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TITLE ONE
Dear Students,

As we start in our journey in studying Book 1 of the Revised Penal Code ,

I want you to have a copy of the Revised Penal Code , as amended. Everybody
should have a book containing the provisions of the Revised Penal Code. READ
CAREFULLY THE DISCUSSIONS BELOW. THEN , ANSWER THE QUESTIONS
briefly and with legal basis.

ATTY. AILEEN F. DELIZO-CASEM

Criminal Law – A branch of municipal law which defines crimes, treats of their nature and provides
for their punishment.
Limitations on the power of Congress to enact penal laws (ON)

1. Must be general in application.

2. Must not partake of the nature of an ex post facto law.

3. Must not partake of the nature of a bill of attainder.

4. Must not impose cruel and unusual punishment or excessive fines.

Characteristics of Criminal Law:

1. General – the law is binding to all persons who reside in the Philippines
2. Territorial – the law is binding to all crimes committed within the National Territory of the
Philippines
Exception to Territorial Application: Instances enumerated under Article 2.
3. Prospective – the law does not have any retroactive effect.
Exception to Prospective Application: when new statute is favorable to the accused.
Effect of repeal of penal law to liability of offender

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Total or absolute, or partial or relative repeal. — As to the effect of repeal of penal law to the
liability of offender, qualify your answer by saying whether the repeal is absolute or total or whether
the repeal is partial or relative only.
A repeal is absolute or total when the crime punished under the repealed law has been
decriminalized by the repeal. Because of the repeal, the act or omission which used to be a crime is
no longer a crime. An example is Republic Act No. 7363, which decriminalized subversion.
A repeal is partial or relative when the crime punished under the repealed law continues to be a
crime inspite of the repeal. This means that the repeal merely modified the conditions affecting the
crime under the repealed law. The modification may be prejudicial or beneficial to the offender.
Hence, the following rule:
Consequences if repeal of penal law is total or absolute
(1) If a case is pending in court involving the violation of the repealed law, the same shall be
dismissed, even though the accused may be a habitual delinquent.
(2) If a case is already decided and the accused is already serving sentence by final
judgment, if the convict is not a habitual delinquent, then he will be entitled to a release unless there
is a reservation clause in the penal law that it will not apply to those serving sentence at the time of
the repeal. But if there is no reservation, those who are not habitual delinquents even if they are
already serving their sentence will receive the benefit of the repealing law. They are entitled to
release.
If they are not discharged from confinement, a petition for habeas corpus should be filed to test the
legality of their continued confinement in jail.
If the convict, on the other hand, is a habitual delinquent, he will continue serving the sentence in
spite of the fact that the law under which he was convicted has already been absolutely repealed.
This is so because penal laws should be given retroactive application to favor only those who are not
habitual delinquents.
Consequences if repeal of penal law is partial or relative
(1) If a case is pending in court involving the violation of the repealed law, and the repealing
law is more favorable to the accused, it shall be the one applied to him. So whether he is a habitual
delinquent or not, if the case is still pending in court, the repealing law will be the one to apply unless
there is a saving clause in the repealing law that it shall not apply to pending causes of action.
(2) If a case is already decided and the accused is already serving sentence by final
judgment, even if the repealing law is partial or relative, the crime still remains to be a crime. Those
who are not habitual delinquents will benefit on the effect of that repeal, so that if the repeal is more
lenient to them, it will be the repealing law that will henceforth apply to them.
Under Article 22, even if the offender is already convicted and serving sentence, a law which is
beneficial shall be applied to him unless he is a habitual delinquent in accordance with Rule 5 of
Article 62.
Consequences if repeal of penal law is express or implied
(1) If a penal law is impliedly repealed, the subsequent repeal of the repealing law will revive
the original law. So the act or omission which was punished as a crime under the original law will be
revived and the same shall again be crimes although during the implied repeal they may not be
punishable.
(2) If the repeal is express, the repeal of the repealing law will not revive the first law, so the
act or omission will no longer be penalized.
These effects of repeal do not apply to self-repealing laws or those which have automatic
termination. An example is the Rent Control Law which is revived by Congress every two years.
Theories of Criminal Law
1. Classical Theory – Man is essentially a moral creature with an absolute free will to choose
between good and evil and therefore more stress is placed upon the result of the felonious act than
upon the criminal himself.

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 1. Positivist Theory – Man is subdued occasionally by a strange and morbid phenomenon which
conditions him to do wrong in spite of or contrary to his volition.
Eclectic or Mixed Philosophy
This combines both positivist and classical thinking. Crimes that are economic and social and nature
should be dealt with in a positivist manner; thus, the law is more compassionate. Heinous crimes
should be dealt with in a classical manner; thus, capital punishmen

BASIC MAXIMS IN CRIMINAL LAW

Doctrine of Pro Reo
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 favorable
to the offender will be adopted.
Nullum crimen, nulla poena sine lege
There is no crime when there is no law punishing the same. This is true to civil law countries, but not
to common law countries.
Because of this maxim, there is no common law crime in the Philippines. No matter how wrongful,
evil or bad the act is, if there is no law defining the act, the same is not considered a crime.
Actus non facit reum, nisi mens sit rea
The act cannot be criminal where the mind is not criminal. This is true to a felony characterized by
dolo, but not a felony resulting from culpa. This maxim is not an absolute one because it is not
applied to culpable felonies, or those that result from negligence.
Utilitarian Theory or Protective Theory
The primary purpose of the punishment under criminal law is the protection of society from actual
and potential wrongdoers. The courts, therefore, in exacting retribution for the wronged society,
should direct the punishment to potential or actual wrongdoers, since criminal law is directed against
acts and omissions which the society does not approve. Consistent with this theory, the mala
prohibita principle which punishes an offense regardless of malice or criminal intent, should not be
utilized to apply the full harshness of the special law.
Sources of Criminal Law
1. The Revised Penal Code
2. Special Penal Laws – Acts enacted of the Philippine Legislature punishing offenses or omissions.
Construction of Penal Laws
1. Criminal Statutes are liberally construed in favor of the offender. This means that no person shall
be brought within their terms who is not clearly within them, nor should any act be pronounced
criminal which is not clearly made so by statute.
2. The original text in which a penal law is approved in case of a conflict with an official translation.
3. Interpretation by analogy has no place in criminal law
MALA IN SE AND MALA PROHIBITA
Violations of the Revised Penal Code are referred to as malum in se, which literally means, that the
act is inherently evil or bad or per se wrongful. On the other hand, violations of special laws are
generally referred to as malum prohibitum.

