Aggravating 

Circumstances
Posted on January 28, 2010 by attyrcd
The aggravating circumstances are based on the higher degree of
perversity of the offender manifested at the time of the commission of the
felony; the place, the means, ways or methods employed; his relationship
with the offended  party; or other personal circumstance and others.
Kinds of aggravating circumstances:
1. Generic - that which generally applies to all crimes like recidivism.
2. Specific - that which applies to a particular felony like cruelty in crimes
against persons.
3. Qualifying - that which changes the nature of the felony, as treachery in
murder.
4. Inherent - that which is part of the felony committed, as unlawful entry in
robbery with force upon things.
Distinction:
Generic Qualifying
1. Can be offset by an ordinary 1. Cannot be offset by an ordinary
mitigating. mitigating.
2. Maybe proved even though not 2. Cannot be proved as such
alleged. unless alleged in the information. 
However, it may be proved as a
generic aggravating circumstance.
3. Not offset have the effect of 3. Changes not only the nature but
increasing the penalty to the also the name of the offense.
maximum but not beyond that
provided by law.
The circumstances specifying an offense or aggravating the penalty thereof
must be proved as conclusively as the act itself, mere suppositions or
presumptions being insufficient to establish their  presence according to
law.  The Supreme Court said that even if the generic aggravating
circumstance is not  alleged in the information, the same may be proved
even over the  objection  of the adverse party. (Q10, 1991 Bar)
Specific circumstances:
1. Taking advantage of Official Position.
That advantage be taken by the offender of his public position. (Art. 14, Par.
1)
It  is  not only necessary that the person  committing the crime  be  a public
officer; he must also use  the  influence, prestige or ascendancy which such
office gives him as a  means by which he realizes his purpose. (People v.
Yturriaga, 86 Phil. 534)
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
official position, bribery or malversation, the circumstances is not
considered.  This means that this aggravating circumstance is inherent in
the crime, since, it cannot be committed except by public officer. (People v.
Teves, 44 Phil 275)
2. That the crime be committed in contempt of or with insult to the public
authorities. (Art. 14, Par. 2)
Public authorities is a person in authority, not an agent of a person in
authority, and that the person in authority should be engaged in the exercise
of his public functions, and  that he should not be the object of the crime.  It
is also essential that the offender knows of the identity of the public
authority.
The Chief of Police is a person in authority for he is vested with authority to
maintain peace and order and is duty bound to prosecute and to apprehend
violators of the laws. (People v. Rodil, 109 SCRA 308)  A Barangay
Chairman is a person in authority.  Teachers, professors, supervisors of
public and duly recognized private schools, colleges and universities, as
well as lawyers are persons in authority only for the purposes of Direct
Assault (Art. 148) and Simple Resistance and Disobedience (Art. 151), but
not for the purpose of the aggravating circumstance in this paragraph.
(People v. Tac-an, 182 SCRA 601)
If the crime is committed against the public authority, the crime committed is
direct assault and this aggravating circumstance will be considered
absorbed. (US v. Rodriguez, 29 Phil. 150)
3. Act be committed with insult to or in disregard   of the respect  due the
offended party on account of  his  rank, age, or sex, or that it be committed
in the dwelling  of  the offended party, if the latter has not given provocation .
(Art. 14, Par. 3)
There are four aggravating circumstances in this paragraph, which, if
present in the commission of the crime are considered as one aggravating
circumstance only.
There must, however, be proof showing that the accused deliberately
intended to offend or insult the age or sex of the offended party. (People v.
Mangsant, 65 Phil. 548) So, these circumstances was not considered when
the accused was drunk at the time of the commission of the offense.
This aggravating circumstance is considered only in crimes against 
persons, security or honor and not in crimes  against  property such as
robbery with homicide. (People v. Ang, 62833, Oct. 8, 1985) The mere fact
that the victim was a woman is not itself sufficient to support the contention
that there was insult of disrespect to sex.  It is  necessary to  prove the
specific fact or circumstance, other  than that the victim is a woman,
showing insult or disregard of sex in order that it may be considered as an
aggravating circumstance, such as compelling a woman to go to the house
of the accused against her will. (US v. Quevengco, 2 Phil. 412)
Disregard of respect due to sex and age may be included in treachery.
(People v. Limaco, 99 Phil. 35)
Dwelling includes dependencies, staircase, and enclosures under the
house.  A place of “sanctuary worthy of respect.” (People v. Parazo, May
14, 1997)  A combination house and store is not a dwelling. (People v.
Magnaue, 3510, May 30, 1951)  For dwelling to be appreciated, it is not
necessary that the victim is the owner of the dwelling.  It is  enough  that she
has the right to be in the dwelling and not only as an incidental
circumstance. (People v. Sto. Tomas, 138 SCRA 206)  It is aggravating
where the place is, even for a brief moment, a home to the offended party
though he is not the owner thereof, provided that he did not provoke the
commission of the crime and the dwelling is not that of the offender also.
(People v. Badilla, 185 SCRA 554)
Dwelling is an aggravating circumstance  even  if one does not enter the 
house  of the victim.  Such as when the assailant from the  outside  shoots
the victim  inside  his  house. (People v. Bautista, 440, Nov. 29, 1947) This 
circumstance  is  not considered  where provocation was given by the
offended  party or where both parties reside in the same dwelling.  In case
of a boarding  house,  each room of a boarder  is  considered  a separate
dwelling. (People v. Daniel, 75 OG 4834)
Dwelling is aggravating if adultery is committed in the conjugal dwelling
because the respect due the conjugal house is violated (US v. Ibanez, 33
Phil. 611) if the paramour is not residing in the conjugal dwelling.
4. Acts be committed with abuse of confidence or obvious ungratefulness.
(Art. 14, Par. 4)
The requisites are:
a. The offended party had trusted the offender.
b. The offender abused such trust.
c. That such abuse of confidence facilitated the commission of the crime.
If the accused raped a girl who was entrusted to his care by the parents,
there is betrayal of confidence reposed upon him by the parents but not an
abuse of the confidence of the offended party (People v. Crumb, 46 OG
6162) since the confidence between the parties must be personal.  But if the
offender was the servant of the family and sometimes took care of the child,
whom she later killed, there is present grave abuse of confidence. (People
v. Caliso, 58 Phil. 283)
5. Crime be committed in the (1) Palace of the Chief Executive, or (2) in his
presence, or (3) where public authorities are engaged in the discharge of
their duties, or in (4) a place dedicated to religious worship. (Art. 14, Par. 5)
In crime committed  in  the presence of the President, it is not necessary
that the latter be exercising his functions.  With respect to the first, third, and
fourth, the crime must have been committed with full consciousness of the
place; in other words, the offender must have intended to commit  the crime
at the place, knowing fully well that the place deserves respect.
This circumstance is present when the accused stabbed the victim in the
office of the Chief of Police who was investigating a fist fight between them.
(People v. De Ananias, 96 Phil. 979)
6. Nighttime, Uninhabited Place or Band.
That the crime be committed at night time, or in an uninhabited place, or by 
a  band, whenever such circumstances may facilitate the commission of the
offense.  Whenever more than 3 armed malefactors shall have acted
together in  the commission  of  an offense, it shall be deemed  to have
been committed by a band. (Art. 14, Par. 6)
Nocturnity comprises the period of the day between sunset and the
beginning  of  dawn.  But for nighttime to be appreciated, it is not absolutely
necessary that the  offender purposely sought nighttime to commit the
crime; it is  enough that it facilitated the commission of the crime or his
escape or prevented identification. (People v. Cristobal, 91 SCRA 71)
Where nocturnity is so interlocked with the circumstance of treachery as  to 
become part of  the  latter, nocturnity cannot  be taken into consideration as
an aggravating circumstance. (People v. Pardo, 79 Phil. 566)  If the
commission of the crime was commenced at day time and it was
consummated at nighttime, such is not aggravated. (US v. Dowdell, 11 Phil.
