FUNDAMENTAL PRINCIPLES OF THE PHILIPPINE REVISED

PENAL CODE

CRIMINAL LAW is a branch of public law which defines crimes, treats of

their nature and provides for their punishment.

- A branch of public law that treats of acts or omissions, which are

primarily wrong against the State. Hence, criminal case is denominated
“People of the Philippines v. xxx”

Legal Basis of Punishment

The power to punish violators of criminal law comes within the police
power of the state. It is the injury inflicted to the public which a criminal
action seeks to redress, and not the injury to the individual.

* The objective of the punishment is two-fold: absolute and relative. The

absolute theory is to inflict punishment as a form of retributive justice. It is
to destroy wrong in its effort to annihilate right, to put an end to the criminal
activity of the offender.

On the other hand, the relative theory purports to prevent the

offender from further offending public right or to the right to repel an
imminent or actual aggression, exemplary or by way of example to others not
to follow the path taken by the offender and ultimately for reformation or to
place him under detention to teach him the obligations of a law-abiding
citizen.

PENAL LAWS are acts of the Legislature prohibiting certain acts or

omissions and establishing penalties for their violations (Lacson v. Executive
Secretary, G.R. No. 128096, January 20, 1999).

IMPORTANT TERMS TO NOTE:

A. Crime – Act or omission punishable by law.

Note: Crime is a generic term that embraces any violation of the
Revised Penal Code, Special Penal Laws, and Municipal or
City Ordinances.

B. Felony – Crime punishable under the Revised Penal Code committed

either intentionally or negligently.

C. Offense – Crime punishable under special laws, i.e: Violation of R.A. 9165
or the Comprehensive Dangerous Drugs Act of 2002.

D. Infractions – Violations of ordinances.

E. Malum in se (“evil in itself”) – A crime or an act that is inherently

immoral, such as murder, arson, or rape.

F. Malum prohibitum – (“prohibited evil”) – An act that is a crime merely

because it is prohibited by statute, although the act itself is not necessarily
immoral.

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CONSTITUTIONAL LIMITATIONS on the power of the Congress to enact
penal laws found in the Bill of Rights:

1. The law must be general in application and must clearly define the
acts and omissions punished as crimes (equal protection).
2. It must observe substantive and procedural due process.

Art. III, Sec. 1 of the Constitution: No person shall be deprived of

life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

3. It should not impose cruel and unusual punishment or excessive fines.

4. It should not operate as a bill of attainder.

A bill of attainder is a legislative act which inflicts punishment

without judicial trial. It offends against the due process clause and has
features of ex post facto law. It is an encroachment of judicial function by the
legislative. (People v. Ferrer, 48 SCRA 382)

5. It must not operate as an ex post facto law.

Provisions in the Revised Penal Code (RPC) complementing the ex post facto
rule:

a. Article 21: No felony shall be punishable by any penalty not

prescribed by law prior to its commission.

b. Article 22: Penal laws shall have a retroactive effect insofar as they
favor the offender who is not a habitual delinquent. Therefore, a law
which increases the penalty for an act or omission or prejudices the
right of the accused cannot be given retroactive effect (irretrospectivity
rule).

Examples of ex post facto law:

1. Makes an act or omission criminal which when committed was not

criminal.
2. Aggravates the seriousness of the crime than when it was committed.
3. Imposes a penalty that is higher than when the crime was committed.
4. Makes it easier for the prosecution to establish the guilt of the accused
than when the crime was committed.
5. Requires a lesser quantum of evidence than when the crime was
committed.
6. Alters, in relation to the offense or its consequences, the situation of a
person to his disadvantage.
7. Assumes to regulate civil rights and remedies only but in effect imposes a
penalty or deprivation of a right which when done was lawful.
8. Deprives a person accused of crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty.

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In the Philippines, there exist no crimes such as those known in the United
States and England as common law crimes. Our country adheres to the
principle of “nullum crimen, nulla poena sine lege,” that is, there is no crime
where there is no law punishing it. The Latin maxim of nullum crimen,
nulla poena sine lege is an indispensable corollary to a regime of liberty
enshrined in our Constitution. It is of the essence that while anti-social acts
should be penalized, there must be a clear definition of the punishable
offense as well as the penalty that may be imposed.

THEORIES IN CRIMINAL LAW

1. Classical Theory – Under the classical theory on which our penal code is
mainly based, the basis of criminal liability is human free will. Man is
essentially a moral creature with an absolute free will to choose between
good and evil. When he commits a felonious or criminal act, the act is
presumed to have been done voluntarily, i.e., with freedom, intelligence
and intent. Man, therefore, should be adjudged or held accountable for
wrongful acts so long as free will appears unimpaired. (People v. Genosa, G.
R. No. 135981, Sept. 29, 2000).

Note: The Revised Penal Code belongs to the classical school of thought
(Villareal v. People, G.R. No. 151258, February 1. 2012).

2. Positivist Theory – The positivist theory states that the basis for criminal
liability is the sum total of the social and economic phenomena to which the
offense is expressed. The purpose of penalties is to secure justice. The
penalties imposed must not only be retributive (punishment for doing
something wrong) but must also be reformative, to give the convict an
opportunity to live a new life and rejoin society as a productive and civic-
spirited member of the community.

The Revised Penal Code is based on the classical school of thought. (People
V. Hon. Sandiganbayan, G. R. Nos 115439-41, July 16, 1997) However, there
are some aspects of the Code which are based on positivist theory.

3. Eclectic or Mixed Theory – A combination of the good features of both

the classical and the positivist theories. The classical theory should be
applied to grievous or heinous crimes, whereas, the positivist is made to
apply on economic and social crimes (BOADO, supra at 14).

4. Utilitarian or Protective Theory – The primary function of punishment

is to protect society from potential and actual wrongdoers (Vergara v. People,
G.R.No.160328, February 4, 2005).

CRIMES MALA IN SE vs. CRIMES MALA PROHIBITA

Crimes mala in se are generally punished by the Revised Penal Code, while
crimes mala prohibita are those crimes generally punished by Special Penal
Laws. In crimes mala in se, intent is essential, while in crimes mala
prohibita, intent is not essential as long as the crime or crimes is/are
committed voluntarily.

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Mala in se and mala prohibita are distinguished as follows:

Crimes mala in se Crimes mala prohibita

1. Inherently wrong or immoral 1. Not inherently wrong (they are
only wrong because they are
prohibited by law)
2. Good faith or lack of criminal 2. Good faith is not a defense
intent is a defense
3. Modifying circumstances can be 3. Such circumstances will not be
appreciated in mala in se appreciated in mala prohibita, unless
the special law that punishes them
adopts the technical name or
technical nomenclature of the
penalties of the Revised Penal Code.
4. Crimes mala in se are punishable 4. Crimes mala prohibita are
under the Revised Penal Code; or punishable under special laws.
special laws where the acts
punishable therein are wrong in
nature

CONSTRUCTION OF PENAL LAWS

It is a basic rule in statutory construction of criminal laws that in case of

doubt, it should be resolved in favor of the accused.

1. Pro reo doctrine – In dubio pro reo means “when in doubt, for the
accused.” Intimately related to the in dubio pro reo principle is the rule of
lenity. The rule applies when the court is faced with two possible
interpretations of a penal statute – one that is prejudicial to the accused and
another that is favorable to him. The rule calls for the adoption of an
interpretation which is more lenient to the accused. (Intestate Estate of
Gonzales v. People, G.R. No. 181409, February 11, 2010)

2. Spanish text – The Revised Penal Code is patterned after the Spanish
Penal Code. The Revised Penal Code was written in Spanish when it was
submitted to the Legislature for approval. The English text of the Revised
Penal Code is just a translation of the Spanish text. What was approved by
the Philippine Legislature is the Spanish text of the Revised Penal Code, the
Spanish text of the said Code is controlling as this was the text approved by
the Legislature. In addition, Spanish jurisprudence may also aid the court in
interpreting the provisions of the Revised Penal Code.

3. Title and body of penal provision – The titles to the Articles of the
Revised Penal Code were not intended by the Legislature to be used as
anything more than catchwords conveniently suggesting in a general way the
subject matter of each article. Being nothing more than a convenient index
to the contents of the articles of the Code, they cannot in any event have the
effect of modifying the words of the text.

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Legal Maxims

1. Nullum crimen nulla poena sine lege – There is no crime when there is
no law that punishes it.
2. Actus non facit reum, nisi mens sit rea - The act cannot be criminal
unless the mind is criminal.
3. Actus me invito factus non est meus actus – An act done by me
against my will is not my act.
4. El que es causa de la causa es causa del mal causado – He who is
the cause of the cause is the cause of the evil caused.

Equipoise Rule

If the inculpatory facts and circumstances are capable of two or more

explanations, one of which is consistent with the innocence of the accused
and the other consistent with his guilt, then the evidence does not fulfil the
test of moral certainty, and does not suffice to produce a conviction, the
same must be denied

SCOPE OF APPLICATION AND CHARACTERISTICS OF CRIMINAL LAW

There are three characteristics of criminal law or cardinal features of

principles of criminal law, to wit: 1. Generality; 2. Territoriality; and 3.
Prospectivity.

1. GENERALITY

Under Article 14 of the Civil Code, penal laws shall be obligatory upon all
who live or sojourn in the Philippine territory. This is the generality
principle.

a. Foreigner – The foreign characteristic of an offender does not exclude him

from operation of penal laws. An alien is not immune from criminal
prosecution for violation of the Trademark Law committed in the Philippines.
Trademark law is obligatory to a foreigner, who is living or sojourning in the
Philippines.

b. Military offender – Penal laws are obligatory to military men residing or

sojourning in the Philippines. The courts have jurisdiction to try military
offenders charged with violation of the penal laws. Its jurisdiction is
unaffected by the military or other special character of the accused.
However, service-connected crimes shall be tried by the court-martial as
mandated by R.A. No.7055. (Navales v. Abaya, G. R. No. 162318, October 25,
2004)

c. Territoriality and generality – The concept of generality is different from

territoriality. The applicability of territoriality principle or generality principle
will depend on the issue raised by the accused in invoking criminal
immunity. If the accused invokes immunity because of the unique
characteristic of his person (example: he is a foreigner, military,
ambassador, legislator, President), the applicable principle is generality. If
the accused invokes immunity due to the unique characteristic of the
place where the crime was committed (example: the place of commission

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is a foreign vessel, embassy or high seas and others), the applicable principle
is territoriality.

Exceptions:

Under Article 14 of the Civil Code, the generality principle is subject to

principles of public international law and treaty stipulation. However, laws of
preferential application and case law are also recognized exceptions to the
principle of generality.

a. Principles of International Law – Penal laws are not obligatory to

persons entitled to criminal immunity because of the Principles of
International Law. Under the present rule, consular officers are immune
from criminal prosecution of acts performed in the exercise of function.
However, immunity does not cover slander or reckless imprudence resulting
in homicide for not being function-related.

b. Laws of preferential application – Article 349 of the Revised Penal Code

on bigamy is not obligatory to Muslims married in accordance with the
Muslim Laws because of P.D. No. 1083 (The Code of Muslim Personal Laws).
Under P.D. No. 1083, penal laws relative to the crime of bigamy shall not
apply to a person married under Muslim Law where the requirements set
therein are met. P.D. No. 1083 is a law of preferential application. However,
if the marriage is not solemnized in accordance with Muslim Law, the
accused cannot claim criminal exemption from liability for bigamy on the
basis of his religious belief as a Muslim because of the generality principle.

c. Case law – Penal laws are not obligatory to the President because of
presidential immunity recognized by case law. The President of the
Philippines is entitled to immunity from suit subject to the following
conditions: 1.) the immunity has been asserted; 2.) during the period of his
incumbency and tenure; and 3.) the act constituting the crime is committed
in the performance of his duties. Presidential immunity will assure the
exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that demands
undivided attention.

2. TERRITORIALITY

(Jurisdiction or the place where applicable) the law is applicable to all crimes
committed within the limits of Philippine territory.

Basis – Article 2, Revised Penal Code (RPC) (The provisions of the RPC shall
be enforced within the Philippine territory.)

a. Embassy – The ground occupied by US embassy is not in fact the territory

of the USA to which the premises belong through possession or ownership. A
person who committed a crime within the premises of an embassy will be
prosecuted under the law of the Philippines because of the principle of
territoriality. However, jurisdiction of the Philippines over the embassy is
limited or restricted by “the principles of inviolability of diplomatic premises,”
which is a generally principle of International Law. A warrant of arrest

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cannot be served inside US embassy without waiver from US government of
its right under the principle of inviolability.

b. Territorial water – Territorial waters refer to all waters seaward to a line

12 nautical miles distant from the archipelagic baseline over which the
Philippines exercises jurisdiction. These waters are located between the
national or archipelagic waters and the territorial lands of the Philippines,
and the high sea. Territorial waters do not include national waters, which
are within the baseline drawn in accordance with the archipelago doctrine.

There are three (3) fundamental rules in International Law regarding

crimes committed aboard a foreign merchant vessel (not military vessel), if
the same is within the 12-mile territorial water of the Philippines (not
internal or archipelagic water or high seas), to wit:

I. French Rule – Under the French rule (flag State principle), crimes
committed aboard a foreign merchant vessel within the territorial water of
the Philippines are subject to the jurisdiction of the flag state unless their
commission affects the peace and security of our country.

II. English Rule – Under the English rule (Coastal State principle), crimes
committed aboard a foreign merchant vessel within the territorial water of
the Philippines (coastal State) are subject to the jurisdiction of the
Philippines unless their commission does not affect the peace and security of
our country, or has no pernicious (harmful) effect therein.

III. Convention of the Law of the Sea – The flag state of foreign merchant
vessel passing through the territorial sea has jurisdiction over crimes
committed therein. However, the Philippines (coastal state) can exercise
jurisdiction to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage
in the following cases: 1.) if the consequences of the crime extend to the
Philippines; 2.) if the crime is of a kind to disturb the peace of the
Philippines or the good order of the territorial sea; 3.) if the assistance of the
local authorities has been requested by the master of the ship or by a
diplomatic agent or consular officer of the flag State; or 4.) is such measures
are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.

Under the old rule, the controlling principle was the English rule. But since
the Philippines is a signatory to the Convention of the Law of the Sea, it
must be considered in determining jurisdiction over crime committed aboard
a foreign ship within the territorial water of the Philippines.

Example: Murder is committed on board a foreign merchant vessel a few

moments after it left the port of Manila, or in the breakwater of Manila Bay.
The vessel is within the territorial water of the Philippines when the crime
was committed. Murder committed by accused disturbs the peace of the
Philippines; hence, the actor could be prosecuted in Manila.

c. Spratly Islands and regime of islands – Spratly Islands are chain of

islands in the South China Sea, the ownership of which is being disputed by
the Philippines, Taiwan, Malaysia, Vietnam, Brunei and China. The People’s
Republic of China considers the entire spratly Islands as part of China, and

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claims that it has historical naval presence therein. Thus, the Philippines
had no jurisdiction over a crime committed by a Filipino in the disputed
Spratly Islands.

However, the Philippines has jurisdiction over crime committed in Kalayaan

Islands, which are the western part of Spratly Islands.

d. Foreign country – Under the principle of territoriality, the Philippines has

jurisdiction over crimes committed inside its territory except as provided in
the treaties and laws of preferential application.

Thus, the court has jurisdiction over concubinage involving illicit

relationship maintained in the Philippines; but it has no jurisdiction over
bigamy involving subsequent marriage contracted in Hong Kong, Singapore,
or New York.

EXTRA-TERRITORIALITY PRINCIPLE

Article 2 of the Revised Penal Code provides two principles, to wit:

territoriality principle and extra-territoriality principle. Both principles are
subject to treaties and laws of preferential application. Under the principle of
extra-territoriality, the Philippines has jurisdiction over crimes committed
outside its territory as provided in Article 2, paragraphs 1 to 5.

Flag State rule – Under the flag state rule, the court has jurisdiction
over hijacking of PAL airplane in an American territory since it is registered
in the Philippines; but it has no jurisdiction over murder committed in a
vessel registered in Panama while on high seas although it is owned by a
Filipino. (US v. Fowler, G. R. No. 496, December 31, 1902)

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 FELONIES AND CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABILITY

Art 3. Definitions. -- Acts and omissions punishable by law are felonies

(delitos).

Felonies are committed not only by means of deceit (dolo) but

also by means of fault (culpa).

There is deceit when the act is performed with deliberate intent;

and there is fault when the wrongful results from imprudence,
negligence, lack of foresight, or lack of skill.

· Acts – An overt or external act.

Any bodily movement tending to produce some effect in
the external world.

· Omission – Failure to perform a duty required by law.


To be considered as a felony there must be an act or omission; a
mere imagination no matter how wrong does not amount to a felony.
An act refers to any kind of body movement that produces change in
the outside world.
Elements of Felonies (General):

1. There must be an act or omission, i.e. there must be external acts;

2. The act or omission must be punishable by the RPC; and
3. The act is performed or omission is incurred by means of dolo (malice) or
culpa (fault)

* In felony by omission however, there must be a law requiring the doing or

the performance of an act. Thus, mere passive presence at the scene of the
crime, mere silence and failure to give the alarm, without evidence of
agreement or conspiracy is not punishable.

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

· Offense- Crimes punished under special law
· Misdemeanor- Minor infraction of law, such as violation of ordinance
· Crime - Acts and omissions punishable by any law

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· HOW FELONIES ARE COMMITTED:
1. By means of deceit (dolo) - There is deceit when the act is performed
with deliberate intent.

Requisites:
a. freedom
b. intelligence
c. intent

Examples: Murder, Treason, and Robbery.

2. By means of fault (culpa) - There is fault when the wrongful act results
from imprudence, negligence, lack of foresight, or lack of skill.

IMPRUDENCE – Indicates a deficiency of action; failure in precaution or

failure to take the necessary precaution once the danger of peril becomes
foreseen (Caminos v. People, G.R. No. 147437, May 8, 2009), usually involves
lack of skill: e.g. A was driving a truck along Quezon Avenue. He hit B
because it was raining. In such case, there was reckless imprudence.

If death resulted from an act committed with lack of foresight, carelessness,

or negligence, the act must be qualified as reckless or simple negligence or
imprudence resulting in homicide (Villareal v. People, G.R. No. 151258,
February 1, 2012).

NEGLIGENCE – Indicates a deficiency of perception; failure to pay proper

attention and to use diligence in foreseeing the injury or damage impending
to be caused; usually involves lack of foresight.

It is the failure to observe for the protection of the interests of another

person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury
(Dela Cruz v. Octaviano, G.R. No. 219649, July 26, 2017).

Note: Negligence and conspiracy cannot co-exist because crimes committed

through negligence presuppose lack of intent whereas conspiracy denotes a
meeting of minds of co-conspirator, precisely for the purpose or intention of
committing a crime.

Rationale for punishing negligence: A man must use his common sense,
and exercise due reflection in all his acts; it is his duty to be cautious,
careful, and prudent, if not from instinct, then thru fear of incurring
punishment (U.S. v. Maleza, G.R. No. L-5036, November 17, 1909).

Requisites:
1. Freedom
2. Intelligence
3. Imprudence, negligence, lack of skill or foresight
4. Lack of intent

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Classifications of Crimes:

Intentional Felonies v.s. Culpable Felonies

Act or omission is malicious Act or omission is not malicious
Offender has the intention to cause Offender has no intention to cause
an injury to another Injury

Act performed or omission incurred Act or omission results from

with deliberate intent imprudence, negligence, lack or
foresight or lack of skill

VOLUNTARINESS comprehends the concurrence of freedom of action,

intelligence and the fact that the act was intentional. In culpable felonies,
there is no voluntariness if either freedom, intelligence or imprudence,
negligence, lack of foresight or lack of skill is lacking. Without voluntariness,
there can be no dolo or culpa, hence, there is no felony.

CRIMINAL INTENT
> Criminal Intent is not deceit. Do not use deceit in translating dolo, because
the nearest translation is deliberate intent.

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.

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.

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.

Distinction between intent and motive

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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.

* Criminal intent is on the basis of the act, not on the basis if what the
offender says.

* Look into motive to determine the proper crime which can be imputed to the
accused

· 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; and
3. Mistake must be without fault of carelessness.

* 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.

* It exists when a person who in the exercise of due diligence, acts under the
influence of an erroneous appreciation of facts, which if true would relieve
him from criminal responsibility.

* It is an omission or commission performed by the individual which is the

result of a misconception or misapprehension of events or facts before him
which in law is considered voluntary. The accused performed acts or
omissions which would be lawful, had it been true as he perceived them to
be. To be an absolutory cause, the mistake of facts as committed must
originate from legitimate sentiment or intention.

The further requirement in order to escape criminal responsibility, must be,

that the mistake of facts was done without negligence. The good faith of the
offender maybe derived from the sequence of events, before, during and after
the alleged mistake of facts. If at anytime there is a showing that the actor
was at fault for not exercising ordinary prudence, then he will be liable
criminally, not however for dolo, but for culpa.

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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.

MENS REA

The technical term mens rea is sometimes referred to in common parlance

as the gravamen of the offense. To a layman, that is what you call the
“bullseye” of the crime. This term is used synonymously with criminal or
deliberate intent, but that is not exactly correct.
* Mens rea of the crime depends upon the elements of the crime. You can only
detect the mens rea of a crime by knowing the particular crime committed.
Without reference to a particular crime, this term is meaningless. For
example, in theft, the mens rea is the taking of the property of another with
intent to gain. In falsification, the mens rea is the effecting of the forgery
with intent to pervert the truth. It is not merely writing something that is not
true; the intent to pervert the truth must follow the performance of the act.

* In criminal law, we sometimes have to consider the crime on the basis of

intent. For example, attempted or frustrated homicide is distinguished from
physical injuries only by the intent to kill. Attempted rape is distinguished
from acts of lasciviousness by the intent to have sexual intercourse. In
robbery, the mens rea is the taking of the property of another coupled with
the employment of intimidation or violence upon persons or things; remove
the employment of force or intimidation and it is not robbery anymore.

REAL CONCEPT OF CULPA

Under Article 3, it is clear that culpa is just a modality by which a felony may
be committed. A felony may be committed or incurred through dolo or culpa.
Culpa is just a means by which a felony may result.

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.

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

1. By any person committing a felony, although the wrongful act done

be different from that which he intended.

Rationale: El que es causa de la causa es causa del mal causado – He who is

the cause of the cause is the cause of the evil caused (People v. Adriano, G.R.
No. 205228, July 15, 2015).

In the first paragraph, two elements must be present:

1. A felony committed; and
2. The felony committed resulted in the commission of another felony.

* The requirement however, must be, that the resulting other felony or
felonies must be direct, material and logical consequence of the felony
committed even if the same is not intended or entirely different from what
was in the mind of the offender.

· 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.

 It is that cause, which, in natural and continuous sequence,

unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred (Sps. Abrogar v.
Cosmos Bottling Company, Inc., G.R. No. 164749, March 15, 2017).

Requisites:
a. the direct, natural, and logical cause
b. produces the injury or damage
c. unbroken by any sufficient intervening cause
d. without which the result would not have occurred

Efficient Intervening Cause

To be considered efficient, must be “one not produced by a wrongful

act or omission, but independent of it, and adequate to bring the injurious
results. Any cause intervening between the first wrongful cause and the final
injury which might reasonably have been foreseen or anticipated by the
original wrongdoer is not such an efficient intervening cause as will relieve
the original wrong of its character as the proximate cause of the final injury
(Sps. Abrogar v. Cosmos Bottling Company, Inc., G.R. No. 164749, March 15,
2017).

· Proximate Cause is negated by:

a. Active force, distinct act, or fact absolutely foreign from the

felonious act of the accused, which serves as a sufficient intervening cause.
b. Resulting injury or damage is due to the intentional act of the
victim.

· Requisite for Presumption that the blow was cause of the death – Where
there has been an injury inflicted sufficient to produce death followed by the

14 | P a g e
demise of the person, the presumption arises that the injury was the cause
of the death. Provided:

a. victim was in normal health

b. death ensued within a reasonable time

* Even if other causes cooperated in producing the fatal result as long as the
wound inflicted is dangerous, that is, calculated to destroy or endanger life,
the actor is liable. This is true even though the immediate cause of death
was erroneous or unskillful medical treatment, refusal of the victim to
submit to surgical operation, or that the deceased was suffering from
tuberculosis, heart disease or other internal malady or that the resulting
injury was aggravated by infection.

* There must however be no efficient intervening cause .

* 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.

PROXIMATE CAUSE is that cause which sets into motion other causes and
which unbroken by any efficient supervening cause produces a felony
without which such felony could not have resulted. As a general rule, the
offender is criminally liable for all the consequences of his felonious act,
although not intended, if the felonious act is the proximate cause of the
felony or resulting felony. A proximate cause isnot necessarily the immediate
cause. This may be a cause which is far and remote from the consequence
which sets into motion other causes which resulted in the felony.

* In criminal law, as long as the act of the accused contributed to the death of
the victim, even if the victim is about to die, he will still be liable for the
felonious act of putting to death that 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.

* 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.

· CAUSES WHICH PRODUCE A DIFFERENT RESULT:

a. MISTAKE IN IDENTITY OF THE VICTIM – injuring one person who is

mistaken for another 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?

15 | P a g e
* 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.

* In any event, the offender is prosecuted for the crime committed not for the
crime intended.

b. 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.

* If the actor intended the commission of several felonies with a single act, it
is not called aberratio ictus or mistake of blow, simply because there was no
mistake.

* Distinguish this from error in personae, where the victim actually received
the blow, but he was mistaken for another who was not at the scene of the
crime. The distinction is important because the legal effects are not the
same.

* In aberratio ictus, the offender delivers the blow upon the intended victim,
but because of poor aim the blow landed on somebody else. You have a
complex crime, unless the resulting consequence is not a grave or less grave
felony. You have a single act as against the intended victim and also giving
rise to another felony as against the actual victim. If the resulting physical
injuries were only slight, then you cannot complex. In other words, 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.

c. 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.

In PRAETER INTENTIONEM, it is mitigating only if there is a notable or

notorious disparity between the means employed and the resulting felony. In
criminal law, intent of the offender is determined on the basis employed by

16 | P a g e
him and the manner in which he committed the crime. Intention of the
offender is not what is in his mind; it is disclosed in the manner in which he
committed the crime.

*In praeter intentionem, it is essential that there is a notable disparity

between the means employed or the act of the offender and the felony which
resulted. This means that the resulting felony cannot be foreseen from the
acts of the offender. If the resulting felony can be foreseen or anticipated from
the means employed, the circumstance of praeter intentionem does not
apply.

* Intent to kill is only relevant when the victim did not die. This is so because
the purpose of intent to kill is to differentiate the crime of physical injuries
from the crime of attempted homicide or attempted murder or frustrated
homicide or frustrated murder. But once the victim is dead, you do not talk of
intent to kill anymore. The best evidence of intent to kill is the fact that
victim was killed.

· In all these instances the offender can still be held criminally liable, since he
is motivated bycriminal intent.

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:
a. Act would have been an offense against persons or property
b. Act is not an actual violation of another provision of the Code or of a
special penal law
c. There was criminal intent
d. Accomplishment was inherently impossible; or inadequate or ineffectual
means were employed.

· Notes:
* 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.

* The law intends to punish the criminal intent.

* There is no attempted or frustrated impossible crime.

· Felonies against persons: parricide, murder, homicide, infanticide,

physical injuries, RAPE 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.

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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.

Legal impossibility occurs where the intended act, even if completed,

would not amount into a crime.

Factual impossibility occurs when an extraneous circumstances is

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

* Under Art. 4, par. 2, the law does not make any distinction between factual
or physical impossibility and legal impossibility. (People vs. Intod)

INTOD ET. AL. v CA

(215 SCRA 52)
G.R. No. 103119

Intod fired at Palangpangan's room, although in reality, the latter was not
present in his room; thus, Intod failed to kill him. The factual situation in
the case at bar presents an inherent impossibility of accomplishing the
crime. Under Article 4, paragraph 2 of the Revised Penal Code, such is
sufficient to make the act an impossible crime.

Legal impossibility occurs where the intended acts even if completed, would
not amount to a crime.

· 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. The reason is an
offender is punished for an impossible crime just to teach him a lesson
because of his criminal perversity. Although objectively, no crime is
committed, but subjectively, he is a criminal. That purpose of the law will
also be served if he is prosecuted for some other crime constituted by his
acts which are also punishable under the Revised Penal Code.

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* By its very nature, an impossible crime is a formal crime. It is either
consummated or not committed at all. There is therefore no attempted or
frustrated impossible crime. At this stage, it would be best to distinguish
impossible crime from attempted or frustrated felony. The evil intent is
attempted or frustrated felony is possible of accomplishment, while in
impossible crime, it cannot be accomplished because of its inherent
impossibility. In attempted or frustrated felony, what prevented its
accomplishment is the intervention of a certain cause or accident
independent of the will of the perpetrator or offender.

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

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

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

NO CRIME UNLESS THERE IS A LAW PUNISHING IT

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.

Article 5 covers two situations:

(1) The court cannot convict the accused because the acts do not constitute
a crime. The proper judgment is acquittal, but the court is mandated to
report to the Chief Executive that said act be made subject of penal
legislation and why.

(2) Where the court finds the penalty prescribed for the crime too harsh
considering the conditions surrounding the commission of he crime, the
judge should impose the law (Dura lex sed lex). The most that he could do is
to recommend to the Chief Executive to grant executive clemency.

· 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.

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

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

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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
a. Preparatory Acts – acts tending toward the crime
b. Acts of Execution – acts directly connected the crime
* Mere intention is therefore, not punishable. For as long as there is no
physical form of the internal acts, the same is outside the inquiry of criminal
law.

STAGES OF THE COMMISSION OF A CRIME

Attempted Frustrated Consummated

 Overt acts of All acts of execution are All the acts of execution
execution are started Present are present

Not all acts of

execution are present Crime sought to be The result sought is
committed is not achieved achieved
Due to reasons other
than the spontaneous Due to intervening causes
desistance of the independent of the will of the
perpetrator perpetrator

* There are three stages in the commission of felonies or crimes committed

by means of dolo. Again, they do not refer to felonies committed by means of
culpa. It is essentially incompatible with the elements of negligence as
another means to commit felony.

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

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done by him already resulted to a felony, that offender will still be criminally
liable for the felony brought about his act. What is negated is only the
attempted stage, but there may be other felony constituting his act.

* The desistance referred to under Article 6 has reference to the crime

intended to be committed. It has no reference to the crime actually
committed by the offender before the desistance.

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.

MANNER OF COMMITTING A CRIME

For example, let us take the crime of bribery. Can the crime of frustrated
bribery be committed? No. (Incidentally, the common concept of bribery is
that it is the act of one who corrupts a public officer. Actually, bribery is the
crime of the receiver not the giver. The crime of the giver is corruption of public
official. Bribery is the crime of the public officer who in consideration of an act
having to do with his official duties would receive something, or accept any
promise or present in consideration thereof.)

The confusion arises from the fact that this crime requires two to commit -- the
giver and the receiver. The law called the crime of the giver as corruption of
public official and the receiver as bribery. Giving the idea that these are
independent crimes, but actually, they cannot arise without the other.
Hence, if only one side of the crime is present, only corruption, you cannot
have a consummated corruption without the corresponding consummated
bribery. There cannot be a consummated bribery without the corresponding
consummated corruption. If you have bribery only, it is only possible in the
attempted stage. If you have a corruption only, it is possible only in the
attempted stage. A corruptor gives money to a public officer for
the latter not to prosecute him. The public officer received the money but
just the same, arrested him. He received the money to have evidence of
corruption. Do not think that because the corruptor has already delivered
the money, he has already performed all the acts of execution, and,
therefore, the corruption is already beyond the attempted stage. That
thinking does away with the concept of the crime that it requires two to
commit. The manner of committing the crime requires the meeting of the minds
between the giver and the receiver.

When the giver delivers the money to the supposed receiver, but there is no
meeting of the minds, the only act done by the giver is an attempt. It is not
possible for him to perform all the acts of execution because in the first
place, the receiver has no intention of being corrupted.

Similarly, when a public officer demands a consideration by official duty, the

corruptor turns down the demand, there is no bribery.