Note, however, that not all violations of special laws are mala prohibita. While intentional felonies
are always mala in se, it does not follow that prohibited acts done in violation of special laws are
always mala prohibita. Even if the crime is punished under a special law, if the act punished is one
which is inherently wrong, the same is malum in se, and, therefore, good faith and the lack of
criminal intent is a valid defense; unless it is the product of criminal negligence or culpa.

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Likewise when the special laws requires that the punished act be committed knowingly and willfully,
criminal intent is required to be proved before criminal liability may arise.

When the act penalized is not inherently wrong, it is wrong only because a law punishes the same.

Distinction between crimes punished under the Revised Penal Code and crimes punished
under special laws
1. As to moral trait of the offender

In crimes punished under the Revised Penal Code, the moral trait of the offender is considered. This
is why liability would only arise when there is dolo or culpa in the commission of the punishable act.

In crimes punished under special laws, the moral trait of the offender is not considered; it is enough
that the prohibited act was voluntarily done.

2. As to use of good faith as defense

In crimes punished under the Revised Penal Code, good faith or lack of criminal intent is a valid
defense; unless the crime is the result of culpa

In crimes punished under special laws, good faith is not a defense

3. As to degree of accomplishment of the crime

In crimes punished under the Revised Penal Code, the degree of accomplishment of the crime is
taken into account in punishing the offender; thus, there are attempted, frustrated, and
consummated stages in the commission of the crime.

In crimes punished under special laws, the act gives rise to a crime only when it is consummated;
there are no attempted or frustrated stages, unless the special law expressly penalize the mere
attempt or frustration of the crime.

4. As to mitigating and aggravating circumstances

In crimes punished under the Revised Penal Code, mitigating and aggravating circumstances are
taken into account in imposing the penalty since the moral trait of the offender is considered.

In crimes punished under special laws, mitigating and aggravating circumstances are not taken into
account in imposing the penalty.

5. As to degree of participation

In crimes punished under the Revised Penal Code, when there is more than one offender, the
degree of participation of each in the commission of the crime is taken into account in imposing the
penalty; thus, offenders are classified as principal, accomplice and accessory.

In crimes punished under special laws, the degree of participation of the offenders is not
considered. All who perpetrated the prohibited act are penalized to the same extent. There is no
principal or accomplice or accessory to consider.

Test to determine if violation of special law is malum prohibitum or malum in se

Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as such? If you
remove the law, will the act still be wrong?

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If the wording of the law punishing the crime uses the word “willfully”, then malice must be proven.
Where malice is a factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act. Therefore culpa is not a
basis of liability, unless the special law punishes an omission.
When given a problem, take note if the crime is a violation of the Revised Penal Code or a special
law.
Article 1.
This Code shall take effect on January 1, 1932.

Article 2.
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 these islands of the
obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the exercise of
their functions; or (Some of these crimes are bribery, fraud against national treasury, malversation
of public funds or property, and illegal use of public funds; e.g., A judge who accepts a bribe while in
Japan.)
5. Should commit any crimes against the national security and the law of nations, defined in
Title One of Book Two of this Code. (These crimes include treason, espionage, piracy, mutiny,
and violation of neutrality)
 Rules as to crimes committed aboard foreign merchant vessels:
1. French Rule – Such 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 is endangered.
1. English Rule – Such crimes are triable in that country, unless they merely affect things within the
vessel or they refer to the internal management thereof. (This is applicable in the Philippines)
two situations where the foreign country may not apply its criminal law even if a crime was
committed on board a vessel within its territorial waters and these are:
(1) When the crime is committed in a war vessel of a foreign country, because war vessels
are part of the sovereignty of the country to whose naval force they belong;
(2) When the foreign country in whose territorial waters the crime was committed adopts
the French Rule, which applies only to merchant vessels, except when the crime committed affects
the national security or public order of such foreign country.
 Requirements of “an offense committed while on a Philippine Ship or Airship”
1. Registered with the Philippine Bureau of Customs
2. Ship must be in the high seas or the airship must be in international airspace.
Under international law rule, a vessel which is not registered in accordance with the laws of any
country is considered a pirate vessel and piracy is a crime against humanity in general, such that
wherever the pirates may go, they can be prosecuted.
US v. Bull

A crime which occurred on board of a foreign vessel, which began when the ship was in a foreign
territory and continued when it entered into Philippine waters, is considered a continuing crime.
Hence within the jurisdiction of the local courts.

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As a general rule, the Revised Penal Code governs only when the crime committed pertains to the
exercise of the public official’s functions, those having to do with the discharge of their duties in a
foreign country. The functions contemplated are those, which are, under the law, to be performed by
the public officer in the Foreign Service of the Philippine government in a foreign country.

Exception: The Revised Penal Code governs if the crime was committed within the Philippine
Embassy or within the embassy grounds in a foreign country. This is because embassy grounds are
considered an extension of sovereignty.
Paragraph 5 of Article 2, use the phrase “as defined in Title One of Book Two of this Code.”
This is a very important part of the exception, because Title I of Book 2 (crimes against national
security) does not include rebellion.

