 50 to 57. - The

provisions contained in Articles 50 to 57, inclusive, of this Code shall not be
applicable to cases in which the law expressly prescribes the penalty
provided for a frustrated or attempted felony, or to be imposed upon
accomplices or accessories.

Article 61. Rules for graduating penalties. - For the purpose of graduating

the penalties which, according to the provisions of Articles 50 to 57,
inclusive, of this Code, are to be imposed upon persons guilty as principals
of any frustrated or attempted felony, or as accomplices or accessories, the
following rules shall be observed:

1. When the penalty prescribed for the felony is single and indivisible,
the penalty next lower in degrees shall be that immediately following
that indivisible penalty in the respective graduated scale prescribed in
Article 71 of this Code.

2. When the penalty prescribed for the crime is composed of two

indivisible penalties, or of one or more divisible penalties to be
impose to their full extent, the penalty next lower in degree shall be
that immediately following the lesser of the penalties prescribed in the
respective graduated scale.

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3. When the penalty prescribed for the crime is composed of one or
two indivisible penalties and the maximum period of another divisible
penalty, the penalty next lower in degree shall be composed of the
medium and minimum periods of the proper divisible penalty and the
maximum periods of the proper divisible penalty and the maximum
period of that immediately following in said respective graduated
scale.

4. when the penalty prescribed for the crime is composed of several

periods, corresponding to different divisible penalties, the penalty
next lower in degree shall be composed of the period immediately
following the minimum prescribed and of the two next following, which
shall be taken from the penalty prescribed, if possible; otherwise from
the penalty immediately following in the above mentioned respective
graduated scale.

5. When the law prescribes a penalty for a crime in some manner not
especially provided for in the four preceding rules, the courts,
proceeding by analogy, shall impose corresponding penalties upon
those guilty as principals of the frustrated felony, or of attempt to
commit the same, and upon accomplices and accessories.

TABULATION OF THE PROVISIONS OF THE CHAPTER

Penalty to
be imposed
Penalty to
upon the
be
Penalty to principal in
imposed
be imposed an Penalty to
upon the
upon the attempted be
accessory
Penalty principal in crime, the imposed
in a
Prescrib a frustrated accessory upon the
  frustrated
e for the crime, and in the accessory
crime, and
crime accomplice consummat in an
the
in a ed crime attempted
accomplic
consummat and the crime
es in an
ed crime accomplice
attempted
s in a
crime
frustrated
crime.
Prision
First Reclusion Reclusion Prision
Death Correccion
Case Perpetua Temporal Mayor
al
Reclusio
Secon n Prision
Reclusion Prision Arresto
d Perpetu Correccion
Temporal Mayor Mayor
Case a to al
Death
Third Reclusio Prision Prision Arresto Fine and
Case n Mayor in its correccional Mayor in Arresto
Tempor maximum in its it's Mayor in

117
 maximum
maximum
al in its period to period to its
period to
maximu reclusion prision minimum
prision
m temporal in correccion and
mayor in its
period its medium al in its medium
medium
to death period medium periods
period
period
Prision
Mayor in
its Prision Arresto
Fine and
maximu correccional mayor in its
Arresto
m in its maximum
Mayor in
period maximum period to
Fourth its
to period to prision Fine.
Case minimum
reclusio prision correccional
and
n mayor in its in its
medium
tempora medium medium
periods
l in its period. period.
medium
period.

Section Two. - Rules for the application of penalties with regard to

the mitigating and aggravating circumstances, and habitual
delinquency.

Article 62. Effect of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. - Mitigating or aggravating
circumstances and habitual delinquency shall be taken into account for the
purpose of diminishing or increasing the penalty in conformity with the
following rules:

1. Aggravating circumstances which in themselves constitute a crime

specially punishable by law or which are included by the law in
defining a crime and prescribing the penalty therefor shall not be
taken into account for the purpose of increasing the penalty.

2. The same rule shall apply with respect to any aggravating

circumstance inherent in the crime to such a degree that it must of
necessity accompany the commission thereof.

3. Aggravating or mitigating circumstances which arise from the moral

attributes of the offender, or from his private relations with the
offended party, or from any other personal cause, shall only serve to
aggravate or mitigate the liability of the principals, accomplices and
accessories as to whom such circumstances are attendant.