If the one to whom the demand was made pretended to give, but he had
reported the matter to higher authorities, the money was marked and this
was delivered to the public officer. If the public officer was arrested, do not
think that because the public officer already had the money in his

21 | P a g e
possession, the crime is already frustrated bribery, it is only attempted
bribery. This is because the supposed corruptor has no intention to corrupt.
In short, there is no meeting of the minds. On the other hand, if there is a
meeting of the minds, there is consummated bribery or consummated
corruption. This leaves out the frustrated stage because of the manner of
committing the crime.

But indirect bribery is always consummated. This is because the manner of

consummating the crime does not admit of attempt or frustration.

You will notice that under the Revised Penal Code, when it takes two to
commit the crime, there could hardly be a frustrated stage. For instance, the
crime of adultery. There is no frustrated adultery. Only attempted or
consummated. This is because it requires the link of two participants. If that
link is there, the crime is consummated; if such link is absent, there is only
an attempted adultery. There is no middle ground when the link is there and
when the link is absent.

There are instances where an intended felony could already result from the
acts of execution already done. Because of this, there are felonies where the
offender can only be determined to have performed all the acts of execution
when the resulting felony is already accomplished. Without the resulting
felony, there is no way of determining whether the offender has already
performed all the acts or not. It is in such felonies that the frustrated stage
does not exist because without the felony being accomplished, there is no
way of stating that the offender has already performed all the acts of
execution. An example of this is the crime of rape. The essence of the crime
is carnal knowledge. No matter what the offender may do to accomplish a
penetration, if there was no penetration yet, it cannot be said that the
offender has performed all the acts of execution. We can only say that the
offender in rape has performed all the acts of execution when he has effected
a penetration. Once there is penetration already, no matter how slight, the
offense is consummated. For this reason, rape admits only of the attempted
and consummated stages, no frustrated stage. This was the ruling in the
case of People v. Orita.

In rape, it requires the connection of the offender and the offended party. No
penetration at all, there is only an attempted stage. Slightest penetration or
slightest connection, consummated. You will notice this from the nature of
the crime requiring two participants.

This is also true in the crime of arson. It does not admit of the frustrated
stage. In arson, the moment any particle of the premises intended to be
burned is blackened, that is already an indication that the premises have
begun to burn. It does not require that the entire premises be burned to
consummate arson. Because of that, the frustrated stage of arson has been
eased out. The reasoning is that one cannot say that the offender, in the
crime of arson, has already performed all the acts of execution which could
produce the destruction of the premises through the use of fire, unless a
part of the premises has begun to burn. If it has not begun to burn, that
means that the offender has not yet performed all the acts of execution. On the
other hand, the moment it begins to burn, the crime is consummated. Actually,
thefrustrated stage is already standing on the consummated stage except

22 | P a g e
that the outcome did not result. As far as the stage is concerned, the
frustrated stage overlaps the consummated stage.

Because of this reasoning by the Court of Appeals in People v. Garcia, the

Supreme Court followed the analysis that one cannot say that the offender in
the crime of arson has already performed all the acts of execution which
would produce the arson as a consequence, unless and until a part of the
premises had begun to burn.

BUT In US v. Valdez, the offender had tried to burn the premises by

gathering jute sacks laying these inside the room. He lighted these, and as
soon as the jute sacks began to burn, he ran away. The occupants of the
room put out the fire. The court held that what was committed was
frustrated arson.

This case was much the way before the decision in the case of People v.
Garcia was handed down and the Court of Appeals ruled that there is no
frustrated arson. But even then, the analysis in the case of US v. Valdez is
correct. This is because, in determining whether the felony is attempted,
frustrated or consummated, the court does not only consider the definition
under Article 6 of the Revised Penal Code, or the stages of execution of the
felony. When the offender has already passed the subjective stage of the
felony, it is beyond the attempted stage. It is already on the consummated or
frustrated stage depending on whether a felony resulted. If the felony did not
result, frustrated.

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.

The trouble is that, in the jurisprudence recognizing the objective phase and
the subjective phase, the Supreme Court considered not only the acts of the
offender, but also his belief. That 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. This was applied in the case of US v.
Valdez, where the offender, having already put kerosene on the jute sacks,
lighted the same; he had no reason not to believe that the fire would spread,
so he ran away. That act demonstrated that in his mind, he believed that he
has performed all the acts of execution and that it is only a matter of time
that the premises will burn. The fact that the occupant of the other room
came out and put out the fire is a cause independent of the will of the
perpetrator.

The ruling in the case of US v. Valdez is still correct. But in the case of People
v. Garcia, the situation is different. Here, the offender who put the torch over

23 | P a g e
the house of the offended party, the house being a nipa hut, the torch which
was lighted could easily burn the roof of the nipa hut. But the torch burned
out.

In that case, you cannot say that the offender believed that he had performed
all the acts of execution. There was not even a single burn of any instrument
or agency of the crime.

The analysis made by the Court of Appeals is still correct: that they could not
demonstrate a situation where the offender has performed all the acts of
execution to bring about the crime of arson and the situation where he has not
yet performed all the acts of execution. 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 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. There are also certain crimes that
do not admit of the attempted or frustrated stage, like physical injuries. One of
the known commentators in criminal law has advanced the view that the
crime of physical injuries can be committed in the attempted as well as the
frustrated stage. He explained that by going through the definition of an
attempted and a frustrated felony under Article 6, if a person who was about
to give a fist blow to another raises his arms, but before he could throw the
blow, somebody holds that arm, there would be attempted physical injuries.
The reason for this is because the offender was not able to perform all the
acts of execution to bring about physical injuries.

On the other hand, he also stated that the crime of physical injuries may be
committed in the frustrated stage when the offender was able to throw the
blow but somehow, the offended party was able to sidestep away from the
blow. He reasoned out that the crime would be frustrated because the
offender was able to perform all the acts of execution which would bring
about the felony were it not for a cause independent of the will of the
perpetrator.

The explanation is academic. You will notice that under the Revised Penal
Code, the crime of physical injuries is penalized on the basis of the gravity of
the injuries. Actually, there is no simple crime of physical injuries. You have
to categorize because there are specific articles that apply whether the
physical injuries are serious, less serious or slight. If you say physical
injuries, you do not know which article to apply. This being so, you could not
punish the attempted or frustrated stage because you do not know what crime
of physical injuries was committed.

STAGES OF EXECUTION

PEOPLE v LAMAHANG
(91 Phil 703)

24 | P a g e
The accused was caught in the act of making an opening with an iron bar on
the wall of a store, and succeeded in breaking one board and in unfastening
another from the wall. The crime committed was not attempted robbery but
only attempted trespass to dwelling, since based on the facts established; his
intention was to enter by means of force into the said store against the will of
its owner.

PEOPLE v PANCHO
(416 SCRA 506)
November 27, 2003
G.R. 136592-93

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape directly by
overt acts, but does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. There is no attempted rape in this case
because the accused just dragged the victim and held her feet, which are not
indicative of an intent or attempt to rape the victim.

PEOPLE v ORANDE
(415 SCRA 699)
November 12, 2003
G.R. No. 141724

The trial court convicted the accused of frustrated rape due to the fact that
the latter did not succeed in inserting his penis in the victim’s vagina. There
is no such crime as frustrated rape. Instead, the accused is guilty of
consummated rape since perfect penetration is not essential for the
consummation of rape.

VALENZUELA v PEOPLE
(525 SCRA 306)

The accused argued that he should only be convicted of frustrated theft for
taking cartons of detergent from the supermarket since he was immediately
apprehended by the security guard. Thus, was not able to freely dispose of
the said stolen articles. Theft cannot have a frustrated stage and the accused
is guilty of consummated theft since he has obtained possession over the
stolen item and the presumed inability of the offender to freely dispose of the
stolen property does not negate the fact that the owners have already been
deprived of their right to possession upon the completion of the taking.
Unlawful taking is deemed complete from the moment the offender gains
possession of the thing. The ability of the offender to freely dispose of the
property stolen is not a constitutive element of the crime of theft.

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

punishable only when they have been consummated with the exception
of those committed against persons or property.

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A LIGHT FELONY is a violation of a penal law which is punished by a
penalty of imprisonment of not more than thirty days or arresto menor or a
fine of not more than P40,000.00 or both, upon the discretion of the court.

· Examples of light felonies: slight physical injuries; theft; alteration of

boundary marks; alarms and scandals; simple slander; 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. -- Conspiracy and

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

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

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

There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.

· Conspiracy is punishable in the following cases: treason, rebellion or

insurrection, sedition, coup d’ etat, arson(PD 1613) and monopolies and
combinations in restraint of trade.

· 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
Elements Agreement among 2 or more persons A person has decided to commit
to commit a crime a crime

They decide to commit it He proposes its commission to

another
Crimes 1. Conspiracy to commit sedition 1. Proposal to commit treason
2. Conspiracy to commit rebellion 2. Proposal to commit rebellion or
3. Conspiracy to commit treason insurrection

· In proposal, only the person proposing or the proponent is criminally liable.

· Mere conspiracy in combination in restraint of trade (Art. 186), and

brigandage (Art. 306).

Two ways for conspiracy to exist:

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(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.

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.

If the conspiracy is only a basis of criminal liability, none of the co-

conspirators would be liable, unless there is an overt act. So, for as long as
anyone shall desist before an overt act in furtherance of the crime was
committed, such a desistance would negate criminal liability. 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 1)a co-conspirator was absent from the scene of the crime or 2)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.

Conspiracy as a crime, must have a clear and convincing evidence of its

existence. Every crime must be proved beyond reasonable doubt.

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.

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* Conspiracy is a matter of substance which must be alleged in the
information, otherwise, the court will not consider the same.

In People v. Laurio, 200 SCRA 489, it was held that it must be established
by positive and conclusiveevidence, not by conjectures or speculations.

In Taer v. CA, 186 SCRA 5980, it was held that 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.

* A conspiracy is possible even when participants are not known to each

other.
* 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.

* There is conspiracy when the offenders acted simultaneously pursuing a

common criminal design; thus, acting out a common criminal intent.

* 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.

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

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

Light felonies are those infractions of law for the commission of which
the penalty of arresto mayor or a fine not exceeding Forty thousand
(P40,000) 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).

Felonies are classified as follows:

(1) According to the manner of their commission

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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.

* While Article 3 classifies the crimes into Intentional and Culpable, a third
class can be grouped with it – that is, those defined and penalized by special
laws which include crime punished by city or municipality ordinances. They
are generally referred to as mala prohibita. As a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law. The act alone, irrespective of
the motives, constitutes the offense. Good faith is not a defense.

Art. 10. Offenses not subject to the provisions of this code. --Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide
the contrary.

· 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:

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a. Art. 16 Participation of Accomplices
b. Art. 22 Retroactivity of Penal laws if favorable to the accused
c. Art. 45 Confiscation of instruments used in the crime

* 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.

* 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 speciallaw. 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.

* If a special law is an amendment to a provision of the RPC, the act is

considered a felony and consequently the provisions of the RPC are made
applicable to suchspecial law.

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.

* In conclusion, any Special Law that uses the nomenclature of the Revised
Penal
Code in the imposition of penalties makes such Special Law a felony.

JUSTIFYING CIRCUMSTANCES AND

CIRCUMSTANCES WHICH EXEMPT FROM
CRIMINAL LIABILITY 30 | P a g e
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.

1) 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.

2) Article 89 provides how criminal liability is extinguished:

a. Death of the convict as to the personal penalties, and as to pecuniary
penalties, liability therefor is extinguished if death occurs before final
judgment;
b. Service of the sentence;
c. Amnesty;
d. Absolute pardon;
e. Prescription of the crime;
f. Prescription of the penalty; and
g. Marriage of the offended woman as provided in Article 344.

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3) 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.

4) Under Article 219, discovering secrets through seizure of correspondence

of the ward by their guardian is not penalized.

5) 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
property involved is that of the deceased spouse, before such property had
passed on to the possession of third parties.

6) Under Article 344, in cases of seduction, abduction, acts of lasciviousness,

and rape, the marriage of the offended party shall extinguish the criminal
action.

7) Any person who entered another’s dwelling to prevent serious harm to

himself, the occupants of the dwelling or a third person rendered some
service to humanity or justice, or entered cafes, taverns, inns and other
public houses while the same were open. (Art. 280, par. 3)

* 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.

Entrapment is not an absolutory cause because in entrapment, the offender is

already committing a crime.

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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 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.

Distinctions between justifying circumstances and exempting

circumstances
In justifying circumstances –

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(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.

Art. 11: Justifying Circumstances - those wherein the acts of the actor
are in accordance with law, hence, he is justified. There is no criminal
and civil liability because there is no crime.

· SELF-DEFENSE

* Reason for lawfulness of self-defense: because it would be impossible for

the State to protect all its citizens. Also a person cannot just give up his
rights without any resistance being offered.

* Since the justifying circumstances are in the nature of defensive acts, there
must be always unlawful aggression. The reasonableness of the means
employed depends on the gravity of the aggression. If the unlawful aggressor
was killed, this can only be justified if it was done to save the life of the
person defending or the person being defended. The equation is “life was
taken to save life.”

Rights included in self-defense:

1. Defense of person

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

ELEMENTS:

1. UNLAWFUL AGGRESSION - is a physical act manifesting danger to life or

limb; it is either actual or imminent.

a. Actual/real aggression - Real aggression presupposes an act positively

strong, showing the wrongful intent of the aggressor, which is not merely
threatening or intimidating attitude, but a material attack. There must be
real danger to life a personal safety.

b. Imminent unlawful aggression - it is an attack that is impending or on

the point ofhappening. It must not consist in a mere threatening attitude,
nor must it be merely imaginary. The intimidating attitude must be offensive
and positively strong.

* Do not confuse unlawful aggression with provocation. What justifies the

killing of a supposed unlawful aggressor is that if the offender did not kill the
aggressor, it will be his own life that will be lost.

* To give rise to self-defense, the aggression must not be a lawful one like the
attack of a husband against a paramour of his wife whom he surprised in an
uncompromising situation, or a chief of police who threw stones at the
accused who was running away to elude arrest of a crime committed in his
presence. Their aggression was not considered unlawful.

* Where there is an agreement to fight, there is no unlawful aggression.

Each of the protagonists is at once assailant and assaulted, and neither can
invoke the right of self-defense, because aggression which is an incident in
the fight is bound to arise from one or the other of the combatants.
Exception: Where the attack is made in violation of the conditions agreed
upon, there may be unlawful aggression.

* Unlawful aggression in self-defense, to be justifying, must exist at the time

the defense is made. It may no longer exist if the aggressor runs away after
the attack or he has manifested a refusal to continue fighting. If the person
attacked allowed some time to elapse after he suffered the injury before
hitting back, his act of hitting back would not constitute self-defense, but
revenge.

* The unlawful aggression must come from the person who was attacked by
the accused. It follows that when the source of the unlawful aggression is
not known, then unlawful aggression cannot be considered present in the
resolution of the case.

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This observation is true only in self-defense. Obviously, it cannot apply to
defense of relatives and strangers.

 A light push on the head with the hand is not unlawful aggression, but a
slap on the face is, because his dignity is in danger.

 A police officer exceeding his authority may become an unlawful

aggressor.

 The nature, character, location, and extent of the wound may belie claim
of self-defense.

* When the aggressors run away, the one making a defense has no more
right to invoke self-defense. (People vs. Alconga)

2. REASONABLE NECESSITY OF THE MEANS EMPLOYED TO PREVENT

OR REPEL IT;

* It contemplates two situations that may arise while the aggression is taking
place. The first is to repel an actual aggression. The second is to prevent an
imminent or impending aggression.

Requisites:
1) Means were used to prevent or repel
2) Means must be necessary and there is no other way to prevent or repel it
3) Means must be reasonable – depending on the circumstances, but
generally proportionate to the force of the aggressor.

* The rule here is to stand your ground when in the right which may invoked
when the defender is unlawfully assaulted and the aggressor is armed with a
weapon.

* Where the accused is “where he has the right to be” the law does not
require him to retreat when assaulted, but rather to “stand ground when in
the right.” (U.S. vs. Damen)

* The rule is more liberal when the accused is a peace officer who, unlike a
private person, cannot run away.

* The reasonable necessity of the means employed to put up the defense.

> The gauge of reasonable necessity is the instinct of self-preservation, i.e. a

person did not use his rational mind to pick a means of defense but acted
out of self-preservation, using the nearest or only means available to defend
himself, even if such means be disproportionately advantageous as
compared with the means of violence employed by the aggressor.
* Reasonableness of the means depends on the nature and the quality of the
weapon used, physical condition, character, size and other circumstances.
* Whether or not the means employed is reasonable will depend upon the
place, occasion and other circumstances. More often, it is the nature and
quality of weapon used by the aggressor. It is also dictated by the physical
condition, size and sex of the person defending himself.

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3. LACK OF SUFFICIENT PROVOCATION ON THE PART OF THE
PERSON DEFENDING HIMSELF.

* For provocation to be considered serious by the court, the degree must be

sufficient and must at all times be immediate to the unlawful aggression.
(Castanares vs. Court of Appeals, 92 SCRA 567)

* When no provocation at all was given to the aggressor by the person

defending himself.

* When even if provocation was given by the person defending himself, such
was not sufficient to cause violent aggression on the part of the attacker, i.e.
the amount of provocation was not sufficient to stir the aggressor into the
acts which led the accused to defend himself.

* When even if the provocation were sufficient, it was not given by the person
defending himself.

* When even if provocation was given by the person defending himself, the
attack was not proximate or immediate to the act of provocation.

* Sufficient means proportionate to the damage caused by the act, and

adequate to stir one to its commission.

A. KINDS OF SELF-DEFENSE

1. Self-defense of chastity - to be entitled to complete self-defense of

chastity, there must be an attempt to rape, mere imminence thereof will
suffice.

Honor of a woman in respect of her defense is equated with her virginity.

2. Defense of property - an attack on the property must be coupled with an

attack on the person of the owner, or of one entrusted with the care of such
property.

* This can only be invoked if the life and limb of the person making the
defense is also the subject of unlawful aggression. Life cannot be equal to
property.

3. Self-defense in libel - physical assault may be justified when the libel is

aimed at a person’s good name, and while the libel is in progress, one libel
deserves another.

* In order however, that one may invoke this novel doctrine, the defamatory
statements made by the accused must be a fair answer to the libel made by
the supposed offended party and must be related to the imputation made.
(People vs. Chua Hong) In conclusion, if the answer which is libelous is
excessive, it will not constitute self-defense.
*Burden of proof - on the accused (sufficient, clear and convincing evidence;
must rely on the strength of his own evidence and not on the weakness of
the prosecution)

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· DEFENSE OF RELATIVE
Elements:
1. unlawful aggression
2. reasonable necessity of the means employed to prevent or repel the
attack;
3. in case provocation was given by the person attacked, that the
person making the defense had no part in such provocation.

Relatives entitled to the defense:

1. spouse
2. ascendants
3. descendants
4. legitimate, natural or adopted brothers or sisters
5. relatives by affinity in the same degree (2nd degree)
6. relatives by consanguinity within the 4th civil degree.

 The third element need not take place. The relative defended may even be
the original aggressor. All that is required to justify the act of the relative
defending is that he takes no part in such provocation.

 General opinion is to the effect that all relatives mentioned must be

legitimate, except in cases of brothers and sisters who, by relatives by
nature, may be illegitimate.

 The unlawful aggression may depend on the honest belief of the person
making the defense.

* If the person being defended is already a second cousin, you do not invoke
defense of relative anymore.

It will be defense of stranger. This is vital because if the person making the
defense acted out or revenge, resentment or some evil motive in killing the
aggressor, he cannot invoke the justifying circumstance if the relative
defended is already a stranger in the eyes of the law. On the other hand, if
the relative defended is still within the coverage of defense of relative, even
though he acted out of some evil motive, it would still apply. It is enough
that there was unlawful aggression against the relative defended, and that
the person defending did not contribute to the unlawful aggression.

* Mistake of fact can be the basis of defending a relative. If the defender

believes in good faith the events presented to him and he acts accordingly,
he is entitled to the benefit of defense of relatives, even if later on, the events
would actually show that they were different.

· DEFENSE OF STRANGER

Elements
1. Unlawful aggression

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2. Reasonable necessity of the means employed to prevent or repel the
attack;
3. The person defending be not induced by revenge, resentment or
other evil motive.

*** A relative not included in defense of relative is included in defense of

stranger.

*** Be not induced by evil motive means that even an enemy of the aggressor
who comes to the defense of a stranger may invoke this justifying
circumstances so long as he is not induced by a motive that is evil.

· STATE OF NECESSITY

A. Art. 11, Par. 4 provides:

Any person who, in order to avoid an evil or injury, does an act which
causes damage to another, provided that the following requisites are
present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.

* The term damage to another refers to injury to persons and prejudice or

damage to property.

* The term evil means harmful, injurious, disastrous, and destructive. As

contemplated, it must actually exist. If it is merely expected or anticipated,
the one acting by such notion is not in a state of necessity.

* A state of necessity exists when there is a clash between unequal rights,

the lesser right giving way to the greater right. Aside from the 3 requisites
stated in the law, it should also be added that the necessity must not be due
to the negligence or violation of any law by the actor.

* The state of necessity must not have been created by the one invoking the
justifying circumstances.

* The person for whose benefit the harm has been prevented shall be civilly
liable in proportion to the benefit which may have been received. This is the
only justifying circumstance which provides for the payment of civil
indemnity. Under the other justifying circumstances, no civil liability
attaches. The courts shall determine, in their sound discretion, the
proportionate amount for which one is liable.

* Civil liability referred to in a state of necessity is based not on the act

committed but on the benefit derived from the state of necessity. So the
accused will not be civilly liable if he did not receive any benefit out of the
state of necessity. On the other hand, persons who did not participate in the

39 | P a g e
damage or injury would be pro tanto civilly liable if they derived benefit out of
the state of necessity.

· FULFILLMENT OF DUTY OR LAWFUL EXERCISE OF A RIGHT OR

OFFICE

Elements:
1. That the accused acted in the performance of a duty, or in the
lawful exercise of a right or office;

2. That the injury caused or offense committed be the necessary

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

* A police officer is justified in shooting and killing a criminal who refuses to

stop when ordered to do so, and after such officer fired warning shots in the
air.

* shooting an offender who refused to surrender is justified, but not a thief

who refused to be arrested.

* The accused must prove that he was duly appointed to the position he
claimed he was discharging at the time of the commission of the offense. It
must be made to appear not only that the injury caused or the offense
committed was done in the fulfillment of a duty, or in the lawful exercise of a
right or office, but that the offense committed was a necessary consequence
of such fulfillment of duty, or lawful exercise of a right or office.

* A mere security guard has no authority or duty to fire at a thief, resulting

in the latter’s death.

· OBEDIENCE TO A SUPERIOR ORDER

Elements:
1. There is an order;
2. The order is for a legal purpose;
3. The means used to carry out said order is lawful.

* The person giving the order must act within the limitations prescribed by
law. The subordinate taking the order must likewise act within the bounds of
law. (People vs. Oanis)

* The subordinate who is made to comply with the order is the party which
may avail of this circumstance. The officer giving the order may not invoke
this.

* The subordinate’s good faith is material here. If he obeyed an order in good

faith, not being aware of its illegality, he is not liable. However, the order
must not be patently illegal. If the order is patently illegal this circumstance
cannot be validly invoked.
* The reason for this justifying circumstance is the subordinate’s mistake of
fact in good faith.

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* Even if the order be patently illegal, the subordinate may yet be able to
invoke the exempting circumstances of having acted under the compulsion
of an irresistible force, or under the impulse of an uncontrollable fear.

EXEMPTING CIRCUMSTANCES

· Exempting circumstances (non-imputability) are those ground for

exemption from punishment because there is wanting in the agent of the
crime of any of the conditions which make the act voluntary, or negligent.

· Basis: The exemption from punishment is based on the complete absence

of intelligence, freedom of action, or intent, or on the absence of negligence
on the part of the accused.

· A person who acts WITHOUT MALICE (without intelligence, freedom of

action or intent) or WITHOUT NEGLIGENCE (without intelligence, freedom
of action or fault) is NOT CRIMINALLY LIABLE or is EXEMPT FROM
PUNISHMENT.

· There is a crime committed but no criminal liability arises from it because of

the complete absence of any of the conditions which constitute free will or
voluntariness of the act.

· Burden of proof: Any of the circumstances is a matter of defense and

must be proved by the defendant to the satisfaction of the court.

Art. 12. CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL

LIABILITY.

The following are exempt from criminal liability:

1. AN IMBECILE OR INSANE PERSON, unless the latter has acted

during a lucid interval.
· When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement on one of
the hospital or asylums established for persons thus afflicted. He shall not
be permitted to leave without first obtaining the permission of the same
court.

· Requisites:
a. Offender is an imbecile
b. Offender was insane at the time of the commission of the crime

· IMBECILITY OR INSANITY

a. Basis: complete absence of intelligence, and element of voluntariness.

b. Definition :

An imbecile is one who while advanced in age has a mental development

comparable to that of children between 2 and 7 years of age.
An insane is one who acts with complete deprivation of intelligence/reason
or without the least discernment or with total deprivation of freedom of the
will.

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* The insanity that is exempting is limited only to mental aberration or disease
of the mind and must completely impair the intelligence of the accused.

Two tests for exemption on grounds of insanity:

(1) The test of cognition, or whether the accused acted with complete
deprivation of intelligence in committing said crime; and

(2) The test of volition, or whether the accused acted in total deprivation of
freedom of will.

· An imbecile is exempt in all cases from criminal liability (no lucid interval).
The insane is not so exempt if it can be shown that he acted during a lucid
interval. In the latter, loss of consciousness of ones acts and not merely
abnormality of mental faculties will qualify ones acts as those of an insane.

· Procedure: court is to order the confinement of such persons in the

hospitals or asylums established. Such persons will not be permitted to
leave without permission from the court. The court, on the other hand, has
no power to order such permission without first obtaining the opinion of the
DOH that such persons may be released without danger.

· Presumption is always in favor of sanity. The defense has the burden to

prove that the accused was insane at the time of the commission of the
crime. For the ascertainment such mental condition of the accused, it is
permissible to receive evidence of the condition of his mind during a
reasonable period both before and after that time. Circumstantial evidence
which is clear and convincing will suffice. An examination of the outward
acts will help reveal the thoughts, motives and emotions of a person and if
such acts conform to those of people of sound mind.

· Insanity at the time of the commission of the crime and not that at the time of
the trial will exempt one from criminal liability. In case of insanity at the time
of the trial, there will be a suspension of the trial until the mental capacity of
the accused is restored to afford him a fair trial.

· Evidence of insanity must refer to the time preceding the act under
prosecution or to the very moment of its execution. Without such evidence, the
accused is presumed to be sane when he committed the crime. Continuance
of insanity which is occasional or intermittent in nature will not be
presumed. Insanity at another time must be proved to exist at the time of
the commission of the crime. A person is also presumed to have committed a
crime in one of the lucid intervals. Continuance of insanity will only be
presumed in cases wherein the accused has been adjudged insane or has
been committed to a hospital or an asylum for the insane.

· Instances of Insanity:

a. Dementia praecox (Schizoprenia) is covered by the term insanity

because homicidal attack is common in such form of psychosis. It is

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characterized by delusions that he is being interfered with sexually, or that
his property is being taken, thus the person has no control over his acts.

b. Kleptomania or presence of abnormal, persistent impulse or tendency to

steal, to be considered exempting, will still have to be investigated by
competent psychiatrist to determine if the unlawful act is due to the
irresistible impulse produced by his mental defect, thus loss of will-power. If
such mental defect only diminishes the exercise of his willpower and did not
deprive him of the consciousness of his acts, it is only mitigating.

c. Epilepsy which is a chronic nervous disease characterized by convulsive

motions of the muscles and loss of consciousness may be covered by the
term insanity. However, it must be shown that commission of the offense is
during one of those epileptic attacks.

· Reyes: Feeblemindedness is not imbecility because the offender can

distinguish right from wrong. An imbecile and an insane to be exempted
must not be able to distinguish right from wrong.
· Relova: Feeblemindedness is imbecility.
· Crimes committed while in a dream, by a somnambulist are embraced in
the plea of insanity.

Hypnotism, however, is a debatable issue.

· Crime committed while suffering from malignant malaria is

characterized by insanity at times thus such person is not criminally liable.

2. A PERSON UNDER NINE YEARS OF AGE.

· MINORITY

a. Requisite: Offender is under 9 years of age at the time of the commission

of the crime. There is absolute criminal irresponsibility in the case of a minor
under 9-years of age.

b. Basis: complete absence of intelligence.

· Under nine years to be construed nine years or less. Such was inferred from
the next subsequent paragraph which does not totally exempt those over
nine years of age if he acted with discernment.

* If a youth committed homicide on his 9th birthday – meaning, he was

exactly nine years old at that time and he acted with discernment, it would
seem that, following the policy that penal laws are to be strictly construed
against the Government and liberally in favor of the accused, he should be
exempt from criminal liability.

· Presumptions of incapability of committing a crime is absolute.

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· Age is computed up to the time of the commission of the crime. Age can be
established by the testimonies of families and relatives.

· Senility or second childhood is only mitigating.

3. A PERSON OVER NINE YEARS OF AGE AND UNDER FIFTEEN,

UNLESS HE HAS ACTED WITH DISCERNMENT, in which case, such
minor shall be proceeded against in accordance with the provisions of
article 80 of this Code.

When such minor is adjudged to be criminally irresponsible, the court,

inconformity with the provisions of this and the preceding paragraph,
shall commit him to the care and custody of his family who shall be
charged with his surveillance and education; otherwise, he shall be
committed to the care of some institution or person mentioned in said
article 80.

· QUALIFIED MINORITY: Basis: complete absence of intelligence

· Such minor over 9 years and under 15 years of age must have acted without
discernment to be exempted from criminal liability. If with discernment, he is
criminally liable.

· Presumption is always that such minor has acted without discernment. The
prosecution is burdened to prove if otherwise.

· Discernment means the mental capacity of a minor between 9 and 15

years of age to fully appreciate the consequences of his unlawful act and the
mental capacity to understand the difference between right and wrong. Such
is shown by: (1) manner the crime was committed (i.e. commission of the
crime during nighttime to avoid detection; taking the loot to another town to
avoid discovery), or (2) the conduct of the offender after its commission (i.e.
elation of satisfaction upon the commission of his criminal act as shown by
the accused cursing at the victim).

* An accused who knows the morality of his acts, or can appreciate the
consequences of his action has acted with discernment.

· If such minor is adjudged to be criminally liable, he is charged to the

custody of his family, otherwise, to the care of some institution or person
mentioned in article 80. This is because of the court’s presupposition that
the minor committed the crime without discernment.

* A youthful offender can only be confined in a reformatory upon order of the

court. Under the amendment to Presidential Decree No. 603, Presidential
Decree No. 1179 requires that before a youthful offender may be given the
benefit if a suspension of sentence, there must be an application filed with
the court which should pronounce sentence. Note that the commitment of the
offender in a reformatory is just a consequence of the suspension of the
sentence. If the sentence is not suspended, there is no commitment in a
reformatory. The commitment is in a penitentiary, since suspension of
sentence requires certain conditions:

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(1) The crime committed should not be punishable by reclusion perpetua or
death penalty;
2) The offender should not have been given the benefit of a suspended
sentence before. This means he is a first timer;
(3) He must be below 18 years old because a youthful offender is one who is
below 18.

How does the minority of the offender affect his criminal liability?

(1) If the offender is within the bracket of nine years old exactly or
less, he is exempt from criminal liability but not from civil liability. This type
of offenders are absolutely exempt. Even if the offender nine years or below
acted with discernment, this should not be taken against him because in
this age bracket, the exemption is absolute.

(2) If over nine but below 15, a distinction has to be made whether the
offender acted with or without discernment. The burden is upon the
prosecution to prove that the offender acted with discernment. It is not for the
minor to prove that he acted without discernment. All that the minor has to
show is that he is within the age bracket. If the prosecution would want to
pin criminal liability on him, it has to prove that the crime was committed
with discernment. Here, if the offender was exempt from criminal liability
because the prosecution was not able to prove that the offender acted with
discernment, he is only civilly liable but he will be committed to the
surveillance of his parents who will be required to report to the court
periodically on the progress or development of the offender.