4)  Chance meeting between the accused and the victim negates nighttime
as an aggravating circumstances. (People v. Aquino, 124 SCRA 835) (Q9,
1994 Bar; Q3, 1997 Bar)
Uninhabited place (Despoblado) is determined not by the distance of the
nearest  house to the scene of the crime, but whether or not in the place
where the crime was committed there was a reasonable possibility of the
victim receiving some help. (People v. Bangug, 52 Phil. 87)  Provided that
solitude was purposely sought or taken advantage of to facilitate the
commission of the felony. (People v. Coderes, 104 SCRA 255)
Band consists of at least four armed malefactors organized with the
intention of carrying out any unlawful design.  They should have acted
together in the commission of the crime.  If one has no direct participation in
the commission of the crime, like a principal by inducement there is no
band. (Gamara v. Valero, 51 SCRA 322)  In a  band, conspiracy is
presumed, it need not be proved.
Band is inherent in brigandage but not in simple robbery committed by
band.  It is not considered in the crime of rape. (People v. Corpus, 43 OG
2249)  Band and abuse of superior strength have the same essence which
is the utilization of the combined strength of the assailants to overpower the
victim and consummate the killing. (People v. Medrano, 31871, December
14, 1981)
7. Crime committed on the Occasion of Calamity.
That the crime be committed on the occasion of a conflagration, shipwreck, 
earthquake, epidemic,  or other calamity or misfortune. (Art. 14, Par. 7)
This is aggravating because the offender “who in the midst of a great
calamity, instead of lending aid to the afflicted, adds to their suffering by
taking advantage of their misfortune to despoil them.” (US v. Rodriguez, 19
Phil. 150)
The development of engine trouble at sea is a misfortune but it does not
come within the meaning of “other calamity or misfortune.” (People v. Arpa,
27 SCRA 1037)
8. Aid of Armed Men who insure or afford impunity.
That the crime  be committed with the aid of  armed  men or persons who
insure or afford impunity. (Art. 14, Par. 8)
It  should be borne in mind, that the armed men should not participate  in
the execution of the felony.  Otherwise,  they become co-principals.  Casual
presence is not aggravating if the offender did not avail himself of any of
their aid nor did he knowingly count upon their assistance in the commission
of the crime. (US v. Abaigar, 2 Phil. 417)  If used as a means to insure its
execution in the killing of a person, such is absorbed in treachery.
9. Recidivism (Art. 14, Par. 9)
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.  Recidivism involves at least two conviction, and
hence, it is a form of plurality of crimes like reiteration, habitual delinquency
and quasi-recidivism.  The first conviction must be by final judgment and
must take place prior to the second conviction. (People v. Baldera, 86 Phil.
189)  The number of years intervening between the convictions is
immaterial.  Recidivism is likewise considered even if the offender has been
given absolute pardon for the first conviction, since pardon merely
extinguishes the penalty (US v. Sotelo, 28 Phil. 147) but not in the case of
amnesty as such extinguishes all the effects in law of the crime committed.
(US v. Francisco, 10 Phil. 185)
Habitual delinquent is a person who within a period of ten (10) years from
the date of his release or last conviction of the crime of serious or less
serious physical injuries, robbery, theft, estafa, or falsification, has been
found guilty of any said crimes a third time or oftener. (Art. 62, Par. 5)
Distinction:
Recidivism Habitual Delinquency
1. Applies to all offenses 1. Applicable only to
embraced in the same title of robbery, theft, estafa,
the Code. falsification, serious and less
serious injuries.
2. Need not be alleged in the 2. Must be alleged or
complaint or information. charged.
3. If not offset, merely raises 3. Carries with it an
the imposition of the additional penalty.
prescribed penalty to its
maximum period.
4. Intervening period 4. Between each conviction
between convictions  is there should not be a lapse
immaterial. of time of more than 10
years.
May the offender be a recidivist and a habitual delinquent at the same time?
Yes, if the offender was convicted for the third time of theft within the
conditions prescribed by law, the first and second convictions referring to
robbery and estafa, recidivism will be aggravating in the imposition of the
principal penalty for the crime of theft.  At the same time, by reason of such
recidivism, he is also a habitual delinquent, and is sentenced to the
additional penalty provided by law, although in the imposition of the said
additional penalty, recidivism is no longer considered as an aggravating
circumstance as it is inherent in this form of habitual delinquency. (People v.
Manalo, 8586, May 25, 1956)  May the offender be a habitual delinquent
without being a recidivist?  Yes, if the three convictions refer to the specific
felonies not embraced in the same title of the Code like robbery, falsification
and serious physical injuries.
Quasi-recidivism arises when the offender shall commit a felony after
having been convicted by final judgment, before beginning to serve the
sentence, or while serving the same, he shall be punished by the maximum
period of the penalty prescribed by law for the new felony, besides being
penalized as a habitual delinquent, if applicable. (Art. 160)  This is not a
separate crime by itself.
It is necessary to allege recidivism in the information and to attach thereto
certified copies of the previous sentence rendered against the accused to
be presented during the trial. (People v. Martinada, 194 SCRA 36) (Q18,
1993 Bar)
10. Reiteracion or Habituality.
That the offender has been previously punished for an offense to which the
law attaches an equal or greater penalty or for 2 or more crimes to which it
attaches a lighter penalty. (Art. 14, Par. 10)
In reiteracion (habituality), it is essential that the offender must have been
previously punished, i.e., he must have served, partially or totally, the
penalty imposed upon him; that  the penalty  for the crime for which he was 
previously  punished, must  be equal or greater than the penalty for the
crime for which he is on trial, or that he had previously been  punished for 2
or more offenses the penalty for which is lighter  than the  penalty 
prescribed for the offenses for which he  is  on trial.  Reiteracion is
discretionary on the court.  In reiteracion, the offenses are not embraced in
the same title of the Code.
To be appreciated, it is necessary to present as evidence certified copies of
the sentence rendered against the accused, except when the accused
pleads guilty to an information alleging reiteracion. (People v. Monterey,
Sept. 3, 1996)
11. Crime be committed in consideration  of a price, reward, or promise .
(Art. 14, Par. 11)
It is not enough that the one committed the crime received a gift or a
reward; it is essential that such price or  reward or  promise  must  have
been the prime  consideration  in  the commission of the crime.  Thus, if the
money was given, without any previous promise, after the commission of
the crime as an expression of sympathy, this circumstance cannot be
present. (US v. Flores, 28 Phil. 29)  The offender who induced others to
commit the crime for a price, promise or reward is a principal by
inducement. (People v. Otero, 51 Phil. 201)
12. Crime be committed by means of inundation, fire, poison, explosion,
stranding of a vessel or intentional damage thereto, derailment   of a
locomotive, or by the  use  of  any other artifice involving great waste and
ruin. (Art. 14, Par. 12)
It  is essential that any of the means mentioned must  have been  used  by
such offender in the commission of  the crime. Thus, if the building is burned
as a means to kill the occupant, the crime will be murder, not murder with
arson. (People v. Villarega, 54 OG 3482) This is the only aggravating
circumstance that could be  a crime in itself.  Such that if a hand grenade
was thrown into a house and as a result of the explosion, the house was
damaged but no one was injured, the crime committed is the crime involving
destruction. (People v. Comporedondo, 47 OG 779)
13. That the act be committed with evident premeditation. (Art. 14, Par. 13)
The 3 requisites of evident premeditation are:
a. The time when the accused determined to commit the crime.
b. An act manifestly indicating that the accused has clung to his
determination.
c. A sufficient lapse of time between such determination and execution, to
allow him to reflect upon the  consequences of his acts. (Q3, 1997 Bar)
In order that premeditation may be considered either as an aggravating
circumstance or as a qualifying circumstance,  it must  be evident, that is,
the intention to kill must  be manifest  and  it must have been planned in the 
mind  of  the offender and carefully meditated.  Conspiracy does not
necessarily imply  evident  premeditation although premeditation can co-
exist with price or reward. (US v. Nabor, 7 Phil. 267)  This circumstance is
inherent in the crime of robbery, especially committed by several persons,
since there must be an agreement and the persons have to meditate and
reflect on the manner of carrying out the crime and they have to act
immediately in order to succeed. (People Carillo, supra) But it may be
considered in robbery with homicide (People v. Valeriano, 1259, Sept. 19,
1955), if there is evident premeditation to kill besides stealing.