I. FELONIES
Article 3.
Acts and omissions punishable by law are felonies.
 Acts – an overt or external act
 Omission – failure to perform a duty required by law. Example of an omission: failure to render
assistance to anyone who is in danger of dying or is in an uninhabited place or is wounded –
abandonment.
 Felonies – acts and omissions punishable by the Revised Penal Code
 Crime – acts and omissions punishable by any law

What requisites must concur before a felony may be committed?

There must be (1) an act or omission; (2) punishable by the Revised Penal Code; and (3) the act is
performed or the omission incurred by means of dolo or culpa.
 How felonies are committed:
1. by means of deceit (dolo) – There is deceit when the act is performed with deliberate intent.
Requisites:
1. freedom
2. intelligence
3. intent
Examples: murder, treason, and robbery
Criminal intent is not necessary in these cases:
(1) When the crime is the product of culpa or negligence, reckless imprudence, lack of
foresight or lack of skill;
(2) When the crime is a prohibited act under a special law or what is called malum prohibitum.
In criminal law, intent is categorized into two:
(1) General criminal intent; and
(2) Specific criminal intent.
General criminal intent is presumed from the mere doing of a wrong act. This does not require
proof. The burden is upon the wrong doer to prove that he acted without such criminal intent.
Specific criminal intent is not presumed because it is an ingredient or element of a crime, like
intent to kill in the crimes of attempted or frustrated homicide/parricide/murder. The prosecution has
the burden of proving the same.
Distinction between intent and discernment
Intent is the determination to do a certain thing, an aim or purpose of the mind. It is the design to
resolve or determination by which a person acts.
On the other hand, discernment is the mental capacity to tell right from wrong. It relates to the
moral significance that a person ascribes to his act and relates to the intelligence as an element of
dolo, distinct from intent.

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Distinction between intent and motive
Intent is demonstrated by the use of a particular means to bring about a desired result – it is not a
state of mind or a reason for committing a crime.
On the other hand, motive implies motion. It is the moving power which impels one to do an act.
When there is motive in the commission of a crime, it always comes before the intent. But a crime
may be committed without motive.
If the crime is intentional, it cannot be committed without intent. Intent is manifested by the
instrument used by the offender. The specific criminal intent becomes material if the crime is to be
distinguished from the attempted or frustrated stage.
1. by means of fault (culpa) – There is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
1. Imprudence – deficiency of action; e.g. A was driving a truck along a road. He hit B because it
was raining – reckless imprudence.
2. Negligence – deficiency of perception; failure to foresee impending danger, usually involves lack
of foresight
3. c. Requisites:
1. Freedom
2. Intelligence
3. Imprudence, negligence, lack of skill or foresight
4. Lack of intent
The concept of criminal negligence is the inexcusable lack of precaution on the part of the person
performing or failing to perform an act. If the danger impending from that situation is clearly
manifest, you have a case of reckless imprudence. But if the danger that would result from such
imprudence is not clear, not manifest nor immediate you have only a case of simple negligence.
 Mistake of fact – is a misapprehension of fact on the part of the person who caused injury to
another. He is not criminally liable.
a. Requisites:
1. that the act done would have been lawful had the facts been as the accused believed them to be;
2. intention of the accused is lawful;
3. mistake must be without fault of carelessness.
Example: United States v. Ah Chong.

Ah Chong being afraid of bad elements, locked himself in his room by placing a chair against the
door. After having gone to bed, he was awakened by somebody who was trying to open the door.
He asked the identity of the person, but he did not receive a response. Fearing that this intruder was
a robber, he leaped out of bed and said that he will kill the intruder should he attempt to enter. At
that moment, the chair struck him. Believing that he was attacked, he seized a knife and fatally
wounded the intruder.

Mistake of fact would be relevant only when the felony would have been intentional or through dolo,
but not when the felony is a result of culpa. When the felony is a product of culpa, do not discuss
mistake of fact.

Article 4.
Criminal liability shall be incurred:

1. By any person committing a felony, although the wrongful act done be different from that
which he intended.

Article 4, paragraph 1 presupposes that the act done is the proximate cause of the resulting felony. It
must be the direct, natural, and logical consequence of the felonious act.

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  Causes which produce a different result:
1. Mistake in identity of the victim – injuring one person who is mistaken for another (this is a
complex crime under Art. 48) e.g., A intended to shoot B, but he instead shot C because he (A)
mistook C for B.
In error in personae, the intended victim was not at the scene of the crime. It was the actual
victim upon whom the blow was directed, but he was not really the intended victim.
How does error in personae affect criminal liability of the offender?
Error in personae is mitigating if the crime committed is different from that which was intended. If the
crime committed is the same as that which was intended, error in personae does not affect the
criminal liability of the offender.
In mistake of identity, if the crime committed was the same as the crime intended, but on a different
victim, error in persona does not affect the criminal liability of the offender. But if the crime
committed was different from the crime intended, Article 49 will apply and the penalty for the lesser
crime will be applied. In a way, mistake in identity is a mitigating circumstance where Article 49
applies. Where the crime intended is more serious than the crime committed, the error in persona is
not a mitigating circumstance
2. Mistake in blow – hitting somebody other than the target due to lack of skill or fortuitous instances
(this is a complex crime under Art. 48) e.g., B and C were walking together. A wanted to shoot B,
but he instead injured C.
In aberratio ictus, a person directed the blow at an intended victim, but because of poor aim,
that blow landed on somebody else. In aberratio ictus, the intended victim as well as the actual
victim are both at the scene of the crime.
aberratio ictus, generally gives rise to a complex crime. This being so, the penalty for the more
serious crime is imposed in the maximum period.
3. Injurious result is greater than that intended – causing injury graver than intended or expected
(this is a mitigating circumstance due to lack of intent to commit so grave a wrong under Art. 13)
e.g., A wanted to injure B. However, B died.
praeter intentionem is mitigating, particularly covered by paragraph 3 of Article 13. In order
however, that the situation may qualify as praeter intentionem, there must be a notable disparity
between the means employed and the resulting felony
 In all these instances the offender can still be held criminally liable, since he is motivated by
criminal intent.
Requisites:
1. the felony was intentionally committed
2. the felony is the proximate cause of the wrong done
 Doctrine of Proximate Cause – such adequate and efficient cause as, in the natural order of
events, and under the particular circumstances surrounding the case, which would necessarily
produce the event.
Requisites:
1. the direct, natural, and logical cause
2. produces the injury or damage
3. unbroken by any sufficient intervening cause
4. without which the result would not have occurred
 Proximate Cause is negated by:
1. Active force, distinct act, or fact absolutely foreign from the felonious act of the accused, which
serves as a sufficient intervening cause.
2. Resulting injury or damage is due to the intentional act of the victim.
proximate cause does not require that the offender needs to actually touch the body of the
offended party. It is enough that the offender generated in the mind of the offended party the belief
that made him risk himself.