4. The circumstances which consist in the material execution of the

act, or in the means employed to accomplish it, shall serve to
aggravate or mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act or their
cooperation therein.

5. Habitual delinquency shall have the following effects:

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 (a) Upon a third conviction the culprit shall be sentenced to the
penalty provided by law for the last crime of which he be found
guilty and to the additional penalty of prision correccional in its
medium and maximum periods;

(b) Upon a fourth conviction, the culprit shall be sentenced to

the penalty provided for the last crime of which he be found
guilty and to the additional penalty of prision mayor in its
minimum and medium periods; and

(c) Upon a fifth or additional conviction, the culprit shall be

sentenced to the penalty provided for the last crime of which he
be found guilty and to the additional penalty of prision mayor in
its maximum period to reclusion temporal in its minimum period.

Notwithstanding the provisions of this article, the total of the two penalties
to be imposed upon the offender, in conformity herewith, shall in no case
exceed 30 years.

For the purpose of this article, a person shall be deemed to be habitual

delinquent, is within a period of ten years from the date of his release or
last conviction of the crimes of serious or less serious physical injuries,
robo, hurto, estafa or falsification, he is found guilty of any of said crimes a
third time or oftener.

Article 63. Rules for the application of indivisible penalties. - In all cases in

which the law prescribes a single indivisible penalty, it shall be applied by
the courts regardless of any mitigating or aggravating circumstances that
may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two

indivisible penalties, the following rules shall be observed in the application
thereof:

1. When in the commission of the deed there is present only one

aggravating circumstance, the greater penalty shall be applied.

2. When there are neither mitigating nor aggravating circumstances

and there is no aggravating circumstance, the lesser penalty shall be
applied.

3. When the commission of the act is attended by some mitigating

circumstances and there is no aggravating circumstance, the lesser
penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the

commission of the act, the court shall reasonably allow them to offset
one another in consideration of their number and importance, for the
purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation.

Article 64. Rules for the application of penalties which contain three

periods. - In cases in which the penalties prescribed by law contain three
periods, whether it be a single divisible penalty or composed of three
different penalties, each one of which forms a period in accordance with the
119
provisions of Articles 76 and 77, the court shall observe for the application
of the penalty the following rules, according to whether there are or are not
mitigating or aggravating circumstances:

1. When there are neither aggravating nor mitigating circumstances,

they shall impose the penalty prescribed by law in its medium period.

2. When only a mitigating circumstances is present in the commission

of the act, they shall impose the penalty in its minimum period.

3. When an aggravating circumstance is present in the commission of

the act, they shall impose the penalty in its maximum period.

4. When both mitigating and aggravating circumstances are present,

the court shall reasonably offset those of one class against the other
according to their relative weight.

5. When there are two or more mitigating circumstances and no

aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such
circumstances.

6. Whatever may be the number and nature of the aggravating

circumstances, the courts shall not impose a greater penalty than that
prescribed by law, in its maximum period.

7. Within the limits of each period, the court shall determine the
extent of the penalty according to the number and nature of the
aggravating and mitigating circumstances and the greater and lesser
extent of the evil produced by the crime.

Article 65. Rule in cases in which the penalty is not composed of three

periods. - In cases in which the penalty prescribed by law is not composed
of three periods, the courts shall apply the rules contained in the foregoing
articles, dividing into three equal portions of time included in the penalty
prescribed, and forming one period of each of the three portions.

Article 66. Imposition of fines. - In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in each
case attention shall be given, not only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means of the culprit.

Article 67. Penalty to be imposed when not all the requisites of exemption

of the fourth circumstance of Article 12 are present. - When all the
conditions required in circumstances Number 4 of Article 12 of this Code to
exempt from criminal liability are not present, the penalty of arresto
mayor in its maximum period to prision correccional in its minimum period
shall be imposed upon the culprit if he shall have been guilty of a grave
felony, and arresto mayor in its minimum and medium periods, if of a less
grave felony.

Article 68. Penalty to be imposed upon a person under eighteen years of

age. - When the offender is a minor under eighteen years and his case is

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one coming under the provisions of the paragraphs next to the last of
Article 80 of this Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for
the crime which he committed.