Mere threats to kill without evidence of sufficient time for meditation and
reflection do not constitute evident premeditation. (People v. Apao Moro,
6771,May 18, 1957)  An attack made in the heat of anger negates evident
premeditation. (People v. Amin, 39046, June 30, 1975)
14. Craft, fraud, or disguise is employed. (Art. 14, Par. 14)
These are intellectual means in the commission of a crime and are separate
aggravating circumstances.
By the employment of craft and fraud, the offender  resorts more to
intellectual rather than material means in order to attain his
objective.  Craft is cunning or intellectual trickery or chicanery resorted to by
the accused to carry out his evil design. (People v. Zea, 130 SCRA 77) 
There is craft when the accused assumed a position of authority to gain
entrance in a house to enable him to be alone with the offended party to
commit acts of lasciviousness upon her. (People v. Timbol, 47 OG 1859)
Also, this circumstance is aggravating where the offenders pretended to be
bona fide passengers of a jeepney in order not to arouse suspicion, but
once inside the jeepney, they robbed the passengers and the driver.
(People v. Lee, 66848, Dec. 20, 1991)  If the craft is used to insure the
commission of the crime without risk to the accused, it is absorbed by
treachery. (People v. Malig, 46 OG Sup. 11, 255)
Fraud which constitutes deceit and manifested by insidious words or
machination is illustrated in the case of the step-father of the offended party,
who taking advantage of the absence of the her mother, took the young girl
away and told her she was to be taken to the house of her godmother but
instead she was taken to another house where she was raped. (People v.
De Leon, 50 Phil. 539)
The term disguise refers to  anything that the offender may use to prevent
recognition.  If in spite of the disguise, the offender was recognized, such
cannot be aggravating. (People v. Sonsona, 8966, May 25, 1955)
15. That advantage be taken of superior strength, or means be employed to
weaken the defense. (Art. 14, Par. 15)
There must be a notorious inequality of forces between the victim and the
aggressor, and to appreciate it, it is necessary to evaluate the physical
conditions of the protagonists and the arms employed by each side. (People
v. Cabiling, 74 SCRA 285)  There must be deliberate intent to take
advantage of the same. (People v. Bello, 10 SCRA 298)  Mere numerical
superiority does not  necessarily involve superiority in strength.  It is
necessary to prove, besides, that attackers “cooperated in such a way as to
secure advantage from superiority in strength. (People v. Elizaga, 47 OG
38)
Abuse of superior strength is inherent in parricide when the husband killed
his wife, as generally the husband is physically stronger than the wife.
(People v. Galapia, supra)  Also, it is inherent in rape or is absorbed in the
element of force. (People v. Saylan, 130 SCRA 159)
Intoxication a victim with intention to kill him is characterized by means
employed to weaken the defense. (People v. Ducusin, 53 Phil. 280)
16. Treachery
That the act be committed with treachery (alevosia).  There is treachery
when the offender commits any of the crimes  against persons, 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. (Art. 14, Par. 16)
In parricide, treachery is a generic aggravating circumstance as well as in
homicide, if it is not alleged in the information.
Even a frontal attack may be considered as such if it was sudden and
unexpected so that the  victim  had  no chance  to  defend  himself  or 
evade  the  blow.  However, suddenness  of the attack itself does not
indicate  treachery.  It  must be sought as a means to insure the execution 
of  the crime and to insure the attacker from the defense forthcoming from
the offended  party. (People v. Bongo, 26909, Feb. 22, 1974)  Treachery 
must  exist  at   the commencement of the execution of the felony. (US v.
Balagtas, 19 Phil. 164)  Thus, if the attack begun without treachery but the
same continued, and consummated with treachery, it will not be considered.
(Q6, 1995 Bar; Q6, 1993 Bar)
Treachery  absorbs nighttime, abuse of  superior  strength, uninhabited
place, by band, aid of armed men, as well as means to  weaken the
defense.  When treachery rests upon a separate fact, nighttime is not
absorbed by treachery.  Treachery may co-exist with evident premeditation,
as when the accused quarreled with the deceased, threatened to kill him
and on the following day did so, when he surreptitiously entered the house
of the deceased and without warning, fired at the deceased who was shot
unaware. (People v. Mutya, 11255, Sept. 30, 1959)  Treachery is inherent in
murder by poisoning. (People v. Caliso, 58 Phil. 283) (Q10, 1991 Bar)
Any  sudden  and unexpected attack from behind is clearly treacherous. 
However, an attack from behind or shooting at a fleeing victim is not
necessarily treacherous unless it appears that the method of attack was
adopted by the accused deliberately with a special view to the
accomplishment of the act without any risk  to the assailant from any
defense that the party assaulted may make. (People v. Canete, 44 Phil.
478)  A shot in the back of the victim’s head is not conclusive proof of
treachery; the manner of aggression or how the act which resulted in the
death of the victim had began and developed, must be proved. (People v.
Ablao, 183 SCRA 658)
But where the persons killed are children of tender years, being 1 year old,
6 years old and 12 years old, the killing is murder even if the manner of the
attack was not shown. (People v. Ganohon, 74670, April 30, 1991)
In sum, the following requisites must concur for treachery to be
present:
a. The culprit employed means, methods or forms of execution which
directly and specially tend to insure the offender’s safety from any retaliatory
act on the part of the offended party.
b. That such means, method or manner of execution was deliberately or
consciously shown. (People v. Clemente, 21 SCRA 261) (Q3, 1997 Bar)
17. That  the  means be employed or  circumstances  brought  about which
add ignominy (shame or disgrace) to the natural effects of the act. (Art. 14,
Par. 17)
It is, as the saying goes, adding insult to injury;  for instance,  raping  a 
married woman in  the  presence  of  her husband  who was helpless to
render any assistance, much  less to  defend  her as he was bound. 
Ignominy to  be  appreciated must be inflicted on the victim while he is still
alive.  Thus, there is no ignominy when the accused sliced and took the
flesh from the thighs, legs and shoulder of the victim after killing her with a
knife. (People v. Balondo, 27401, Oct. 31, 1969)  There is ignominy where
the accused in committing the rape used not only the missionary position,
but also, the dog position as dogs do, i.e., entry from behind.
Ignominy produces moral suffering, while cruelty produces physical
suffering.
18. Crime be committed after an unlawful entry. (Art. 14, Par. 18)
There is unlawful entry when an entrance is effected by a way not intended
for the purpose. Entering through the window is unlawful entry. The unlawful
entrance must be made for the purpose of committing a crime like rape or
murder.  But it is inherent in the crime of trespass to dwelling (US v.
Barberan, 17 Phil. 509) and in robbery with force upon things although it
may be considered in robbery with violence or intimidation against persons.
(Q3, 1997 Bar)
Unlawful entry to be aggravating must be for the purpose of entrance and
not for the purpose of escape.  It must be alleged in the information to
qualify the crime to robbery; otherwise, the crime will be theft. (People v.
Sunga, 43 Phil. 205)
19. As a means to the commission of a crime a wall, roof, floor, door, or
window be broken. (Art. 14, Par. 19)
This means is for the purpose of committing a crime. It is inherent in robbery
with force upon things.