If the offender is proven to have acted with discernment, this is where the
court may give him the benefit of a suspended sentence. He may be given the
benefit of a suspended sentence under the conditions mentioned earlier and
only if he would file an application therefor.

* Suspension of sentence is not automatic. If the youthful offender has filed an

application therefor.

(3) If at the time the judgment is to be promulgated he is already above

18, he cannot avail of a suspended sentence. The reason is because if the
sentence were to be suspended, he would be committed in a reformatory.
Since he cannot be committed to a reformatory anymore because he is not
less than 18 years old, he would have to be committed to a penitentiary.
That means promulgation of the sentence shall not be suspended. If the
sentence should not be suspended, although the minor may be qualified, the
court will promulgate the sentence but the minor shall be entitled to the
reduction of the penalty by at least two degrees.

When the offender is over nine but below 15, the penalty to be imposed is
discretionary on the court, but lowered by at least two degrees. It may be
lowered by three or four degrees, depending upon whether the court deems
best for the interest of the offender. The limitation that it should be lowered
by at least two degrees is just a limitation on the power of the court to
reduce the penalty. It cannot be less than two degrees.

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(4) If the offender is 15 years old and above but below 18, there is no
exemption anymore but he is also given the benefit of a suspended sentence
under the conditions stated earlier and if at the time the sentence is
promulgated, he is not 18 years old or over yet. If the sentence is
promulgated, the court will impose a penalty one degree lower.

· Allegation of “with intent to kill” in the information is sufficient allegation of

discernment as such conveys the idea that he knew what would be the
consequences of his unlawful act. Thus is the case wherein the information
alleges that the accused, with intent to kill, willfully, criminally and
feloniously pushed a child of 8 1/2 years of age into a deep place. It was held
that the requirement that there should be an allegation that she acted with
discernment should be deemed amply met.

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

· ACCIDENT (DAMNUM ABSQUE INJURIA): Basis: lack of negligence and

intent.

· Elements:
a. A person is performing a lawful act
b. Exercise of due dare
c. He causes injury to another by mere accident
d. Without fault or intention of causing it.

* Under Article 12, paragraph 4, the offender is exempt not only from criminal
but also from civil liability. This paragraph embodies the Latin maxim
“damnum absque injuria”.

· Discharge of a firearm in a thickly populated place in the City of Manila

being prohibited by Art. 155 of the RPC is not a performance of a lawful act
when such led to the accidental hitting and wounding of 2 persons.

· Drawing a weapon/gun in the course of self-defense even if such fired and

seriously injured the assailant is a lawful act and can be considered as done
with due care since it could not have been done in any other manner.

Problem:
A, armed with .38 caliber and B, who has no weapon, robbed a store; but in
the course thereof, were seen by P, a policeman who was armed with a .45
caliber gun, and when he demanded for the surrender of A and B, A shot
him but missed, and so P repelled the attack. In the exchange of shots, A
was killed, together with B, and C the owner of the store. The three were
killed by the bullets fired from a .45 caliber. In such case, P is not liable for
the death of A due to self-defense as all the three (3) elements were present.
He is not also liable for the death of B, not because of self-defense because
the latter being weaponless can not commit unlawful aggression, but
because of performance of duty. For the death of C, the store owner, P, is
also not criminally liable obviously not because of self-defense nor of
fulfillment of duty but because of accident provided for in par. 1 of Art. 12.

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· With the fact duly established by the prosecution that the appellant was
guilty of negligence, this exempting circumstance cannot be applied because
application presupposes that there is no fault or negligence on the part of
the person performing the lawful act.

· Accident happens outside the sway of our will, and although it comes about
some act of our will, lies beyond the bounds of humanly foreseeable
consequences. If the consequences are plainly foreseeable, it will be a case of
negligence.

· The accused, who, while hunting saw wild chickens and fired a shot can be
considered to be in the performance of a lawful act executed with due care
and without intention of doing harm when such short recoiled and
accidentally wounded another. Such was established because the deceased
was not in the direction at which the accused fired his gun.

· The chauffeur, who while driving on the proper side of the road at a
moderate speed and with due diligence, suddenly and unexpectedly saw a
man in front of his vehicle coming from the sidewalk and crossing the street
without any warning that he would do so, in effect being run over by the said
chauffeur, was held not criminally liable, it being by mere accident.

* The infliction of the injury by mere accident does not give rise to a criminal or
civil liability, but the person who caused the injury is duty bound to attend to
the person who was injured. If he would abandon him, it is in that
abandonment that the crime arises which is punished under the second
paragraph ofArticle 275.

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

· IRRESISTIBLE FORCE: Basis: complete absence of freedom, an element of

voluntariness

· Elements:
a. That the compulsion is by means of physical force.
b. That the physical force must be irresistible.
c. That the physical force must come from a third person.

· Force, to be irresistible, must produce such an effect on an individual that

despite of his resistance, it reduces him to a mere instrument and, as such,
incapable of committing a crime. It compels his member to act and his mind
to obey. It must act upon him from the outside and by a third person. He
must act not only without a will but also against his will.

· Baculi, who was accused but not a member of a band which murdered
some American school teachers and was seen and compelled by the leaders
of the band to bury the bodies, was not criminally liable as accessory for
concealing the body of the crime. Baculi acted under the compulsion of an
irresistible force.

· Irresistible force can never consist in an impulse or passion, or obfuscation.

It must consist of an extraneous force coming from a third person.

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6. Any person who acts under the impulse of an uncontrollable fear of
an equal or greater injury.

· UNCONTROLLABLE FEAR: Basis: complete absence of freedom

· Elements
A. that the threat which causes the fear is of an evil greater than, or
at least equal to that which he is required to commit
B. that it promises an evil of such gravity and imminence that the
ordinary man would have succumbed to it.

· Duress, to be a valid defense, should be based on real, imminent or

reasonable fear for one’s life or limb. It should not be inspired by speculative,
fanciful or remote fear.

* The fear must be grave, actual, serious and of such kind that majority of
men would succumb to such moral compulsion. The latter must be such as
to leave a reasonable fear for one’s life or limb and not speculative, fanciful
or remote fear. (People vs. Parula, 88 Phil 615)

· Threat of future injury is not enough. The compulsion must leave no

opportunity to the accused for escape or self-defense in equal combat.

· Duress is the use of violence or physical force.

· There is uncontrollable fear is when the offender employs intimidation or

threat in compelling another to commit a crime, while irresistible force is
when the offender uses violence or physical force to compel another person
to commit a crime.

· “an act done by me against my will is not my act”

* The offender must be totally deprived of freedom. If the offender has still
freedom of choice, whether to act or not, even if force was employed on him or
even if he is suffering from uncontrollable fear, he is not exempt from criminal
liability because he is still possessed with voluntariness. In exempting
circumstances, the offender must act without voluntariness.

* The distinction between irresistible force and uncontrollable fear is that, in

the former, the offender uses violence or physical force to compel another
person to commit a crime; while in the latter, the offender employs threat or
intimidation to compel another to commit a crime. Since the actor acted
without freedom, he incurs no criminal liability.

7. Any person who fails to perform an act required by law, when

prevented by some lawful or insuperable cause.

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· LAWFUL OR INSUPERABLE CAUSE: Basis: acts without intent, the third
condition of voluntariness in intentional felony.

· Elements:
a. That an act is required by law to be done.
b. That a person fails to perform such act.
c. That his failure to perform such act was due to some lawful or
insuperable cause.

· Examples of lawful cause:

a. Priest can’t be compelled to reveal what was confessed to him.

b. No available transportation – officer not liable for arbitrary detention.
c. Mother who was overcome by severe dizziness and extreme debility,
leaving child to die – not liable for infanticide

· To be an EXEMPTING circumstance – INTENT IS WANTING

· INTENT – presupposes the exercise of freedom and the use of intelligence

· Distinction between justifying and exempting circumstance:

a. Exempting – there is a crime but there is no criminal. Act is not justified

but the actor is not criminally liable.

General Rule: There is civil liability

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

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

Distinction between Exempting and Justifying Circumstances

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

· Absolutory Causes – are those where the act committed is a crime but for
some reason of public policy and sentiment, there is no penalty imposed.

· Exempting and Justifying Circumstances are absolutory causes.

· Other examples of absolutory causes:

1) Art 6 – spontaneous desistance
2) Art 20 – accessories exempt from criminal liability
3) Art 19 par 1 – profiting one’s self or assisting offenders to profit by the
effects of the crime

MITIGATING CIRCUMSTANCES
 Definition – Those circumstances which reduce the penalty of a
crime.

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  Effect – Reduces the penalty of the crime but does not erase criminal
liability nor change the nature of the crime.

Kinds of Mitigating Circumstance

Privileged Mitigating Ordinary Mitigating

Offset by any Cannot be offset by any Can be offset by a
aggravating aggravating circumstance. generic aggravating
circumstance circumstance.
Effect on the Has the effect of imposing the If not offset, has the
penalty penalty by 1 or 2 degrees lower effect of imposing the
than that provided by law. penalty in the minimum
period.
Kinds Minority, Incomplete Self- Those circumstances
defense, two or more mitigating enumerated in
circumstances without any paragraph 1 to 10 of
aggravating circumstance (has Article 13.
the effect of lowering the
penalty by one degree).

IN RELATION TO THE INDETERMINATE SENTENCE LAW (ISL)

Privilege mitigating circumstance will apply over and above all other
considerations. When you arrive at the correct penalty, that is the time when
you find out whether the Indeterminate Sentence Law will apply or not.

For purposes of lowering the penalty by one or two degrees, the age of the
offender at the time of the commission of the crime shall be the basis, not
the age of the offender at the time the sentence is to be imposed. But for
purposes of suspension of the sentence, the age of the offender at the time
the crime was committed is not considered, it is the age of the offender at the
time the sentence is to be promulgated.

Article 13. Mitigating circumstances. –

1. Those mentioned in the preceding chapter, when all the requisites

necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant.

· Justifying circumstances

a. Self-defense/defense of relative/defense of stranger – unlawful

aggression must be present for Art 13 to be applicable. Other 2 elements not
necessary. If 2 requisites are present – considered a privileged mitigating
circumstance.

Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and
tries to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-
defense because although there was unlawful aggression and reasonable
means to repel was taken, there was sufficient provocation on the part of
Juan. But since 2 elements are present, it considered as privileged
mitigating.

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How, if at all, may incomplete self-defense affect the criminal liability
of the offender?

If the question specifically refers to incomplete self-defense, defense of

relative or defense of stranger, you have to qualify your answer.

First, to have incomplete self-defense, the offended party must be guilty of

unlawful aggression. Without this, there can be no incomplete self-defense,
defense of relative, or defense of stranger.

Second, if only the element of unlawful aggression is present, the other

requisites being absent, the offender shall be given only the benefit of an
ordinary mitigating circumstance.

Third, if aside from the element of unlawful aggression another requisite, but
not all, are present, the offender shall be given the benefit of a privileged
mitigating circumstance. In such a case, the imposable penalty shall be
reduced by one or two degrees depending upon how the court regards the
importance of the requisites present. Or absent.

b. State of Necessity (par 4) avoidance of greater evil or injury; if any of

the last 2 requisites is absent, there’s only an ordinary Mitigating
Circumstance.

Example: While driving his car, Juan sees Pedro carelessly crossing the
street. Juan swerves to avoid him, thus hitting a motorbike with 2
passengers, killing them instantly. Not all requisites to justify act were
present because harm done to avoid injury is greater. Considered as
mitigating.

c. Performance of Duty (par 5)

Example: Juan is supposed to arrest Pedro. He thus goes to Pedro’s hideout.
Juan sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may
have acted in the performance of his duty but the crime was not a necessary
consequence thereof. Considered as mitigating.

· Exempting circumstance

a. Minority over 9 and under 15 – if minor acted with discernment,

considered Privilege mitigating.

Example: 13 year old stole goods at nighttime. Acted with discernment as

shown by the manner in which the act was committed.

* If the offender is proven to have acted with discernment, this is where the
court may give him the benefit of a suspended sentence. He may be given the
benefit of a suspended sentence under the conditions mentioned earlier and
only if he would file an application therefor.

b. Causing injury by mere accident – if 2nd requisite (due care) and 1st
part of 4th requisite (without fault – thus negligence only) are ABSENT,
considered as mitigating because the penalty is lower than that provided for
intentional felony.

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Example: Police officer tries to stop a fight between Juan and Pedro by firing
his gun in the air. Bullet ricocheted and killed Petra. Officer willfully
discharged his gun but was unmindful of the fact that area was populated.

c. Uncontrollable fear – only one requisite present, considered mitigating

Example: Under threat that their farm will be burned, Pedro and Juan took
turns guarding it at night. Pedro fired in the air when a person in the
shadows refused to reveal his identity. Juan was awakened and shot the
unidentified person. Turned out to be a neighbor looking for is pet. Juan
may have acted under the influence of fear but such fear was not entirely
uncontrollable. Considered mitigating.

2. That the offender is UNDER 18 YEARS of age or OVER 70 YEARS. In

the case of a minor, he shall be proceeded against in accordance with
the provisions of Art 192 of PD 903

· Applicable to:
a. Offender over 9, under 15 who acted with discernment
b. Offender over 15, under 18
c. Offender over 70 years

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

commission of crime, not date of trial.

· VARIOUS AGES AND THEIR LEGAL EFFECTS

a. under 9 – exemptive circumstance

b. over 9, below 15 – exemptive; except if acted with discernment
c. minor delinquent under 18 – sentence may be suspended (PD 603)
d. under 18 – privileged mitigating circumstance
e. 18 and above – full criminal responsibility
f. 70 and above – mitigating circumstance; no imposition of death penalty;
execution of death sentence if already imposed is suspended and commuted.

* If the minor acted with discernment( age 9-15 ), he is entitled to a privileged

mitigating circumstance and by source of authority of Article 68, the penalty
is reduced by two degrees from that prescribed by law for the crime
committed. If the offender is over fifteen and under eighteen years of age,
discernment is no longer in issue but the offender is entitled to a privileged
mitigating circumstance and the reduction is only by one degree. (Garcia vs.
Madrigal, 857 Phil. 651)

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

that committed (Praeter Intentionem)

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Can be used only when the facts prove to show that there is a notable and
evident disproportion between means employed to execute the criminal act
and its consequences.

* Intent is an indispensable element of the crime. When the intent is less than
the actual act committed, reason and fair play dictate that a mitigated
responsibility be imposed upon the offender.

· Intention: as an internal act, is judged by the proportion of the means

employed to the evil produced by the act, and also by the fact that the blow
was or was not aimed at a vital part of the body.

· Judge by considering (1) the weapon used, (2) the injury inflicted and (3)
the attitude of mind when the accuser attacked the other.

Example: Pedro stabbed Tomas on the arm. Tomas did not have the wound
treated, so he died from loss of blood.

· Not applicable when offender employed brute force

Example: Rapist choked victim. Brute force of choking contradicts claim that
he had no intention to kill the girl.

· Art 13, par 3 addresses itself to the intention of the offender at the
particular moment when he executes or commits the criminal act, not to his
intention during the planning stage.

· In crimes against persons – if victim does not die, the absence of the intent
to kill reduces the felony to mere physical injuries. It is not considered as
mitigating. Mitigating only when the victim dies.

Example: As part of fun-making, Juan merely intended to burn Pedro’s

clothes. Pedro received minor burns. Juan is charged with physical injuries.
Had Pedro died, Juan would be entitled to the mitigating circumstance.

· Not applicable to felonies by negligence. Why? In felonies through

negligence, the offender acts without intent. The intent in intentional felonies
is replaced by negligence, imprudence, lack of foresight or lack of skill in
culpable felonies. There is no intent on the part of the offender which may be
considered as diminished.

· Basis of par 3: intent, an element of voluntariness in intentional felony, is

diminished.

Praeter intentionem

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The common circumstance of praeter intentionem, under paragraph 3,
means that there must be a notable disproportion between the means
employed by the offender compared to that of the resulting felony. If the
resulting felony could be expected from the means employed, this
circumstance does not avail. This circumstance does not apply when the
crime results from criminal negligence or culpa. When the crime is the product
of reckless imprudence or simple negligence, mitigating circumstances does
not apply. This is one of the three instances where the offender has
performed a felony different from that which he intended. Therefore, this is
the product of intentional felony, not a culpable one.

4. That the SUFFICIENT PROVOCATION OR THREAT on the part of the

offended party immediately preceded the act.

· Provocation – any unjust or improper conduct or act of the offended party,

capable of exciting, inciting or irritating anyone.
· Basis: diminution of intelligence and intent
· Requisites:

a. Provocation must be sufficient.

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

must accordingly be proportionate to its gravity.

2. Sufficiency depends on:

 the act constituting the provocation
 the social standing of the person provoked
 time and place provocation took place

3. Example: Juan likes to hit and curse his servant. His servant thus killed
him. There’s mitigating circumstance because of sufficient provocation.
4. When it was the defendant who sought the deceased, the challenge to
fight by the deceased is NOT sufficient provocation.

b. It must originate from the offended party

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

2. Example: Tomas’ mother insulted Petra. Petra kills Tomas because of the
insults. No Mitigating Circumstance because it was the mother who insulted
her, not Tomas.

3. Provocation by the deceased in the first stage of the fight is not Mitigating
Circumstance when the accused killed him after he had fled because the
deceased from the moment he fled did not give any provocation for the
accused to pursue and attack him.

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

the crime by the person who is provoked

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1. Why? If there was an interval of time, the conduct of the offended party
could not have excited the accused to the commission of the crime, he
having had time to regain his reason and to exercise self-control.

2. Threat should not be offensive and positively strong because if it was, the
threat to inflict real injury is an unlawful aggression which may give rise to
self-defense and thus no longer a Mitigating Circumstance.

* The commission of the felony must be immediate to the threat or provocation

in order that this circumstance be mitigating. If there is sufficient break of
time before the provocation or threat and the consequent commission of the
crime, the law presupposes that during that interval, whatever anger or
diminished self control may have emerged from the offender had already
vanished or disappeared.

* This is the correct interpretation of paragraph 4, Article 13. As long as the

offender at the time he committed the felony was still under the influence of
the outrage caused by the provocation or threat, he is acting under a
diminished self control. This is the reason why it is mitigating.

* You have to look at two criteria:

(1) If from the element of time, there is a material lapse of time stated in the
problem and there is nothing stated in the problem that the effect of the
threat or provocation had prolonged and affected the offender at the time he
committed the crime, then you use the criterion based on the time element.

(2) However, if there is that time element and at the same time, facts are
given indicating that at the time the offender committed the crime, he is still
suffering from outrage of the threat or provocation done to him, then he will
still get the benefit of this mitigating circumstance.

* In People v. Diokno, a Chinaman eloped with a woman. Actually, it was

almost three days before accused was able to locate the house where the
Chinaman brought the woman. Here, sufficient provocation was one of the
mitigating circumstances considered by the Supreme Court in favor of the
accused.

5. That the act was committed in the IMMEDIATE VINDICATION OF A

GRAVE OFFENSE to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural or adopted brother or
sisters, or relatives by affinity within the same degree.

* This has reference to the honor of a person. It concerns the good names
and reputation of the individual. (Pp vs. Anpar, 37 Phil. 201)

Requisites:
1. There’s a grave offense done to the one committing the felony etc.
2. That the felony is committed in vindication of such grave offense.

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

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Example: Juan caught his wife and his friend in a compromising situation.
Juan kills his friend the next day – still considered proximate.

Vindication of a grave offense

* The word “offense” should not be taken as a crime. It is enough if what was
imputed or what was done was wrong. In considering whether the wrong is a
grave one upon the person who committed the crime, his age, education and
social status will be considered.

* Here, in vindication of a grave offense, the vindication need not be done by

the person upon whom the grave offense was committed. So, unlike in
sufficient threat or provocation where the crime should be inflicted upon the
very person who made the threat or provocation, here, it need not be the
same person who committed the grave offense or who was offended by the
wrong done by the offended party.

* The word “immediate” here does not carry the same meaning as that under
paragraph 4. The word “immediate” here is an erroneous Spanish
translation because the Spanish word is “proxima” and not
“immediatementa.” Therefore, it is enough that the offender committed the
crime with the grave offense done to him, his spouse, his ascendant or
descendant or to his brother or sister, whether natural, adopted or legitimate
and that is the proximate cause of the commission of the crime.

* It would seem that the rule is that, the court must consider the lasting
effect and influence of the grave offense to the offender when he resorted to
commit the crime to vindicate such grave offense.

· Vindication of a grave offense and passion and obfuscation can’t be

counted separately and independently.

6. That of having acted upon an impulse so powerful as naturally to

have produced PASSION OR OBFUSCATION.

* Passion and obfuscation refer to emotional feeling which produces

excitement so powerful as to overcome reason and self-control. It must come
from prior unjust or improper acts. The passion and obfuscation must
emanate from legitimate sentiments.

· Passion and obfuscation is mitigating: when there are causes naturally

producing in a person powerful excitement, he loses his reason and self-
control. Thereby dismissing the exercise of his will power.

· PASSION AND OBFUSCATION are Mitigating Circumstances only when the

same arise from lawful sentiments (not Mitigating Circumstance when done
in the spirit of revenge or lawlessness)

· Requisites for Passion & Obfuscation

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a. The offender acted on impulse powerful enough to produce passion or
obfuscation
b. That the act was committed not in the spirit of lawlessness or revenge
c. The act must come from lawful sentiments

· Act which gave rise to passion and obfuscation

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

b. The act be sufficient to produce a condition of mind
c. That the act was proximate to the criminal act
d. The victim must be the one who caused the passion or obfuscation

· Example: Juan saw Tomas hitting his (Juan) son. Juan stabbed Tomas.
Juan is entitled to Mitigating Circumstance of Passion and Obfuscation as
his actuation arose from a natural instinct that impels a father to rush to
the rescue of his son.

· The obfuscation must be caused by unlawful act

· The exercise of a right or a fulfillment of a duty is not the proper

source of Passion and Obfuscation.

Example: A policeman arrested Juan as he was making a public disturbance

on the streets. Juan’s anger and indignation resulting from the arrest can’t
be considered passionate obfuscation because the policeman was doing a
lawful act.

· The act must be sufficient to produce a condition of mind. If the cause of the
loss of self-control was trivial and slight, the obfuscation is not mitigating.
Example: Juan’s boss punched him for not going to work the other day. The
Cause is slight.

· There could have been no Mitigating Circumstance of P&O when more than
24 hours elapsed between the alleged insult and the commission of the
felony, or several hours have passed between the cause of the P&O and the
commission of the crime, or at least ½ hours intervened between the
previous fight and subsequent killing of deceased by accused.

· Not mitigating if relationship is illegitimate

· The passion or obfuscation will be considered even if it is based only on the

honest belief of the offender, even if facts turn out to prove that his beliefs
were wrong.

· Passion and obfuscation cannot co-exist with treachery since that means
the offender has had time to ponder his course of action.

· PASSION AND OBFUSCATION arising from one and the same cause should
be treated as only one mitigating circumstance.

7. That the offender had VOLUNTARILY SURRENDERED himself to a

PERSON IN AUTHORITY or his agents, or that he had VOLUNTARILY

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CONFESSED HIS GUILT before the court prior to the presentation of
the evidence for the prosecution.

· 2 Mitigating Circumstances present:

a) voluntarily surrendered
b) voluntarily confessed his guilt

· If both are present, considered as 2 independent mitigating circumstances.

Mitigate penalty to a greater extent

· REQUISITES OF VOLUNTARY SURRENDER:

a) Offender not actually arrested

b) Offender surrendered to a person in authority or the latter’s agent
c) Surrender was voluntary

· Surrender must be spontaneous – shows his interest to surrender

unconditionally to the authorities

· Spontaneous – emphasizes the idea of inner impulse, acting without

external stimulus. The conduct of the accused, not his intention alone, after
the commission of the offense, determines the spontaneity of the surrender.

Example: Surrendered after 5 years, not spontaneous anymore.

Example: Surrendered after talking to town councilor. Not V.S. because
there’s an external stimulus

· Conduct must indicate a desire to own the responsibility

· Not mitigating when warrant already served. Surrender may be considered

mitigating if warrant not served or returned unserved because accused can’t
be located.

* “The law does not require that the accused surrender prior to the order of
arrest,” what matters is the spontaneous surrender of the accused upon
learning that a warrant of arrest had been issued against him and that
voluntary surrender is obedience to the order of arrest is issued against him.
(People vs. Cahilig, 68 Phil. 740)

· Surrender of person required. Not just of weapon.

· Person in authority – one directly vested with jurisdiction, whether as an

individual or as a member of some
court/government/corporation/board/commission. Barrio
captain/chairman included.

· Agent of person in authority – person who by direct provision of law, or

by election, or by appointment by competent authority is charged with the
maintenance of public order and the protection and security of life and
property and any person who comes to the aid of persons in authority.
· Revised Penal Code does not make distinction among the various moments
when surrender may occur.

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· Surrender must be by reason of the commission of the crime for which
defendant is charged.

VOLUNTARY SURRENDER

The essence of voluntary surrender requires that the offender, after having
committed the crime, had evaded the law enforcers and the law enforcers do
not know of his whereabouts. In short, he continues to elude arrest. If, under
this circumstance, the offender would come out in the open and he gives
himself up, his act of doing so will be considered as indicative of repentance
and he also saves the government the time and the expense of looking for
him.

As a general rule, if after committing the crime, the offender did not flee and
he went with the responding law enforcers meekly, voluntary surrender is
not applicable.

However, there is a ruling that if after committing the crime, the offender did
not flee and instead waited for the law enforcers to arrive and he
surrendered the weapon he used in killing the victim, the ruling was that
voluntary surrender is mitigating. In this case, the offender had the
opportunity to go into hiding, the fact that he did not flee is voluntary
surrender.

However, if he comes out from hiding because he is seriously ill and he went
to get medical treatment, the surrender is not considered as indicative of
remorse or repentance. The surrender here is only done out of convenience
to save his own self. Hence, it is not mitigating.

Even if the offender may have gone into hiding, if the law enforcers had
already known where he is hiding and it is just a matter of time before he is
flushed out of that place, then even if the law enforcers do not know exactly
where he was hiding and he would come out, this is not voluntary
surrender.

Whether or not a warrant of arrest had been issued against the offender is
immaterial and irrelevant. The criterion is whether or not the offender had
gone into hiding or had the opportunity to go into hiding and the law
enforcers do not know of his whereabouts. If he would give up, his act of
surrendering under such circumstance indicates that he is willing to accept
the consequences of the wrong he has done and also thereby saves the
government the effort, the time and the expenses to be incurred in looking
for him.

Surrender to be considered voluntary and thus mitigating, must be

spontaneous, demonstrating an intent to submit himself unconditionally to the
person in authority or his agent in authority, because (1) he acknowledges his
guilt (2) he wishes to save the government the trouble and expenses of
searching and capturing him. Where the reason for the surrender of the
accused was to insure his safety, his arrest by policemen pursuing him
being inevitable, the surrender is not spontaneous.
Q. If the accused escapes from the scene of the crime in order to seek advice
from a lawyer, and the latter ordered him to surrender voluntarily to the

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authorities, which the accused followed by surrendering himself to the
municipal mayor, will his surrender be considered mitigating?

A. The answer is yes, because he fled to the scene of a crime not to escape
but to seek legal advice.

Q. Supposing that after the accused met a vehicular accident causing

multiple homicide because of reckless imprudence, he surrenders to the
authorities immediately thereafter, will his surrender mitigate his criminal
liability because of Art. 13?

A. The answer is no, because in cases involving felonies committed by means

of culpa, the court is authorized under Art. 365 to impose a penalty upon
offender without regard to the rules on mitigating and aggravating
circumstances.

8. That the offender is deaf and dumb, blind or otherwise suffering from
some PHYSICAL DEFECT which thus restricts his means of action,
defense or communication with his fellow beings.

· Basis: one suffering from physical defect which restricts him does not have
complete freedom of action and therefore, there is diminution of that element
of voluntariness.

* The law says that the offender is deaf and dumb, meaning not only deaf
but also dumb, or that he is blind, meaning in both eyes, but even if he is
only deaf and not dumb, or dumb only but not deaf, or blind only in one eye,
he I still entitled to a mitigating circumstance under this article as long as
his physical defects restricts his means of action, defense communication
with his fellowmen. The restriction however, must relate to the mode of
committing the crime.

· No distinction between educated and uneducated deaf-mute or blind

persons

· The physical defect of the offender should restrict his means of action,
defense or communication with fellow beings; this has been extended to cover
cripples, armless people even stutterers.

The circumstance assumes that with their physical defect, the offenders do
not have a complete freedom of action therefore diminishing the element of
voluntariness in the commission of a crime.

* The physical defect that a person may have must have a relation to the
commission of the crime. Not any physical defect will affect the crime. It will
only do so if it has some relation to the crime committed.

This circumstance must also have a bearing on the crime committed and must
depend on how the crime was committed.

9. Such ILLNESS of the offender as would diminish the exercise of the

will-power of the offender without depriving him of consciousness of his
acts.

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· Basis: diminution of intelligence and intent

· Requisites:
a) Illness of the offender must diminish the exercise of his will-power.
b) Such illness should not deprive the offender of consciousness of his acts.

* If the illness not only diminishes the exercise of the offender’s will power
but deprives him of the consciousness of his acts, it becomes an exempting
circumstance to be classified as insanity or imbecility.

· Deceased mind, not amounting to insanity, may give place to mitigation

* Feeblemindedness of the accused who, in a fit of jealousy, stabbed his wife,

then carried her up to the house, laid her on the floor and then lay down
beside her, warrants the finding in his favor of this mitigating circumstance.
(People vs. Formigones, 87 Phil. 658)

10. And ANY OTHER CIRCUMSTANCE of a similar nature and analogous

to those above-mentioned

· Examples of “any other circumstance”:

a) Defendant who is 60 years old with failing eyesight is similar to a case of
one over 70 years old.
b) Outraged feeling of owner of animal taken for ransom is analogous to
vindication of grave offense.
c) Impulse of jealous feeling, similar to PASSION AND OBFUSCATION.
d) Voluntary restitution of property, similar to voluntary surrender.
e) Extreme poverty, similar to incomplete justification based on state of
necessity.
f) Esprit de corps is similar to passion or obfuscation.

Analogous cases
* The act of the offender of leading the law enforcers to the place where he
buried the instrument of the crime has been considered as equivalent to
voluntary surrender. The act of a thief in leading the authorities to the place
where he disposed of the loot has been considered as analogous or equivalent
to voluntary surrender.

* Stealing by a person who is driven to do so out of extreme poverty is

considered as analogous to incomplete state of necessity. However, this is not
so where the offender became impoverished because of his own way of living
his life. If his lifestyle is one of having so many vices, as a result of which he
became poor, his subsequent stealing because of his poverty will not be
considered mitigated by incomplete state of necessity.

· NOT analogous:
a) Killing wrong person
b) Not resisting arrest not the same as voluntary surrender
c) Running amuck is not mitigating

· MITIGATING CIRCUMSTANCE which arise from:

a) Moral attributes of the offender

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Example: Juan and Tomas killed Pedro. Juan acted with PASSION AND
OBFUSCATION.
Only Juan will be entitled to Mitigating Circumstance

b) Private relations with the offended party

Example: Juan stole his brother’s watch. Juan sold it to Pedro, who knew it
was stolen. The circumstance of relation arose from private relation of Juan
and the brother. Does not mitigate Pedro.

c) Other personal cause

Example: Minor, acting with discernment robbed Juan. Pedro, passing by,
helped the minor. Circumstance of minority, mitigates liability of minor only.
Shall serve to mitigate the liability of the principals, accomplices and
accessories to whom the circumstances are attendant.

· Circumstances which are neither exempting nor mitigating

a) Mistake in the blow
b) Mistake in the identity of the victim
c) Entrapment of the accused
d) Accused is over 18 years old
e) Performance of a righteous action

Example: Juan saved the lives of 99 people but caused the death of the last
person, he is still criminally liable

Note: Under the Rules of Court on plea bargaining, the accused is allowed
to negotiate with the prosecution during his arraignment, to enter a plea for
a lesser offense, or for the consideration of mitigating circumstances under
Art. 13; for the prosecution to forego or delete aggravating circumstances,
without regard to the rules and jurisprudence mentioned above.