2. Upon a person over fifteen and under eighteen years of age the
penalty next lower than that prescribed by law shall be imposed, but
always in the proper period.

Article 69. Penalty to be imposed when the crime committed is not wholly

excusable. - A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in Article 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present or lacking.

Article 70. Successive service of sentence. - When the culprit has to serve

two or more penalties, he shall serve them simultaneously if the nature of
the penalties will so permit otherwise, the following rules shall be observed:

In the imposition of the penalties, the order of their respective severity shall
be followed so that they may be executed successively or as nearly as may
be possible, should a pardon have been granted as to the penalty or
penalties first imposed, or should they have been served out.

For the purpose of applying the provisions of the next preceding paragraph
the respective severity of the penalties shall be determined in accordance
with the following scale:

1. Death,

2. Reclusion perpetua,

3. Reclusion temporal,

4. Prision mayor,

5. Prision correccional,

6. Arresto mayor,

7. Arresto menor,

8. Destierro,

9. Perpetual absolute disqualification,

10 Temporal absolute disqualification.

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 11. Suspension from public office, the right to vote and be voted for,
the right to follow a profession or calling, and

12. Public censure.

Notwithstanding the provisions of the rule next preceding, the maximum

duration of the convict's sentence shall not be more than three-fold the
length of time corresponding to the most severe of the penalties imposed
upon him. No other penalty to which he may be liable shall be inflicted after
the sum total of those imposed equals the same maximum period.

Such maximum period shall in no case exceed forty years.

In applying the provisions of this rule the duration of perpetual penalties

(pena perpetua) shall be computed at thirty years. (As amended).

Article 71. Graduated scales. - In the case in which the law prescribed a

penalty lower or higher by one or more degrees than another given penalty,
the rules prescribed in Article 61 shall be observed in graduating such
penalty.

The lower or higher penalty shall be taken from the graduated scale in
which is comprised the given penalty.

The courts, in applying such lower or higher penalty, shall observe the
following graduated scales:

SCALE NO. 1

1. Death,

2. Reclusion perpetua,

3. Reclusion temporal,

4. Prision mayor,

5. Prision correccional,

6. Arresto mayor,

7. Destierro,

8. Arresto menor,

9. Public censure,

10. Fine.

SCALE NO. 2

1. Perpetual absolute disqualification,

2. Temporal absolute disqualification

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 3. Suspension from public office, the right to vote and be voted
for, the right to follow a profession or calling,

4. Public censure,

5. Fine.

Article 72 Preference in the payment of the civil liabilities. - The civil

liabilities of a person found guilty of two or more offenses shall be satisfied
by following the chronological order of the dates of the judgments rendered
against him, beginning with the first in order of time.

Section Three. - Provisions common in the last two preceding sections

Article 73. Presumption in regard to the imposition of accessory

penalties. - Whenever the courts shall impose a penalty which, by provision
of law, carries with it other penalties, according to the provisions of Articles
40, 41, 42, 43 and 44 of this Code, it must be understood that the
accessory penalties are also imposed upon the convict.

Article 74. Penalty higher than reclusion perpetua in certain cases. - In

cases in which the law prescribes a penalty higher than another given
penalty, without specially designating the name of the former, if such higher
penalty should be that of death, the same penalty and the accessory
penalties of Article 40, shall be considered as the next higher penalty.

Article 75. Increasing or reducing the penalty of fine by one or more

degrees. - Whenever it may be necessary to increase or reduce the penalty
of fine by one or more degrees, it shall be increased or reduced,
respectively, for each degree, by one-fourth of the maximum amount
prescribed by law, without however, changing the minimum.

The same rules shall be observed with regard of fines that do not consist of
a fixed amount, but are made proportional.

Article 76. Legal period of duration of divisible penalties. - The legal period

of duration of divisible penalties shall be considered as divided into three
parts, forming three periods, the minimum, the medium, and the maximum
in the manner shown in the following table:

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND

THE TIME INCLUDED IN EACH OF THEIR PERIODS

Penalties Time Time Time Time

included in included in included in
included in
  the penalty in its minimum its medium
its maximum
its entirety period period
From 14
From 12 From 17
From 12 years, 8
years and 1 years, 4
Reclusion years and 1 months and
day to 14 months and
temporal day to 20 1 day to 17
years and 8 1 day to 20
years. years and 4
months. years.
months.