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  Requisite for Presumption blow was cause of the death – Where there has been an injury inflicted
sufficient to produce death followed by the demise of the person, the presumption arises that the
injury was the cause of the death. Provided:
1. victim was in normal health
2. death ensued within a reasonable time
The one who caused the proximate cause is the one liable. The one who caused the immediate
cause is also liable, but merely contributory or sometimes totally not liable.
2. 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 on account of the
employment of inadequate or ineffectual means.
 Requisites: (IMPOSSIBLE CRIME)
1. Act would have been an offense against persons or property
2. Act is not an actual violation of another provision of the Code or of a special penal law
3. There was criminal intent
4. Accomplishment was inherently impossible; or inadequate or ineffectual means were employed.
 Notes:
1. Offender must believe that he can consummate the intended crime, a man stabbing another who
he knew was already dead cannot be liable for an impossible crime.
2. The law intends to punish the criminal intent.
3. There is no attempted or frustrated impossible crime.
 Felonies against persons: parricide, murder, homicide, infanticide, physical injuries, etc.
 Felonies against property: robbery, theft, usurpation, swindling, etc.
 Inherent impossibility: A thought that B was just sleeping. B was already dead. A shot B. A is
liable. If A knew that B is dead and he still shot him, then A is not liable.
When we say inherent impossibility, this means that under any and all circumstances, the crime
could not have materialized. If the crime could have materialized under a different set of facts,
employing the same mean or the same act, it is not an impossible crime; it would be an attempted
felony.
 Employment of inadequate means: A used poison to kill B. However, B survived because A used
small quantities of poison – frustrated murder.
 Ineffectual means: A aimed his gun at B. When he fired the gun, no bullet came out because the
gun was empty. A is liable.
Whenever you are confronted with a problem where the facts suggest that an impossible
crime was committed, be careful about the question asked. If the question asked is: “Is an
impossible crime committed?”, then you judge that question on the basis of the facts. If really the
facts constitute an impossible crime, then you suggest than an impossible crime is committed, then
you state the reason for the inherent impossibility.
If the question asked is “Is he liable for an impossible crime?”, this is a catching question.
Even though the facts constitute an impossible crime, if the act done by the offender constitutes
some other crimes under the Revised Penal Code, he will not be liable for an impossible crime. He
will be prosecuted for the crime constituted so far by the act done by him.
this idea of an impossible crime is a one of last resort, just to teach the offender a lesson
because of his criminal perversity. If he could be taught of the same lesson by charging him with
some other crime constituted by his act, then that will be the proper way. If you want to play safe,
you state there that although an impossible crime is constituted, yet it is a principle of criminal law
that he will only be penalized for an impossible crime if he cannot be punished under some other
provision of the Revised Penal Code.

Art 5. 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 subject of legislation.

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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.
When a person is charged in court, and the court finds that there is no law applicable, the
court will acquit the accused and the judge will give his opinion that the said act should be punished.
 Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and illegal
possession of firearms or drugs. There can be no executive clemency for these crimes.

Article 6.
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
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.
 Development of a crime
1. Internal acts – intent and plans; usually not punishable
2. External acts
1. Preparatory Acts – acts tending toward the crime
2. Acts of Execution – acts directly connected the crime

Stages of Commission of a Crime

Attempt Frustrated Consummated

 Overt acts of execution

are started
 Not all acts of execution
are present
 Due to reasons other
than the spontaneous
desistance of the
perpetrator
 All acts of execution are
present
 Crime sought to be
committed is not
achieved
 Due to intervening
causes independent of
the will of the perpetrator
 All the acts of execution
are present
 The result sought is
achieved
 Stages of a Crime does not apply in:

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 1. Offenses punishable by Special Penal Laws, unless the otherwise is provided for.
2. Formal crimes (e.g., slander, adultery, etc.)
3. Impossible Crimes
4. Crimes consummated by mere attempt. Examples: attempt to flee to an enemy country, treason,
corruption of minors.
5. Felonies by omission
6. Crimes committed by mere agreement. Examples: betting in sports (endings in basketball),
corruption of public officers.
Desistance
Desistance on the part of the offender negates criminal liability in the attempted stage.
Desistance is true only in the attempted stage of the felony. If under the definition of the felony, the
act done is already in the frustrated stage, no amount of desistance will negate criminal liability.
The spontaneous desistance of the offender negates only the attempted stage but not
necessarily all criminal liability. Even though there was desistance on the part of the offender, if the
desistance was made when acts done by him already resulted to a felony, that offender will still be
criminally liable for the felony brought about his act
In deciding whether a felony is attempted or frustrated or consummated, there are three
criteria involved:
(1) The manner of committing the crime;
(2) The elements of the crime; and
(3) The nature of the crime itself.
 Applications:
1. A put poison in B’s food. B threw away his food. A is liable – attempted murder.[1]
2. A stole B’s car, but he returned it. A is liable – (consummated) theft.
3. A aimed his gun at B. C held A’s hand and prevented him from shooting B – attempted murder.
4. A inflicted a mortal wound on B. B managed to survive – frustrated murder.
5. A intended to kill B by shooting him. A missed – attempted murder.
6. A doused B’s house with kerosene. But before he could light the match, he was caught
– attempted arson.
7. A cause a blaze, but did not burn the house of B – frustrated arson.
8. B’s house was set on fire by A – (consummated) arson.
9. A tried to rape B. B managed to escape. There was no penetration – attempted rape.
10. A got hold of B’s painting. A was caught before he could leave B’s house – frustrated robbery.[2]
The attempted stage is said to be within the subjective phase of execution of a felony. On the
subjective phase, it is that point in time when the offender begins the commission of an overt act until
that point where he loses control of the commission of the crime already. If he has reached that
point where he can no longer control the ensuing consequence, the crime has already passed the
subjective phase and, therefore, it is no longer attempted. The moment the execution of the crime
has already gone to that point where the felony should follow as a consequence, it is either already
frustrated or consummated. If the felony does not follow as a consequence, it is already frustrated.
If the felony follows as a consequence, it is consummated.
although the offender may not have done the act to bring about the felony as a consequence, if
he could have continued committing those acts but he himself did not proceed because he believed
that he had done enough to consummate the crime, Supreme Court said the subjective phase has
passed
NOTES ON ARSON;
The weight of the authority is that the crime of arson cannot be committed in the frustrated
stage. The reason is because we can hardly determine whether the offender has performed all the
acts of execution that would result in arson, as a consequence, unless a part of the premises has
started to burn. On the other hand, the moment a particle or a molecule of the premises has
blackened, in law, arson is consummated. This is because consummated arson does not require

11
that the whole of the premises be burned. It is enough that any part of the premises, no matter how
small, has begun to burn.
ESTAFA VS. THEFT
In estafa, the offender receives the property; he does not take it. But in receiving the property,
the recipient may be committing theft, not estafa, if what was transferred to him was only the
physical or material possession of the object. It can only be estafa if what was transferred to him is
not only material or physical possession but juridical possession as well.
When you are discussing estafa, do not talk about intent to gain. In the same manner that
when you are discussing the crime of theft, do not talk of damage.
Nature of the crime itself
In crimes involving the taking of human life – parricide, homicide, and murder – in the
definition of the frustrated stage, it is indispensable that the victim be mortally wounded. Under the
definition of the frustrated stage, to consider the offender as having performed all the acts of
execution, the acts already done by him must produce or be capable of producing a felony as a
consequence. The general rule is that there must be a fatal injury inflicted, because it is only then
that death will follow.
If the wound is not mortal, the crime is only attempted. The reason is that the wound inflicted is
not capable of bringing about the desired felony of parricide, murder or homicide as a consequence;
it cannot be said that the offender has performed all the acts of execution which would produce
parricide, homicide or murder as a result.
An exception to the general rule is the so-called subjective phase. The Supreme Court has
decided cases which applied the subjective standard that when the offender himself believed that he
had performed all the acts of execution, even though no mortal wound was inflicted, the act is
already in the frustrated stage.
The common notion is that when there is conspiracy involved, the participants are punished as
principals. This notion is no longer absolute. In the case of People v. Nierra, the Supreme Court
ruled that even though there was conspiracy, if a co-conspirator merely cooperated in the
commission of the crime with insignificant or minimal acts, such that even without his cooperation,
the crime could be carried out as well, such co-conspirator should be punished as an accomplice
only.

Article 7.
Light felonies are punishable only when they have been consummated with the exception
of those committed against persons or property.

 Examples of light felonies: slight physical injuries; theft; alteration of boundary marks; malicious
mischief; and intriguing against honor.
 In commission of crimes against properties and persons, every stage of execution is punishable
but only the principals and accomplices are liable for light felonies, accessories are not.

Art. 8. Conspiracy and proposal to commit felony are punishable only in the cases in which the law
specially provides a penalty therefore.

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 proposes its
execution to some other person or persons.
 Conspiracy is punishable in the following cases: treason, rebellion or insurrection, sedition, and
monopolies and combinations in restraint of trade.

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  Conspiracy to commit a crime is not to be confused with conspiracy as a means of committing a
crime. In both cases there is an agreement but mere conspiracy to commit a crime is not punished
EXCEPT in treason, rebellion, or sedition. Even then, if the treason is actually committed, the
conspiracy will be considered as a means of committing it and the accused will all be charged for
treason and not for conspiracy to commit treason.

Conspiracy and Proposal to Commit a Crime

Conspiracy Proposal

 Agreement among 2 or more

persons to commit a crime
 They decide to commit it
 A person has decided to
commit a crime
 He proposes its commission
Elements to another

1. Conspiracy to commit
sedition
2. Conspiracy to commit
rebellion
3. Conspiracy to commit
treason
4. Proposal to commit treason
Crimes 5. Proposal to commit rebellion
 Mere conspiracy in combination in restraint of trade (Art. 186), and brigandage (Art. 306).
Two ways for conspiracy to exist:
(1) There is an agreement.
(2) The participants acted in concert or simultaneously which is indicative of a meeting of the
minds towards a common criminal goal or criminal objective. When several offenders act in a
synchronized, coordinated manner, the fact that their acts complimented each other is indicative of
the meeting of the minds. There is an implied agreement.
Two kinds of conspiracy:
(1) Conspiracy as a crime; and
(2) Conspiracy as a manner of incurring criminal liability
When conspiracy itself is a crime, no overt act is necessary to bring about the criminal liability.
The mere conspiracy is the crime itself. This is only true when the law expressly punishes the mere
conspiracy; otherwise, the conspiracy does not bring about the commission of the crime because
conspiracy is not an overt act but a mere preparatory act. Treason, rebellion, sedition, and coup
d’etat are the only crimes where the conspiracy and proposal to commit to them are punishable.
When the conspiracy is only a basis of incurring criminal liability, there must be an overt act
done before the co-conspirators become criminally liable. For as long as none of the conspirators
has committed an overt act, there is no crime yet. But when one of them commits any overt act, all
of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he
showed up, but he tried to prevent the commission of the crime.
As a general rule, if there has been a conspiracy to commit a crime in a particular place,
anyone who did not appear shall be presumed to have desisted. The exception to this is if such
person who did not appear was the mastermind.
For as long as none of the conspirators has committed an overt act, there is no crime yet. But
when one of them commits any overt act, all of them shall be held liable, unless a co-conspirator was
absent from the scene of the crime or he showed up, but he tried to prevent the commission of the
crime