AGGRAVATING CIRCUMSTANCES
· Definition – Those circumstance which raise the penalty for a crime
without exceeding the maximum applicable to that crime.

· Basis: The greater perversity of the offense as shown by:

a) The motivating power behind the act
b) The place where the act was committed
c) The means and ways used
d) The time
e) The personal circumstance of the offender
f) The personal circumstance of the victim

· Kinds:
a) Generic – generally applicable to all crimes
b) Specific – apply only to specific crimes (ignominy – for chastity crimes;
treachery– for persons crimes)

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

premeditation – becomes murder)

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d) Inherent – necessarily accompanies the commission of the crime; it is an
element of the crime committed (evident premeditation in theft, estafa)

QUALIFYING AGGRAVATING GENERIC AGGRAVATING

CIRCUMSTANCE CIRCUMSTANCE
Gives the proper and exclusive name, Increase penalty to the maximum,
places the author thereof in such a without exceeding limit prescribed by
situation as to deserve no other law.
penalty than that specifically
prescribed by law.
Can’t be offset by Mitigating May be compensated by Mitigating
Circumstance. Circumstance.
Must be alleged in the information. Need not be alleged. May be proved
Integral part of the offense. over the objection of the defense.
Qualifying if not alleged will make it
generic.

Aggravating Circumstances which DO NOT have the effect of

increasing the penalty:

1) Which themselves constitute a crime specifically punishable by law or

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

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

2) Aggravating circumstance inherent in the crime to such degree that it must

of necessity accompany the commission thereof.

Example: Evident premeditation inherent in theft, robbery, estafa, adultery

and concubinage

· Aggravating circumstances are not presumed. Must be proved as fully as the

crime itself in order to increase the penalty.

Art 14. Aggravating circumstances. — The following are aggravating

circumstances:

1. That advantage be taken by the offender of his PUBLIC POSITION

· Requisites:

a. The offender is a public officer

b. The commission of the crime would not have been possible without
the powers, resources and influence of the office he holds.

* A public officer is any person who, by (1) direct provision of the law, (2)
popular election or (3) appointment by competent authority shall take part in
the performance of public functions in the Government of the Philippine
Islands or shall perform in said Government or in any of its branches, public
duties as an employee, agent or subordinate official of any rank or class.

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· Essential - Public officer used the influence, prestige or ascendancy which
his office gives him as the means by which he realized his purpose.

* If the accused could have perpetrated the crime without occupying his
position, then there is no abuse of public position.

· Failure in official duties is tantamount to abusing of office.

* When the public position is an element of the offense like Bribery (Direct –
Article 210, Indirect – 211, or Qualified Bribery – Sec. 4, R.A. 7659), this
circumstance cannot be taken into consideration.

· Wearing of uniform is immaterial – what matters is the proof that he indeed

took advantage of his position.

Taking advantage of public position

Article 62 was also amended by the Republic Act No. 7659. The legal import
of this amendment is that the subject circumstance has been made a
qualifying or special aggravating that shall not be offset or compensated
by a mitigating circumstance. If not alleged in the information, however, but
proven during the trial, it is only appreciated as a generic aggravating
circumstance.

* Under Sec. 23, 1 (a) of R.A. 7659, when in the commission of the crime,
advantage was taken by the offender of his public position, the penalty to be
imposed shall be in its maximum regardless of mitigating circumstances.

2. That the crime be committed IN CONTEMPT OF OR WITH INSULT TO

THE PUBLIC AUTHORITIES

· Requisites:
a. The offender knows that a public authority is present
b. The public authority is engaged in the exercise of his functions
c. The public authority is not the victim of the crime
d. The public authority’s presence did not prevent the criminal act

· Example: Juan and Pedro are quarrelling and the municipal mayor, upon
passing by, attempts to stop them. Notwithstanding the intervention and the
presence of the mayor, Juan and Pedro continue to quarrel until Juan
succeeds in killing Pedro.

· Person in authority – Public authority who is directly vested with

jurisdiction, has the power to govern and execute the laws.

· Examples of Persons in Authority

a. Governor
b. Mayor
c. Barangay Captain
d. Councilors
e. Government agents
f. Chief of Police

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· Rule not applicable when committed in the presence of a mere agent.

· Agent – subordinate public officer charged with the maintenance of public

order and protection and security of life and property.

Example: Barrio Councilman or Tanod

3. That the act be committed with insult or in disregard of the respect

due to the offended party on account of his (A) RANK, (B) AGE, (C) SEX
OR that it be committed in the dwelling of the offended party, if the
latter has not given provocation.

1) with insult or in disregard of the respect due to the offended party

on account of his (A) RANK, (B) AGE, (C) SEX

· Circumstances (rank, age, sex) may be taken into account only in crimes
against persons or honor; it cannot be invoked in crimes against property.

· Rank – refers to a high social position or standing by which to determine

one’s pay and emoluments in any scale of comparison within a position.

· Age – the circumstance of lack of respect due to age applies in case where
the victim is of tender age as well as of old age (age of the offended party)

· Sex – refers to the female sex, not to the male sex; not applicable when

a. The offender acted w/ PASSION AND OBFUSCATION

b. there exists a relation between the offender and the victim (but in cases of
divorce decrees where there is a direct bearing on their child, it is applicable)
c. the condition of being a woman is indispensable in the commission of the
crime (Ex. Parricide, rape, abduction)

· Requisite of disregard to rank, age, or sex

a. Crimes must be against the victim’s person or his honor

b. There is deliberate intent to offend or insult the respect due to the
victim’s rank, age, or sex

NOTE: While nighttime is absorbed in treachery, the aggravating

circumstance of disregard of sex and age cannot be similarly absorbed, as
Treachery refers to the manner of the commission of the crime, while the
latter pertains to the relationship of the victim with the offender. (People vs.
Lapaz, 171 SCRA 539)

(2) that it be committed in the DWELLING of the offended party, if the

latter has not given provocation.

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· Dwelling – must be a building or structure exclusively used for rest and
comfort (combination house and store not included)

a. May be temporary as in the case of guests in a house or bedspacers.

b. Basis for this is the sanctity of privacy the law accords to human abode.

· Dwelling includes dependencies, the foot of the staircase and the enclosure
under the house

· Elements of the aggravating circumstance of dwelling

a. Crime occurred in the dwelling of the victim
b. No provocation on the part of the victim

· Requisites for Provocation: ALL MUST CONCUR

a. given by the owner of the dwelling
b. sufficient
c. immediate to the commission of the crime

* Dwelling will only be aggravating if it is the dwelling of the offended party. It

should also not be the dwelling of the offender. If the dwelling is both that of
the offended party and the offender, dwelling is not aggravating.

* Dwelling need not be owned by the offended party. It is enough that he

used the place for his peace of mind, rest, comfort and privacy. The rule that
dwelling, in order to be aggravating must be owned by the offended party is
no longer absolute. Dwelling can be aggravating even if it is not owned by the
offended party, provided that the offended party is considered a member of
the family who owns the dwelling and equally enjoys peace of mind, privacy
and comfort.

* Dwelling should not be understood in the concept of a domicile. A person has

more than one dwelling.

* Dwelling is not limited to the house proper. All the appurtenances necessary
for the peace and comfort, rest and peace of mind in the abode of the
offended party is considered a dwelling.

4. That the act be committed with (1) ABUSE OF CONFIDENCE or (2)

OBVIOUS UNGRATEFULNESS

Requisites of Abuse of Confidence Requisite of Obvious

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 Ungratefulness
a) Offended party has trusted the a) Ungratefulness must be obvious,
offender. that is, there must be something
which the offender should owe the
b) Offender abused such trust. victim a debt of gratitude for.

c) Abuse of confidence facilitated Note: robbery or theft committed by a

the commission of the crime. visitor in the house of the offended
party is aggravated by obvious
ungratefulness

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

her for a ride and during that ride, he stabbed her

· Abuse of confidence is inherent in:

a. Malversation
b. Qualified theft
c. Estafa by conversion
d. Misappropriation
e. ualified seduction

* Do not confuse this with mere betrayal of trust. This is aggravating only
when the very offended party is the one who reposed the confidence. If the
confidence is reposed by another, the offended party is different from the
fellow who reposed the confidence and abuse of confidence in this case is not
aggravating.

5. That the crime be committed in the PALACE OF THE CHIEF

EXECUTIVE, or in his presence, or when PUBLIC AUTHORITIES ARE
ENGAGED IN THE DISCHARGE OF THEIR DUTIES, or in a PLACE
DEDICATED TO RELIGIOUS WORSHIP.

· Requirements of the aggravating circumstance of public office:

a. The crime occurred in the public office

b. Public authorities are actually performing their public duties

· A polling precinct is a public office during Election Day.

· Nature of public office should be taken into account, like a police station
which is on duty 24 hrs. a day.

· Place of the commission of the felony (par 5): if it was committed in

Malacañang palace or a church it is aggravating, regardless of whether State
or official; functions are being held.

* The President or Chief of Executive need not be in the Palace to aggravate

the liability of the offender.

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· As regards other places where public authorities are engaged in the
discharge of their duties, there must be some performance of public
functions.

* The accused must have the intention to commit the crime in such place so
that if the meeting of the offender and the victim was only casual, this
circumstance cannot be considered.

* However, in a place which is dedicated to religious worship, any offense

committed thereat even if no ceremony is taking place, is aggravated by this
circumstance.

Requisites for aggravating circumstances for place of worship:

a. The crime occurred in a place dedicated to the worship of God

regardless of religion.

b. Offender must have decided to commit the crime when he entered

the place of worship.

When Paragraph 2 and 5 of Article 14 are applicable

Committed in the presence of the Committed in contempt of Public
Chief Executive, in the Presidential Authority (Par. 2, Art 14).
Palace or a place of worship (Par. 5,
Art. 14).
Public authorities are performing of Same
their duties when the crime is
committed.
When crime is committed in the Outside the office (still performing
public office, the officer must be duty).
performing his duties, except in the
Presidential Palace.
Public authority may be the offended Public authority is not be the
party. offended Party.

6. (A) That the crime be committed (1) in the NIGHTTIME, or (2) in an

UNINHABITED PLACE (3) by a BAND, whenever such circumstances may
facilitate the commission of the offense.

· Nighttime, Uninhabited Place or by a Band Aggravating when:

a. It facilitated the commission of the crime

b. Especially sought for by the offender to insure the commission of

the crime or for the purpose of impunity.

c. When the offender took the advantage thereof for the purpose of
impunity.
d. Commission of the crime must have began and accomplished at
nighttime.

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Impunity – means to prevent the accused’s being recognized or to secure
himself against detection or punishment or to facilitate his escape more
easily.

· Nighttime begins at the end of dusk and ending at dawn; from sunset to
sunrise

* Commission of the crime must begin and be accomplished in the nighttime

* When the place of the crime is illuminated by light, nighttime is not
aggravating

* Absorbed by Treachery

* Even if there was darkness but the nighttime was only an incident of a
chance meeting, there is no aggravating circumstance here. It must be shown
that the offender deliberately sought the cover of darkness and the offender
purposely took advantage of nighttime to facilitate the commission of the
offense, to insure his immunity from capture, or otherwise to facilitate his
getaway.(People vs. Pareja, 265 SCRA 429)

 Uninhabited Place – one where there are no houses at all, a place at

a considerable distance from town, where the houses are scattered at
a great distance from each other.
Requisites:
a. The place facilitated the commission or omission of the crime.
b. Deliberately sought and not incidental to the commission or
omission of the crime.
c. Taken advantage of for the purpose of impunity.

* While there is no hard and fast rule on the matter, a place where there are
no people or houses within a distance of 200 meters or less is considered
uninhabited (People vs. Egot, 130 SCRA 134).

· What should be considered here is whether in the place of the commission

of the offense, there was a reasonable possibility of the victim receiving some
help.

6. (B) - Whenever more than 3 armed malefactors shall have acted

together in the commission of an offense, it shall be deemed to have
been committed by a BAND.

· Requisites:
a. Facilitated the commission of the crime
b. Deliberately sought
c. Taken advantage of for the purposes of impunity
d. There must be four or more armed men

· If one of the four-armed malefactors is a principal by inducement, they do

not form a band because it is undoubtedly connoted that he had no direct
participation.
* Where more than three armed malefactors participated in the commission
of the offense, if the aggrupation did not facilitate the commission of the
crime, it will not be considered as aggravating because of the language of the

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law which requires that such circumstance must have facilitated the
commission of the offense.

* When the two (2) groups are almost similarly armed, like where the group
of the offended party numbered five (5) but only three (3) were armed so that
there is no band, while the offenders were four (4) who were all armed and
therefore constituted a band, there is no band as aggravating circumstance
as it did not facilitate the commission of the crime. Likewise, if the meeting
is casual, the homicide committed by the killers comprising a band is not
aggravated.

· Arms is not limited to firearms, sticks and stones included

· Band is inherent in robbery committed in band and brigandage

* Correlate this with Article 306 - Brigandage. The crime is the band itself.
The mere forming of a band even without the commission of a crime is
already a crime so that band is not aggravating in brigandage because the
band itself is the way to commit brigandage. However, where brigandage is
actually committed, band becomes aggravating.

· It is not considered in the crime of rape.

· It has been applied in treason and in robbery with homicide.

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

shipwreck, earthquake, epidemic or other CALAMITY OR MISFORTUNE

· Requisites:

a. Committed when there is a calamity or misfortune

1. Conflagration
2. Shipwreck
3. Epidemic

b. Offender took advantage of the state of confusion or chaotic

condition from such misfortune

· Basis: Commission of the crime adds to the suffering by taking advantage

of the misfortune.

· Based on time.
· Offender must take advantage of the calamity or misfortune.

8. That the crime be committed with the AID OF (1) ARMED MEN OR (2)
PERSONS WHO INSURE OR AFFORD IMPUNITY.

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· Based on the means and ways of committing the crime

· Requisites:
a. That armed men or persons took part in the commission of the
crime, directly or indirectly.
b. That the accused availed himself of their aid or relied upon them
when the crime was committed.

* If the accused relied on the presence of armed men, availing himself of the
aid of the latter, his liability is aggravated. However, where it appeared that
appellants were not merely present at the scene of the crime but were in
conspiracy with the assailant, shooting the victim and leaving the scene
together after apparently accomplishing their purpose clearly evincing
conspiracy, this circumstance cannot be appreciated. (People vs. Umbrero,
196 SCRA 821)

* There must be no unity of purpose between the offender and the armed
men present in the commission of the crime. The existence of conspiracy will
make the armed men liable as principals by direct participation.

· Exceptions:

a. When both the attacking party and the party attacked were equally armed
b. Not present when the accused as well as those who cooperated with him
in the commission of the crime acted under the same plan and for the same
purpose.
c. Casual presence, or when the offender did not avail himself of any of their
aid nor did not knowingly count upon their assistance in the commission of
the crime.

9. That the accused is a RECIDIVIST.

· Recidivist – one who at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the
same title of the RPC.

* It is important that the conviction which came earlier must refer to the crime
committed earlier than the subsequent conviction.
· Basis: Greater perversity of the offender as shown by his inclination to
commit crimes.
· Requisites:
a. offender is on trial for an offense
b. he was previously convicted by final judgment of another crime
c. that both the first and the second offenses are embraced in the same title
of the RPC (not special law)
d. the offender is convicted of the new offense

· What is controlling is the time of the trial, not the time of the commission of
the offense. At the time of the trial means from the arraignment until after
sentence is announced by the judge in open court.

· When does judgment becomes final? (Rules of Court)

a. After the lapse of a period for perfecting an appeal.

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b. When the sentence has been partially or totally satisfied or served.
c. Defendant has expressly waived in writing his right to appeal.
d. The accused has applied for probation.

· Example of Crimes embraced in the same title of the RPC

a. Robbery and theft – Title 10

b. Homicide and physical injuries – Title 8

* In recidivism, the crimes committed should be felonies. Recidivism cannot be

had if the crime committed is a violation of a special law.

· Q: The accused was prosecuted and tried for theft, robbery and estafa.
Judgments were read on the same day. Is he a recidivist?

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

· Recidivism must be taken into account no matter how many years have
intervened between the first and second felonies.

· Pardon does not obliterate the fact that the accused was a recidivist, but
amnesty extinguishes the penalty and its effects.

* If the offender has already served his sentence and he was extended an
absolute pardon, the pardon shall erase the conviction including recidivism
because there is no more penalty, so it shall be understood as referring to
the conviction or the effects of the crime.

· To prove recidivism, it must be alleged in the information and with attached

certified copies of the sentences rendered against the accused.

· Exceptions: if the accused does not object and when he admits in his
confession and on the witness stand.

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

REITERACION OR HABITUALITY – it is essential that the offender be

previously punished; that is, he has served sentence.

Par. 10 speaks of penalty attached to the offense, not the penalty actually
imposed.

* In reiteracion, the penalty attached to the crime subsequently committed

should be higher or at least equal to the penalty that he has already served. If
that is the situation, that means that the offender was never reformed by the
fact that he already served the penalty imposed on him on the first
conviction.
However, if he commits a felony carrying a lighter penalty; subsequently, the
law considers that somehow he has been reformed but if he, again commits
another felony which carries a lighter penalty, then he becomes a repeater
because that means he has not yet reformed.

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* You will only consider the penalty in reiteracion if there is already a second
conviction. When there is a third conviction, you disregard whatever penalty
for the subsequent crimes committed. Even if the penalty for the subsequent
crimes committed is lighter than the ones already served, since there are
already two of them subsequently, the offender is already a repeater.

* However, if there is only a second conviction, pay attention to the penalty

attached to the crime which was committed for the second crime. That is
why it is said that reiteracion is not always aggravating. This is so because if
the penalty attached to the felony subsequently committed is not equal or
higher than the penalty already served, even if literally, the offender is a
repeater, repetition is not aggravating.

REITERACION RECIDIVISM
Necessary that offender shall have Enough that final judgment has been
served out his sentence for the first rendered in the first offense.
sentence.
Previous and subsequent offenses Same title.
must not be embraced in the same
title of the Code.
Not always an aggravating Always aggravating.
circumstance.

* Thus, if A has been convicted of Murder, and after grant of parole

committed Homicide, he labors under this paragraph (10) known as
reiteracion, but he is also suffering from recidivism (recidencia). In such a
case, he will be considered only as recidivist, and par. 10 will no longer apply
to him.

· 4 FORMS OF REPETITION

a. Recidivism – Generic
b. Reiteracion or Habituality – Generic
c. Multiple recidivism or Habitual delinquency – Extraordinary
aggravating
d. Quasi-Recidivism – Special aggravating

Distinctions between recidivism and habitual delinquency

In recidivism –

(1) Two convictions are enough.

(2) The crimes are not specified; it is enough that they may be embraced under
the same title of the Revised Penal Code.
(3) There is no time limit between the first conviction and the subsequent
conviction. Recidivism is imprescriptible.
(4) It is a generic aggravating circumstance which can be offset by an ordinary
mitigating circumstance. If not offset, it would only increase the penalty
prescribed by law for the crime committed to its maximum period.
(5) The circumstance need not be alleged in the information.

In habitual delinquency –

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(1) At least three convictions are required.
(2) The crimes are limited and specified to: (a) serious physical injuries, (b) less
serious physical injuries, (c) robbery, (d) theft, (e) estafa or swindling and (f)
falsification.
(3) There is a time limit of not more than 10 years between every convictions
computed from the first conviction or release from punishment thereof to
conviction computed from the second conviction or release therefrom to the
third conviction and so on.
(4) Habitual delinquency is a special aggravating circumstance; hence it
cannot be offset by any mitigating circumstance. Aside from the penalty
prescribed by law for the crime committed, an additional penalty shall be
imposed depending upon whether it is already the third conviction, the fourth,
the fifth and so on.
(5) The circumstance must be alleged in the information; otherwise the court
cannot acquire jurisdiction to impose additional penalty.

· HABITUAL DELINQUENCY – when a person within a period of 10 years

from the date of his release or last conviction of the crimes of serious or less
serious physical injuries, robbery, theft, estafa or falsification is found guilty
of any of said crimes a third time or oftener.

* When the offender is a recidivist and at the same time a habitual delinquent,
the penalty for the crime for which he will be convicted will be increased to
the maximum period unless offset by a mitigating circumstance. After
determining the correct penalty for the last crime committed, an added
penalty will be imposed in accordance with Article 62.

* Habitual delinquency, being a special or specific aggravating circumstance

must be alleged in the information. If it is not alleged in the information and
in the course of the trial, the prosecution tried to prove that the offender is a
habitual delinquent over the objection of the accused, the court has no
jurisdiction to consider the offender a habitual delinquent.

· QUASI-RECIDIVISM – Any person, who shall commit a felony after having

been convicted by final judgment, before beginning to serve such sentence,
or while serving the same, shall be punished by the maximum period of the
penalty prescribed by law for the new felony.

* The emphasis here is on the crime committed before sentence or while

serving sentence which should be a felony, a violation of the Revised Penal
Code. In so far as the earlier crime is concerned, it is necessary that it be a
felony.

* The emphasis is on the nature of the crime committed while serving

sentence or before serving sentence. It should not be a violation of a special
law.
* Quasi-recidivism is a special aggravating circumstance. This cannot be
offset by any mitigating circumstance and the imposition of the penalty in
the maximum period cannot be lowered by any ordinary mitigating
circumstance. When there is a privileged mitigating circumstance, the
penalty prescribed by law for the crime committed shall be lowered by 1 or 2
degrees, as the case may be, but then it shall be imposed in the maximum
period if the offender is a quasi-recidivist.

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11. That the crime be committed IN CONSIDERATION OF A PRICE,
REWARD OR PROMISE.
· Requisites:
a. At least 2 principals

1. The principal by inducement.

2. The principal by direct participation.

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

consideration of the commission of the criminal act.

· Applicable to both principals.

* To consider this circumstance, the price, reward or promise must be the

primary reason or the primordial motive for the commission of the crime. Thus,
if A approached B and told the latter what he thought of X, and B answered
“he is a bad man” to which A retorted, “you see I am going to kill him this
afternoon”, and so B told him “If you do that, I’ll give you P5,000.00” and
after killing X, A again approached B, told him he had already killed X, and
B in compliance with his promise, delivered the P5,000.00, this aggravating
circumstance is not present.

12. That the crime be committed by means of inundation, fire, poison,

explosion, stranding a vessel or intentional damage thereto, or
derailment of a locomotive, or by use of any other artifice involving
GREAT WASTE OR RUIN.

· Requisite: The wasteful means were used by the offender to accomplish a

criminal purpose.

* Fire is not aggravating in the crime of arson.

* Whenever a killing is done with the use of fire, as when to kill someone, you
burn down his house while the latter is inside, this is murder.
* There is no such crime as murder with arson or arson with homicide. The
crime committed is only murder.
* If the victim is already dead and the house is burned, the crime is arson. It
is either arson or murder.
* If the intent is to destroy property, the crime is arson even if someone dies
as a consequence. If the intent is to kill, there is murder even if the house is
burned in the process.
* Under R.A. 8294 which amends P.D. 1866, when a person commits any
crime under the Revised Penal Code or special laws with the use of
explosives including but not limited to pillbox, motolov cocktail bombs,
detonation agents or incendiary devices resulting in the death of a person,
the same is aggravating. (Section 2)

13. That the act be committed with EVIDENT PREMEDITATION.

· Essence of premeditation: the execution of the criminal act must be

preceded by cool thought and reflection upon the resolution to carry out the
criminal intent during the space of time sufficient to arrive at a calm
judgment.

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· Requisites:
a. the time when the offender determined to commit the crime
b. an act manifestly indicating that the culprit has clung to his
determination
c. a sufficient lapse of time between the determination and execution
to allow him to reflect upon the consequences of his act and to allow
his conscience to overcome the resolution of his will.

· Conspiracy generally presupposes premeditation

* There are cases however, when conspiracy is established because of the

manner the crime was committed by the offenders, which more often is
manifested by their acts before, during and after the commission of the
crime. This is called implied conspiracy. When such situation arises, the
court cannot presume evident premeditation. There is unity of purpose and
they all took part in the commission of the crime, but such is not evident
premeditation. It only establishes conspiracy.

· When victim is different from that intended, premeditation is not aggravating.

Although it is not necessary that there is a plan to kill a particular person
for premeditation to exist (e.g. plan to kill first 2 persons one meets, general
attack on a village…for as long as it was planned)

· The premeditation must be based upon external facts, and must be evident,
not merely suspected indicating deliberate planning.

· Evident premeditation is inherent in robbery, adultery, theft, estafa,

falsification, and etc.

* In evident premeditation, there must be a clear reflection on the part of the

offender. However, if the killing was accidental, there was no evident
premeditation. What is necessary to show and to bring about evident
premeditation aside from showing that as some prior time, the offender has
manifested the intention to kill the victim, and subsequently killed the
victim.

* In People vs. Mojica, 10 SCRA 515, the lapse of one hour and forty-five
minutes (4:15P.M. to 6P.M.) was considered by the Supreme Court as
sufficient. In People vs. Cabodoc, 263 SCRA 187, where at 1:00 p.m., the
accused opened his balisong and uttered “I will kill him (referring to the
victim)”, at 4:30 p.m. of the said date accused stabbed the victim, it was held
that the lapse of three and a half hours (3 ½ hours) from the inception of the
plan to the execution of the crime satisfied the last requisite of evident
premeditation.

14. That (1) CRAFT, (2) FRAUD, OR (3) DISGUISE be employed

· CRAFT – involves intellectual trickery and cunning on the part of the
accused. It is employed as a scheme in the execution of the crime (e.g.
accused pretended to be members of the constabulary, accused in order to
perpetrate rape, used chocolates containing drugs)

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* Craft is present since the accused and his cohorts pretended to be bonafide
passengers of the jeep in order not to arouse suspicion; when once inside the
jeep, they robbed the driver and other passengers (People vs. Lee, 204
SCRA 900)

· FRAUD –involves insidious words or machinations used to induce victim to

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

· As distinguished from craft which involves acts done in order not to arouse
the suspicion of the victim, fraud involves a direct inducement through
entrapping or beguiling language or machinations

· DISGUISE – Resorting to any device to conceal identity. Purpose of

concealing identity is a must.

* But the accused must be able to hide his identity during the initial stage, if
not all throughout, the commission of the crime and his identity must have
been discovered only later on, to consider this aggravating circumstance. If
despite the mask worn by the accused, or his putting of charcoal over his
body, the offended party even before the initial stage knew him, he was not
able to hide his identity and this circumstance cannot be appreciated.

Distinction between Craft, Fraud, and Disguise

Craft Fraud Disguise

Involves the use of Involves the use of Involves the use of

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

15. That (1) ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH, or (2)

MEANS BE EMPLOYED TO WEAKEN THE DEFENSE.

· To purposely use excessive force out of the proportion to the means of

defense available to theperson attacked.
* Superiority may arise from aggressor’s sex, weapon or number as
compared to that of thevictim (e.g. accused attacked an unarmed girl with a
knife; 3 men stabbed to death the female victim).
* No advantage of superior strength when one who attacks is overcome with
passion and obfuscation or when quarrel arose unexpectedly and the fatal
blow was struck while victim and accused were struggling.

VERSUS BY A BAND: circumstance of abuse of superior strength, what is

taken into account is not the number of aggressors nor the fact that they are
armed but their relative physical might vis-àvis the offended party.
* There must be evidence of notorious inequality of forces between the
offender and the offended party in their age, size and strength, and that the
offender took advantage of such superior strength in committing the crime.
The mere fact that there were two persons who attacked the victim does not
per se constitute abuse of superior strength (People v. Carpio, 191 SCRA
12).

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* To appreciate abuse of superior strength, what should be considered is not
that there were three, four or more assailants of the victim. What matters is
whether the aggressors took advantage of their combined strength in order
to consummate the crime.

* The fact known however that there were two persons who attacked the
victim does not perse establish that the crime was committed with abuse of
superior strength.

To take advantage of superior strength means to purposely use excessive

force out of proportion to the means available to the person attacked to
defend himself. (People vs. Casingal, 243 SCRA 37)

* Had treachery or alevosia been proven, it would have absorbed abuse of

superior strength. (People vs. Panganiban, 241 SCRA 91)

· Requisite of Means to Weaken Defense

a. Means were purposely sought to weaken the defense of the victim to

resist the assault.

b. The means used must not totally eliminate possible defense of the
victim, otherwise it will fall under treachery.

· To weaken the defense – illustrated in the case where one struggling with
another suddenly throws a cloak over the head of his opponent and while in
the said situation, he wounds or kills him. Other means of weakening the
defense would be intoxication or disabling thru the senses (casting dirt of
sand upon another’s eyes)

16. That the act be committed with TREACHERY (alevosia)

· TREACHERY: when the offender commits any of the crime against the
person, employing means, methods or forms in the execution thereof which
tend directly and specially to insure its execution without risk to himself
arising from the defense which the offended party might make.

· Requisites:
a. That at the time of the attack, the victim was not in the position to
defend himself.

b. That the offender consciously adopted the particular means,

method or form of attack employed by him.

* The essence of treachery is that by virtue of the means, method or form

employed by the offender, the offended party was not able to put up any
defense. If the offended party was able to put up a defense, even only a
token one, there is no treachery anymore. Instead some other aggravating
circumstance may be present but not treachery anymore.

· Treachery – can’t be considered when there is no evidence that the accused,

prior to the moment of the killing, resolved to commit to crime, or there is no

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proof that the death of the victim was the result of meditation, calculation or
reflection.

* Does not exist if the accused gave the deceased chance to prepare or there
was warning given or that it was preceded by a heated argument.

* There is always treachery in the killing of child.

* Generally characterized by the deliberate and sudden and unexpected

attack of the victim from behind, without any warning and without giving the
victim an opportunity to defend himself.

* Treachery is out when the attack was merely incidental or accidental

because in the definition of treachery, the implication is that the offender
had consciously and deliberately adopted the method, means and form used
or employed by him.

· Examples: victim asleep, half-awake or just awakened, victim grappling or

being held, attacks from behind.

· But treachery may exist even if attack is face-to-face – as long as victim was
not given any chance to prepare defense.

· Where there is conspiracy, treachery is considered against all the offenders.

· Treachery absorbs abuse of strength, aid of armed men, by a band and

means to weaken the defense.

TREACHERY ABUSE OF SUPERIOR MEANS EMPLOYED TO

STRENGTH WEAKEN DEFENSE
Means, methods or Offender does not Means are employed
forms are employed by employ means, methods but it only materially
the offender to make it or forms of attack; he weakens the resisting
impossible or hard for only takes advantage of power of the offended
the offended party to his superior strength. party.
put any sort of
resistance.

INTOXICATION is the means deliberately employed by the offender to

weaken the defense of the offended party. If this was the very means
employed, the circumstance may be treachery and not abuse of superior
strength or means to weaken the defense.

* There must be evidenced on how the crime was committed. It is not enough
to show that the victim sustained treacherous wound. It must be shown that
the victim was totally defenseless.

* Suddenness of the attack does not by itself constitute treachery in the

absence of evidence that the manner of the attack was consciously adopted
by the offender to render the offended party defenseless (People v. Ilagan,
191 SCRA 643).

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* Even if the person killed is different from the intended victim, treachery
must be considered against the offender because he is responsible either for
the intended victim or the actual victim.

* For treachery to be appreciated however, the circumstance must be present

at the inception of the attack and if absent, and the attack is continuous,
treachery at a subsequent stage is not to be considered. (People vs. Escoto,
244 SCRA 382). However, if there is a break in the continuity of the
aggression, it is not necessary that treachery be present in the beginning of
the assault; it is sufficient that when the fatal blow was inflicted, there was
treachery. (U.S. vs. Balagtas, 19 Phil. 164)

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

add IGNOMINY to the natural effects of the acts.

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

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

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

injuries, light or grave coercion and murder.

· Requisites:
a. Crime must be against chastity, less serious physical injuries, light
or grave coercion, and murder
b. The circumstance made the crime more humiliating and shameful
for the victim

· Examples:
 Accused embraced and kissed the offended party not out of lust but
out of anger in front of many people, raped in front of the husband,
raped successively by five men.
 Tend to make the effects of the crime more humiliating.
 Ignominy not present where the victim was already dead when such
acts were committed against his body or person.