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Prision mayor,
absolute From 10
From 6 years From 6 years From 8 years
disqualification years and 1
and 1 day to and 1 day to and 1 day to
and special day to 12
12 years. 8 years. 10 years.
temporary years.
disqualification
From 2
From 6 From 4
Prision From 6 years, 4
months and years, 2
correccional, months and months and
1 day to 2 months and
suspension 1 day to 6 1 day to 4
years and 4 1 day to 6
and destierro years. years and 2
months. years.
months.
From 1 From 2 From 4
month and 1 From 1 to 2 months and months and
Arresto mayor
day to months. 1 day to 4 1 day to 6
months. months. months.
From 1 to 30 From 1 to 10 From 11 to From 21 to
Arresto menor
days. days. 20 days. 30 days.

Article 77. When the penalty is a complex one composed of three distinct

penalties. - In cases in which the law prescribes a penalty composed of
three distinct penalties, each one shall form a period; the lightest of them
shall be the minimum the next the medium, and the most severe the
maximum period.

Whenever the penalty prescribed does not have one of the forms specially
provided for in this Code, the periods shall be distributed, applying by
analogy the prescribed rules.

Chapter Five
EXECUTION AND SERVICE OF PENALTIES

Section One. - General Provisions

Article 78. When and how a penalty is to be executed. - No penalty shall

be executed except by virtue of a final judgment.

A penalty shall not be executed in any other form than that prescribed by
law, nor with any other circumstances or incidents than those expressly
authorized thereby.

In addition to the provisions of the law, the special regulations prescribed

for the government of the institutions in which the penalties are to be
suffered shall be observed with regard to the character of the work to be
performed, the time of its performance, and other incidents connected
therewith, the relations of the convicts among themselves and other
persons, the relief which they may receive, and their diet.

The regulations shall make provision for the separation of the sexes in
different institutions, or at least into different departments and also for the
correction and reform of the convicts.

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Article 79. Suspension of the execution and service of the penalties in
case of insanity. - When a convict shall become insane or an imbecile after
final sentence has been pronounced, the execution of said sentence shall
be suspended only with regard to the personal penalty, the provisions of
the second paragraph of circumstance number 1 of Article 12 being
observed in the corresponding cases.

If at any time the convict shall recover his reason, his sentence shall be
executed, unless the penalty shall have prescribed in accordance with the
provisions of this Code.

The respective provisions of this section shall also be observed if the

insanity or imbecility occurs while the convict is serving his sentence.

Article 80. Suspension of sentence of minor delinquents. - Whenever a

minor of either sex, under sixteen years of age at the date of the
commission of a grave or less grave felony, is accused thereof, the court,
after hearing the evidence in the proper proceedings, instead of
pronouncing judgment of conviction, shall suspend all further proceedings
and shall commit such minor to the custody or care of a public or private,
benevolent or charitable institution, established under the law of the care,
correction or education of orphaned, homeless, defective, and delinquent
children, or to the custody or care of any other responsible person in any
other place subject to visitation and supervision by the Director of Public
Welfare or any of his agents or representatives, if there be any, or
otherwise by the superintendent of public schools or his representatives,
subject to such conditions as are prescribed hereinbelow until such minor
shall have reached his majority age or for such less period as the court
may deem proper. The court, in committing said minor as provided above,
shall take into consideration the religion of such minor, his parents or next
of kin, in order to avoid his commitment to any private institution not under
the control and supervision of the religious sect or denomination to which
they belong.

The Director of Public Welfare or his duly authorized representatives or

agents, the superintendent of public schools or his representatives, or the
person to whose custody or care the minor has been committed, shall
submit to the court every four months and as often as required in special
cases, a written report on the good or bad conduct of said minor and the
moral and intellectual progress made by him.

The suspension of the proceedings against a minor may be extended or

shortened by the court on the recommendation of the Director of Public
Welfare or his authorized representative or agents, or the superintendent of
public schools or his representatives, according as to whether the conduct
of such minor has been good or not and whether he has complied with the
conditions imposed upon him, or not. The provisions of the first paragraph
of this article shall not, however, be affected by those contained herein.