20. That  the crime be committed with the aid of persons under 15 years of
age or by means of motor vehicles, motorized watercraft, airships, or other
similar means. (Art. 14, Par. 20, as amended by RA 5438)
There are two distinct  aggravating circumstances.  The first shows the
greater perversity of the offender in taking advantage of the youthfulness of
those persons for criminal purposes.  The second is intended to meet the
problem created by modern criminal in resorting to faster means of
conveyance to commit the crime.  The use of motor vehicles facilitates the
commission of the crime.  If the vehicle is used to facilitate only the  escape
of the offender it is not aggravating.  A scooter and a motorcycle are
included under “similar means.”
21. That the  wrong  done  in the  commission  of  the  crime  be
deliberately  augmented by causing other wrong  not  necessary for its
commission. (Art. 14, Par. 21)
It is essential that the offender inflicted the wounds not necessary for the
crime but for the purpose of making the  victim suffer  more.  For cruelty to
exist, there must be proof  that the  acts were perpetrated while the victim
was  still  alive.  This circumstance is distinguished from that of  ignominy  in
that  cruelty refers to physical suffering, whereas,  ignominy is circumscribed
to moral suffering. Gagging of the mouth of a 3-year old child with stockings,
dumping him with head downward into a box, and covering the box with
sacks and other boxes, causing slow suffocation, and as a result the child
died, constitutes cruelty. (People v. Lara, 113 SCRA 316)  Also, in the crime
of rape, where the offender tied the victim to a bed and burnt her face with a
lighted cigarette while raping her. (People v. Lucas, 181 SCRA 316) (Q8,
1994 Bar)
The fact that 13 stabs wounds were inflicted upon the victim does not
constitute cruelty, absent proof that such wounds were inflicted sadistically
in a way that made the victim agonize before the fatal blow which snuffed
out his life was delivered. (People v. Ferrer, 255 SCRA 19)
22. Under influence of dangerous drugs. (RA 6425, as amended)
When a crime is committed by an offender who is under the influence of
dangerous drugs, such state shall be considered as a qualifying aggravating
circumstance in the definition of a crime and the application of the penalty
provided in the Revised Penal Code. (People v. Belgar, 92155, March 11,
1991)
23. Syndicate or Organized Crime Group.
This is a special aggravating circumstance, contemplates of a group
purposely formed or organized to engage in criminal activities for gain, not
merely the commission of a particular crime by two or more persons who
confederated and mutually helped one another in its commission.  The
existence of a conspiracy does not necessarily imply or carry with it this
aggravating circumstance. (People v. Alberca, June 26, 1996)
Alternative Circumstances
Alternative circumstances are those which must be taken into
consideration  as  aggravating  or mitigating  according  to  the nature  and
effects of the crime and other  conditions  attending its commission.
Specific circumstances:
1. Relationship
It shall be taken into consideration when the offended party is  the  spouse,  
ascendant,   descendant, legitimate, natural, or adopted brother or sister, or
relative by  affinity  in  the  same degree of  the  offender. (Art. 15)
Relationship of stepfather or stepmother and stepson or stepdaughter is
included by analogy as similar to ascendant or descendant. (People v.
Bersabal, 48 Phil. 439)  But relationship between uncle and niece is not
included. (US v. Incierto, 15 Phil. 358)
Relationship is mitigating in crimes against property.  But in theft, estafa and
malicious mischief, relationship is exempting.
It  is considered  as an aggravating circumstance in crimes against persons
if the offended party is of a higher level than the offender, or when the
offender and the offended party are relatives of the same level. (People v.
Mercado, 51 Phil. 99) As a rule, relationship is mitigating if the offended
party is of a lower level than that of the offender or even exempting if
committed by a parent in excessive chastisement.
In crimes against chastity, relationship is aggravating whether the offender
is of a higher or lower degree than that of the offended party.  It is due to the
nature of the crime. (People v. Porras, 58 Phil. 578)
2. Intoxication
As a general rule, intoxication is a mitigating circumstance. It must be
shown that at the time of the commission of the criminal act, the accused
has taken such quantity of alcoholic drinks to blur his reason and deprive
him of certain degree of control. (People v. Boduso, 450, Sept. 30, 1974)
Intoxication to be mitigating must be proved to the satisfaction of the Court.
(People v, Noble, 77 Phil. 93)  It is aggravating only in two cases:
a.  Where intoxication is habitual.
b.  When it is intentional, that is, it is subsequent to the plan of the
commission of a felony.
For intoxication to be habitual, it is not necessary that  the offender should
be drunk 7 days a week.  It is enough that the offender has acquired the
habit of getting drunk, or  drinking to excess.  If one who had plotted to kill
the victim, had drunk wine in order to embolden him in carrying out with his
evil plan, drunkenness is not mitigating. (People v. Hernandez, 3391, May
23, 1952)
3. Degree of instruction or education of offender.
As  a  rule, lack of instruction or a low degree of intelligence is considered
as a mitigating circumstance in all crimes  except in offenses against
chastity and property.  And also, in the crime of murder, for a man as a
rational being, has always been forbidden to kill. (People v. Tabian, 126
SCRA 571)  It should  be  borne  in  mind  that  this  circumstance  is  not
dependent  on the matter of schooling; it depends more on  the alertness  of
the mind, the ability to observe and  grasp  the significance of happenings
around him.  If one is unable to write but is highly and exceptionally
intelligent or mentally alert that he easily realizes the significance of his act,
there is no mitigating circumstance. (People v. Gorospe, 105 Phil. 184)
High degree of instruction is aggravating if the offender availed himself or
took advantage of it in committing a crime as in the case of a lawyer who
commits falsification or a doctor who kills his victim by means of poison.
PERSONS CRIMINALLY LIABLE
The following are criminally liable for grave  and  less  grave felonies:
1. Principals
The following are considered principals:
a. Those who take direct part in the execution of the act.
They  are those who, participating in the criminal  design, personally  take
part in the execution of the felony  by  acts tending to the same end.  As a
general rule, all those who participated in a felony are liable as principal
when a conspiracy between or among them is established. (People v.
Nierra, 96 SCRA 335)
b. Those  who directly force or induce others to  commit  the offense.
Generally,  the induction is done by means of promises or reward or price,
sometimes, by the utterance of words.  It  is necessary that the person
uttering the encouraging words  must have  such a moral influence over the
person induced that  the words of the other would practically amount to a
command;  and the  words uttered must have been the moving factor that 
made the actor commit the offense, and that the words uttered  were used
to procure the commission of the offense.
There is a principal by induction or by inducement only if it is shown that the
crime was actually committed by another who was induced. (People v. Ong
Chiat Lay, 60 Phil. 788)
Regarding the induction, it is essential that (1) it be made directly with the
intention of procuring the commission of the crime, and (2) that such
inducement be the determining cause of the said commission by the one
induced. (People v. De la Cruz, 97 SCRA 385)
c. Those  who cooperate in the commission of the offense by another act
without which it would not have been accomplished. (Art. 17)
These are persons who, without personally participating  in the  execution of
the felony, nevertheless cooperate with  the principals by direct participation
by performing another  act.  The  act  performed  by him must be absolutely 
essential  or indispensable to the extent that without the act performed  by
him, the crime could not have been committed.  It is only when the 
evidence fails to show the existence of conspiracy when the act  of the
alleged  principals by  cooperation  must  be indispensable.  An example of
which is the act of lending  the boat for the purpose of robbing a person who
lived in an islet separated  from  the  mainland by a wide and  deep  river 
and accessible  only  by a water craft. The lender  becomes principal by
indispensable cooperation.  Also, the act of initialing the check is
indispensable to the act of defraudation of the depositor as without it the
check would not be cashed. (US v. Lim Buanco, 14 Phil. 484)
But any cooperation, even done with knowledge of the criminal intent of the
accused, if not indispensable to the commission of the crime, will make one
liable as an accomplice.  So, if the accused knowingly aided the killers by
casting stones at the victim (People v. Tatlonghari, 27 SCRA 726) or the act
of giving the victim a fist blow after he was stabbed by the other accused
(People v. Vistido, 79 SCRA 719) the liability will be that of an accomplice.