Distinction between ignominy and cruelty

Ignominy shocks the moral conscience of man while cruelty is physical.

Ignominy refers to the moral effect of a crime and it pertains to the moral
order, whether or not the victim is dead or alive. Cruelty pertains to physical
suffering of the victim so the victim has to be alive. In plain language,
ignominy is adding insult to injury.

* Cruelty and ignominy are circumstances brought about which are not
necessary in the commission of the crime.

18. That the crime be committed after an UNLAWFUL ENTRY.

· Unlawful entry – when an entrance is effected by a way not intended for

the purpose. Meant to effect entrance and NOT exit.

· Why aggravating? One who acts, not respecting the walls erected by men to
guard their property and provide for their personal safety, shows greater

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perversity, a greater audacity and hence the law punishes him with more
severity

· Example: Rapist gains entrance thru the window.

· Inherent in: Trespass to dwelling, and robbery with force upon things.

* Unlawful entry is inherent in the crime of robbery with force upon things
but aggravating in the crime of robbery with violence against or intimidation
of persons.

* Where the escape was done through the window, the crime is not attended
by this circumstance since there was no unlawful entry.

19. That as a means to the commission of the crime, A WALL, ROOF,

DOOR OR WINDOW BE BROKEN.

· Requisites:
a. A wall, roof, window, or door was broken.
b. They were broken to effect entrance.

· Applicable only if such acts were done by the offender to effect entrance.
* The breaking of the parts of the house must be made as a means to
commit the offense. So, if A entered the door of his neighbor after killing
him, escaped by breaking the jalousies of the window or the door, this
aggravating circumstance is absent.

* The basis of this aggravating circumstance refers to means and ways

employed to commit the crime. It is not necessary that the offender should
have entered the building because the phrase “as a means to the
commission of the crime” does not require entry to the building. It is also
inherent in the crime of robbery with force upon things.

· Breaking is lawful in the following instances:

a. an officer in order to make an arrest may break open a door or window of
any building in which the person to be arrested is or is reasonably believed
to be;

b. an officer if refused admittance may break open any door or window to

execute the search warrant or liberate himself.

20. That the crime be committed (1) with the AID OF PERSONS UNDER
15 YEARS of age, or (2) by MEANS OF MOTOR VEHICLES, airships or
other similar means.

· Reason for #1: to repress, so far as possible, the frequent practice resorted
to by professional criminals to avail themselves of minors taking advantage
of their responsibility (remember that minors are given leniency when they
commit a crime)

* The minors here could be accessories, accomplices or principals who aided

the accused in the commission of the crime.

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Example: Juan instructed a 14-year old to climb up the fence and open the
gate for him so that he may rob the house.

· Reason for #2: to counteract the great facilities found by modern criminals
in said means to commit crime and flee and abscond once the same is
committed.

· Necessary that the motor vehicle be an important tool to the consummation of

the crime (bicycles not included)

Example: Juan and Pedro, in committing theft, used a truck to haul the
appliances from the mansion.

* This circumstance is aggravating only when used in the commission of the

offense. If motor vehicle is used only in the escape of the offender, motor
vehicle is not aggravating. To be aggravating, it must have been used to
facilitate the commission of the crime.

* The motor vehicle must have been sought by the offender to facilitate the
commission of the crime.

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

· CRUELTY: when the culprit enjoys and delights in making his victim suffer
slowly and gradually, causing him unnecessary physical pain in the
consummation of the criminal act.

Cruelty cannot be presumed nor merely inferred from the body of the
deceased. Has to be proven.

* Mere plurality of wrong do not show cruelty.

* No cruelty when the other wrong was done after the victim was dead.

· Requisites:
a. that the injury caused be deliberately increased by causing other
wrong.
b. that the other wrong be unnecessary for the execution of the
purpose of the offender.

* For cruelty to exist as an aggravating circumstance, there must be evidence

showing that the accused inflicted the alleged cruel wounds slowly and
gradually and that he is delighted seeing the victim suffer in pain. In the
absence of evidence to this effect, there is no cruelty.

* There is cruelty when the offender is deliberately and inhumanly

augmented the suffering of the victim.

* The essence of cruelty is that the culprit finds delight in prolonging the
suffering of the victim.

Art 15. ALTERNATIVE CIRCUMSTANCES. Their concept. — Alternative

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circumstances are those which must be taken into consideration as
aggravating or mitigating according to the nature and effects of the
crime and the other conditions attending its commission. They are the
relationship, intoxication and the degree of instruction and education
of the offender.

The alternative circumstance of relationship shall be taken into

consideration when the offended party is the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or relative
by affinity in the same degrees of the offender.

The intoxication of the offender shall be taken into consideration as a

mitigating circumstances when the offender has committed a felony in
a state of intoxication, if the same is not habitual or subsequent to the
plan to commit said felony but when the intoxication is habitual or
intentional, it shall be considered as an aggravating circumstance.

ALTERNATIVE CIRCUMSTANCES – those which must be taken into

consideration as aggravating or mitigating according to the nature and
effects of the crime and other conditions attending its commission.

* Use only the term alternative circumstance for as long as the particular
circumstance is not involved in any case or problem. The moment it is given in
a problem, do not use alternative circumstance, refer to it as aggravating or
mitigating depending on whether the same is considered as such or the other.

They are:

a. RELATIONSHIP – taken into consideration when offended party is the

spouse, ascendant, descendant, legitimate, natural or adopted brother or
sister, or relative by affinity in the same degree (2nd) of the offender.

* The relationship of step-daughter and step father is included (People vs.

Tan,264 SCRA 425), But not of uncle and niece. (People vs. Cabresos, 244
SCRA 362)

b. INTOXICATION – mitigating when the offender has committed a felony in

the state of intoxication, if the same is not habitual or subsequent to the
plan to commit the said felony. Aggravating if habitual or intentional.

c. DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER

* Except for the circumstance of intoxication, the other circumstances in Article
15 may not be taken into account at all when the circumstance has no bearing
on the crime committed. So the court will not consider this as aggravating or
mitigating simply because the circumstance has no relevance to the crime
that was committed.

* It is only the circumstance of intoxication which if not mitigating, is

automatically aggravating. But the other circumstances, even if they are
present, but if they do not influence the crime, the court will not consider it
at all. Relationship may not be considered at all, especially if it is not
inherent in the commission of the crime. Degree of instruction also will not be

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considered if the crime is something which does not require an educated
person to understand.

Art 16. Who are criminally liable. — The following are criminally liable
for grave and less grave felonies:

1. Principals.
2. Accomplices.
3. Accessories.

The following are criminally liable for light felonies:

1. Principals
2. Accomplices.

* This classification is true only under the Revised Penal Code and is not used
under special laws, because the penalties under the latter are never
graduated. Do not use the term principal when the crime committed is a
violation of special law. Only use the term “offender.” Also only classify
offenders when more than one took part in the commission of the crime to
determine the proper penalty to be imposed.

So, if only one person committed a crime, do not use principal. Use the
“offender,” “culprit,” or the “accused.”

* When a problem is encountered where there are several participants in the

crime, the first thing to find out is if there is a conspiracy. If there is, as a
general rule, the criminal liability of all will be the same, because the act of
one is the act of all. However, if the participation of one is so insignificant,
such that even without his cooperation, the crime would be committed just as
well, then notwithstanding the existence of a conspiracy, such offender will
be regarded only as an accomplice.

*As to the liability of the participants in a felony, the Code takes into
consideration whether the felony committed is grave, less grave, or light.

* When the felony is grave, or less grave, all participants are criminally liable.

* But where the felony is only light only the principal and the accomplice are
liable. The accessory is not.

* But even the principal and the accomplice will not be liable if the felony
committed is only light and the same is not consummated unless such
felony is against persons or property.

· Accessories – not liable for light felonies because the individual prejudice
is so small that penal sanction is not necessary.

· Only natural persons can be criminals as only they can act with malice or
negligence and can be subsequently deprived of liberty. Juridical persons are
liable under special laws.

· Manager of a partnership is liable even if there is no evidence of his direct

participation in the crime.

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· Corporations may be the injured party.

· General Rule: Corpses and animals have no rights that may be injured.
· Exception: defamation of the dead is punishable when it blackens the
memory of one who is dead.

Art 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another
act
without which it would not have been accomplished.

PRINCIPALS BY DIRECT PARTICIPATION

* The principal by direct participation must be at the scene of the crime,

personally taking part in the execution of the same.

Requisites for 2 or more to be principals by direct participation:

a. participated in the criminal resolution (conspiracy).

b. carried out their plan and personally took part in its execution by acts
which directly tended to the same end.

· Conspiracy – Is unity of purpose and intention.

* To be a party to a conspiracy, one must have the intention to participate in

the transaction with a view to further the common design and purpose. Mere
knowledge, acquiescence, or approval of the act is not enough. When there is
no conspiracy in the commission of the crime, each of the offenders is liable
only by the acts performed by him.

Establishment of Conspiracy

a. Proven by overt act.

b. Not mere knowledge or approval.
c. It is not necessary that there be formal agreement.
d. Must prove beyond reasonable doubt.
e. Conspiracy is implied when the accused had a common
purpose and were united in execution.

f. Unity of purpose and intention in the commission of the

crime may be shown in the following cases:

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1. Spontaneous agreement at the moment of the commission of the crime.
2. Active Cooperation by all the offenders in the perpetration of the crime.
3. Contributing by positive acts to the realization of a common criminal
intent.
4. Presence during the commission of the crime by a band and lending moral
support thereto.

g. While conspiracy may be implied from the circumstances attending the

commission of the crime, it is nevertheless a rule that conspiracy must be
established by positive and conclusive evidence.

* Where the accused conspired with this three (3) co-accused to kill the two
(2) victims and the role assigned to him was to kill one of the victims which
he did, he is a principal by direct participation in the two (2) murders.

· Conspirator not liable for the crimes of the other which is not the object of
the conspiracy or is not a logical or necessary consequence thereof.

* A co-conspirator who committed an act substantially different from the

crime conspired upon is solely liable for the crime committed by him. The
other members of the conspiracy will not be liable for the crime. (People vs.
Dela Cerna, L-20911, Oct. 20, 1979)

* A conspirator is liable for another crime which is the necessary and logical
consequence of the conspiracy.

* A person in conspiracy with others, who had desisted before the crime was
committed by the others, is not criminally liable. (People vs. Dalmacio
Timbol, G. R. Nos. L- 47471-47473, Aug. 4, 1944)

* When there is a conspiracy in the commission of the crime, it is not

necessary to ascertain the specific act of each conspirator. (People vs.
Fernandez, G. R. No. 62116, March 22,1990, 183 SCRA)

· MULTIPLE RAPE – each rapist is liable for another’s crime because each
cooperated in the commission of the rapes perpetrated by the others.

· Exception: in the crime of murder with treachery – all the offenders must at
least know that there will be treachery in executing the crime or cooperate
therein.

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

· No such thing as conspiracy to commit an offense through negligence.

However, special laws may make one a co-principal.

· Example: Under the Pure Food and Drug Act, a storeowner is liable for the
act of his employees of selling adulterated coffee, although he didn’t know
that coffee was being sold.

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· Conspiracy is negative by the acquittal of co-defendant.

· That the culprits “carried out the plan and personally took part in
the execution, by acts which directly tended to the same end”:

a. The principals by direct participation must be at the scene of the crime,

personally taking part.

b. One serving as guard pursuant to the conspiracy is a principal direct

participation.

· If the second element is missing, those who did not participate in the
commission of the acts of execution cannot be held criminally liable, unless
the crime agreed to be committed is treason, sedition, or rebellion.

PRINCIPALS BY INDUCTION (INDUCEMENT)

“Those who directly force or induce others to commit it”

a. Principal by induction liable only when principal by direct participation
committed the act induced.

* Two ways of becoming a principal by inducement. The first one is by directly

forcing another to commit the crime and the second is by directly inducing
another to commit the crime.

* Under Art. 12, there are two ways of forcing another to commit a crime: by
using irresistible force and by using uncontrollable fear. In these cases,
conspiracy is not considered because only one person is criminally liable –
the person who directly forces another to commit a crime. The one forced to
perform the act or the material executor is not criminally liable as he is
exempt from criminal liability according to Art. 12.

b. Requisites:
1. Inducement be made directly with the intention of procuring the
commission of the crime.
2. Such inducement be the determining cause of the commission of the
crime by the material executor.

* Even if the inducement be directly made, with the inducer insistent and
determined to procure the commission of the crime, he still cannot be
classified as principal by induction if the inducement is not the determining
cause for committing the crime. Thus, if the actor has reason of his own to
commit the offense, there can be no principal by induction.

c. Forms of Inducements:

1. By Price, reward or promise.

2. By irresistible force or uncontrollable fear.

* Imprudent advice does not constitute sufficient inducement

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* Mere suggestions, or a thoughtless expression or a chance word spoken
without any intention or expectation that it would produce the result cannot
hold the utterer liable as principal by inducement.

Concept of the inducement – one strong enough that the person induced
could hardly resist. This is tantamount to an irresistible force compelling the
person induced to carry out the execution of the crime.

Ill advised language is not enough unless he who made such remark or
advice is a co-conspirator in the crime committed.

* It is necessary that the inducement be the determining cause of the

commission of the crime by the principal by direct participation, that is,
without such inducement, the crime would no have been committed. If the
principal by direct participation has personal reasons to commit just the
same even if no inducement was made on him by another, there can be no
principal by inducement.

d. Requisites for words of command to be considered inducement:

1. Commander has the intention of procuring the commission of the

crime.
2. Commander has ascendancy or influence.
3. Words used be so direct, so efficacious, so powerful.
4. Command be uttered prior to the commission.
5. Executor had no personal reason.

* It is also important to note that the words of inducement must be made

prior to the commission of the crime. If uttered while the crime was being
committed or after the crime was committed, inducement would no longer be
a matter of concern. (People vs. Castillo, G. R. No. L-192388, July 26,
1966)

* It is necessary that one uttering the words of command must have the
intention of procuring commission of the crime and must have ascendancy
or influence over the person acting. Such words used must be direct, so
efficacious and so powerful as to amount to physical or moral coercion, that
the words of command must be uttered prior to the commission of the crime
and that the material executor of the crime must have no personal reason of
his own to commit the crime. (People vs. Agapinoy, G. R. 77776, June 27,
1990)
· Words uttered in the heat of anger and in the nature of the command that
had to be obeyed do not make one an inductor.

· Effects of Acquittal of Principal by direct participation on liability of

principal by inducement.

a. Conspiracy is negated by the acquittal of the co-defendant.

b. One cannot be held guilty of instigating the commission of the crime without
first showing that the crime has been actually committed by another. But if
the one charged as principal by direct participation be acquitted because he
acted without criminal intent or malice, it is not a ground for the acquittal of
the principal by inducement.

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PRINCIPALS BY INDISPENSABLE COOPERATION

“Those who cooperate in the commission of the offense by another act

without which it would not have been accomplished”

* Principals by Indispensable Cooperation are those who cooperate in the

commission of the offense by another act without which it would not have
been accomplished. Like in the case of Principal by Inducement, it
presupposes the existence of the principal by direct participation otherwise
with whom shall he cooperate with indispensably?

Requisites:
1. Participation in the criminal resolution
2. Cooperation through another act (includes negligence)

* The offender in this case must have knowledge of the criminal designs of
the principal by direct participation. Thereafter, he cooperates in the
commission of the offense by an act without which the crime would not have
been committed.

· There is collective criminal responsibility when the offenders are criminally

liable in the same manner and to the same extent. The penalty is the same
for all.

· There is individual criminal responsibility when there is no conspiracy.

* The requisites for one to come under the ambit of paragraph 3, it requires
the participation of the offender in the criminal resolution. The participation
must be before the commission of the crime charged. He should cooperate in
the commission of the offense by performing another act by without which
the offense would not have been committed. The act of the principal by
indispensable cooperation should not be the act that constitutes the
execution of the crime. It must be by another act.

Principal by indispensable cooperation distinguished from an

accomplice.

The point is not just on participation but on the importance of participation

in committing the crime. The basis is the importance of the cooperation to
the consummation of the crime. If the crime could hardly be committed
without such cooperation, then such cooperation would bring about a
principal. But if the cooperation merely facilitated or hastened the
consummation of the crime, this would make the cooperator merely an
accomplice.

* Where both accused conspired and confederated to commit rape, and one
had sex with the offended party while the other was holding her hands, and
thereafter the latter was the one who raped the victim, both are principals by
direct participation and by indispensable cooperation in the two (2) crimes of
rape committed. (People vs. Fernandez, 183 SCRA 511)

* Where A, a municipal treasurer, conspired with B for the latter to present a

false receipt and which receipt was the basis of the reimbursement approved
by A, and both thereafter shared the proceeds, A is the principal by direct

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participation and B by indispensable cooperation in the crime of
Malversation.

Art. 18. Accomplices. — Accomplices are those persons who, not being
included in Art. 17, cooperate in the execution of the offense by
previous or simultaneous acts.

· Requisites:
a. there be a community of design (principal originates the design,
accomplice only concurs).

b. he cooperates in the execution by previous or simultaneous acts,

intending to give material and moral aid (cooperation must be
knowingly done, it must also be necessary and not indispensable.

c. There be a relation between the acts of the principal and the

alleged accomplice.

· Examples:

a) Juan was choking Pedro. Then Tomas ran up and hit Pedro with a
bamboo stick. Juan continued to choke Pedro until he was dead. Tomas is
only an accomplice because the fatal blow came from Juan.

b) Lending a dagger to a killer, knowing the latter’s purpose.

· An accomplice has knowledge of the criminal design of the principal and all
he does is concur with his purpose.

* The accomplice does not conspire with the principal although he

cooperated in the execution of the criminal act.

*There must be a relation between the acts done by the principal and those
attributed to the person charged as an accomplice.

*In homicide or murder, the accomplice must not have inflicted the mortal
wound.

Art. 19. Accessories. — Accessories are those who, having knowledge of

the commission of the crime, and without having participated therein,
either as principals or accomplices, take part subsequent to its
commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the

effects of the crime.

2. By concealing or destroying the body of the crime, or the effects or

instruments thereof, in order to prevent its discovery.

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3. By harboring, concealing, or assisting in the escape of the principals
of the crime, provided the accessory acts with abuse of his public
functions or whenever the author of the crime is guilty of treason,
parricide, murder, or an attempt to take the life of the Chief Executive,
or is known to be habitually guilty of some other crime.

* To be an accessory to a crime, one must learn or must have knowledge of

the same after its commission. The crime must have been consummated. His
participation must take place subsequent to such knowledge and in the
manner provided under Article 49.

* All the above-mentioned acts are performed by the accessory after the
commission of the crime. An accessory neither participates in the criminal
design nor cooperates in the commission of the crime. That is the reason
why he is sometimes called an accessory after the fact.

* The crime committed must either be a less grave or grave felony because if
it is only a light felony, no criminal liability is incurred by the accessory
because of Article 7.

· Example of Par 1: person received and used property from another,

knowing it was stolen.

* One can be an accessory not only by profiting from the effects of the crime
but also by assisting the offender to profit from the effects of the crime.

* The accessory however should not take the property without the consent of
the principal or accomplice in possession of the same, otherwise he is a
principal in the crime of theft since a stolen property can also be subject of
theft or robbery.

· Example of Par 2: placing a weapon in the hand of the dead who was
unlawfully killed to plant evidence, or burying the deceased who was killed
by the principals.

Destroying the corpus delicti

The body of the crime however does not only mean the body of the person
killed. This phrase refers to CORPPUS DELICTI – that is, the body or the
substance of the offense (People vs. Bantagan, 54 Phil. 841). Corpus
delicti means the fact that a crime has actually been committed. (People vs.
Madlangbayan, 94 SCRA 685).

* When the crime is robbery or theft, with respect to the second involvement
of an accessory, do not overlook the purpose which must be to prevent
discovery of the crime.

* The corpus delicti is not the body of the person who is killed, even if the
corpse is not recovered, as long as that killing is established beyond
reasonable doubt, criminal liability will arise and if there is someone who
destroys the corpus delicti to prevent discovery, he becomes an accessory.

* While the body of the victim is a part of the term corpus delicti by itself. The
body of the crime may refer to the instrument used in the commission of the

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crime such as knife, poison, gun or any material evidence relevant to prove
or establish he commission of the crime.

Example: Where the wife misled the authorities informing them that the
person who killed her husband was a thief who has fled, when in truth, the
killer was her paramour; the wife is liable as an accessory for concealing the
body of the crime.

· Example of Par 3: a) public officers who harbor, conceal or assist in the

escape of the principal of any crime (not light felony) with abuse of his public
functions, b) private persons who harbor, conceal or assist in the escape of
the author of the crime – guilty of treason, parricide, murder or an attempt
against the life of the President, or who is known to be habitually guilty of
some crime.

HARBORING OR CONCEALING AN OFFENDER

* In the case of a public officer, the crime committed by the principal is

immaterial. Such officer becomes an accessory by the mere fact that he
helped the principal to escape by harboring or concealing, making use of his
public function and thus abusing the same.

* On the other hand, in case of a civilian, the mere fact that he harbored
concealed or assisted the principal to escape does not ipso facto make him
an accessory. The law requires that the principal must have committed the
crime of treason, parricide, murder or attempt on the life of the Chief
Executive. If this is not the crime, the civilian does not become an accessory
unless the principal is known to be habitually guilty of some other crime.

* Even if the crime committed by the principal is treason, or murder or

parricide or attempt on the life of the Chief Executive, the accessory cannot be
held criminally liable without the principal being found guilty of any such
crime. Otherwise the effect would be that the accessory merely harbored or
assisted in the escape of an innocent man, if the principal is acquitted of the
charges.

Illustration:
Crime committed is kidnapping for ransom. Principal was being chased by
soldiers. His aunt hid him in the ceiling of her house and aunt denied to
soldiers that her nephew had ever gone there. When the soldiers left, the aunt
even gave money to her nephew to go to the province. Is aunt criminally liable?

No. Article 20 does not include an auntie. However, this is not the reason.
The reason is because one who is not a public officer and who assists an
offender to escape or otherwise harbors, or conceals such offender, the crime
committed by the principal must be either treason, parricide murder or
attempt on the life of the Chief executive or the principal is known to be
habitually guilty of some other crime.

The crime committed by the principal is determinative of the liability of the

accessory who harbors, conceals knowing that the crime is committed. If the
person is a public officer, the nature of the crime is immaterial. What is
material is that he used his public function in assisting escape.

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However, although under paragraph 3 of Article 19 when it comes to a
civilian, the law specifies the crimes that should be committed, yet there is a
special law which punishes the same act and it does not specify a particular
crime. Presidential Decree No. 1829, which penalizes obstruction of
apprehension and prosecution of criminal offenders, effective January 16,
1981, punishes acts commonly referred to as “obstructions of justice”. This
Decree penalizes under Section 1(c) thereof, the act, inter alia, of “(c)
Harboring or concealing, or facilitating the escape of any person he knows or
has reasonable ground to believe or suspect, has committed any offense under
existing penal laws in order to prevent his arrest, prosecution and conviction.”

Here, there is no specification of the crime to be committed by the

offender for criminal liability to be incurred for harboring, concealing,
or facilitating the escape of the offender, and the offender need not be
the principal – unlike paragraph 3, Article 19 of the Code. The subject acts
may not bring about criminal liability under the Code, but under this decree.
Such an offender if violating Presidential Decree No. 1829 is no longer an
accessory. He is simply an offender without regard to the crime committed
by the person assisted to escape. So in the problem, the standard of the
Revised Penal Code, aunt is not criminally liable because crime is
kidnapping, but under Presidential Decree No. 1829, the aunt is criminally
liable but not as an accessory.

* The term “or is known to be habitually guilty of some other crimes”

must be understood in ordinary concept. Habituality in law means three
times or more. It can refer to any crime wherein the accused was convicted
for three times and such fact is known to the private individual who assisted
the principal in his escape.

· General Rule: Principal acquitted, Accessory also acquitted

· Exception: When the crime was in fact committed but the principal is
covered by exempting circumstances.

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

· Trial of accessory may proceed without awaiting the result of the separate
charge against the principal because the criminal responsibilities are distinct
from each other.

* Even if the principal is convicted, if the evidence presented against a

supposed accomplice or a supposed accessory does not meet the required
proof beyond reasonable doubt, then said accused will be acquitted. So the
criminal liability of an accomplice or accessory does not depend on the
criminal liability of the principal but depends on the quantum of evidence. But
if the evidence shows that the act done does not constitute a crime and the
principal is acquitted, then the supposed accomplice and accessory should
also be acquitted. If there is no crime, then there is no criminal liability,
whether principal, accomplice, or accessory.

· Liability of the accessory – the responsibility of the accessory is

subordinate to that of a principal in a crime because the accessory’s

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participation therein is subsequent to its commission, and his guilt is
directly related to the principal. If the principal was acquitted by an
exempting circumstance the accessory may still be held liable.

* But not Presidential Decree No. 1829. This special law does not require that
there be prior conviction. It is a malum prohibitum, no need for guilt, or
knowledge of the crime.

Two situations where accessories are not criminally liable:

(1) When the felony committed is a light felony;

(2) When the accessory is related to the principal as spouse, or as an
ascendant, or descendant or as brother or sister whether legitimate, natural or
adopted or where the accessory is a relative by affinity within the same
degree, unless the accessory himself profited from the effects or proceeds of
the crime or assisted the offender to profit therefrom.

· Difference of accessory from principal and accomplice:

a. Accessory does not take direct part or cooperate in, or induce the
commission of the crime.

b. Accessory does not cooperate in the commission of the offense by acts

either prior thereto or simultaneous therewith.

c. Participation of the accessory in all cases always takes place after the
commission of the crime.

d. Takes part in the crime through his knowledge of the commission of the
offense.

* One cannot be an accessory unless he knew of the commission of the crime.

One must not have participated in the commission of the crime. The accessory
comes into the picture when the crime is already consummated. Anyone who
participated before the consummation of the crime is either a principal or an
accomplice. He cannot be an accessory.

ACCESSORY AS A FENCE

Where the crime committed by the principal was robbery or theft, such
participation of an accessory brings about criminal liability under
Presidential Decree No. 1612 (Anti-Fencing Law). One who knowingly
profits or assists the principal to profit by the effects of robbery or theft is
not just an accessory to the crime, but principally liable for fencing under
Presidential Decree No. 1612.

Any person who, with intent to gain, acquires and/or sells, possesses, keeps
or in any manner deals with any article of value which he knows or should
be known to him to be the proceeds of robbery or theft is considered a

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“fence” and incurs criminal liability for “fencing” under said decree. The
penalty is higher than that of a mere accessory to the crime of robbery or theft.

Likewise, the participation of one who conceals the effects of robbery or theft
gives rise to criminal liability for “fencing”, not simply of an accessory under
paragraph 2 of Article 19 of the Code. Mere possession of any article of value
which has been the subject of robbery or theft brings about the prima facie
presumption of “fencing”.

* In both laws, Presidential Decree No. 1612 and the Revised Penal Code, the
same act is the basis of liability and you cannot punish a person twice for the
same act as that would go against double jeopardy.

* The crimes of robbery and fencing are clearly two distinct offenses. The law
on fencing does not require the accused to have participated in the criminal
design to commit, or to have been in any wise involved in the commission of
the crime or robbery or theft made to depend on an act of fencing in order
that it can be consummated. True, the object property in fencing must have
been previously taken by means of either robbery or theft but the place
where the robbery or theft occurs is inconsequential.

Acquiring the effects of piracy or brigandage

The act of knowingly acquiring or receiving property which is the effect or the
proceeds of a crime generally brings about criminal liability of an accessory
under Article 19, paragraph 1 of the Revised Penal Code. But if the crime was
piracy of brigandage under Presidential Decree No. 533 (Anti-piracy
and Anti-Highway Robbery Law of 1974), said act constitutes the crime of
abetting piracy or abetting brigandage as the case may be, although the
penalty is that for an accomplice, not just an accessory, to the piracy or
brigandage. To this end, Section 4 of Presidential Decree No. 532 provides
that any person who knowingly and in any manner… acquires or receives
property taken by such pirates or brigands or in any manner derives benefit
therefrom… shall be considered as an accomplice of the principal offenders
and be punished in accordance with the Rules prescribed by the Revised
Penal Code.

Art. 20. Accessories who are exempt from criminal liability. — The
penalties prescribed for accessories shall not be imposed upon those
who are such with respect to their spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees, with the single exception of
accessories falling within the provisions of paragraph 1 of the next
preceding article.

· Basis: Ties of blood and the preservation of the cleanliness of one’s name
which compels one to conceal crimes committed by relatives so near as those
mentioned.

· Nephew and Niece not included

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· Accessory not exempt when helped a relative-principal by profiting from the
effects of the crime, or assisted the offender to profit from the effects of the
crime.

· Only accessories covered by par 2 and 3 are exempted.

· Public officer who helped his guilty brother escape does not incur criminal
liability as ties of blood constitutes a more powerful incentive than the call of
duty.

PENALTIES
· PENALTY – suffering inflicted by the State for the transgression of a law.

Five (5) theories that justify the imposition of penalty:

a. Prevention – The State must punish the criminal to prevent or suppress

the danger to the State arising from the criminal acts of the offender;

b. Self-defense – The State has the right to punish the criminal as a

measure of self-defense so as to protect society from the threat and wrong
inflicted by the criminal;

c. Reformation – The object of punishment in criminal cases is to correct

and reform the offender;

d. Exemplarity – The criminal is punished to serve as an example to deter

others from committing crimes;

e. Justice – That crime must be punished by the State as an act retributive

justice, a vindication of absolute right and moral as violated by the criminal.

Imposition of a penalty has a three-fold purpose:

a. Retribution or expiation – The penalty is commensurate with the gravity

of the offense.

b. Correction or reformation – rules which regulate the execution of

penalties consisting of deprivation of liberty.
c. Social defense – as manifested by the inflexibilities and severity in the
imposition of the penalty to recidivists and habitual delinquents.

· Juridical Conditions of Penalty

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

personality.
b. Must be proportionate to the crime.
c. Must be personal – imposed only upon the criminal.
d. Must be legal – according to a judgment of fact and law.
e. Must be equal – applies to everyone regardless of the circumstance.
f. Must be correctional – to rehabilitate the offender.

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Art. 21. Penalties that may be imposed. — No felony shall be
punishable by any penalty not prescribed by law prior to its
commission.

· Guarantees that no act of a citizen will be considered criminal unless the

State has made it so by law and provided a penalty.

· Except: When the penalty is favorable to the criminal

By reason of Art. 21, an act or omission cannot be punished by the State if

at the time it was committed there was no law prohibiting it. The rule is that
a man cannot be expected to obey an order that was not made known to
him.

Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving
the same.

· General Rule: Criminal laws are given prospective effects.

· Exception: Give retroactive effect when favorable to the accused (not a

habitual delinquent). Ex. Special law made the penalty less severe – but
must refer to the same deed or omission penalized by the former statute.

· New law may provide that its provisions not be applied to cases already
filed in court at the time of the approval of such law.

· The favorable retroactive effect of a new law may find the defendant in one
of the 3 situations.

a. crime has been committed and the prosecution begins.

b. sentence has been passed but service has not begun.
c. sentence is being carried out.

· Habitual criminal (person who within the period of 10 years from date of
release or last conviction of the crimes of serious or less serious physical
injuries, robbery, theft, estafa or falsification, he is found guilty of any said
crimes a third time or oftener) is NOT entitled to the benefit of the provisions
of the new favorable law.

· Civil liabilities not covered by Art 22 because rights of offended persons are
not within the gift of arbitrary disposal of the State.

· But new law increasing civil liability cannot be given retroactive effect.

· Retroactivity applicable also to special laws

· The right to punish offenses committed under an old penal law is not
extinguished if the offenses are still punished in the repealing penal law.
However, if by re-enactment of the provisions of the former law, the repeal is

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by implication and there is a saving clause, criminal liability under the
repealed law subsists.

· No retroactive effect of penal laws as regards jurisdiction of the court.

Jurisdiction of the court is determined by the law in force at the time of the
institution of the action, not at the time of the commission of the crime.