If the minor has been committed to the custody or care of any of the
institutions mentioned in the first paragraph of this article, with the approval
of the Director of Public Welfare and subject to such conditions as this
official in accordance with law may deem proper to impose, such minor
may be allowed to stay elsewhere under the care of a responsible person.

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If the minor has behaved properly and has complied with the conditions
imposed upon him during his confinement, in accordance with the
provisions of this article, he shall be returned to the court in order that the
same may order his final release.

In case the minor fails to behave properly or to comply with the regulations
of the institution to which he has been committed or with the conditions
imposed upon him when he was committed to the care of a responsible
person, or in case he should be found incorrigible or his continued stay in
such institution should be inadvisable, he shall be returned to the court in
order that the same may render the judgment corresponding to the crime
committed by him.

The expenses for the maintenance of a minor delinquent confined in the

institution to which he has been committed, shall be borne totally or
partially by his parents or relatives or those persons liable to support him, if
they are able to do so, in the discretion of the court; Provided, That in case
his parents or relatives or those persons liable to support him have not
been ordered to pay said expenses or are found indigent and cannot pay
said expenses, the municipality in which the offense was committed shall
pay one-third of said expenses; the province to which the municipality
belongs shall pay one-third; and the remaining one-third shall be borne by
the National Government: Provided, however, That whenever the Secretary
of Finance certifies that a municipality is not able to pay its share in the
expenses above mentioned, such share which is not paid by said
municipality shall be borne by the National Government. Chartered cities
shall pay two-thirds of said expenses; and in case a chartered city cannot
pay said expenses, the internal revenue allotments which may be due to
said city shall be withheld and applied in settlement of said indebtedness in
accordance with section five hundred and eighty-eight of the Administrative
Code.

Section Two. - Execution of principal penalties.

Article 81. When and how the death penalty is to be executed. - The death
sentence shall be executed with reference to any other and shall consist in
putting the person under sentence to death by electrocution. The death
sentence shall be executed under the authority of the Director of Prisons,
endeavoring so far as possible to mitigate the sufferings of the person
under sentence during electrocution as well as during the proceedings prior
to the execution.

If the person under sentence so desires, he shall be anaesthetized at the

moment of the electrocution.

Article 82. Notification and execution of the sentence and assistance to

the culprit. - The court shall designate a working day for the execution but
not the hour thereof; and such designation shall not be communicated to
the offender before sunrise of said day, and the execution shall not take
place until after the expiration of at least eight hours following the
notification, but before sunset. During the interval between the notification
and the execution, the culprit shall, in so far as possible, be furnished such
assistance as he may request in order to be attended in his last moments
by priests or ministers of the religion he professes and to consult lawyers,

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as well as in order to make a will and confer with members of his family or
persons in charge of the management of his business, of the administration
of his property, or of the care of his descendants.

Article 83. Suspension of the execution of the death sentence. - The death

sentence shall not be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant, nor upon any
person over seventy years of age. In this last case, the death sentence
shall be commuted to the penalty of reclusion perpetua with the accessory
penalties provided in Article 40.

Article 84. Place of execution and persons who may witness the same. -
The execution shall take place in the penitentiary of Bilibid in a space
closed to the public view and shall be witnessed only by the priests
assisting the offender and by his lawyers, and by his relatives, not
exceeding six, if he so request, by the physician and the necessary
personnel of the penal establishment, and by such persons as the Director
of Prisons may authorize.

Article 85. Provisions relative to the corpse of the person executed and its
burial. - Unless claimed by his family, the corpse of the culprit shall, upon
the completion of the legal proceedings subsequent to the execution, be
turned over to the institute of learning or scientific research first applying for
it, for the purpose of study and investigation, provided that such institute
shall take charge of the decent burial of the remains. Otherwise, the
Director of Prisons shall order the burial of the body of the culprit at
government expense, granting permission to be present thereat to the
members of the family of the culprit and the friends of the latter. In no case
shall the burial of the body of a person sentenced to death be held with
pomp.

Article 86. Reclusion perpetua, reclusion temporal, prision mayor, prision

correccional and arresto mayor. - The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision correccional and arresto mayor,
shall be executed and served in the places and penal establishments
provided by the Administrative Code in force or which may be provided by
law in the future.