2.  Accomplices
Those  persons, who, not being  principals, cooperate in the execution of
the offense  by  previous  or simultaneous acts. (Art. 18)
The acts performed while material must not be indispensable.  Thus, 
where  the accused is proven to have merely  assisted in guarding the
detained persons  to  prevent their escape, the accused should be held as
an accomplice  only since  the  act  performed  by  him  was  not  
indispensable.  However,  if the person takes part in the conspiracy,  he 
can never be an accomplice.
An accomplice has knowledge of the criminal design of the principal and all
that he does is to concur with the latter in his purpose, by cooperating in the
execution of the crime by previous or simultaneous acts, for the purpose of
supplying material or moral aid to the principal in an efficacious way.
(People v. Tanzo, 44 Phil. 18)
It is also necessary that any wound inflicted by the accomplice must not be
the cause of death; if the wound is mortal, the offender would be a principal
by direct participation. (People v. Aplegido, 76 Phil. 571)
Accomplices are also known as accessories before the fact.  Any doubt
as to the participation of an individual in the commission of the crime, is
always resolved in favor of lesser responsibility. (People v. Abiog, 15310,
Oct. 31, 1961)
Supposing, while A is choking B, C suddenly appears and stabs B mortally. 
If A continues choking B after the mortal wound is inflicted, A will be an
accomplice.  His act is a concurrence in the criminal design of C to kill B.
(People v. Tamayo, supra)  If, however, he does not do any act after B is
stabbed, A has no liability in the killing of B by C.  The liability of A and C will
then be individual.  If there is conspiracy between A and C to kill B, both will
be collectively liable as principals for the death of B.
A person who assaults a victim already fatally wounded by another is only
regarded as an accomplice, unless there was anterior conspiracy. (People
v. Cagalingan, 188 SCRA 313)
3.  Accessories
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:
a. By profiting themselves or assisting the offender to profit by the effects of
the crime.
Buying  a  gold  watch from another, knowing  that  it  was stolen  property,
the accessory assists the thief to profit  by the effects of the crime.  The
accessory should materially benefit from the act.  Riding in a stolen vehicle
is “not profiting” since it does not improve his economic position.  Profiting is
not synonymous to intent to gain as an element of theft. (People v. Morales,
71 OG 529)
b. By concealing or destroying the body of the crime, or the effects or  
instruments  thereof, in  order  to  prevent  its discovery.
In  the  crime of homicide, the body of the  crime  or  the corpus delicti is
the fact of the killing, that is, a specific offense in fact committed by
someone. (People v. Marquez, 43 OG No. 5)  A person who place in one of
the hands of the deceased after he was killed to show that he was armed
and it was necessary to kill him for having offered resistance to the
authorities, is an accessory. (People v. Saladino, 3634, May 30, 1961)  This
is similar to concealing the body of the crime to prevent its discovery.
c. By harboring, concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt at  the life of the Chief Executive, or is known  to  be  habitually
guilty of some other crime. (Art. 19)
If the one assisted is the accomplice, there is no accessory.  The public
officer is an accessory irrespective of the crime committed by the principal
provided it is not a light felony.  On the other hand, in case of private
person, the author of the crime must be guilty of treason, parricide, murder
or attempt against the life of the President or is known to be habitually guilty
of some other crime.  Thus, if a private person assists another who has
been guilty of robbery, he cannot be an accessory.
An accessory does not participate in the criminal design nor cooperate in
the commission of the crime. (People v. Verzola, 80 SCRA 600)  If the
principal is acquitted because the facts alleged to have been committed are
not proved or do not constitute a crime, the accessory is not liable. (US v.
Mendoza, 23 Phil. 194)  But if the principal is acquitted because of an
exempting circumstance, the accessory may be held liable as the crime has
been committed.  As long as the crime has been committed, even if the
principal has not been arrested and convicted, the accessory may be held
liable. (People v. Billon, 48 OG 1391)
The following are criminally liable for light felonies:
1. Principals
2. Accomplices
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  exception where 
the  accessory  profits  or assists in the principal to profit from the effects of
the crime. (Art. 20)
The reason therefor is that if the accessory himself profited or assisted to
profit from the effects of the crime the motivating power  was not his
relationship with the principal but  his  love for  money.

Mitigating Circumstances
Posted on January 28, 2010 by attyrcd
The mitigating circumstances are based on the degree of perversity or on
the diminution of any  of  the elements of dolo, for instance, minority. Two
different mitigating circumstances, such as passion or obfuscation, cannot
arise from the same fact.  However, where there are other facts, although
closely connected with the fact which one circumstance is premised, the
other circumstances may be taken into consideration based on another fact.
These circumstances may be classified into:
1. Ordinary (generic) mitigating circumstance.
The attendance of a generic mitigating  circumstance, unless  offset  by an
aggravating circumstance, will lower the imposable penalty only to its
minimum.   It should be borne in  mind  that the presence of 2 or more
generic mitigating circumstances, provided there is no aggravating
circumstance, will lower  the  imposable penalty by one degree, pursuant to
Rule 5 of Art. 64 of the RPC.
2. Privileged mitigating circumstance.
The presence of a privileged mitigating circumstance will lower the
imposable penalty by one or 2 degrees. The privileged mitigating
circumstance  cannot be offset by the presence of an  aggravating
circumstance.
Since a mitigating circumstance is a matter of defense, the accused must
prove it with concrete evidence to the satisfaction of the Court. (People v.
Malunay, 66 OG 2095)
Specific circumstances:
1. Privileged Mitigating Circumstances of Incomplete Justifying or
Exempting Circumstances.
Those mentioned in the preceding chapter, when all the requisites 
necessary  to justify the act or to exempt  from criminal liability in the
respective cases are not attendant. (Art. 13, Par. 1)
In self-defense, defense of relative or defense of stranger, it is essential that
unlawful aggression be present; otherwise, there can be no such defense,
whether complete or incomplete. (People v. Rosal, 5355, Aug. 31, 1953)
2. Offender is under 18 years of age or over 70 years.
That  the offender is under 18 years of age or over 70  years.  In the case of
the minor, he shall be proceeded against in accordance with the provisions
of Art. 80 (now amended by  PD 603). (Art. 13, Par. 2)
This paragraph cover two circumstances, minority and senility (old age). 
Under Art. 292 of the PD 603, minority is always a privileged mitigating
circumstance.  As a general rule, senility is a generic or ordinary mitigating
circumstance.  However, the circumstance may be considered as a
privileged mitigating circumstances as when the offender is over 70 years of
age, he cannot  be sentenced  to  death  (Art. 47) and if at  the  time  of  the
execution of the death penalty the convict is over 70 years of age, the death
penalty cannot be executed.  Automatically the penalty is commuted to
reclusion perpetua, with the  accessory penalties of death (Art. 83)
3. Lack of Intention to Commit so Grave a Wrong.
That the offender had no intention to commit so grave a wrong as that
committed. (Art. 13, Par.3)  This is the effect of praeter intentionem.
This mitigating circumstance  applies  only  to  offenses resulting in physical
or material harm and not to slander. Neither does it apply to cases of
imprudence, nor in cases of unintentional abortion.
4. Sufficient Provocation.
That sufficient provocation or threat on the part of the offended party
immediately preceded the act. (Art. 13, Par. 4)
To entitle the offender to the benefit of this mitigating circumstance, it
requires the following requisites:
a. That  the provocation or threat be sufficient, that is, adequate enough to
arouse the offender to commit the act.
b. That such provocation or threat came from or was given by the offended
party.
c. That it must have immediately preceded the act complained of.