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 As a general rule, if there has been a conspiracy to commit a crime in a particular place,
anyone who did not appear shall be presumed to have desisted. The exception to this is if such
person who did not appear was the mastermind.
When the conspiracy itself is a crime, this cannot be inferred or deduced because there is no
overt act. All that there is the agreement. On the other hand, if the co-conspirator or any of them
would execute an overt act, the crime would no longer be the conspiracy but the overt act itself.
conspiracy as a crime, must have a clear and convincing evidence of its existence. Every crime
must be proved beyond reasonable doubt. it must be established by positive and conclusive
evidence, not by conjectures or speculations.
When the conspiracy is just a basis of incurring criminal liability, however, the same may be
deduced or inferred from the acts of several offenders in carrying out the commission of the crime.
The existence of a conspiracy may be reasonably inferred from the acts of the offenders when such
acts disclose or show a common pursuit of the criminal objective.
mere knowledge, acquiescence to, or approval of the act, without cooperation or at least,
agreement to cooperate, is not enough to constitute a conspiracy. There must be an intentional
participation in the crime with a view to further the common felonious objective.
When several persons who do not know each other simultaneously attack the victim, the act of
one is the act of all, regardless of the degree of injury inflicted by any one of them. All will be liable
for the consequences. A conspiracy is possible even when participants are not known to each
other. Do not think that participants are always known to each other.
Conspiracy is a matter of substance which must be alleged in the information, otherwise, the
court will not consider the same.
Proposal is true only up to the point where the party to whom the proposal was made has not
yet accepted the proposal. Once the proposal was accepted, a conspiracy arises. Proposal is
unilateral, one party makes a proposition to the other; conspiracy is bilateral, it requires two parties.
SEDITION;
Proposal to commit sedition is not a crime. But if Union B accepts the proposal, there will be
conspiracy to commit sedition which is a crime under the Revised Penal Code.
Composite crimes
Composite crimes are crimes which, in substance, consist of more than one crime but in the
eyes of the law, there is only one crime. For example, the crimes of robbery with homicide, robbery
with rape, robbery with physical injuries.
In case the crime committed is a composite crime, the conspirator will be liable for all the acts
committed during the commission of the crime agreed upon. This is because, in the eyes of the law,
all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime.
As a general rule, when there is conspiracy, the rule is that the act of one is the act of all. This
principle applies only to the crime agreed upon.
The exception is if any of the co-conspirator would commit a crime not agreed upon. This
happens when the crime agreed upon and the crime committed by one of the co-conspirators are
distinct crimes.
Exception to the exception: In acts constituting a single indivisible offense, even though the
co-conspirator performed different acts bringing about the composite crime, all will be liable for such
crime. They can only evade responsibility for any other crime outside of that agreed upon if it is
proved that the particular conspirator had tried to prevent the commission of such other act.

Article 9.
Grave felonies are those to which the law attaches the capital punishment or
penalties which in any of their are afflictive, in accordance with Article 25 of this Code.

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Less grave felonies are those which the law punishes with penalties which in their maximum
period are correctional, in accordance with the above-mentioned article.
Light felonies are those infractions of law for the commission of which he penalty of arresto
mayor or a fine not exceeding 200 pesos, or both is provided.
 Capital punishment – death penalty.
 Penalties (imprisonment): Grave – six years and one day to reclusion perpetua (life); Less grave –
one month and one day to six years; Light – arresto menor (one day to 30 days).
CLASSIFICATION OF FELONIES
This question was asked in the bar examination: How do you classify felonies or how are felonies
classified?
What the examiner had in mind was Articles 3, 6 and 9. Do not write the classification of felonies
under Book 2 of the Revised Penal Code. That was not what the examiner had in mind because the
question does not require the candidate to classify but also to define. Therefore, the examiner was
after the classifications under Articles 3, 6 and 9.
Felonies are classified as follows:
(1) According to the manner of their commission
Under Article 3, they are classified as, intentional felonies or those committed with deliberate intent;
and culpable felonies or those resulting from negligence, reckless imprudence, lack of foresight or
lack of skill.
(2) According to the stages of their execution
Under Article 6., felonies are classified as attempted felony when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance; frustrated felony when the offender commences the commission of a felony as a
consequence but which would produce the felony as a consequence but which nevertheless do not
produce the felony by reason of causes independent of the perpetrator; and, consummated felony
when all the elements necessary for its execution are present.
(3) According to their gravity
Under Article 9, felonies are classified as grave felonies or those to which attaches the capital
punishment or penalties which in any of their periods are afflictive; less grave felonies or those to
which the law punishes with penalties which in their maximum period was correccional; and light
felonies or those infractions of law for the commission of which the penalty is arresto menor.
Why is it necessary to determine whether the crime is grave, less grave or light?
To determine whether these felonies can be complexed or not, and to determine the prescription of
the crime and the prescription of the penalty. In other words, these are felonies classified according
to their gravity, stages and the penalty attached to them. Take note that when the Revised Penal
Code speaks of grave and less grave felonies, the definition makes a reference specifically to Article
25 of the Revised Penal Code. Do not omit the phrase “In accordance with Article 25” because there
is also a classification of penalties under Article 26 that was not applied.
If the penalty is fine and exactly P200.00, it is only considered a light felony under Article 9.
If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is
considered a correctional penalty under Article 26.
If the penalty is exactly P200.00, apply Article 26. It is considered as correctional penalty and it
prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made
to suffer the fine.
This classification of felony according to gravity is important with respect to the question of
prescription of crimes.
In the case of light felonies, crimes prescribe in two months. If the crime is correctional, it
prescribes in ten years, except arresto mayor, which prescribes in five years.