· Jurisdiction of courts in criminal cases is determined by the allegations of

the complaint or information, and not by the findings the court may make
after trial.

· When a law is ex post facto

a. Makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act.

b. Aggravates the crime or makes it greater than it was when committed.

c. Changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed.

d. Alters the legal rules of evidence and authorizes conviction upon less or
different testimony than the law required at the time of the commission of
the crime.

e. Assuming to regulate civil rights and remedies only, in effect imposes

penalty or deprivation of a right for something which when done was lawful.

f. Deprives a person accused of a crime some lawful protection to which he

has become entitled, such as the protection of a former conviction or
acquittal or a proclamation of amnesty.

· Bill of Attainder – a legislative act which inflicts punishment without trial.

Its essence is the substitution of a legislative for a judicial determination of
guilt.

Art. 23. Effect of pardon by the offended party. — A pardon of the

offended party does not extinguish criminal action except as provided
in Article 344 of this Code; but civil liability with regard to the interest
of the injured party is extinguished by his express waiver.

· Even if injured party already pardoned the offender – fiscal can still
prosecute. Not even considered a ground for dismissal of the information.
Exception: Art 344 - crimes of seduction, abduction, rape or acts of
lasciviousness – pardon must be expressed.

* A pardon given by the offended party does not extinguish criminal action
because such pardon by the offended party is not a ground for dismissal of
the complaint or information. A crime committed is an offense against the
State. In criminal cases, the intervention of the aggrieved parties is limited to

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being witnesses for the prosecution, the offended party being the Republic of
the Philippines.

· Only Chief Executive can pardon the offenders

· Cannot compromise criminal liability, only civil liability – but it still shall not
extinguish the public action for the imposition of the legal penalty.

* Art. 2034 of the New Civil Code provides: “there may be a compromise
upon the civil liability arising from an offense; but such compromise shall
not extinguish the public action for the imposition of the legal penalty.”

* A contract stipulating for the renunciation of the right to prosecute an

offense or waiving the criminal liability is void.

· Offended party in the crimes of adultery and concubinage can’t institute

criminal prosecution if he shall have consented or pardoned the offenders.

· Pardon in adultery and concubinage may be implied – continued inaction

after learning of the offense. Must pardon both offenders.

· The pardon afforded the offenders must come BEFORE the institution of the
criminal proceedings. Complaint for any of the above-mentioned crimes in
Art 344 will still be prosecuted by the court on the ground that the pardon
(basis for the motion to dismiss) was given after the filing of the complaint.

· The only act that extinguishes the penal action, after the institution of
criminal action, is the marriage between the offender and the offended party.

· Pardon under Art 344 is only a bar to criminal prosecution. It DOES NOT
extinguish criminal liability. It is not one of the causes that totally extinguish
criminal liability in Art 89.

· Civil liability with regard to the interest of the injured party is extinguished
by his express waiver because personal injury may be repaired through
indemnity anyway. State has no reason to insist on its payment.

· Waiver must be express.

Art. 24. Measures of prevention or safety which are not considered

penalties. — The following shall not be considered as penalties:

1. The arrest and temporary detention of accused persons, as well as

their detention by reason of insanity or imbecility, or illness requiring
their confinement in a hospital.

2. The commitment of a minor to any of the institutions mentioned in

Article 80 and for the purposes specified therein.

3. Suspension from the employment of public office during the trial or

in order to institute proceedings.

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4. Fines and other corrective measures which, in the exercise of their
administrative disciplinary powers, superior officials may impose upon
their subordinates.

5. Deprivation of rights and the reparations which the civil laws may
establish in penal form.

· Par 1 refers to the “accused persons” who are detained “by reason of
insanity or imbecility” not an insane or imbecile who has not been arrested for
a crime.

· They are not considered penalties because they are not imposed as a result
of judicial proceedings. Those in par 1, 3 and 4 are merely preventive
measures before the conviction of offenders.

· Commitment of a minor is not a penalty because it is not imposed by the

court in a judgment. The imposition of the sentence in such a case is
suspended.

· Fines in par 4 are not imposed by the court because otherwise, they
constitute a penalty.

CORRELATING ARTICLE 24 WITH ARTICLE 29

Although under Article 24, the detention of a person accused of a crime

while the case against him is being tried does not amount to a penalty, yet
the law considers this as part of the imprisonment and generally deductible
from the sentence.

When will this credit apply? If the penalty imposed consists of a deprivation
of liberty. Not all who have undergone preventive imprisonment shall be
given a credit

Under Article 24, preventive imprisonment of an accused who is not yet

convicted is not a penalty. Yet Article 29, if ultimately the accused is
convicted and the penalty imposed involves deprivation of liberty, provides
that the period during which he had undergone preventive detention will be
deducted from the sentence, unless he is one of those disqualified under the
law.

So, if the accused has actually undergone preventive imprisonment, but if he

has been convicted for two or more crimes whether he is a recidivist or not,
or when he has been previously summoned but failed to surrender and so
the court has to issue a warrant for his arrest, whatever credit he is entitled
to shall be forfeited.

If the offender is not disqualified from the credit or deduction provided for in
Article 29 of the Revised Penal Code, then the next thing to determine is
whether he signed an undertaking to abide by the same rules and
regulations governing convicts. If he signed an undertaking to abide by the
same rules and regulations governing convicts, then it means that while he is
suffering from preventive imprisonment, he is suffering like a convict, that is
why the credit is full.

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But if the offender did not sign an undertaking, then he will only be subjected
to the rules and regulations governing detention prisoners. As such, he will
only be given 80% or 4/5 of the period of his preventive detention.

Preventive imprisonment is the incarceration undergone by a person

accused of a crime which is not bailable, or he cannot afford to post bond.
During the trial of his case, he is detained in jail. He is known as detention
prisoner.

Subsidiary imprisonment, on the other hand, is the personal penalty

prescribed by law in substitution of the payment of fine embodied in the
decision when the same cannot be satisfied because of the culprit’s
insolvency. (People vs. Jarumayan, 52 O.G. 248)

Art. 25. Penalties which may be imposed. — The penalties which may
be imposed according to this Code, and their different classes, are
those included in the following Scale:

PRINCIPAL PENALTIES

Capital punishment:
Death.

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

Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.

Light penalties:
Arresto menor,
Public censure.
Penalties common to the three preceding classes:
Fine, and
Bond to keep the peace.

ACCESSORY PENALTIES

Perpetual or temporary absolute disqualification,

Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be voted for, the
profession or calling.
Civil interdiction,

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Indemnification,
Forfeiture or confiscation of instruments and proceeds of the offense,
Payment of costs.

· Classification of penalties:
a Principal
b Accessory

Principal penalties are those expressly imposed by the court while

Accessory penalties are those that are deemed included in the principal
penalties imposed.

· According to divisibility (principal)

a. divisible – those that have fixed duration and are divisible into 3 periods
b. indivisible – no fixed duration (Death, Reclusion Perpetua, Perpetual or
Absolute Disqualification)

· According to subject matter

a. corporal – death
b. deprivation of freedom – reclusion, prision, arresto
c. restriction of freedom – destierro
d. deprivation of rights – disqualification and suspension
e. pecuniary – fine

· According to gravity

a. capital
b. afflictive
c. correccional
d. light

· Public censure is a penalty, and being such, is not proper in acquittal.

But a competent court, while acquitting an accused may, with
unquestionable propriety express its disapproval or reprehension of those
acts to avoid the impression that by acquitting the accused it approves or
admires his conduct.

· Permanent and temporary absolute and permanent and temporary special

disqualification and suspension may be principal or accessory penalties
because they are found in 2 general classes.

Art. 26. When afflictive, correctional, or light penalty. — A fine,

whether imposed as a single of as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds One million two hundred
thousand (P1,200,000)pesos; a correctional penalty, if it does not
exceed One million two hundred thousand (P1,2000,000) but is not less
than forty thousand (P40,000) pesos; and a light penalty, if it less than
forty thousand (P40,000) pesos. (Republic Act No. 10951)

DURATION AND EFFECT OF PENALTIES

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Art. 27. Reclusion perpetua. —The penalty of reclusion perpetua shall
be from twenty years and one day to forty years.

Reclusion temporal. — The penalty of reclusion temporal shall be from

twelve years and one day to twenty years.

Prision mayor and temporary disqualification. — The duration of the

penalties of prision mayor and temporary disqualification shall be from
six years and one day to twelve years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case its
duration shall be that of the principal penalty.

Prision correccional, suspension, and destierro. — The duration of the

penalties of prision correccional, suspension and destierro shall be from
six months and one day to six years, except when suspension is
imposed as an accessory penalty, in which case, its duration shall be
that of the principal penalty.

Arresto mayor. — The duration of the penalty of arresto mayor shall be

from one month and one day to six months.

Arresto menor. — The duration of the penalty of arresto menor shall be

from one day to thirty days.

Bond to keep the peace. — The bond to keep the peace shall be required
to cover such period of time as the court may determine.

· 3 FOLD RULE: the maximum duration of the convict’s sentence shall not be
more than 3 times the length of time corresponding to the most severe of the
penalties imposed upon him.

· The maximum duration of the convict’s sentence shall in no case exceed 40

years

* Three-Fold Rule is to be given effect when the convict is already serving

sentence in the penitentiary. It is the prison authority who will apply the
Three-Fold Rule.

· Temporary disqualification and suspension, when imposed as accessory

penalties, have different durations – they follow the duration of the principal
penalty.

· Destierro is imposed in the following circumstances:

a. Serious physical injuries or death under exceptional circumstances (Art.

247).

b. Failure to give bond for good behavior (a person making threat may be
required to give bond not to molest the person threatened, if not destierro).

c. Penalty for the concubine.

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d. In cases where the reduction of the penalty by one or more degrees results
in destierro.

* Destierro is a principal penalty. It is a punishment whereby a convict is

vanished to a certain place and is prohibited from entering or coming near that
place designated in the sentence, not less than 25 kms. However, the court
cannot extend beyond 25 kms. If the convict should enter the prohibited
places, he commits the crime of evasion of service of sentence under Article
157. But if the convict himself would go further from which he is vanished by
the court, there is no evasion of sentence because the 25-km. limit is upon the
authority of the court in vanishing the convict.

· Bond to keep the peace is not specifically provided as a penalty for any
felony and therefore cannot be imposed by the court. It is required in Art 284
and not to be given in cases involving other crimes.

· Summary:

a. Perpetual penalties (R.P.) – (20 yrs 1day – 40yrs) after 30 years, can be
pardoned, except when he is unworthy of pardon by reason of his conduct
and some other serious cause, it would not exceed 40 years.

b. Reclusion Temporal – 12 yrs and 1 day to 20 years.

c. Prision Mayor and temporary disqualification – 6 yrs and 1 day to 12

years; disqualification if accessory follows the duration of the principal
penalty.

d Prision Correccional, suspension and destierro – 6 months and 1 day

to 12 yrs; disqualification if accessory follows the duration of the principal
penalty.

e Arresto Mayor – 1 month and 1 day to 6 months.

f Arresto Menor – 1 day to 30 days.
g Bond to keep the peace – the period during which the bond shall be
effective is discretionary to the court.

Art. 28. Computation of penalties. — If the offender shall be in prison,

the term of the duration of the temporary penalties shall be computed
from the day on which the judgment of conviction shall have become
final.

If the offender be not in prison, the term of the duration of the penalty
consisting of deprivation of liberty shall be computed from the day that
the offender is placed at the disposal of the judicial authorities for the
enforcement of the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant commences to
serve his sentence.

· Director of Prisons/warden to compute based on Art 28:

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a. When the offender is in prison – the duration of the temporary penalties
(PAD, TAD, detention, suspension) is from the day on which the judgment of
conviction becomes final.

b. When the offender is not in prison – the duration of the penalty in

deprivation of liberty is from the day that the offender is placed at the
disposal of judicial authorities for the enforcement of the penalty.

c. The duration of the other penalties – the duration is from the day on which
the offender commences to serve his sentence.

· Reason for rule (a) – because under Art 24, the arrest and temporary
detention of the accused is not considered a penalty.

· if in custody, the accused appealed, the service of the sentence should

commence from the date of the promulgation of the decision of the appellate
court, not from the date of the judgment of the trial court was promulgated.

· Service of one in prison begins only on the day the judgment of conviction
becomes final.

· In cases if temporary penalties, if the offender is under detention, as

when undergoing preventive imprisonment, rule (a) applies.

· If not under detention (released on bail) rule (c) applies

· Offender under preventive imprisonment, rule (c) applies not rule (a)
· The offender is entitled to a deduction of full-time or 4/5 of the time of his
detention.

Art. 29. Period of preventive imprisonment deducted from term of

imprisonment. — Offenders who have undergone preventive
imprisonment shall be credited in the service of their sentence
consisting of deprivation of liberty, with the full time during which
they have undergone preventive imprisonment, if the detention
prisoner agrees voluntarily in writing to abide by the same disciplinary
rules imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists or have been convicted previously twice or

more times of any crime; and

2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same

disciplinary rules imposed upon convicted prisoners, he shall be
credited in the service of his sentence with four-fifths of the time
during which he has undergone preventive imprisonment. (As amended
by Republic Act 6127, June 17, 1970).

Whenever an accused has undergone preventive imprisonment for a

period equal to or more than the possible maximum imprisonment of

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the offense charged to which he may be sentenced and his case is not
yet terminated, he shall be released immediately without prejudice to
the continuation of the trial thereof or the proceeding on appeal, if the
same is under review. In case the maximum penalty to which the
accused may be sentenced is destierro, he shall be released after thirty
(30) days of preventive imprisonment. (As amended by E.O. No. 214,
July 10, 1988)

· Accused undergoes preventive suspension if:

a. offense is non-bailable.
b. bailable but can’t furnish bail.

· The full time or 4/5 of the time during which the offenders have undergone
preventive suspension shall be deducted from the penalty imposed.

· Preventive imprisonment must also be considered in perpetual penalties.

Article does not make any distinction between temporal and perpetual
penalties.

· Credit is given in the service of sentences “consisting of deprivation of

liberty” (imprisonment and destierro). Thus, persons who had undergone
preventive imprisonment but the offense is punishable by a fine only would
not be given credit.

· Destierro is considered a “deprivation of liberty”

· If the penalty imposed is arresto menor to destierro, the accused who has
been in prison for 30 days (arresto menor - 30 days) should be released
because although the maximum penalty is destierro (6 months 1 day to 6
years), the accused sentenced to such penalty does not serve it in prison.

The following offenders are not entitled to any deduction of the time
of preventive imprisonment:

1. Recidivists or those previously convicted for two or more times of any

crime.

2. Those who, upon being summoned for the execution of their sentence,
failed to surrender voluntarily.
· Habitual Delinquents not entitled to the full time or 4/5 credit of time under
preventive imprisonment since he is necessarily a recidivist or has been
convicted previously twice or more times of any crime.

· Example: X who was arrested for serious physical injuries, detained for 1
year and went out on bail but was later on found guilty. He was
consequently summoned for the execution of the sentence, but having failed
to appear, X will not be credited in the service of his sentence for serious
physical injuries w/ one year or 4/5 of one year preventive imprisonment.

Art. 30. Effects of the penalties of perpetual or temporary absolute

disqualification. — The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:

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1. The deprivation of the public offices and employments which the
offender may have held even if conferred by popular election.

2.The deprivation of the right to vote in any election for any popular
office or to be elected to such office.

3. The disqualification for the offices or public employments and for

the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is

comprised in paragraphs 2 and 3 of this article shall last during the
term of the sentence.

4. The loss of all rights to retirement pay or other pension for any
office formerly held.

· The exclusion is a mere disqualification for protection and not for punishment
– the withholding of a privilege, not a denial of a right.

· Perpetual absolute disqualification is effective during the lifetime of the

convict and even after the service of the sentence.

· Temporary absolute disqualification is effective during the term of sentence

and is removed after the service of the same. Exception: (1) deprivation of the
public office or employment; (2) loss of all rights to retirement pay or other
pension for any office formerly held.

· Effects of Perpetual and temporary absolute disqualification:

a. Deprivation of any public office or employment of offender.
b. Deprivation of the right to vote in any election or to be voted upon.
c. Loss of rights to retirement pay or pension.
d. All these effects last during the lifetime of the convict and even after the
service of the sentence except as regards paragraphs 2 and 3 of the above in
connection with Temporary Absolute Disqualification.

Art. 31. Effect of the penalties of perpetual or temporary special

disqualification. — The penalties of perpetual or temporal special
disqualification for public office, profession or calling shall produce the
following effects:

1. The deprivation of the office, employment, profession or calling

affected;

2. The disqualification for holding similar offices or employments

either perpetually or during the term of the sentence according to the
extent of such disqualification.

Art. 32. Effect of the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. — The
perpetual or temporary special disqualification for the exercise of the

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right of suffrage shall deprive the offender perpetually or during the
term of the sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be permitted to
hold any public office during the period of his disqualification.

· Temporary disqualification if imposed as an accessory penalty, its duration

is that of the principal penalty.

· Effects of Perpetual and Temporary Special Disqualification

a. For public office, profession, or calling

1. Deprivation of the office, employment, profession or calling affected.
2. Disqualification for holding similar offices or employment during the
period of disqualification.

b. For the exercise of the right of suffrage

1. Deprivation of the right to vote or to be elected in an office.
2. Cannot hold any public office during the period of disqualification.

Art. 33. Effects of the penalties of suspension from any public office,
profession or calling, or the right of suffrage. — The suspension from
public office, profession or calling, and the exercise of the right of
suffrage shall disqualify the offender from holding such office or
exercising such profession or calling or right of suffrage during the
term of the sentence. The person suspended from holding public office
shall not hold another having similar functions during the period of his
suspension.

· Effects:
a. Disqualification from holding such office or the exercise of such profession
or right of suffrage during the term of the sentence.

b. Cannot hold another office having similar functions during the period of
suspension.

Art. 34. Civil interdiction. — Civil interdiction shall deprive the

offender during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of any
ward, of marital authority, of the right to manage his property and of
the right to dispose of such property by any act or any conveyance
inter vivos.

· Effects:

a. Deprivation of the following rights:

1. Parental rights.
2. Guardianship over the ward.
3. Martial authority.
4. Right to manage property and to dispose of the same by acts inter vivos.

b. Civil Interdiction is an accessory penalty to the following principal penalties

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1. If death penalty is commuted to life imprisonment
2. Reclusion perpetua
3. Reclusion temporal

· He can dispose of such property by will or donation mortis causa.

Art. 35. Effects of bond to keep the peace. — It shall be the duty of any
person sentenced to give bond to keep the peace, to present two
sufficient sureties who shall undertake that such person will not
commit the offense sought to be prevented, and that in case such
offense be committed they will pay the amount determined by the
court in the judgment, or otherwise to deposit such amount in the
office of the clerk of the court to guarantee said undertaking.

The court shall determine, according to its discretion, the period of

duration of the bond. Should the person sentenced fail to give the bond
as required he shall be detained for a period which shall in no case
exceed six months, is he shall have been prosecuted for a grave or less
grave felony, and shall not exceed thirty days, if for a light felony.

· Bond to keep the peace is different from bail bond which is posted for the
provisional release of a person arrested for or accused of a crime. Bond to
keep the peace or for good behavior is imposed as a penalty in threats.

* The legal effect of a failure to post a bond to keep the peace is imprisonment
either for six months or 30 days, depending on whether the felony committed
is grave or less grave on one hand, or it is light only on the other hand. The
legal effect of failure to post a bond for good behavior is not imprisonment but
destierro under Article 284.

Art. 36. Pardon; its effect. — A pardon shall not work the restoration of
the right to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence.

· Pardon by the President does not restore the right to public office or
suffrage except when both are expressly restored in the pardon. Nor does it
exempt from civil liability/from payment of civil indemnity.

· Limitations to President’s power to pardon:

a. can be exercised only after final judgment
b. does not extend to cases of impeachment
c. does not extinguish civil liability – only criminal liability

· General rule:Pardon granted in general terms does not include accessory

penalties.

· Exceptions:

a. If the absolute pardon is granted after the term of imprisonment has

expired, it removes all that is left of the consequences of conviction.
However, if the penalty is life imprisonment and after the service of 30 years,

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a pardon is granted, the pardon does not remove the accessory penalty of
absolute perpetual disqualification.

b. if the facts and circumstances of the case show that the purpose of the
President is to precisely restore the rights i.e., granting absolute pardon after
election to a post (mayor) but before the date fixed by law for assuming office
to enable him to assume the position in deference to the popular will.

Pardon must be accepted

Pardon is an act of grace, proceeding from the Chief Executive, which

exempts the individual upon whom it is bestowed from the punishment
which the law inflicts for the crime he has committed. It is a private, though
official, act of the Chief Executive delivered to the individual for whose
benefit it is not intended. It is a deed, to the validity of which delivery is
essential, and delivery is not complete without acceptance. Until delivery, all
that may have been done is a matter of intended favor, and the pardon may
be cancelled to accord with the change of intention. If cancelled before
acceptance, it has no effect.

Effects of Pardon
There are two kinds of pardon that may be extended by the President. The
first one is known as conditional pardon. This pardon contemplates of a
situation wherein the offender is granted temporary liberty under certain
conditions. If he violates the conditions of this pardon, he commits a crime
known as evasion of service of sentence.

Then we have absolute pardon – when an absolute pardon is granted, it

releases the offender from the punishment imposed by the court on him, so
that in the eyes of the law, the offender is innocent as if he had never
committed the offense. It removes the penalties and disabilities and restores
him to all his civil rights. It makes him a new man and gives him a new
credit and capacity.

* Pardon relieves the offender from the consequences of an offense for which
he has been convicted, that it, it abolishes or forgives the punishment,
subject to exceptions mentioned in Art. 36.
· Pardon by the offended party – does not extinguish criminal liability,
may include offended party waiving civil indemnity and it is done before the
institution of the criminal prosecution and extended to both offenders.

Pardon by the Chief Executive distinguished from pardon by the

offended party:

1. Pardon by the Chief Executive extinguishes the criminal liability of the

offender; such is not the case when the pardon is given by the offended
party.

2. Pardon by the Chief Executive cannot include civil liability which the
offender must pay; but the offended party can waive the civil liability which
the offender must pay.

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3. In cases where the law allows pardon by the offended party, the pardon
should be given before the institution of criminal prosecution and must be
extended to both offenders. This is not true for pardon extended by the Chief
Executive for the same may be extended to offenders whether the crime
committed is public or private offense.

Art. 37. Cost. — What are included. — Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they be
fixed or unalterable amounts previously determined by law or
regulations in force, or amounts not subject to schedule.

· Costs include:
a. fees.
b. indemnities in the course of judicial proceedings.

· Costs (expenses of the litigation) are chargeable to the accused in case of

conviction.

· In case of acquittal, the costs are de oficio, each party bearing is own
expense

· No costs allowed against the Republic of the Philippines until law provides
the contrary.

Art. 38. Pecuniary liabilities. — Order of payment. — In case the

property of the offender should not be sufficient for the payment of all
his pecuniary liabilities, the same shall be met in the following order:

1. The reparation of the damage caused.

2. Indemnification of consequential damages.
3. The fine.
4. The cost of the proceedings.

Pecuniary liability as contemplated under Art. 38 includes both civil

liabilities and pecuniary penalties except the civil liability of restitution
because this is an exclusive liability.

Civil liability consists of reparation and indemnification while pecuniary

penalty consists of fine imposed by the court.
* It is worth noting, as will further be discussed under Art. 89, that the
death of the offender before final judgment extinguishes the pecuniary
penalty but not the civil liability included in his pecuniary liabilities.

· Applicable “in case property of the offender should not be sufficient for the
payment of all his pecuniary liabilities.” Hence, if the offender has insufficient
or no property, there is no use for Art 38.

· Order of payment is mandatory

· Example: Juan inflicted serious physical injuries against Pedro and took
the latter’s watch and ring. He incurred 50,000 worth of hospital bills and
failed to earn 10,000 worth of salary. Given that Juan only has 1000 pesos
worth of property not exempt from execution, it shall be first applied to the
payment of the watch and ring which cannot be returned as such is covered

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by “reparation of the damage caused” thus, no. 1 in the order of payment.
The 50,000 and 10,000 are covered by “indemnification of the consequential
damage” thus, no. 2 in the order of payment.

Art. 39. Subsidiary penalty. — If the convict has no property with

which to meet the fine mentioned in the paragraph 3 of the next
preceding article, he shall be subject to a subsidiary personal liability at
the rate of one day for each eight pesos, subject to the following rules:

1. If the principal penalty imposed be prision correccional or arresto

and fine, he shall remain under confinement until his fine referred to in
the preceding paragraph is satisfied, but his subsidiary imprisonment
shall not exceed one-third of the term of the sentence, and in no case
shall it continue for more than one year, and no fraction or part of a
day shall be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary

imprisonment shall not exceed six months, if the culprit shall have
been prosecuted for a grave or less grave felony, and shall not exceed
fifteen days, if for a light felony.

3. When the principal imposed is higher than prision correccional, no

subsidiary imprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by

confinement in a penal institution, but such penalty is of fixed
duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivations as those
of which the principal penalty consists.

5. The subsidiary personal liability which the convict may have suffered
by reason of his insolvency shall not relieve him, from the fine in case
his financial circumstances should improve. (As amended by RA 5465,
April 21, 1969.)

· There is no subsidiary penalty for non-payment of reparation,

indemnification and costs in par 1, 2 and 4 of Art 38. It is only for fines.
Article 39 deals with subsidiary penalty. There are two situations there:
(1) When there is a principal penalty of imprisonment or any other principal
penalty and it carries with it a fine; and

(2) When penalty is only a fine.

Therefore, there shall be no subsidiary penalty for the non-payment of

damages to the offended party.

· Art 39 applies only when the convict has no property with which to meet
the fine in par 3 of Art 38. Thus, a convict who has property enough to meet
the fine and not exempted from execution cannot choose to serve the
subsidiary penalty instead of the payment of the fine.

* In People v. Subido, it was held that the convict cannot choose not to serve,
or not to pay the fine and instead serve the subsidiary penalty. A subsidiary
penalty will only be served if the sheriff should return the execution for the

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fine on the property of the convict and he does not have the properties to
satisfy the writ.

· Subsidiary imprisonment is not an accessory penalty. It is covered by Art

40-45 of this Code. Accessory penalties are deemed imposed even when not
mentioned while subsidiary imprisonment must be expressly imposed.

* A subsidiary penalty is not an accessory penalty. Since it is not an

accessory penalty, it must be expressly stated in the sentence, but the
sentence does not specify the period of subsidiary penalty because it will
only be known if the convict cannot pay the fine. The sentence will merely
provide that in case of non-payment of the fine, the convict shall be required
to save subsidiary penalty. It will then be the prison authority who will
compute this. If the judgment is silent, he cannot suffer any subsidiary
penalty.

Art. 40. Death — Its accessory penalties. — The death penalty, when it
is not executed by reason of commutation or pardon shall carry with it
that of perpetual absolute disqualification and that of civil interdiction
during thirty years following the date sentence, unless such accessory
penalties have been expressly remitted in the pardon.

Art. 41. Reclusion perpetua and reclusion temporal. — Their accessory

penalties.— The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the
period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.

Art. 42. Prision mayor — Its accessory penalties. — The penalty of

prision mayor, shall carry with it that of temporary absolute
disqualification and that of perpetual special disqualification from the
right of suffrage which the offender shall suffer although pardoned as to
the principal penalty, unless the same shall have been expressly
remitted in the pardon.

Art. 43. Prision correccional — Its accessory penalties. — The penalty

of prision correccional shall carry with it that of suspension from public
office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, if the
duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in the article
although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.

Art. 44. Arresto — Its accessory penalties. — The penalty of arresto

shall carry with it that of suspension of the right to hold office and the
right of suffrage during the term of the sentence.

· Outline of accessory penalties inherent in principal penalties

a. Death – if not executed because of commutation or pardon

1. Perpetual absolute disqualification.

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2. Civil interdiction during 30 years (if not expressly remitted in the pardon).

b. Reclusion Perpetua and Reclusion Temporal

1. Civil interdiction for life or during the sentence.

2. Perpetual absolute disqualification (unless expressly remitted in the
pardon).

c. Prision Mayor

1. Temporary absolute disqualification.

2. Perpetual absolute disqualification from suffrage (unless expressly
remitted in thepardon).

d. Prision Correccional

1. Suspension from public office, profession or calling.

2. Perpetual special disqualification from suffrage if the duration of the
imprisonment exceeds 18 months (unless expressly remitted in the pardon).

· The accessory penalties in Art 40-44 must be suffered by the offender,

although pardoned as to the principal penalties. To be relieved of these
penalties, they must be expressly remitted in the pardon.

· No accessory penalty for destierro.

· Persons who served out the penalty may not have the right to exercise the
right of suffrage. For a prisoner who has been sentenced to one year of
imprisonment or more for any crime, absolute pardon restores to him his
political rights. If the penalty is less than one year, disqualification does not
attach except if the crime done was against property.

· The nature of the crime is immaterial when the penalty imposed is one year
imprisonment or more.

· The accessory penalties are understood to be always imposed upon the

offender by the mere fact that the law fixes a certain penalty for the crime.
Whenever the courts impose a penalty which by provision of law, carries
with it other penalties, it’s understood that the accessory penalties are also
imposed.

· The accessory penalties do not affect the jurisdiction of the court in which the
information is filed because they don’t modify or alter the nature of the
penalty provided by law. What determines jurisdiction in criminal cases is the
extent of the principal penalty w/c the law imposes of the crime charged.

· The MTC has exclusive jurisdiction over offenses punishable with

imprisonment of not exceeding 4 years and 2 months or a fine of not more
than 4000 or both regardless of other imposable accessory or other
penalties.

Art. 45. Confiscation and forfeiture of the proceeds or instruments of

the crime. — Every penalty imposed for the commission of a felony

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shall carry with it the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and

forfeited in favor of the Government, unless they be property of a third
person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.

· Every penalty imposed carries with it the forfeiture of the proceeds of the
crime and the instruments or tools used in the commission of the crime.

· Proceeds and instruments/tools of the crime are confiscated in favor of the

government.

· 3rd persons’ (not liable for the offense) property is not subject to
confiscation and forfeiture.

· Property not subject of lawful commerce (whether it belongs to accused or

3rd person) shall be destroyed.

· Can’t confiscate/forfeit unless there’s a criminal case filed and tried, and
accused is acquitted.

· Must indict 3rd person to order confiscation of his property.

· Instruments of the crime belonging to innocent 3rd person may be

recovered.

· Confiscation can be ordered only if the property is submitted in evidence or

placed at the disposal of the court.

· Articles which are forfeited - when the order of forfeiture is already final,
can’t be returned even in case of an acquittal

· Confiscation and forfeiture are additional penalties. Where the penalty

imposed did not include the confiscation of the goods involved, the
confiscation & forfeiture of said goods would be an additional penalty and
would amount to an increase of the penalty already imposed, thereby placing
the accused in double jeopardy.

· When the accused has appealed, confiscation and forfeiture not ordered by
the trial court may be imposed by the appellate court.

· The government can’t appeal the modification of a sentence if the defendant

did not appeal. But if the defendant appeals, it removes all bars to the review
and correction of the penalty imposed by the court below, even if an increase
thereof should be the result.

Art. 46. Penalty to be imposed upon principals in general. — The

penalty prescribed by law for the commission of a felony shall be
imposed upon the principals in the commission of such felony.

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Whenever the law prescribes a penalty for a felony in general terms, it
shall be understood as applicable to the consummated felony.

· General rule: The penalty prescribed by law in general terms shall be

imposed:
a. upon the principals
b. for consummated felony

· Exception: when the law fixes a penalty for the frustrated or attempted
felony.

* Whenever it is believed that the penalty lower by one or two degrees

corresponding to said acts of execution is not proportionate to the wrong
done, the law fixes a distinct penalty for the principal in the frustrated or
attempted felony.

· The graduation of penalties refers to:

a. Stages of execution (consummated, frustrated, attempted).
b. Degree of the criminal participation of the offender (principal, accomplice,
accessory).

· The division of a divisible penalty (minimum, medium, maximum) refers to

the proper period of the penalty which should be imposed when aggravating
or mitigating circumstances attend the commission of the crime.