A lawful act cannot constitute a provocation.  Thus, the threat of filing a law
suit against another is not provocation.  Example are ill-treating and abusing
the offender by kicking and cursing him (US v. Firmo, 37 Phil. 133) or the
infidelity of the wife which made the husband kill her (People v. Marquez, 53
Phil. 260) is sufficient provocation.  “Immediate” means that there is no
interval of time between the provocation and the commission of the crime.
(People v. Pagal,79 SCRA 570) However, in one case, where the accused
went home and returned fully armed and killed the deceased, provocation
was considered mitigating. (People v. De Guia, 3731, April 20, 1951)
5. Immediate Vindication of a Grave Offense.
That the act was committed in the immediate vindication of a grave  offense
to the one committing the felony, his spouse, ascendants,  descendants, 
legitimate,  natural,  or   adopted brothers or sisters, or relatives by affinity
within the  same degrees. (Art. 13, Par.5)
The relationship between the offender and the victim of the grave offense
sought to be indicted must be legitimate.  The grave offense mentioned in
this mitigating circumstance need not be a felony or an act punished by
law.  The act of the victim in eloping with the daughter of the accused is a
grave offense to her family. (People v. Diokno, supra)  Also, the remarks of
the victim in the presence of the guests during a celebration that the
accused lived at the expense of his wife, under the circumstances, were
highly offensive to the accused or to any other person in his place. (People
v. Rosal, 66 Phil. 323)  In determining the gravity of the offense, the age of
the accused, his social standing, the time and place when the offense was
committed and other attendant circumstances are to be considered.
6. Passion or obfuscation
That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation. (Art 13, Par. 6)
The causes must spring from lawful or moral sentiments, not induced by
spirit of lawlessness, revenge or immoral passions.  However, killing the
common-law-wife suprised in flagranti in carnal knowledge with a friend is
passion that is mitigating because the offender acted under an impulse
cause by the sudden discovery that the woman proved untrue to him. (US v.
De la Cruz, 22 Phil. 429)
Further, the act must have been committed immediately or shortly after the
act causing such passion or obfuscation and the commission of  the felony. 
It is not mitigating if the crime is planned and clearly mediated before
execution. (People v. Daos, 60 Phil. 143)
Where the victim hurled invectives and challenged a security guard to a fight
because the latter refused to allow him to enter the premises, the unsavory
remarks and vexatious conduct of the victim was sufficient to ignite the
wrath of the guard who shot him twice for the repeated taunts and verbal
remarks he made.  Obfuscation is mitigating. (People v. Valles, Jan. 28,
1997)
There is passion or obfuscation where the accused boxed the victim after he
saw the latter boxed his four-year-old-son. The accused did so, momentarily
blinded by anger and he lost sight of the fact that his son’s adversary was
but a nine-year-old boy. (People v. Castro, 117 SCRA 1014)
7. Voluntary Surrender and Voluntary Plea of Guilty.
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. (Art.
13, Par. 7)
There are 2 mitigating circumstances, distinct and apart from each other,
that may be considered in favor of the defendant.  The requisites of
voluntary surrender are:
a. The offender has not been actually arrested.
It may be present if made after the issuance of a warrant of arrest but before
actual arrest is made. (People v. Yecla, 68 Phil. 740)  The offender must
surrender himself and not the weapon which he used in committing the
crime, and the surrender must be for the crime of which he is charged.
(People v. Semanada, 103 Phil. 790)  If the accused gave himself up to the
police when he was served the warrant for his arrest, such surrender is not
mitigating. (People v. Agag, 130 SCRA 274)
b. The surrender must be made to a person in authority or his agent.
c. It must be voluntarily made.
For the mitigating circumstance of voluntary surrender to be appreciated,
the same must be spontaneous in such a manner that it shows the interests
of  the  accused  to  surrender unconditionally to  the  authorities,  either  
because   he acknowledges his guilt or because he wishes to save them the
trouble and expenses necessarily incurred in his search and capture.
(People v. Sakam, 61 Phil. 27) (Q3, !996 Bar; Q5 1992) Two years is too
long a time to consider the surrender as spontaneous. (People v. Ablao, 183
SCRA 658) (Q5, 1997 Bar)
Where the offender went to the municipal building because he was a
suspect in the killing but not to own responsibility for the killing, such fact is
not tantamount to voluntary surrender as a mitigating circumstance. 
Although he admitted his participation in the killing, he tried to avoid
responsibility by claiming self-defense which however he was not able to
prove. (People v. Mindac, 83030, Dec. 14, 1992)
Voluntary surrender is mitigating where the offender, accompanied by his
uncle, went to the police station and spontaneously and unconditionally
place himself at the disposal of the authorities although he remained silent
(since it is his constitutional right to remain silent). (People v. Gracia, Nov.
14, 1996)
A plea of guilty is not only an admission  of  all  the material  facts  alleged in
the complaint or  information  but also  that he is guilty of the offense
defined by  the  facts.  Its requisites are:
a. The plea to be spontaneous.
b. Made in open court.
The plea of guilty must be made at the earliest opportunity, that is , before
the competent court that is to try the person making the confession. (People
v. De la Pena, 66 Phil. 451)  An extra-judicial confession is not mitigating.
(People v. Undong, 66 SCRA 386)
c. Made before trial begins, that is, prior to the presentation of the evidence
by the prosecution. (Q5, 1997 Bar)
Mere offer to plead guilty to homicide under a charge of murder is not
sufficient.  However, it is believed that if the offer to plead guilty to homicide
is predicated on the allegation that the killing was not attended by any
qualifying circumstance and the trial court so found, thus convicting the
accused only of homicide, there is no valid reason why the accused should
not be given the benefit of the circumstance. (People v. Limosnero, 147
SCRA 232)
In capital offense, voluntary plea of guilty does not mean admission of the
material allegations in the information, including the circumstances of the
crime.  The precise purpose of the automatic review in capital offenses is to
open the entire record for scrutiny so that a human life will not be lost
through a miscarriage of justice by a misappreciation of the evidence.
(People v. Abre, 112 SCRA 83)
8. The offender is Deaf and Dumb or Blind.
That the offender is deaf and dumb, blind, or otherwise suffering  some
physical defect which thus restricts his means of action, defense, or
communication with his fellow beings. (Art. 13, Par. 8)
It is essential that his physical defect have some relation to the crime
committed by him.  Thus, if a person is  charged with acts of lasciviousness,
the fact that he has only one arm will not entitle him to the benefit of the
circumstances. (Q18, 1993 Bar)
9. Illness that Diminishes the Exercise of Will Power.
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. (Art. 13, Par. 9)
The offender actually knows that his act is unlawful, that it can cause harm
to another, but because of the illness he is suffering, he cannot control
himself.  Thus, a person who has kleptomania – the urge to take anything –
may commit  theft, knowing it to be a crime, but cannot control himself. 
Other examples are (a) a mother who killed her child after delivery as she
was suffering under the influence of a puerperal fever (Dec., Sup. Ct. of
Spain, Sept. 28, 1897); (b) acute neurosis that made the offender ill-
tempered and easily angered (People v. Carpenter, 4168, April 12, 1944)
and (c) feeblemindedness. (People v. Formigenes, 87 Phil. 658)
10. Analogous Mitigating Circumstances.
And, finally, any other circumstance of a similar nature and analogous to
those above mentioned. (Art. 13, Par. 10)
Examples:
a. Over 60 years old and with failing eyesight analogous to one over 70
years. (People v. Reantillo, 301, May 27, 1938)
b. Jealousy – similar to passion or obfuscation. (People v. Ubengen, 36 OG
763)
c. Voluntary restitution of property – similar to voluntary surrender. (People
v. Amante, 65 OG 5618)
d. Extreme poverty – similar to incomplete justifying circumstance of state of
necessity.(People v. Macbul, 74 Phil. 436)
Justifying and Exempting Circumstances
Posted on January 28, 2010 by attyrcd
Justifying circumstances are those wherein the acts of the actor are in
accordance with law and, hence, he incurs no criminal and civil liability. The
justifying circumstances by subject are as follows:
1. Self-defense
Anyone who acts in defense of his person or rights. (Art. 11, Par. 1) The
scope included self-defense not only of life, but also of rights like those of
chastity, property and honor. It has also been applied to the crime of libel.