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Article 10.
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.
 For Special Laws: Penalties should be imprisonment, and not reclusion perpetua, etc.
 Offenses that are attempted or frustrated are not punishable, unless otherwise stated.
 Plea of guilty is not mitigating for offenses punishable by special laws.
 No minimum, medium, and maximum periods for penalties.
 No penalty for an accessory or accomplice, unless otherwise stated.

 Provisions of RPC applicable to special laws:

1. Art. 16 Participation of Accomplices
2. Art. 22 Retroactivity of Penal laws if favorable to the accused
3. Art. 45 Confiscation of instruments used in the crime
SUPPLETORY APPLICATION OF THE REVISED PENAL CODE
In Article 10, there is a reservation “provision of the Revised Penal Code may be applied
suppletorily to special laws”. You will only apply the provisions of the Revised Penal Code as a
supplement to the special law, or simply correlate the violated special law, if needed to avoid an
injustice. If no justice would result, do not give suppletorily application of the Revised Penal Code to
that of special law.
For example, a special law punishes a certain act as a crime. The special law is silent as to the civil
liability of one who violates the same. Here is a person who violated the special law and he was
prosecuted. His violation caused damage or injury to a private party. May the court pronounce that
he is civilly liable to the offended party, considering that the special law is silent on this point? Yes,
because Article 100 of the Revised Penal Code may be given suppletory application to prevent an
injustice from being done to the offended party. Article 100 states that every person criminally liable
for a felony is also civilly liable. That article shall be applied suppletory to avoid an injustice that
would be caused to the private offended party, if he would not be indemnified for the damages or
injuries sustained by him.
In People v. Rodriguez, it was held that the use of arms is an element of rebellion, so a rebel
cannot be further prosecuted for possession of firearms. A violation of a special law can never
absorb a crime punishable under the Revised Penal Code, because violations of the Revised Penal
Code are more serious than a violation of a special law. But a crime in the Revised Penal Code can
absorb a crime punishable by a special law if it is a necessary ingredient of the crime in the Revised
Penal Code
In the crime of sedition, the use of firearms is not an ingredient of the crime. Hence, two
prosecutions can be had: (1) sedition; and (2) illegal possession of firearms.
But do not think that when a crime is punished outside of the Revised Penal Code, it is already a
special law. For example, the crime of cattle-rustling is not a mala prohibitum but a modification of
the crime theft of large cattle. So Presidential Decree No. 533, punishing cattle-rustling, is not a
special law. It can absorb the crime of murder. If in the course of cattle rustling, murder was
committed, the offender cannot be prosecuted for murder. Murder would be a qualifying
circumstance in the crime of qualified cattle rustling. This was the ruling in People v. Martinada.
The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic
Act No. 7659, which adopted the scale of penalties in the Revised Penal Code, means that
mitigating and aggravating circumstances can now be considered in imposing penalties.
Presidential Decree No. 6425 does not expressly prohibit the suppletory application of the Revised
Penal Code. The stages of the commission of felonies will also apply since suppletory application is
now allowed.

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Circumstances affecting criminal liability

There are five circumstances affecting criminal liability:

(1) Justifying circumstances;

(2) Exempting circumstances;

(3) Mitigating circumstances;

(4) Aggravating circumstances; and

(5) Alternative circumstances.

There are two others which are found elsewhere in the provisions of the Revised Penal Code:

(1) Absolutory cause; and

(2) Extenuating circumstances.

In justifying and exempting circumstances, there is no criminal liability. When an accused invokes
them, he in effect admits the commission of a crime but tries to avoid the liability thereof. The
burden is upon him to establish beyond reasonable doubt the required conditions to justify or exempt
his acts from criminal liability. What is shifted is only the burden of evidence, not the burden of proof.
Justifying circumstances contemplate intentional acts and, hence, are incompatible with dolo.
Exempting circumstances may be invoked in culpable felonies.
Absolutory cause
The effect of this is to absolve the offender from criminal liability, although not from civil liability. It
has the same effect as an exempting circumstance, but you do not call it as such in order not to
confuse it with the circumstances under Article 12.
Article 20 provides that 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 of
accessories who profited themselves or assisting the offender to profit by the effects of the crime.
Then, Article 89 provides how criminal liability is extinguished:
Death of the convict as to the personal penalties, and as to pecuniary penalties, liability therefor is
extinguished if death occurs before final judgment;
Service of the sentence;
Amnesty;
Absolute pardon;
Prescription of the crime;
Prescription of the penalty; and
Marriage of the offended woman as provided in Article 344.