Art. 47. In what cases the death penalty shall not be imposed;
Automatic review of death penalty cases. – The death penalty shall be
imposed in all cases in which it must be imposed under existing laws,
except when the guilty person is below eighteen (18) years of age at the
time of the commission of the crime or is more than seventy (70) years
of age or when upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be
reclusion perpetua.

In all cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Supreme Court for automatic review
and judgment by the court en banc, within twenty (20) days but not
earlier than fifteen (15) days after promulgation of the judgment or
notice of denial of any motion for new trial or consideration. The
transcript shall also be forwarded within ten (10) days after the filing
thereof by the stenographic reporter. (As amended by Sec. 22, RA
7659).

· Whenever the judgment of the lower court imposes the death penalty, the
case shall be determined by 10 justices of the court. When 10 justices fail to
reach a decision (as to the propriety of the imposition of the death penalty),
the penalty next lower in degree than the death penalty shall be imposed.

· Death penalty not imposed in the following cases:

a) When the person is more than 70 years old at time RTC sentenced him.

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b) When upon appeal or revision of the case by the SC, 10 justices are not
unanimous in their voting.
c) When the offender is a minor under 18 yrs of age. Why? Because minority
is always a mitigating circumstance.
d) While a woman is pregnant and within one year after delivery.

· Justification for the death penalty: social defense and exemplarity. Not
considered cruel and unusual because does not involve torture or lingering
death.

· Crimes where death penalty is imposed:

a) Treason.
b) Certain acts of espionage under Commonwealth Act 616.
c) Correspondence w/ hostile country when it contains notice or information
and the intention of the offender is to aid the enemy.
d) Qualified piracy.
e) Certain violations of the Anti-subversion act.
f) Parricide.
g) Murder.
h) Kidnapping and serious illegal detention.
i) Robbery w/ homicide.
j) Rape w/ homicide.
k) When death resulted from the commission of arson or other crime
involving destruction.

· Trial court must require the prosecution to present evidence, despite plea of
guilty, when the crime charged is punished by death. A sentence of death is
valid only if it is susceptible of a fair and reasonable examination by the
court. This is impossible if no evidence of guilt was taken after a plea of
guilty.

Art. 48. Penalty for complex crimes. — When a single act constitutes
two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.

· The 2 or more grave or less grave felonies must be the result of a

single act, or an offense must be a necessary means to commit the
crime.

· Complex crime – One crime only as there is only one criminal intent – only
one information need be filed.

· 2 kinds of complex crimes:

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a) Compound crime – single act constitutes 2 or more grave or less grave
felonies.

Requisites:
1) That only one single act is committed by the offender.
2) That the single act produces.

a) 2 or more grave felonies.

b) One or more grave and one or more less grave felonies.
c) 2 or more less grave felonies.

b) Complex crime proper – when an offense is a necessary means for

committing another.

Requisites:
1) That at least 2 offenses are committed.
2) That one or some of the offenses must be necessary to commit the
other.
3) That both or all the offenses must be punished under the same
statute.

· No single act in the following cases:

a) When 2 persons are killed one after the other, by different acts, although
these 2 killings were the result of a single criminal impulse, the different acts
must be considered as distinct crimes.

b) When the acts are wholly different, not only in themselves, but also
because they are directed against 2 different persons, as when one fires his
gun twice in succession, killing one and injuring the other.

* When an offender performed more than one act, although similar, if they
result in separate crimes, there is no complex crime at all, instead, the
offender shall be prosecuted for as many crimes as are committed under
separate information.

* When the single act brings about two or more crimes, the offender is
punished with only one penalty, although in the maximum period, because
he acted only with single criminal impulse. If there is only one criminal
impulse which brought about the commission of the crime, the offender should
be penalized only once. In this case it is not the singleness of the act but the
singleness of the impulse that has been considered.

· Light felonies produced by the same act should be treated and punished
as separate offenses or may be absorbed by the grave felony.

Examples:

a) Several light felonies resulting from one single act – not complex

Juan hit Pedro’s car, resulting in several light injuries and light felony of
damage to property. No complex crime because the crime of slight physical
injuries and damage to property are light felonies. There are as many crimes
as there are persons injured w/ light physical injuries and as many penalties

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as there are light felonies committed, even though they are produced by a
single act of the offender.

b) When the crime is committed by force or violence, slight physical injuries

are absorbed.

· Examples of complex crimes:

a) Juan was a barangay captain who was killed while discharging his duty,
the crime is a complex crime of homicide w/ assault upon a person of
authority.

b) Juan raped Petra, causing her physical injuries which required a month’s
worth of medical attention. This is a complex crime of rape w/ less serious
physical injuries. The injuries were necessary to the commission of the rape.

· When in obedience to an order, several accused simultaneously shot many

persons, without evidence how many each killed, there is only a single
offense, and there being a single criminal impulse.

Effect of conspiracy in the commission of a complex crime. When a

conspiracy animates several persons in the attainment of a single purpose,
and in the process, several persons perform various acts in the attainment of
said purpose, their individual acts are treated as a single act. The felonious
agreement produces a sole and solidary liability.

· When various acts are executed for the attainment of a single purpose w/c
constitutes an offense, such acts must be considered only as one offense.

Example: Juan falsified 100 warehouse receipts from April to June which
enabled him to swindle the bank of 100 million. There’s only one complex
crime of estafa through multiple falsification of documents.

· There is no complex crime of arson with homicide

· Art 48 is applicable to crimes through negligence

Example: Juan lit a cigarette as he poured gas in the tank of his car in his
garage. The gas caught fire and the house burned. His sister died and the
maid suffered serious physical injuries. The crimes of arson, homicide,
serious physical injuries and damage to property constitute a complex crime.
There is only one penalty but there are 3 civil liabilities.

* Article 48 also applies in cases when out of a single act of negligence or

imprudence, two or more grave or less grave felonies resulted, although only
the first part thereof (compound crime). The second part of Article 48 does not
apply, referring to the complex crime proper because this applies or refers
only to a deliberate commission of one offense to commit another offense.

· No complex crime when one of the offenses is penalized by a special law

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* Article 48 is not applicable when the crimes committed are made
punishable by different laws.

* Mala prohibita and mala in se cannot be grouped together to form a

complex crime under Article 48.

· Example of complex crime proper (at least 2 crimes must be committed):

Kidnapping the victim to murder him in a secluded place – ransom wasn’t

paid so victim was killed. Kidnapping was a necessary means to commit
murder. But where the victim was taken from his home for the sole purpose
of killing him and not for detaining him illegally or for the purpose of
ransom, the crime is simple murder.

· “Necessary means” does not mean “indispensable means”. Indispensable

would mean it is an element of the crime. The crime can be committed by
another mean. The means actually employed (another crime) was merely to
facilitate and insure the consummation of the crime.

* “Necessary” should not be understood as indispensable, otherwise, it shall

be considered absorbed and not giving rise to a complex crime.

· When in the definition of a felony, one offense is a means to commit the other,
there is no complex crime.

Ex. Murder committed by means of fire. Murder can be qualified by the

circumstance of fire so no complex crime even if Art 321 and 324 punishes
arson. It’s plain and simple murder.

* There is no disagreement that when a crime is committed because it is

necessary to commit another crime, it is a complex crime and Article 48 is
made applicable.

However, the crime committed is an element of the other crime, then it is not
considered a separate crime but is absorbed by the other crime.

· Not complex crime when trespass to dwelling is a direct means to commit a

grave offense.
Like rape, there is no complex crime of trespass to dwelling with rape.
Trespass will be considered as aggravating (unlawful entry or breaking part
of a dwelling).

· No complex crime when one offense is committed to conceal another

Example: Juan set the school on fire after committing homicide. 2 crimes.

· When the offender had in his possession the funds which he

misappropriated, the falsification of a public or official document involving
said funds is a separate offense. But when the offender had to falsify a
public or official document to obtain possession of the funds which he
misappropriated, the falsification is a necessary means to commit the
malversation.

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· There is no complex crime of rebellion with murder, arson, robbery or other
common crimes. They are mere ingredients of the crime of rebellion –
absorbed already.

* When the crime of murder, arson and robbery are committed in the
furtherance of the crime of rebellion, it is not a complex crime of rebellion
with murder, arson and robbery. The crime committed is simple rebellion.
The crimes of murder, arson and robbery are treated as elements of
rebellion. Note however, that in order that said crimes may be absorbed, it is
necessary that the same were done in furtherance of the crime of rebellion.
(People vs. Geronimo)

· When 2 crimes produced by a single act are respectively within the exclusive
jurisdiction of 2 courts of different jurisdiction, the court of higher jurisdiction
shall try the complex crime.

Example: Although the forcible abduction which was supposedly commenced

in Manila was not proven, and although the rape which was proven was
actually committed in Cavite, still the RTC of Manila had jurisdiction to
convict the accused of rape. The complex crime of forcible abduction with
rape was charged in the complaint on the basis of which the case was tried.

* In criminal procedure, it is prohibited to charge more than one offense in

an information, except when the crimes in one information constitute a
complex crime or a special complex crime.

* So whenever the Supreme Court concludes that the criminal should be

punished only once, because they acted in conspiracy or under the same
criminal impulse, it is necessary to embody these crimes under one single
information. It is necessary to consider them as complex crimes even if the
essence of the crime does not fit the definition of Art 48, because there is no
other provision in the RPC.

· Art. 48 is intended to favor the culprit.

· The penalty for complex crime is the penalty for the most serious crime, the
same to be applied in its maximum period. If the different crimes resulting
from one single act are punished with the same penalty, the penalty for any
one of them shall be imposed, the same to be applied in the maximum
period. The same rule shall be observed when an offense is a necessary
means to commit the other.

* If by complexing the crime, the penalty would turn out to be higher, do not
complex anymore.

Example: Murder and theft (killed with treachery, then stole the right).

Penalty: If complex – Reclusion temporal maximum to death.

If treated individually – Reclusion temporal to Reclusion Perpetua.

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* Complex crime is not just a matter of penalty, but of substance under the
Revised Penal Code.

· A complex crime of the second form may be committed by two persons.

· But when one of the offenses, as a means to commit the other, was
committed by one of the accused by reckless imprudence, the accused who
committed the crime by reckless imprudence is liable for his acts only.

Example: Juan cooperated in the commission of the complex offense of

estafa through falsification by reckless imprudence by acts without which it
could not have been accomplished, and this being a fact, there would be no
reason to exculpate him from liability.

Even assuming he had no intention to defraud Tomas if his co-defendants

succeeded in attaining the purpose sought by the culprits, Juan’s
participation together w/ the participation of his co-defendants in the
commission of the offense completed all the elements necessary for the
perpetration of the complex crime of estafa through falsification of
documents.

· When two felonies constituting a complex crime are punishable by

imprisonment and fine, respectively, only the penalty of imprisonment shall
be imposed.

· When a single act constitutes two grave or less grave or one grave and
another less grave, and the penalty for one is imprisonment while that for
the other is fine, the severity of the penalty for the more serious crime
should not be judged by the classification of each of the penalties involved,
but by the nature of the penalties.

Example: Even if the fine for damage to property through reckless

imprudence is P400,000, an afflictive penalty, and the penalty for the
physical injuries resulting from the same act is only 4 months of arresto
mayor, a correccional penalty may be imposed.

· In the order of severity of the penalties, arresto mayor and arresto menor
are considered more severe than destierro and arresto menor is higher in
degree than destierro.

· Fine is not included in the list of penalties in the order of severity and it is
the last in the order.

· Art 48 applies only to cases where the Code doesn’t provide a specific
penalty for a complex crime.

· Art 48 doesn’t apply when the law provides one single penalty for single
complex crimes like the ff: (composite crimes)

a) Robbery with homicide

b) Robbery with rape
c) Kidnapping with serious physical injuries
d) Rape with homicide

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* A composite crime is one in which substance is made up of more than one
crime, but which in the eyes of the law is only a single indivisible offense. This
is also known as special complex crime.

· When a complex crime is charged and one offense is not proven, the
accused can be convicted of the other.

· PLURALITY OF CRIMES – consists in the successive execution by the

same individual of different criminal acts upon any of w/c no conviction has
yet been declared.

· Kinds of plurality of crimes:

a) Formal or ideal – only one criminal liability

b) Real or material – there are different crimes in law as well as in the
conscience of the offender, in such cases, the offender shall be punished for
each and every offense that he committed.

Example: Juan stabbed Pedro, then Juan stabbed Tomas too. There are 2
crimes committed as 2 acts were performed.

* When the plurality of crimes is covered by a specific provision of law and

declares that such aggrupation is but a single crime and provides a specific
penalty for its commission, Art. 48 should not be made to apply. When there
is no law that covers the combination of the crimes committed, then Art. 48
will apply.

· Formal/ideal plural crimes are divided into 3 groups: (a person

committing multiple crimes is punished w/ one penalty in the ff cases)
a) When the offender commits any of the complex crimes defined in art 48.
b) When the law specifically fixes a single penalty for 2 or more offenses
committed: robbery w/ homicide, kidnapping w/ serious physical injuries.
c) When the offender commits continued crimes.

· CONTINUED CRIMES – refers to a single crime consisting of a series of

acts but all arising from one criminal resolution. Although there is a series of
acts, there is only one crime committed, so only one penalty shall be
imposed.

A “continued crime” is one where the offender performs a series of acts

violating one and the same penal provision committed at the same place and
about the same time for the same criminal purpose, regardless of a series of
acts done, it is regarded in law as one.

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* When the actor, there being unity of purpose and of right violated, commits
diverse acts, each of which, although of a delictual character, merely
constitutes a partial delict, such occurrence of delictual acts is called
“delicto continuado”.” (Gamboa vs. Court of Appeals, 68 SCRA 314)

· Examples of continued crimes:

a) A collector of a commercial firm misappropriates for his personal use
several amounts collected by him from different persons. There is only one
crime because the different and successive appropriations are but the
different moments during which one criminal resolution arises.

b) Juan stole 2 books belonging to 2 different persons. He commits only one

crime because there is unity of thought in the criminal purpose of the
offender.

· A continued crime is not a complex crime as offender does not perform a

single act but a series of acts. Therefore:

a) Penalty not to be imposed in the maximum.

b) No actual provision punishing a continued crime – it’s a principle applied
in connection w/ 2 or more crimes committed w/ a single intention.

· Continued crime is different from a transitory crime. Transitory crime is

“moving crime”.

Example: Kidnapping someone for ransom and moving him to another

venue. The offenders can be prosecuted and tried in either of the 2 areas.

* In the theft cases, the trend is to follow the single larceny doctrine, that
is taking of several things, whether belonging to the same or different
owners, at the same time and place, constitutes one larceny only.

Defamation cases

A libelous publication affecting more than one person constitutes as many

crimes as there are offended parties. The crime is not complex even though
there was only one act of publication.
Where the defamatory statement was uttered only once on a single occasion
against a group of persons not mentioned individually, the act constitutes
only one offense.

Art. 49. Penalty to be imposed upon the principals when the crime
committed is different from that intended. — In cases in which the
felony committed is different from that which the offender intended to
commit, the following rules shall be observed:

1. If the penalty prescribed for the felony committed be higher than

that corresponding to the offense which the accused intended to
commit, the penalty corresponding to the latter shall be imposed in its
maximum period.

2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the
penalty for the former shall be imposed in its maximum period.

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3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also
constitute an attempt or frustration of another crime, if the law
prescribes a higher penalty for either of the latter offenses, in which
case the penalty provided for the attempted or the frustrated crime
shall be imposed in its maximum period.

· Art 49 has reference to the provision in the 1st par of Art 4 which provides
that criminal liability shall be incurred “by any person committing a felony
although the wrongful act done be different from that which he intended”

· Art 49 applicable only in cases when there is a mistake in identity of the

victim of the crime and the penalty for the crime committed is different from
that for the crime intended to be committed.

· Art 49 also has no application where a more serious consequence not

intended by the offender befalls the same person.

Example: Juan only wanted to inflict a wound upon Pedro but because he
lost control of his right arm, he killed Pedro. Art 49 not applicable.

ART 49
Lesser penalty to be imposed in its maximum period.

ART 48
Penalty for the more serious crime shall be imposed in its maximum period.

Notes:
* Art. 49 has reference to Art. 4(1). It applies only when there is error in
personae.

* In Art. 49 (Paragraphs 1 and 2) the lower penalty in its maximum period is

always imposed.

* In Par. 3 the penalty for the attempted or frustrated crime shall be imposed
in its maximum period. This rule is not necessary and may well be covered
by Art. 48, in view of the fact that the same act also constitutes an attempt
or a frustration of another crime.

Art. 50. Penalty to be imposed upon principals of a frustrated crime.

—
The penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the principal in a frustrated
felony.

Art. 51. Penalty to be imposed upon principals of attempted crimes. —

A penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an
attempt to commit a felony.

Art. 52. Penalty to be imposed upon accomplices in consummated

crime. — The penalty next lower in degree than that prescribed by law

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for the consummated crime shall be imposed upon the accomplices in
the commission of a consummated felony.

Art. 53. Penalty to be imposed upon accessories to the commission of a

consummated felony. — The penalty lower by two degrees than that
prescribed by law for the consummated felony shall be imposed upon
the accessories to the commission of a consummated felony.

Art. 54. Penalty to be imposed upon accomplices in a frustrated crime.

—The penalty next lower in degree than prescribed by law for the
frustrated felony shall be imposed upon the accomplices in the
commission of a frustrated felony.

Art. 55. Penalty to be imposed upon accessories of a frustrated crime.

—The penalty lower by two degrees than that prescribed by law for the
frustrated felony shall be imposed upon the accessories to the
commission of a frustrated felony.

Art. 56. Penalty to be imposed upon accomplices in an attempted

crime. — The penalty next lower in degree than that prescribed by law
for an attempt to commit a felony shall be imposed upon the
accomplices in an attempt to commit the felony.

Art. 57. Penalty to be imposed upon accessories of an attempted crime.

—The penalty lower by two degrees than that prescribed by law for the
attempted felony shall be imposed upon the accessories to the attempt
to commit a felony.

Application of Article 50 - 57
Participation Consummated Frustrated Attempted
Principal Penalty imposed by law 1 degree less 2 degrees less
Accomplice 1 degree less 2 degrees less 3 degrees less
Accessory 2 degrees less 3 degrees less 4 degrees less

· Art 50-57 not applicable when the law specifically prescribes the penalty for
the frustrated and attempted felony or that to be imposed upon the
accomplices and accessories.

· Notes:

Degree – One whole penalty, one entire penalty or one unit of the penalties
enumerated in the graduated scales provided for in Art 71.

Period – One of 3 equal portions, min/med/max of a divisible penalty. A

period of a divisible penalty when prescribed by the Code as a penalty for a
felony is in itself a degree.

· The rules provided in Arts. 53, 55 and 57 do not apply if the felony is light
because accessories are not liable for the same.

· Bases for imposition of the penalty under the RPC

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a. Stage of the commission of the crime
1. Participation of the persons liable.
2. Presence of aggravating or mitigating circumstances.

* In making any reduction by one or more degrees, the basis used in the
penalty already prescribed, not as already reduced.

Art. 58. Additional penalty to be imposed upon certain accessories. —

Those accessories falling within the terms of paragraphs 3 of Article 19
of this Code who should act with abuse of their public functions, shall
suffer the additional penalty of absolute perpetual disqualification if
the principal offender shall be guilty of a grave felony, and that of
absolute temporary disqualification if he shall be guilty of a less grave
felony.

· Art.58 is limited only to grave and less grave felonies since it is not possible
to have accessories liable for light felonies. It is further limited to those
whose participation in the crime is characterized by the misuse of public
office or authority.

Example:
a) A mayor aided a friend, a wanted criminal, in escaping
b) A senator gives protection to his jueteng lord friend.

· Additional Penalties for Public Officers who are accessories

1. Absolute perpetual disqualification, if the principal offender is guilty of a
grave felony.

2. Absolute temporary disqualification if the principal offender is guilty of

less grave felony.

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

because the means employed or the aims sought are impossible. —
When the person intending to commit an offense has already performed
the acts for the execution of the same but nevertheless the crime was
not produced by reason of the fact that the act intended was by its
nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the
result desired by him, the court, having in mind the social danger and
the degree of criminality shown by the offender, shall impose upon him
the penalty of arresto mayor or a fine from 40,000 to 1,200,000 pesos
(As amended by R.A. 10951).

· Basis for the imposition of proper penalty in impossible crimes: social

danger and degree of criminality shown by the offender.

Example: Juan fired a revolver at Pedro at the distance of 2 kilometers. This

shows stupidity rather than danger. Juan should not be punished as there
is no social danger nor degree of criminality. But if Juan was a convicted
felon, act may be punished.

· Article limited to those cases of grave and less grave felonies.

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Art. 60. Exception to the rules established in Articles 50 to 57. — The
provisions contained in Articles 50 to 57, inclusive, of this Code shall
not be applicable to cases in which the law expressly prescribes the
penalty provided for a frustrated or attempted felony, or to be imposed
upon accomplices or accessories.

· 2 cases wherein the accomplice is punished with the same penalty

imposed upon the principal

a) Ascendants, guardians, curators, teachers and any person who by abuse

of authority or confidential relationship shall cooperate as accomplices in the
crimes of rape, acts of lasciviousness, seduction, corruption of minors, white
slave trade or abduction.

b) One who furnished the place for the perpetration of the crime of slight
illegal detention.

· Accessory punished as principal: Art 142 – punishes an accessory for

knowingly concealed certain evil practices.

· Cases when instead of a penalty 2 degrees lower, one degree for

accessory:

a) Knowingly using counterfeited seal or forged signature or stamp of the

President.
b) Illegal possession and use of false treasury or bank note.
c) Using a falsified document.
d) Using a falsified dispatch.

Art. 61. Rules for graduating penalties. — For the purpose of

graduating the penalties which, according to the provisions of Articles
50 to 57, inclusive, of this Code, are to be imposed upon persons guilty
as principals of any frustrated or attempted felony, or as accomplices
or accessories, the following rules shall be observed:

1. When the penalty prescribed for the felony is single and indivisible,
the penalty next lower in degrees shall be that immediately following
that indivisible penalty in the respective graduated scale prescribed in
Article 71 of this Code.

2. When the penalty prescribed for the crime is composed of two

indivisible penalties, or of one or more divisible penalties to be impose
to their full extent, the penalty next lower in degree shall be that
immediately following the lesser of the penalties prescribed in the
respective graduated scale.

3. When the penalty prescribed for the crime is composed of one or two
indivisible penalties and the maximum period of another divisible
penalty, the penalty next lower in degree shall be composed of the
medium and minimum periods of the proper divisible penalty and the
maximum periods of the proper divisible penalty and the maximum
period of that immediately following in said respective graduated scale.

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4. When the penalty prescribed for the crime is composed of several
periods, corresponding to different divisible penalties, the penalty next
lower in degree shall be composed of the period immediately following
the minimum prescribed and of the two next following, which shall be
taken from the penalty prescribed, if possible; otherwise from the
penalty immediately following in the abovementioned respective
graduated scale.

5. When the law prescribes a penalty for a crime in some manner not
especially provided for in the four preceding rules, the courts,
proceeding by analogy, shall impose corresponding penalties upon
those guilty as principals of the frustrated felony, or of attempt to
commit the same, and upon accomplices and accessories.

· The rules provided in this Art should also apply in determining the minimum
of the Indeterminate Sentence Law (ISL). It also applies in lowering the penalty
by one or two degrees by reason of the presence of the privileged mitigating
circumstance or when the penalty is divisible and there are two or more
mitigating circumstances.

Graduated Scale in Art 71

· Indivisible Penalties:
a) Death
b) Reclusion Perpetua

· Divisible Penalties:
a) Reclusion Temporal
b) Prision Mayor
c) Prision Correccional
d) Arresto Mayor
e) Destierro
f) Arresto Menor
g) Public Censure
h) Fine

· Rule No. 1:
When the penalty is single and indivisible (ex. Reclusion Perpetua), the
penalty next lower shall be reclusion temporal.

· Rule No. 2:
a) When the penalty is composed of two indivisible penalties

Example: Penalty for parricide is reclusion perpetua to death; the next lower
penalty is reclusion temporal.

b) When the penalty is composed of one or more divisible penalties to be

imposed to their full extent.

Example:
1) One (1) divisible penalty is reclusion temporal. The penalty immediately
following Reclusion Temporal is prision mayor.

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2) Two (2) divisible penalties are prision correccional to prision mayor. The
penalty immediately preceding the lesser of the penalties of prision
correccional to prision mayor is arresto mayor.

· Rule No. 3:
When the penalty is composed of 2 indivisible penalties and the maximum
period of a divisible penalty or when composed of one divisible penalty the
maximum of one divisible penalty.

Example: Penalty for murder is reclusion temporal (maximum) to death. The

point of reference will be on the proper divisible penalty which is reclusion
temporal. Under the 3rd rule, the penalty next lower to reclusion temporal is
composed of the medium and minimum periods of reclusion temporal and
the maximum of prision mayor.

· Rule No.4:
When the penalty is composed of several periods
Ex. the “several” periods contemplated in this rule correspond to different
divisible penalties. A penalty of prision mayor in its medium period to
reclusion temporal in its minimum period is an example of such. The penalty
immediately following the minimum of the entire sentence, which is prision
mayor medium, is prision mayor in its minimum and the 2 periods next
following, which are prision correccional maximum and medium.

· Rule No.5:
When the penalty has only 2 periods
Ex. Abduction punishable by prision correccional in its medium and
minimum. The next penalty following is formed by 2 periods to be taken from
the same penalty if possible or from the periods of the penalty numerically
following the lesser of the penalties prescribed. The penalty next following
prision correccional in its medium and minimum shall be arresto mayor in
its medium and maximum.

· Mitigating and Aggravating circumstances are first disregarded in the

application of the rules for graduating penalties. It is only after the penalty
next lower in degree is already determined that the mitigating and
aggravating circumstances should be considered.

Art. 62. Effect of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. — Mitigating or
aggravating circumstances and habitual delinquency shall be taken into
account for the purpose of diminishing or increasing the penalty in
conformity with the following rules:

1. Aggravating circumstances which in themselves constitute a crime

specially punishable by law or which are included by the law in defining
a crime and prescribing the penalty therefor shall not be taken into
account for the purpose of increasing the penalty.

1. (a) When in the commission of the crime, advantage was taken by the
offender of his public position, the penalty to be imposed shall be in its
maximum regardless of mitigating circumstances.

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The maximum penalty shall be imposed if the offense was committed
by any person who belongs to an organized / syndicated crime group.
An organized / syndicated crime group means a group of two or more
persons collaborating, confederating, or mutually helping one another
for purposes of gain in the commission of any crime.

2. The same rule shall apply with respect to any aggravating

circumstance inherent in the crime to such a degree that it must of
necessity accompany the commission thereof.

3. Aggravating or mitigating circumstances which arise from the moral

attributes of the offender, or from his private relations with the
offended party, or from any other personal cause, shall only serve to
aggravate or mitigate the liability of the principals, accomplices and
accessories as to whom such circumstances are attendant.

4. The circumstances which consist in the material execution of the

act, or in the means employed to accomplish it, shall serve to aggravate
or mitigate the liability of those persons only who had knowledge of
them at the time of the execution of the act or their cooperation
therein.

5. Habitual delinquency shall have the following effects.

(a) Upon a third conviction, the culprit shall be sentenced to the
penalty provided by law for the last crime of which he be found guilty
and to the additional penalty of prision correccional in its medium and
maximum periods;

(b) Upon a fourth conviction, the culprit shall be sentenced to the

penalty provided for the last crime of which he be found guilty and to
the additional penalty of prision mayor in its minimum and medium
periods; and

(c) Upon a fifth or additional conviction, the culprit shall be sentenced

to the penalty provided for the last crime of which he be found guilty
and to the additional penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two
penalties to be imposed upon the offender, in conformity herewith,
shall in no case exceed 30 years.

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

delinquent, if within a period of ten years from the date of his release
or last conviction of the crimes of serious or less serious physical
injuries, robo, hurto, estafa or falsification, he is found guilty of any of
said crimes a third time or oftener. (As amended by Section 23 of R.A.
no. 7659).

· Par 1: Aggravating circumstances are not to be taken into account when:

a) They themselves constitute a crime.

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Example: By “means of fire” – arson

b) They are included by law in the definition of a crime.

Example: The aggravating circumstances of trespass or “escalamiento” is in

itself a crime (Article 280). The breaking of a roof, floor or window may
constitute malicious mischief. The burning of anything of value may
constitute arson. These aggravating circumstances, if considered as felonies,
do not increase the penalty.

* Among the aggravating circumstances included in the definition of a crime

are taking advantage of public position in estafa under Art. 214, abuse of
confidence in qualified theft (Art. 310); the circumstances which qualify
homicide in murder (Art. 248); and the use of artifice involving great waste
and ruin in the crimes punished in Articles 324 and 330.

· Par 2: Same rules apply when the aggravating circumstance is inherent in

the crime:

Example: Relationship is inherent in the crimes of parricide and infanticide;

abuse of confidence is inherent in malversation, qualified theft, seduction
and estafa; sex is inherent in crimes against chastity; taking advantage of
public position, in crimes committed by public officers; premeditation is
inherent in robbery, theft, estafa and similar offenses. Nocturnity, abuse of
superiority and craft are absorbed by treachery and are therefore inherent in
murder qualified by treachery. Premeditation, abuse of superiority and
treachery are inherent in treason.

· Par 3. Aggravating or mitigating circumstances arising from any of the ff

affect only those to whom such circumstances are attendant:

a) From the moral attributes of the offender.

b) From his private relations w/ the offended party.
c) From any other personal cause.

Example: Four malefactors commit homicide. One of them is under 18.

Another is drunk. The third is a recidivist, and the fourth is neither under
age, nor drunk, nor a recidivist. The first has in his favor the mitigating
circumstances of minority which does not affect his co-defendants. The
second has a different circumstances in his favor, drunkenness, which does
not extend to the other participants in the crime. The third has an
aggravating circumstance which affects him only. The fourth shall suffer the
penalty corresponding to him without taking into consideration the
aggravating circumstances affecting one or the extenuating circumstances
affecting the others.

* Rule 3 is illustrated in the crime of parricide wherein a stranger had

participated. He is guilty of homicide or murder and not parricide. In the
same manner, the stranger who participated in the commission of qualified
theft involving abuse of confidence and who had no confidential relationship
with the victim is only guilty of simple theft. But the rule is different in

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malversation. A private individual coordinating with the accountable public
officer in committing malversation is a co-principal in the crime.

* In homicide, relationship aggravates the liability of the relative, who is a co-

principal, but not of the other principals who are not related to the victim.
Lack of instruction is mitigating as to the principal, who is actually illiterate,
but not with respect to the other principals who have educational
attainment.

* However, in adultery, the privileged mitigating circumstance of

abandonment would benefit both offenders, even if it was only the offending
wife who was abandoned. (People vs. Avelino )

· Par 4: the circumstances which consist of the following shall serve to

aggravate and mitigate the liability only of those who had knowledge of them
at the time of the commission of the offense.

a) Material execution of the act.

b) Means employed to accomplish the crime.

* Groizard says that the circumstances attending the commission of a crime

either relates to the persons participating in the same or to its material
execution, or to the means employed. The former do not affect all the
participants in the crime, but only to those whom, they particularly apply;
the latter have direct bearing upon the criminal liability of all defendants
who had knowledge thereof at the time of the commission of the crime, or of
their cooperation therein.

Example: A and B killed C. In the execution of the act of killing, A

disguised himself in peace officer which was not made known to B. The
aggravating circumstance of disguising as a peace officer shall be
appreciated only against A, who employed the same in the killing of C. It is
only logical that A should be made to suffer a more serious penalty, as the
idea is to affect only those who have knowledge of it at the time of the
execution of the act.

* In the crime of murder, A hired B to kill C, to prevent the latter from being
a candidate for mayor in the May 10, 2019 elections. In the actual killing of
C, deliberately augmented the suffering of C chopping him into pieces and
scattering his remains in several places. The aggravating circumstances of
cruelty and outraging or scoffing at the person or corpse of C should be
appreciated only against B.