(People v Chua Chiong, 51 OG 1932)
Its elements are:
a. Unlawful aggression
Aggression is considered unlawful when it is unprovoked or unjustified.
There must be real danger to life or personal safety. An imminent danger of
aggression, and not merely imaginary, is sufficient. A slap on the face is
actual unlawful aggression. (Dec., Sup. Ct. of Spain, March 8, 1887)
There is no unlawful aggression exists in a case of an agreed fight. To
constitute an agreement to fight, the challenge must be accepted. (People v.
Del Pilar, 44 OG 596) Unlawful aggression may no longer exist if the
aggressor ran away after the attack. (People v. Alconga, 78 Phil. 366) If the
aggression has ceased, the one defending himself has no right to inflict any
further injury to his assailant. (Q11, 1993 Bar)
Mere oral threat to kill, unaccompanied by any unequivocal act clearly
indicative of the intent to carry out the threat, does not amount to unlawful
aggression. (People v. Binondo, 97227, Oct. 20, 1992) The mere cocking of
an M-14 rifle by the victim, without aiming the firearm at any particular
person is not sufficient to conclude that the life of the person (Vice-
Governor) whom the accused was allegedly protecting, was under actual
threat or attack from the victim. There is no unlawful aggression. (Almeda v.
CA, March 13, 1997)
b. Reasonable necessity of the means employed to prevent or repel it.
The rule “stand ground when in the right” applies when a person is
unlawfully assaulted and if the aggressor is armed with a weapon. (US v.
Domen, 37 Phils. 57) Whether the means employed is reasonable or not it
will depend upon the kind of weapon of the aggressor, his physical
condition, character, size and other circumstances as well as those of the
person attacked and the time and place of the attack. (People v. Padua, 40
OG 998) The instinct of self-preservation more often than not is the moving
power in man’s action in defending himself. (People v. Artuz, 71 SCRA 116)
c. Lack of sufficient provocation on the part of the person defending
himself.
A person may be justified in causing injury to another in defense of his
property (fencing off the house of the accused) even if there was no attack
against his person. To hold otherwise would render nugatory the provisions
of circumstance No. 1 which recognizes the right of an individual to defend
his rights, one of which is to own and enjoy his property. (People v.
Narvaez, 121 SCRA 389) Even assuming that the victim was scaling the
wall of the factory compound to commit the crime inside the same, shooting
him is never justifiable, even admitting that such act is considered unlawful
aggression on the property rights. In the instant case, the second element is
absent considering that the victim was unarmed. There is therefore an
incomplete self-defense. (Q6, 1996 Bar; Q4, 1990 Bar)
To be entitled to a complete self-defense of chastity, there must be an
attempt to rape. (People v. Jaurigue, 76 Phil. 174)
When a person is libeled, he may hit back with another libel, which, if
adequate, will be justified. Once the aspersion is cast, its sting clings and
the one thus defamed may avail himself of all necessary means to shake it
off. (People v. Chua Hong, 51 OG 1932)
2. Defense of Relative
Any one who acts in defense of the person or rights of his spouses,
ascendants, descendants, or legitimate or adopted brothers or sisters, or of
his relatives by affinity in the same degrees, and those by consanguinity
within the fourth civil degree, and in case the provocation was given by the
person attacked, that the one making the defense had no part therein. (Art.
11, Par. 2)
Even if two persons agreed to fight, and at the moment when one was about
to stab the other, the brother of the latter arrived and shot him, defense of
relative is present as long as there is an honest belief that the relative being
defended was a victim of an unlawful aggression, and the relative defending
had no knowledge of the agreement to fight. (US v. Esmedia 17 Phil. 280)
3. Defense of Stranger.
Anyone who acts in defense of the person or rights of a stranger and that
the person defending be not induced by revenge, resentment, or other evil
motive. (Art. 11, Par. 3)
A person who struggled with the husband who was attacking his wife with a
bolo for the possession of the bolo and in the course of the struggle,
wounded the husband, was held to have acted in defense of a stranger.
(People v. Valdez, 58 Phil. 31)
4. State of Necessity
Any person who, in order to avoid an evil or injury, does an act which
causes damage to another. (Art. 11, Par. 4)
Its requisites are:
a. The evil sought to be avoided actually exists.
b. The injury feared be greater than that done to avoid it.
c. There be no other practical and less harmful means of preventing it.
This is the only justifying circumstances wherein civil liability may arise but
this is borne by the person benefited by his act. The “state of necessity”
exists when there is a clash between two unequal rights, the lesser right
giving way to the greater right.
An accused was acquitted of the crime of slander by deed, when she eloped
with another man after all wedding preparations with the offended party
were made, since there was a necessity on the part of the accused to avoid
a loveless marriage with the offended party. (People v. Hernandez, 55 OG
8465)
In a case when in saving the life of the mother, the doctor sacrificed the life
of the unborn child, is the attending physician criminally liable? No, because
his acts are justified under this Article (State of necessity). However, in
mercy killing where the doctor deliberately turned off the life support system
costing the life of the patient, the doctor is criminally liable. Euthanasia is not
a justifying circumstance in our jurisdiction. (Q3, 1990 Bar)
5. Fulfillment of duty
Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office. (Art. 11, Par. 5) The injury caused or the offense committed is
the necessary consequence of the due performance of such right or office.
The killing by a policeman of an escaping detention prisoner is presumed to
be committed in the performance of his official duties. But shooting a thief
who refused to stop inspite of the order of the accused will make him liable
as he exceeded fulfillment of his duty. (People v. Bentres, 49 OG 4919)
Also, under the doctrine of self-help, the law justifies the act of the owner
as lawful possessor of a thing in using such force as is reasonably
necessary for the protection of his proprietary or possessory right. (Art. 429,
Civil Code)
With respect to the wounding of the stranger during the commission of crime
of death under exceptional circumstances (Art. 247), the defense of lawful
exercise of a right is a justifying circumstance. (Q14, 1991 Bar)
6. Obedience to superior order
Any person who acts in obedience to an order issued by a superior for some
lawful purpose. (Art. 11, Par. 6)
It is required that the order in itself must be lawful; that it is for a lawful
purpose; and that the person carrying out the order must also act within the
law. But even if the order is illegal if it is patently legal and the subordinate is
not aware of its illegality, the subordinate is not liable. (Nassif v. People, 78
Phil. 67) This is due to a mistake of fact committed in good faith. Even if the
order is illegal, the subordinate may still invoke the exempting
circumstances of compulsion of irresistible force or acting under the impulse
of an uncontrollable fear of an equal or greater injury.
Exempting circumstances are those wherein there is an absence in the
agent of the crime of all the condition that would make an act voluntary and,
hence, although there is no criminal liability, there is civil liability. In
exempting, the crime is committed but there is absent in the person of the
offender any element of voluntariness, and so he is not criminally liable but
is civilly liable except in the exempting circumstances ofaccident and lawful
or insuperable cause.
1. Imbecility and the insanity.
An imbecile is one who may be advanced in years, but has a mental
development comparable only to children between 2 and 7 years of age.
An insane is one who suffers from a mental disorder in such degree as to
deprive him of reason. The insane person may be held criminally liable if he
acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law
defines as a felony, 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. (Art. 12, Par. 1)
The test of imbecility or insanity is complete deprivation of intelligence in the
commission of the act, that is, that the accused acted without the least
discernment. (People v. Aldemeta, 55033, Nov. 13, 1986) The evidence
regarding insanity must refer to the very moment of its execution and must
be proven by clear and positive evidence. (People v. Basco, 44 Phil. 204)
Even if the offender is not an imbecile nor insane, if he is completely
deprived of the consciousness of his acts when he commits the crime, he is
entitled to exemption for a cause analogous to imbecility or insanity. So, one
committing a crime while dreaming during his sleep (People v. Taneo, 58
Phil. 255) or in a state of somnambulism or sleep walking (People v.