Under Article 247, a legally married person who kills or inflicts physical injuries upon his or her
spouse whom he surprised having sexual intercourse with his or her paramour or mistress in not
criminally liable.
Under Article 219, discovering secrets through seizure of correspondence of the ward by their
guardian is not penalized.
Under Article 332, in the case of theft, swindling and malicious mischief, there is no criminal liability
but only civil liability, when the offender and the offended party are related as spouse, ascendant,
descendant, brother and sister-in-law living together or where in case the widowed spouse and the

17
property involved is that of the deceased spouse, before such property had passed on to the
possession of third parties.
Under Article 344, in cases of seduction, abduction, acts of lasciviousness, and rape, the marriage of
the offended party shall extinguish the criminal action.
Absolutory cause has the effect of an exempting circumstance and they are predicated on lack of
voluntariness like instigation. Instigation is associated with criminal intent. Do not consider culpa in
connection with instigation. If the crime is culpable, do not talk of instigation. In instigation, the crime
is committed with dolo. It is confused with entrapment.
Entrapment is not an absolutory cause. Entrapment does not exempt the offender or mitigate his
criminal liability. But instigation absolves the offender from criminal liability because in instigation,
the offender simply acts as a tool of the law enforcers and, therefore, he is acting without criminal
intent because without the instigation, he would not have done the criminal act which he did upon
instigation of the law enforcers.
Difference between instigation and entrapment
In instigation, the criminal plan or design exists in the mind of the law enforcer with whom the
person instigated cooperated so it is said that the person instigated is acting only as a mere
instrument or tool of the law enforcer in the performance of his duties.
On the other hand, in entrapment, a criminal design is already in the mind of the person entrapped.
It did not emanate from the mind of the law enforcer entrapping him. Entrapment involves only ways
and means which are laid down or resorted to facilitate the apprehension of the culprit.
The element which makes instigation an absolutory cause is the lack of criminal intent as an element
of voluntariness.
If the instigator is a law enforcer, the person instigated cannot be criminally liable, because it is the
law enforcer who planted that criminal mind in him to commit the crime, without which he would not
have been a criminal. If the instigator is not a law enforcer, both will be criminally liable, you cannot
have a case of instigation. In instigation, the private citizen only cooperates with the law enforcer to
a point when the private citizen upon instigation of the law enforcer incriminates himself. It would be
contrary to public policy to prosecute a citizen who only cooperated with the law enforcer. The
private citizen believes that he is a law enforcer and that is why when the law enforcer tells him, he
believes that it is a civil duty to cooperate.
If the person instigated does not know that the person is instigating him is a law enforcer or he
knows him to be not a law enforcer, this is not a case of instigation. This is a case of inducement,
both will be criminally liable.
In entrapment, the person entrapped should not know that the person trying to entrap him was a law
enforcer. The idea is incompatible with each other because in entrapment, the person entrapped is
actually committing a crime. The officer who entrapped him only lays down ways and means to have
evidence of the commission of the crime, but even without those ways and means, the person
entrapped is actually engaged in a violation of the law.
Instigation absolves the person instigated from criminal liability. This is based on the rule that a
person cannot be a criminal if his mind is not criminal. On the other hand, entrapment is not an
absolutory cause. It is not even mitigating.
In case of somnambulism or one who acts while sleeping, the person involved is definitely acting
without freedom and without sufficient intelligence, because he is asleep. He is moving like a robot,
unaware of what he is doing. So the element of voluntariness which is necessary in dolo and culpa
is not present. Somnambulism is an absolutory cause. If element of voluntariness is absent, there is
no criminal liability, although there is civil liability, and if the circumstance is not among those
enumerated in Article 12, refer to the circumstance as an absolutory cause.
Mistake of fact is an absolutory cause. The offender is acting without criminal intent. So in mistake
of fact, it is necessary that had the facts been true as the accused believed them to be, this act is

18
justified. If not, there is criminal liability, because there is no mistake of fact anymore. The offender
must believe he is performing a lawful act.

Extenuating circumstances

The effect of this is to mitigate the criminal liability of the offender. In other words, this has the same
effect as mitigating circumstances, only you do not call it mitigating because this is not found in
Article 13.

Illustrations:
An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an
extenuating circumstance insofar as the unwed mother or the maternal grandparents is concerned,
but not insofar as the father of the child is concerned. Mother killing her new born child to conceal
her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or
mitigating the penalty, this is an extenuating circumstance.
The concealment of honor by mother in the crime of infanticide is an extenuating circumstance but
not in the case of parricide when the age of the victim is three days old and above.
In the crime of adultery on the part of a married woman abandoned by her husband, at the time she
was abandoned by her husband, is it necessary for her to seek the company of another man.
Abandonment by the husband does not justify the act of the woman. It only extenuates or reduces
criminal liability. When the effect of the circumstance is to lower the penalty there is an extenuating
circumstance.
A kleptomaniac is one who cannot resist the temptation of stealing things which appeal to his
desire. This is not exempting. One who is a kleptomaniac and who would steal objects of his desire
is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to
paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will
power without, however, depriving him of the consciousness of his act. So this is an extenuating
circumstance. The effect is to mitigate the criminal liability.
Distinctions between justifying circumstances and exempting circumstances
In justifying circumstances –
(1) The circumstance affects the act, not the actor;
(2) The act complained of is considered to have been done within the bounds of law;
hence, it is legitimate and lawful in the eyes of the law;
(3) Since the act is considered lawful, there is no crime, and because there is no crime,
there is no criminal;
(4) Since there is no crime or criminal, there is no criminal liability as well as civil liability.
In exempting circumstances –
(1) The circumstances affect the actor, not the act;
(2) The act complained of is actually wrongful, but the actor acted without voluntariness.
He is a mere tool or instrument of the crime;
(3) Since the act complained of is actually wrongful, there is a crime. But because the
actor acted without voluntariness, there is absence of dolo or culpa. There is no criminal;
(4) Since there is a crime committed but there is no criminal, there is civil liability for the
wrong done. But there is no criminal liability. However, in paragraphs 4 and 7 of Article 12, there is
neither criminal nor civil liability.
When you apply for justifying or exempting circumstances, it is confession and avoidance and
burden of proof shifts to the accused and he can no longer rely on weakness of prosecution’s
evidence.

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PROVIDE ANSWERS TO THE FOLLOWING :

1. Give a situation that would show the different stages of the commission of a crime. One
situation per stage.
2. Create a situation that would show commission of an impossible crime.
3. Crimes may be classified according to its gravity. Enumerate at least 10 crimes for each
category.

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