Article 87. Destierro. - Any person sentenced to destierro shall not be

permitted to enter the place or places designated in the sentence, nor
within the radius therein specified, which shall be not more than 250 and
not less than 25 kilometers from the place designated.

Article 88. Arresto menor. - The penalty of arresto menor shall be served

in the municipal jail, or in the house of the defendant himself under the
surveillance of an officer of the law, when the court so provides in its
decision, taking into consideration the health of the offender and other
reasons which may seem satisfactory to it.

Title Four

EXTINCTION OF CRIMINAL LIABILITY

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Chapter One
TOTAL EXTINCTION OF CRIMINAL LIABILITY

Article 89. How criminal liability is totally extinguished. - Criminal liability is

totally extinguished:

1. By the death of the convict, as to the personal penalties and as to

pecuniary penalties, liability therefor is extinguished only when the
death of the offender occurs before final judgment.

2. By service of the sentence;

3. By amnesty, which completely extinguishes the penalty and all its

effects;

4. By absolute pardon;

5. By prescription of the crime;

6. By prescription of the penalty;

7. By the marriage of the offended woman, as provided in Article 344

of this Code.

Article 90. Prescription of crime. - Crimes punishable by death, reclusion

perpetua or reclusion temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen

years.

Those punishable by a correctional penalty shall prescribe in ten years;

with the exception of those punishable by arresto mayor, which shall
prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The crime of oral defamation and slander by deed shall prescribe in six
months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one, the highest penalty shall
be made the basis of the application of the rules contained in the first,
second and third paragraphs of this article. (As amended by RA 4661,
approved June 19, 1966).

Article 91. Computation of prescription of offenses. - The period of

prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.

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The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.

Article 92. When and how penalties prescribe. - The penalties imposed by

final sentence prescribe as follows:

1. Death and reclusion perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;

3. Correctional penalties, in ten years; with the exception of the

penalty of arresto mayor, which prescribes in five years;

4. Light penalties, in one year.

Article 93. Computation of the prescription of penalties. - The period of

prescription of penalties shall commence to run from the date when the
culprit should evade the service of his sentence, and it shall be interrupted
if the defendant should give himself up, be captured, should go to some
foreign country with which this Government has no extradition treaty, or
should commit another crime before the expiration of the period of
prescription.

Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Article 94. Partial Extinction of criminal liability. - Criminal liability is

extinguished partially:

1. By conditional pardon;

2. By commutation of the sentence; and

3. For good conduct allowances which the culprit may earn while he
is serving his sentence.

Article 95. Obligation incurred by person granted conditional pardon. - Any

person who has been granted conditional pardon shall incur the obligation
of complying strictly with the conditions imposed therein otherwise, his non-
compliance with any of the conditions specified shall result in the
revocation of the pardon and the provisions of Article 159 shall be applied
to him.

Article 96. Effect of commutation of sentence. - The commutation of the

original sentence for another of a different length and nature shall have the
legal effect of substituting the latter in the place of the former.

Article 97. Allowance for good conduct. - The good conduct of any prisoner
in any penal institution shall entitle him to the following deductions from the
period of his sentence:

1. During the first two years of his imprisonment, he shall be allowed

a deduction of five days for each month of good behavior;

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 2. During the third to the fifth year, inclusive, of his imprisonment, he
shall be allowed a deduction of eight days for each month of good
behavior;

3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of ten days for each
month of good behavior; and

4. During the eleventh and successive years of his imprisonment, he

shall be allowed a deduction of fifteen days for each month of good
behaviour.

Article 98. Special time allowance for loyalty. - A deduction of one-fifth of

the period of his sentence shall be granted to any prisoner who, having
evaded the service of his sentence under the circumstances mentioned in
Article 58 of this Code, gives himself up to the authorities within 48 hours
following the issuance of a proclamation announcing the passing away of
the calamity or catastrophe to in said article.

Article 99. Who grants time allowances. - Whenever lawfully justified, the

Director of Prisons shall grant allowances for good conduct. Such
allowances once granted shall not be revoked.

Title Five

CIVIL LIABILITY

Chapter One
PERSON CIVILLY LIABLE FOR FELONIES

Article 100. Civil liability of a person guilty of felony. - Every person

criminally liable for a felony is also civilly liable.