Gimena, 55 Phil. 604) is not criminally liable as the acts are embraced
within the plea of insanity.
2. Minority
A person under nine (9) years of age. (Art. 12, Par. 2) In this case, the minor
is completely devoid of discernment and are irresponsible.
A persons over nine (9) years of age but under fifteen (15), unless he has
acted with discernment, in which case, such minor shall be proceeded
against in accordance with the provisions of Art. 80 [Repealed by PD 603].
(Art. 12, Par. 3)
Discernment is the mental capacity to determine not merely the difference
between right or wrong, but is also involves the capacity to comprehend the
nature of the act and its consequences.
The age of the minor is computed up to the time of the commission of the
crime charged, not up to the date of trial.(People v. Navarro, 51 OG 409) If
the minor is exempt from criminal liability, he shall be committed to the care
of his or her father or mother or nearest relative or family friend in the
discretion of the court and subject to its supervision. (Art. 189, PD 603, as
amended)
Minority is always a privileged mitigating circumstance under the RPC and
lowers the prescribe penalty by one or two degrees in accordance with
Article 68 of the Code. But like any modifying circumstance, it is not availing
to those accused of crimes mala prohibita. (People v. Mangusan, 189 SCRA
624) However, this privileged mitigating circumstance may be appreciated in
violations of the Dangerous Drugs Act (RA 6425), the penalty to be imposed
should not be lower than prision correccional. (People v. Simon, 93128, July
29, 1994)
3. Accident
Any person who, while performing a lawful act with due care, causes
injury by mere accident without fault or intention of causing it. (Art. 12,
Par. 4)
Its requisites are:
a. The offender must be performing a lawful act.
b. With due care.
c. Causes injury to another by mere accident.
d. Without fault or intent of causing it.
An accident is any happening beyond the control of a person the
consequences of which are not foreseeable. If foreseeable, there is fault or
culpa. An accidental shooting due to legitimate self-defense is exempting.
(People v. Trinidad, 49 OG 4889) In performing a lawful act with due care by
snatching away the “balisong” in defense of stranger, the “balisong” flew
with force that it hit another person who was seriously injured, Tommy is
exempted from criminal liability because of mere accident. (Q2, 1992 Bar)
Under this exempting circumstance, there is no civil liability.
4. Compulsion of irresistible force.
Any person who acts under the compulsion of irresistible force. (Art. 12, Par.
5)
The force referred to here must be a physical force, irresistible and
compelling and must come from a third person. It cannot spring primarily
from the offender himself. (People v. Fernando, 33 SCRA 149) Thus, if a
person was struck with the butts of the guns of those who killed another to
compel him to bury their victim, he is not liable as an accessory because he
acted under the compulsion of an irresistible force. (US v. Caballeros, 4
Phil. 850)
The force must be irresistible to reduce him to a mere instrument who acts
not only without will, but against his will. The duress, force, fear or
intimidation must be present, imminent and impending and of such a nature
as to induce a well grounded apprehension of death or serious bodily harm
if the act is not done. A threat of future injury is not enough. The compulsion
must be one of such a character as to leave no opportunity to the accused
for escape or self-defense in equal combat. (People v. Nalipanat, 145 SCRA
483)
5. Impulse of uncontrollable fear
Any person who acts under the impulse of an uncontrollable fear of an equal
or greater injury. (Art. 12, Par. 6)
Uncontrollable fear is an impulse coming from within the person of the actor
himself. The actor acts not against his will but because he is engendered by
the fear. The threat producing the insuperable fear must be grave, actual,
serious and such kind that the majority of men would have succumbed to
such moral compulsion. (Feria and Gregorio, Revised Penal Code, Vol. 1,
224) Thus, if one is compelled under fear of death to join the rebels, he is
not liable for rebellion because he acted under the impulse of uncontrollable
fear of an equal or greater injury. (US v. Exaltacion, 3 Phil. 339)
6. Insuperable or lawful cause.
Any person who fails to perform an act required by law, when prevented by
some lawful insuperable cause. (Art. 12, Par. 7)
This is a felony by omission. The failure of a policeman to deliver the
prisoner lawfully arrested to the judicial authorities within the prescribed
period because it was not possible to do so with practicable dispatch as the
prisoner was arrested in a distant place would constitute a non-performance
of duty to an insuperable cause. (US v. Vicentillo, 19 Phil. 118)
7. Absolutory causes.
These are instances which actually constitute a crime but by reason of
public policy and sentiment, it is considered to be without liability and no
penalty is imposed, like:
a. Spontaneous desistance at the attempted stage of a felony. (Art. 6, Par.
3)
b. Accessories exempt from criminal liability. (Art. 20)
c. Death or physical injuries inflicted under exceptional circumstances.`(Art.
247)
d. Enter a dwelling for the purpose of preventing serious harm or service to
humanity. (Art. 280)
e. Exempt from theft, swindling or malicious mischief by relationships. (Art.
332)
f. Marriage of the offended party in seduction, abduction, acts of
lasciviousness and rape. (Art. 244)
g. Instigation takes place when a peace officer induces a person to commit
a crime. Without the inducement, the crime would not be committed. Hence,
it is exempting by reason of public policy. The person instigating must not
be a private person as he will be liable as a principal by inducement. (Art.
17, Par. 2) In this case, the criminal intent (mens rea) originates in the mind
of the instigator and the accused is lured into the commission of the offense
charged in order to prosecute him. However, entrapmentis the employment
of such ways and means devised by a peace officer for the purpose of
trapping or capturing a lawbreaker. With or without the entrapment, the
crime has been committed already. Hence, entrapment is neither exempting
or mitigating. The idea to commit the crime originated from the accused,
thus the actor is criminally liable.
The difference between entrapment and instigation lies in the origin of the
criminal intent. In entrapment mens rea originates from the mind of the
criminal. The idea and resolve to commit the crime comes from him. In
instigation, the law officer conceives the commission of the crime and
suggests it to the accused, who adopts the idea and carries it into
execution. (Araneta v. CA, 46638, July 9, 1986)
A “buy-bust” operation is a form of entrapment employed by peace officer to
trap and catch a malefactor in flagrante delicto, commonly involving
dangerous drugs. (People v. Del Pilar, 188 SCRA 37) Where a person had
a ready supply of dangerous drugs for sale to anyone willing to pay the price
asked for, although he might not have the drug with him at the time of the
initial transaction, the situation supports an entrapment, not an instigation.
The fact that the accused returned with the drugs shortly after the
transaction was entered into, shows that he had ready contacts with the
supplier from whom he could readily get the drug. If the accused were
merely instigated to look for the drug, it would have taken him a
considerable length of time to look for a source. (People v. Estevan, 196
SCRA 34) (Q8, 1992 Bar)
An example of instigation is given in Q9, 1995 Bar as follows: Suspecting
that Juan was a drug pusher, SPO2 Mercado gave Juan a P 100-bill and
asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2
Mercado, Juan went inside the shopping mall while the officer waited at the
corner of the mall. After 15 minutes, Juan returned with ten sticks of
marijuana cigarettes which gave to SPO2 Mercado who thereupon placed
Juan under arrest and charged him with violation of the Dangerous Drugs
Law by selling marijuana. Is Juan guilty of any offense? Juan cannot be
charged of any offense punishable under the Dangerous Drugs Act.
Although Juan is a suspected drug pusher, he cannot be charged on the
basis of a mere suspicion. By providing the money with which to buy
marijuana cigarettes, SPO2 Mercado practically induced and prodded Juan
to commit the offense of illegal possession of marijuana. Set against the
facts, instigation is a valid defense available to Juan.