Article 101. Rules regarding civil liability in certain cases. - The exemption

from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article
12 and in subdivision 4 of Article 11 of this Code does not include
exemption from civil liability, which shall be enforced subject to the
following rules:

First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for
acts committed by an imbecile or insane person, and by a person under
nine years of age, or by one over nine but under fifteen years of age, who
has acted without discernment, shall devolve upon those having such
person under their legal authority or control, unless it appears that there
was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of Article 11, the persons for
whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.

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The courts shall determine, in sound discretion, the proportionate amount
for which each one shall be liable.

When the respective shares cannot be equitably determined, even

approximately, or when the liability also attaches to the Government, or to
the majority of the inhabitants of the town, and, in all events, whenever the
damages have been caused with the consent of the authorities or their
agents, indemnification shall be made in the manner prescribed by special
laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons
using violence or causing the fears shall be primarily liable and secondarily,
or, if there be no such persons, those doing the act shall be liable, saving
always to the latter that part of their property exempt from execution.

Article 102. Subsidiary civil liability of innkeepers, tavernkeepers and

proprietors of establishments. - In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other persons or corporations shall be
civilly liable for crimes committed in their establishments, in all cases where
a violation of municipal ordinances or some general or special police
regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for the
payment of the value thereof, provided that such guests shall have notified
in advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed
the directions which such innkeeper or his representative may have given
them with respect to the care and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation of
persons unless committed by the innkeeper's employees.

Article 103. Subsidiary civil liability of other persons. - The subsidiary

liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

Chapter Two
WHAT CIVIL LIABILITY INCLUDES

Article 104. What is included in civil liability. - The civil liability established

in Articles 100, 101, 102, and 103 of this Code includes:

1. Restitution;

2. Reparation of the damage caused;

3. Indemnification for consequential damages.

Article 105. Restitution; How made. - The restitution of the thing itself must
be made whenever possible, with allowance for any deterioration, or
diminution of value as determined by the court.

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The thing itself shall be restored, even though it be found in the possession
of a third person who has acquired it by lawful means, saving to the latter
his action against the proper person, who may be liable to him.

This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the requirements
which, by law, bar an action for its recovery.

Article 106. Reparation; How made. - The court shall determine the

amount of damage, taking into consideration the price of the thing,
whenever possible, and its special sentimental value to the injured party,
and reparation shall be made accordingly.

Article 107. Indemnification; What is included. - Indemnification for

consequential damages shall include not only those caused the injured
party, but also those suffered by his family or by a third person by reason of
the crime.

Article 108. Obligation to make restoration, reparation for damages, or

indemnification for consequential damages and actions to demand the
same; Upon whom it devolves. - The obligation to make restoration or
reparation for damages and indemnification for consequential damages
devolves upon the heirs of the person liable.

The action to demand restoration, reparation, and indemnification likewise

descends to the heirs of the person injured.

Article 109. Share of each person civilly liable. - If there are two or more
persons civilly liable for a felony, the courts shall determine the amount for
which each must respond.

Article 110. Several and subsidiary liability of principals, accomplices and

accessories of a felony; Preference in payment. - Notwithstanding the
provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiaries for those of
the other persons liable.

The subsidiary liability shall be enforced, first against the property of the
principals; next, against that of the accomplices, and, lastly, against that of
the accessories.

Whenever the liability in solidum or the subsidiary liability has been

enforced, the person by whom payment has been made shall have a right
of action against the others for the amount of their respective shares.

Article 111. Obligation to make restitution in certain cases. - Any person

who has participated gratuitously in the proceeds of a felony shall be bound
to make restitution in an amount equivalent to the extent of such
participation.

Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

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Article 112. Extinction of civil liability. - Civil liability established in Articles
100, 101, 102, and 103 of this Code shall be extinguished in the same
manner as obligations, in accordance with the provisions of the Civil Law.

Article 113. Obligation to satisfy civil liability. - Except in case of extinction

of his civil liability as provided in the next preceding article the offender
shall continue to be obliged to satisfy the civil liability resulting from the
crime committed by him, notwithstanding the fact that he has served his
sentence consisting of deprivation of liberty or other rights, or has not been
required to serve the same by reason of amnesty, pardon, commutation of
sentence or any other reason.

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