Example: A, B and C agreed to kill X so armed with guns, they proceeded to

the house of the latter whereupon A told B and C that he would stay in the
yard to prevent any relative of X from helping the victim. When B and C
entered the room of X, and saw him sleeping, it was C who shot him. The
treachery that attended the commission of the crime shall also affect B and
not only C who treacherously killed X in his sleep because B had knowledge
of the treacherous act being present actually during the shooting. A’s
liability is not aggravated by treachery as he had no knowledge of it, being in
the yard.

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 Cases where the attending aggravating or mitigating circumstances
are not considered in the imposition of penalties.

· Penalty that is single and indivisible.

· Felonies through negligence.
· Penalty is a fine.
· Penalty is prescribed by a special law.

· Par 5: HABITUAL DELINQUENT is a person who within the period of 10

years from the date of his (last) release or last conviction of the crimes of:

a) Serious or less serious physical injuries

b) Robbery
c) Theft
d) Estafa
e) Falsification

is found guilty of any of the said crimes a third time or oftener.

· Ten year period to be computed from the time of last release or conviction
· Subsequent crime must be committed after conviction of the former crime.
Cases still pending are not to be taken into consideration.

Habitual Delinquency Recidivism

Crimes to be committed are specified Same Title

Within ten (10) years No time fixed by law
Must be found guilty third time or oftener Second conviction
Additional Penalty is imposed Is not offset by MC, increases
penalty to maximum

* Habitual delinquency is not a crime. It is a circumstance that will authorize

the court to add an additional penalty for the present crime committed. It is
only a factor in determining the total penalty to be imposed upon the
offender.
* Habitual delinquency imposes an additional penalty, however, if the same
is imposed after the court has acquired jurisdiction over the crime, and the
total penalty would exceed the jurisdictional limit of the court, such
situation will not divest the court of its jurisdiction over the crime. (People
vs. Blanco, 86 Phil. 296)

* In order that habitual delinquency may be appreciated against the

accused, it must be alleged and detailed in the information or complaint. The
dates of the commission of the previous crimes; the last conviction of release
must be contained or written in the information.

* Under Article 22, when one is a habitual delinquent and he commits felony
or offense, any future punitive law that may favor him in relation to the
punishment imposed on him, will not be given a retroactive effect insofar as
said offender is concerned.

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* He is not also entitled to the application of the Indeterminate Sentence
Law.

Crimes Committed Date of Conviction Date of Release

Serious Physical Injury January, 2000 January, 2013
Theft February, 2008 February, 2015
Robbery March, 2020

In the example mentioned above, as regards the conviction for theft in

February, 2008 the starting point for the computation of the ten-year period
is the date of conviction for serious physical injuries in January, 2000
because that is the last conviction with respect to the second conviction for
theft in February, 2008. The date of release is not considered anymore
because the conviction for theft took place within ten years from the last
conviction for serious physical injuries. We ignore the date of release
because it came after the conviction.

With respect to the third conviction for robbery in March 2020, the ten-year
period is to be computed not from the date of last conviction for theft in
February, 2008 because that would be beyond the period provided by law,
but from the date of release of the accused in February, 2015, as the law
provides for the computation of the ten-year period in the alternative, either
from the last conviction or release.

Apparently, in the example given, the last or third conviction is more than
ten years from 2008, but within ten years from release. The period of ten
years is therefore satisfied. The offender in the example given is a habitual
delinquent.

· Rulings on Habitual Delinquency:

a) The law on habitual delinquency does not contemplate the exclusion from
the computation of prior conviction those falling outside the 10 yr period
immediately preceding the crime for which the defendant is being tried.

b) Ten year period is counted not from the date of commission of the
subsequent offense but to the date of conviction thereof in relation to the
date of his last release or last conviction.

c) When an offender has committed several crimes mentioned in the

definition of habitual delinquent, without being first convicted of any of them
before committing the others, he is not a habitual delinquent.

d) Convictions on the same day or at about the same time are considered as
one only (days, weeks..)

e) Crimes committed on the same date, although convictions on different

dates are considered as one.

f) Previous convictions are considered every time a new offense is committed.

g) Commissions of those crimes need not be consummated.

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h) Habitual delinquency applies to accomplice and accessories as long it is in
the crimes specified.

i) A crime committed in the minority of the offender is not counted.

j) Imposition of additional penalty is mandatory and constitutional.

k) Modifying circumstances applicable to additional penalty.

l) Habitual delinquency is not a crime, it is simply a fact or circumstance

which if present gives rise to the imposition of additional penalty.

m) Penalty for habitual delinquency is a real penalty that determines

jurisdiction.

n) In imposing the additional penalty, recidivism is not aggravating. The

additional penalty must be imposed in its minimum.

o) An offender can be a habitual delinquent without being a recidivist.

Notes:
· In no case shall be the total penalties imposed upon the offender exceed 30
years.

· The law does not apply to crimes described in Art. 155 (alarms and
scandals).

· The imposition of the additional penalties on habitual delinquents are

constitutional, it is simply a punishment on future crimes on account of the
criminal propensities of the accused.

· Habitual delinquency applies at any stage of the execution because

subjectively, the offender reveals the same degree of depravity or perversity
as the one who commits a consummated crime.

· Habitual delinquency applies to all participants because it reveals

persistence in them of the inclination to wrongdoing and of the perversity of
character that led them to commit the previous crime.

Note: There is no habitual delinquency in offenses punished by special laws.

Courts cannot also take judicial notice of the previous convictions of the
accused.

Facts of previous convictions must be established during the trial of the

accused.

Art. 63. Rules for the application of indivisible penalties. — In all

cases in which the law prescribes a single indivisible penalty, it shall
be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the
application thereof:

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1. When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.

2. When there are neither mitigating nor aggravating circumstances in

the commission of the deed, the lesser penalty shall be applied.

3. When the commission of the act is attended by some mitigating

circumstances and there is no aggravating circumstance, the lesser
penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the

commission of the act, the court shall reasonably allow them to offset
one another in consideration of their number and importance, for the
purpose of applying the penalty in accordance with the preceding rules,
according to the result of such compensation.

· Art 63 applies only when the penalty prescribed by the Code is either one
indivisible penalty or 2 indivisible penalties.

* Article 63 must be understood to mean and to refer only to ordinary

mitigating circumstances. It does not refer to privileged mitigating
circumstances.

· General rule: When the penalty is composed of 2 indivisible penalties, the

penalty cannot be lowered by one degree no matter how many mitigating
circumstances are present.

 Exception: In cases of privileged mitigating circumstances

· Par.4: The moral value rather than the numerical weight shall be taken
into account.

· Rules for the application of indivisible penalties

 Penalty is single and indivisible – applied regardless of the presence of

aggravating and mitigating circumstances.

 Penalty composed of two indivisible penalties

1. One aggravating circumstance present – higher penalty
2. One mitigating circumstance present – lower penalty
3. Some mitigating circumstances present and no aggravating – lower penalty
4. Mitigating and Aggravating Circumstance are present – basis in number
and importance.

Art. 64. Rules for the application of penalties which contain three
periods. — In cases in which the penalties prescribed by law contain
three periods, whether it be a single divisible penalty or composed of
three different penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the court shall
observe for the application of the penalty the following rules, according

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to whether there are or are not mitigating or aggravating
circumstances:

1. When there are neither aggravating nor mitigating circumstances,

they shall impose the penalty prescribed by law in its medium period.

2. When only a mitigating circumstance is present in the commission of

the act, they shall impose the penalty in its minimum period.

3. When an aggravating circumstance is present in the commission of

the act, they shall impose the penalty in its maximum period.

4. When both mitigating and aggravating circumstances are present,

the court shall reasonably offset those of one class against the other
according to their relative weight.

5. When there are two or more mitigating circumstances and no

aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such
circumstances.

6. Whatever may be the number and nature of the aggravating

circumstances, the courts shall not impose a greater penalty than that
prescribed by law, in its maximum period.

7. Within the limits of each period, the court shall determine the
extent of the penalty according to the number and nature of the
aggravating and mitigating circumstances and the greater and lesser
extent of the evil produced by the crime.

· Art 64 applies when the penalty has 3 periods because they are divisible. If
the penalty is composed of 3 different penalties, each forms a period
according to Art 77.

· Par 4: The mitigating circumstances must be ordinary, not privileged. The

aggravating circumstances must be generic or specific, not qualifying or
inherent.

Example: a qualifying circumstance (treachery) cannot be offset by a generic

mitigating circumstance (voluntary circumstance).

· The court has discretion to impose the penalty within the limits fixed by
law.

· Art 64 not applicable when the penalty is indivisible or prescribed by special

law or a fine.

· Rules for the application of divisible penalties

 No aggravating and no mitigating circumstances – medium period

 One mitigating circumstance – minimum period
 One aggravating circumstance – maximum period

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 Mitigating and aggravating circumstance offset each other and according to
relative weight
 2 or more mitigating without any aggravating circumstance – on degree
lower

* If in the commission of the crime, one aggravating circumstance is present,

and four mitigating circumstances are likewise left, the offsetting of one
aggravating circumstance will not entitle the accused to a reduction of his
penalty by one degree. You will only lower the penalty by one degree if it is
divisible and there is absolutely no aggravating circumstance.

* Penalty for murder under the Revised Penal Code is reclusion temporal
maximum to death. So, the penalty would be reclusion temporal maximum –
reclusion perpetua – death. This penalty made up of
three periods.

Art. 65. Rule in cases in which the penalty is not composed of three
periods. — In cases in which the penalty prescribed by law is not
composed of three periods, the courts shall apply the rules contained in
the foregoing articles, dividing into three equal portions of time
included in the penalty prescribed, and forming one period of each of
the three portions.

COMPUTATIONS:

A. Example: PRISION MAYOR (6 yrs, 1 day to 12 yrs)

1) Subtract the minimum (disregard 1 day) from the maximum.

12yrs – 6yrs = 6 yrs

2) Divide the difference by 3.

6 yrs / 3 = 2 yrs

3) Use the minimum (6 yrs and 1 day) as the minimum of the minimum
period. Then add the 2 yrs (disregarding the 1 day) to the minimum to
get the maximum of the minimum.

6 yrs (minimum of the minimum)

+ 2 yrs (difference)
-------------------------------------------
8 yrs (maximum of the minimum).
Therefore, minimum period of prision mayor; 6 yrs 1 day to 8 yrs

4) Use the maximum of the minimum period as the minimum of the

medium period and add 1 day to distinguish from the minimum period.
Then add 2 years to the minimum of the medium (disregarding the 1
day) to get the maximum of the medium period.
8 yrs (minimum of the medium)
+ 2 yrs (difference)
-------------------------------------------
10 yrs (maximum of the medium)
Therefore, medium period of prision mayor; 8 yrs 1 day to 10 yrs

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5) Use the maximum of the medium period as the minimum of the
maximum pd, add 1 day to distinguish it from the medium period. Then
add 2 yrs to the minimum of the maximum period (disregarding the 1
day) to get the maximum of the maximum period)
10 yrs (maximum of the medium)
+ 2 yrs (difference)
----------------------------------------------
12 yrs (maximum of the maximum)
Therefore, maximum period of prision mayor; 10 yrs 1 day to 12 yrs

 Computation above applicable to all others except arresto mayor

B. Example: PRISION MAYOR MINIMUM (6 yrs 1 day to 8 yrs) only

1) Subtract minimum from the maximum

8yrs – 6yrs = 2 yrs

2) Divide the difference by 3

2yrs / 3 = 8 months

3) Use the minimum of the given example as the minimum period. Then
to get to get the maximum of the minimum, add the 8 months
6 yrs + 8 months = 6 yrs and 8 months

Therefore, minimum of prision mayor minimum; 6 yrs 1 day to 6 yrs 8 months

4) Use the maximum of the minimum as the minimum of the medium

period. Add 1 day to distinguish it from the maximum of the minimum.
Add the 8 months and this becomes the maximum of the medium
6 yrs 8 months + 8 months = 7 yrs 4 months
Therefore, the medium period of prision mayor minimum; 6 yrs 8 months 1
day to 7 yrs 4 months

5) Use the maximum of the medium as the minimum period of the

maximum period and add 1 day to distinguish. Add the 8 months to get
the maximum of this maximum
7 yrs 4 mos + 8 mos = 8 yrs
Therefore, maximum of prision mayor; 7 yrs 4 mos 1 day to 8 yrs

Act No. 4013 (INDETERMINATE SENTENCE LAW), as amended

Three things to know about the Indeterminate Sentence Law:

(1) Its purpose;
(2) Instances when it does not apply; and
(3) How it operates.

Indeterminate Sentence Law governs whether the crime is punishable under

the Revised Penal Code or a special Law. It is not limited to violations of the
Revised Penal Code.

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It applies only when the penalty served is imprisonment. If not by
imprisonment, then it does not apply.

Purpose

The purpose of the Indeterminate Sentence law is to avoid prolonged

imprisonment, because it is proven to be more destructive than constructive
to the offender. So, the purpose of the Indeterminate Sentence Law in
shortening the possible detention of the convict in jail is to save valuable
human resources. In other words, if the valuable human resources were
allowed prolonged confinement in jail, they would deteriorate. Purpose is to
preserve economic usefulness for these people for having committed a crime
--to reform them rather than to deteriorate them and, at the same time,
saving the government expenses of maintaining the convicts on a prolonged
confinement in jail.

If the crime is a violation of the Revised Penal Code, the court will impose a
sentence that has a minimum and maximum. The maximum of the
indeterminate sentence will be arrived at by taking into account the
attendant mitigating and/or aggravating circumstances according to Article 64
of the Revised Penal Code. In arriving at the minimum of the indeterminate
sentence, the court will take into account the penalty prescribed for the crime
and go one degree lower. Within the range of one degree lower, the court will
fix the minimum for the indeterminate sentence, and within the range of the
penalty arrived at as the maximum in the indeterminate sentence, the court
will fix the maximum of the sentence. If there is a privilege mitigating
circumstance which has been taken in consideration in fixing the maximum
of the indeterminate sentence, the minimum shall be based on the penalty as
reduced by the privilege mitigating circumstance within the range of the
penalty next lower in degree.

If the crime is a violation of a special law, in fixing the maximum of the

indeterminate sentence, the court will impose the penalty within the range
of the penalty prescribed by the special law, as long as it will not exceed the
limit of the penalty. In fixing the minimum, the court can fix a penalty
anywhere within the range of penalty prescribed by the special law, as long
as it will not be less than the minimum limit of the penalty under said law. No
mitigating and aggravating circumstances are taken into account.

The minimum and the maximum referred to in the Indeterminate Sentence Law
are not periods. So, do not say, maximum or minimum period. For the
purposes of the indeterminate Sentence Law, use the term minimum to refer
to the duration of the sentence which the convict shall serve as a minimum,
and when we say maximum, for purposes of ISLAW, we refer to the
maximum limit of the duration that the convict may be held in jail. We are
not referring to any period of the penalty as enumerated in Article 71.

Courts are required to fix a minimum and a maximum of the sentence that
they are to impose upon an offender when found guilty of the crime charged.
So, whenever the Indeterminate Sentence Law is applicable, there is always
a minimum and maximum of the sentence that the convict shall serve. If the
crime is punished by the Revised Penal Code, the law provides that the
maximum shall be arrived at by considering the mitigating and aggravating
circumstances in the commission of the crime according to the proper rules

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of the Revised Penal Code. To fix the maximum, consider the mitigating and
aggravating circumstances according to the rules found in Article 64. This
means –

(1) Penalties prescribed by the law for the crime committed shall be imposed
in the medium period if no mitigating or aggravating circumstance;

(2) If there is aggravating circumstance, no mitigating, penalty shall be

imposed in the maximum;

(3) If there is mitigating circumstance, no aggravating, penalty shall be in the

minimum;

(4) If there are several mitigating and aggravating circumstances, they shall
offset against each other. Whatever remains, apply the rules.

(5) If there are two or more mitigating circumstance and no aggravating

circumstance, penalty next lower in degree shall be the one imposed.

Rule under Art 64 shall apply in determining the maximum but not in
determining the minimum.

In determining the applicable penalty according to the Indeterminate Sentence

Law, there is no need to mention the number of years, months and days; it
is enough that the name of the penalty is mentioned while the Indeterminate
Sentence Law is applied. To fix the minimum and the maximum of the
sentence, penalty under the Revised Penal Code is not the penalty to be
imposed by court because the court must apply the Indeterminate Sentence
Law. The attendant mitigating and/or aggravating circumstances in the
commission of the crime are taken into consideration only when the maximum
of the penalty is to be fixed. But in so far as the minimum is concerned, the
basis of the penalty prescribed by the Revised Penal Code, and go one degree
lower than that. But penalty one degree lower shall be applied in the same
manner that the maximum is also fixed based only on ordinary mitigating
circumstances. This is true only if the mitigating circumstance taken into
account is only an ordinary mitigating circumstance. If the mitigating
circumstance is privileged, you cannot follow the law in so far as fixing the
minimum of the indeterminate sentence is concerned; otherwise, it may
happen that the maximum of the indeterminate sentence is lower than its
minimum.

In one Supreme Court ruling, it was held that for purposes of applying the
Indeterminate Sentence Law, the penalty prescribed by the Revised Penal
Code and not that which may be imposed by court. This ruling, however, is
obviously erroneous. This is so because such an interpretation runs
contrary to the rule of pro reo, which provides that the penal laws should
always be construed and applied in a manner liberal or lenient to the
offender. Therefore, the rule is, in applying the Indeterminate Sentence Law, it
is that penalty arrived at by the court after applying the mitigating and
aggravating circumstances that should be the basis.

Crimes punished under special law carry only one penalty; there are no
degree or periods. Moreover, crimes under special law do not consider
mitigating or aggravating circumstance present in the commission of the

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crime. So in the case of statutory offense, no mitigating and no
aggravating circumstances will be taken into account. Just the same,
courts are required in imposing the penalty upon the offender to fix a
minimum that the convict should serve, and to set a maximum as the limit
of that sentence. Under the law, when the crime is punished under a special
law, the court may fix any penalty as the maximum without exceeding the
penalty prescribed by special law for the crime committed. In the same
manner, courts are given discretion to fix a minimum anywhere within the
range of the penalty prescribed by special law, as long as it will not be lower
than the penalty prescribed.

Disqualification may be divided into three, according to –

(1) The time committed;
(2) The penalty imposed; and
(3) The offender involved.

The Indeterminate Sentence Law (ISL) shall not apply to:

(1) Persons convicted of offense punishable with death penalty or life
imprisonment;
(2) Persons convicted of treason, conspiracy or proposal to commit treason;
(3) Persons convicted of misprision of treason, rebellion, sedition, espionage;
(4) Persons convicted of piracy;
(5) Persons who are habitual delinquents;
(6) Persons who shall have escaped from confinement or evaded sentence;
(7) Those who have been granted conditional pardon by the Chief Executive
and shall have violated the term thereto;
(8) Those whose maximum term of imprisonment does not exceed one
year( consider the maximum term not the minimum term), but not to those
already sentenced by final judgment at the time of the approval of
Indeterminate Sentence Law.
(9) Those sentenced to destiero or suspension( this are not punishable by
imprisonment ).

Although the penalty prescribed for the felony committed is death or reclusion
perpetua, if after considering the attendant circumstances, the imposable
penalty is reclusion temporal or less, the Indeterminate Sentence Law applies
(People v. Cempron, 187 SCRA 278).

Recidivists entitled to the availment of the Indeterminate Sentence Law since

those disqualified are Habitual delinquents. (People vs. Venus, 63 Phil.
435)

When the accused escaped from jail while his case was on appeal, he is not
entitled to the benefits of the Indeterminate Sentence Law. (People vs.
Martinado, 214 SCRA 712)

A youthful offender whose sentence is suspended under Sec. 192 of P.D. 603
and who escaped from his confinement is still entitled to the application of
the Indeterminate Sentence Law. The same is true with an accused confined
in the National Center for Mental Health (formerly National Mental Hospital)
since their confinement cannot be considered punishment but more of
administrative matters for their rehabilitation. (People vs. Soler, 63 Phil.
868)

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A person sentenced to destierro who entered the prohibited area within the
prohibited period has evaded the service of his sentence (People vs. Abilog,
82 Phil. 174) and when he committed a crime in that area, he will not be
entitled to the benefits of the Indeterminate Sentence Law for the new crime.

* ISL should not be applied when it is unfavorable to the accused.

* ISL does not apply to non-divisible penalties.

Art. 66. Imposition of fines. — In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in
each case attention shall be given, not only to the mitigating and
aggravating circumstances, but more particularly to the wealth or
means of the culprit.

· Court must consider the following in imposing the fine:

a) Mitigating and aggravating circumstances.
b) The wealth and means of the culprit.

· When the minimum of the fine is not fixed, the court shall have the
discretion provided it does not exceed the amount authorized by law

* It is not only the mitigating and/or aggravating circumstances that the court
shall take into consideration, but primarily, the financial capability of the
offender to pay the fine.

If the fine imposed by the law appears to be excessive, the remedy is to ask
the Congress to amend the law by reducing the fine to a reasonable amount.

Art. 67. Penalty to be imposed when not all the requisites of exemption
of the fourth circumstance of Article 12 are present.— When all the
conditions required in circumstances Number 4 of Article 12 of this
Code to exempt from criminal liability are not present, the penalty of
arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon the culprit if he shall have been
guilty of a grave felony, and arresto mayor in its minimum and medium
periods, if of a less grave felony.

· Requisites of Art 12 par 4(Accident)

a) Act causing the injury must be lawful
b) Act performed w/ due care
c) Injury was caused by mere accident
d) No fault or intention to cause injury

· If these conditions are not all present, then the ff penalties shall be
imposed:

a) Grave felony – arresto mayor maximum to prision correccional minimum.

b) Less grave felony – arresto mayor minimum to arresto mayor medium.

Art. 68. Penalty to be imposed upon a person under eighteen years of

age. — When the offender is a minor under eighteen years and his case

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is one coming under the provisions of the paragraphs next to the last of
Article 80 of this Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.

2. Upon a person over fifteen and under eighteen years of age the
penalty next lower than that prescribed by law shall be imposed, but
always in the proper period.

Notes:
· Art. 68 applies to such minor if his application for suspension of sentence
is disapproved or if while in the reformatory institution he becomes
incorrigible in which case he shall be returned to the court for the imposition
of the proper penalty.

· Art. 68 provides for 2 privileged mitigating circumstances

 under 15 but over 9 and has acted w/ discernment: 2 degrees lower
 under 18 but over 15: 1 degree lower
* If the act is attended by two or more mitigating circumstance and no
aggravating circumstance, the penalty being divisible a minor over 15 but
under 18 may still get a penalty two degrees lower.

 Suspension of sentence shall still be applied even if the juvenile is already

eighteen (18) years of age or more at the time of the pronouncement of
his/her guilt. (Sec. 38, R.A. 9344).

If said child in conflict with the law has reached eighteen (18) years of age
while under suspended sentence, the court shall determine whether to
discharge the child in accordance with R.A. 9344, to order execution of
sentence or to extend the suspended sentence for a certain specified period
or until the child reaches the maximum age of twenty-one (21) years (Second
sentence of Sec. 40, R. A. 9344)

Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases
mentioned in Article 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature
of the conditions of exemption present or lacking.

· Penalty to be imposed when the crime committed is not wholly

excusable
 1 or 2 degrees lower if the majority of the conditions for justification or
exemption in the cases provided in Arts. 11 and 12 are present.

Art. 70. Successive service of sentence. — When the culprit has to serve
two or more penalties, he shall serve them simultaneously if the nature

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of the penalties will so permit otherwise, the following rules shall be
observed:

In the imposition of the penalties, the order of their respective severity

shall be followed so that they may be executed successively or as nearly
as may be possible, should a pardon have been granted as to the penalty
or penalties first imposed, or should they have been served out.

For the purpose of applying the provisions of the next preceding

paragraph the respective severity of the penalties shall be determined
in accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for,
the right to follow a profession or calling, and
12. Public censure.

Notwithstanding the provisions of the rule next preceding, the

maximum duration of the convict's sentence shall not be more than
three-fold the length of time corresponding to the most severe of the
penalties imposed upon him. No other penalty to which he may be
liable shall be inflicted after the sum total of those imposed equals the
same maximum period.

Such maximum period shall in no case exceed forty years.

In applying the provisions of this rule the duration of perpetual
penalties (penal perpetua) shall be computed at thirty years. (As
amended by CA#217).

Art. 70 refers to service of sentence. It is therefore addressed to the jail

warden or to the director of prisons. The court or the judge has no power to
implement Article 70 because the provision is not for the imposition of
penalties. If the penalty by their very nature can be served simultaneously,
then it must be so served.

· Maximum duration of the convict’s sentence: 3 times the most severe

penalty
· Max period shall not exceed 40 years
· Subsidiary imprisonment – this shall be excluded in computing for the
maximum duration

Example: Juan has 10 sentences of 6 months and 1 day each and a fine of
1000. He was not able to pay the fine. Therefore, he must serve subsidiary
penalty after 18 months and 3 days in jail.

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* Under this rule, when a convict is to serve successive penalties, he will not
actually serve the penalties imposed by law. Instead, the most severe of the
penalties imposed on him shall be multiplied by three and the period will be
the only term of the penalty to be served by him. However, in no case should
the penalty exceed 40 years.

* If the sentences would be served simultaneously, the Three-Fold rule does

not govern.

* Although this rule is known as the Three-Fold rule, you cannot actually
apply this if the convict is to serve only three successive penalties. The Three-
Fold Rule can only be applied if the convict is to serve four or more sentences
successively.

* The chronology of the penalties as provided in Article 70 of the Revised

Penal Code shall be followed.

* It is in the service of the penalty, not in the imposition of the penalty, that the
Three-Fold rule is to be applied. The three-Fold rule will apply whether the
sentences are the product of one information in one court, whether the
sentences are promulgated in one day or whether the sentences are
promulgated by different courts on different days. What is material is that the
convict shall serve more than three successive sentences.

* For purposes of the Three-Fold Rule, even perpetual penalties are taken into
account. So not only penalties with fixed duration, even penalties without
any fixed duration or indivisible penalties are taken into account. For
purposes of the Three-Fold rule, indivisible penalties are given equivalent of
30 years. If the penalty is perpetual disqualification, it will be given and
equivalent duration of 30 years, so that if he will have to suffer several
perpetual disqualification, under the Three-Fold rule, you take the most
severe and multiply it by three. The Three-Fold rule does not apply to the
penalty prescribed but to the penalty imposed as determined by the court.

Illustration:
Penalties imposed are –
One prision correccional – minimum – 2 years and 4 months
One arresto mayor - 1 month and 1 day to 6 months
One prision mayor - 6 years and 1 day to 12 years

* Do not commit the mistake of applying the Three- Fold Rule in this case.
Never apply the Three-Fold rule when there are only three sentences. Even if
you add the penalties, you can never arrive at a sum higher than the
product of the most severe multiplied by three.

* The common mistake is, if given a situation, whether the Three-Fold Rule
could be applied. If asked, if you were the judge, what penalty would you
impose, for purposes of imposing the penalty, the court is not at liberty to
apply the Three-Fold Rule, whatever the sum total of penalty for each crime
committed, even if it would amount to 1,000 years or more. It is only when
the convict is serving sentence that the prison authorities should determine
how long he should stay in jail.

* This rule will apply only if sentences are to be served successively.

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Art. 71. Graduated scales. — In the case in which the law prescribed a
penalty lower or higher by one or more degrees than another given
penalty, the rules prescribed in Article 61 shall be observed in
graduating such penalty.

The lower or higher penalty shall be taken from the graduated scale in
which is comprised the given penalty.

The courts, in applying such lower or higher penalty, shall observe the
following graduated scales:

SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.

SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted for, the
right to follow a profession or calling,
4. Public censure,
5. Fine.

Art. 72. Preference in the payment of the civil liabilities. — The civil
liabilities of a person found guilty of two or more offenses shall be
satisfied by following the chronological order of the dates of the
judgments rendered against him, beginning with the first in order of
time.

· The penalties shall be satisfied according to the scale of Art 70.

Art. 73. Presumption in regard to the imposition of accessory

penalties. — Whenever the courts shall impose a penalty which, by
provision of law, carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this Code, it must be
understood that the accessory penalties are also imposed upon the
convict.

· Subsidiary penalties are deemed imposed. However, the subsidiary

imprisonment must be expressly stated in the decision.

* The rule that the principal penalty imposed carries with it the accessory
penalties does not mean that the accused would serve subsidiary

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imprisonment in case he is not able to pay the pecuniary liabilities imposed
in the judgment. Subsidiary imprisonment must be expressly ordered.

Art. 74. Penalty higher than reclusion perpetua in certain cases. — In

cases in which the law prescribes a penalty higher than another given
penalty, without specially designating the name of the former, if such
higher penalty should be that of death, the same penalty and the
accessory penalties of Article 40, shall be considered as the next higher
penalty.

· If the decision or law says higher than Reclusion Perpetua or 2 degrees

than Reclusion Temporal, then the penalty imposed is Reclusion Perpetua or
Reclusion Temporal as the case may be. Death must be designated by
name. However, for the other penalties, this does not apply.

Example: the penalty for crime X is 2 degrees lower than RP. The penalty
imposed is prision mayor.

Art. 75. Increasing or reducing the penalty of fine by one or more

degrees. — Whenever it may be necessary to increase or reduce the
penalty of fine by one or more degrees, it shall be increased or reduced,
respectively, for each degree, by one-fourth of the maximum amount
prescribed by law, without however, changing the minimum.

The same rules shall be observed with regard of fines that do not
consist of a fixed amount, but are made proportional.

· To get the lower degree:

 Max: reduce by one-fourth
 Min: the same
* With respect to the penalty of fine, if the fine has to be lowered by degree
either because the felony committed is only attempted or frustrated or
because there is an accomplice or an accessory participation, the fine is
lowered by deducting 1/4 of the maximum amount of the fine from such
maximum without changing the minimum amount prescribed by law.

Illustration:
If the penalty prescribed is a fine ranging from P200.00 to P500.00, but the
felony is frustrated so that the penalty should be imposed one degree lower,
1/4 of P500.00 shall be deducted therefrom. This is done by deducting
P125.00 from P500.00, leaving a difference of P375.00. The penalty one
degree lower is P375.00. To go another degree lower, P125.00 shall again be
deducted from P375.00 and that would leave a difference of P250.00. Hence,
the penalty another degree lower is a fine ranging from P200.00 to P250.00. If
at all, the fine has to be lowered further, it cannot go lower than P200.00. So,
the fine will be imposed at P200.00. This rule applies when the fine has to be
lowered by degree.

Art. 76. Legal period of duration of divisible penalties. — The legal

period of duration of divisible penalties shall be considered as divided
into three parts, forming three periods, the minimum, the medium, and
the maximum in the manner shown in the following table: (See Revised
Penal Code Book)

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Art. 77. When the penalty is a complex one composed of three distinct
penalties. — In cases in which the law prescribes a penalty composed of
three distinct penalties, each one shall form a period; the lightest of
them shall be the minimum the next the medium, and the most severe
the maximum period. Whenever the penalty prescribed does not have
one of the forms specially provided for in this Code, the periods shall be
distributed, applying by analogy the prescribed rules.

· If there are 3 distinct penalties; there shall be a minimum, a medium and a

maximum

Example: Reclusion temporal maximum to death

EXECUTION AND SERVICE OF PENALTIES

Art. 78. When and how a penalty is to be executed. — No penalty shall
be executed except by virtue of a final judgment. A penalty shall not be
executed in any other form than that prescribed by law, nor with any
other circumstances or incidents than those expressly authorized
thereby.

In addition to the provisions of the law, the special regulations

prescribed for the government of the institutions in which the penalties
are to be suffered shall be observed with regard to the character of the
work to be performed, the time of its performance, and other incidents
connected therewith, the relations of the convicts among themselves
and other persons, the relief which they may receive, and their diet.

The regulations shall make provision for the separation of the sexes in
different institutions, or at least into different departments and also for
the correction and reform of the convicts.

· Only penalty by final judgment can be executed. Judgment is final if the

accused has not appealed within 15 days or he has expressly waived in
writing that he will not appeal.

* An appeal suspends the service of the sentence imposed by the trial court.
In the absence of an appeal, the law contemplates a speedy execution of the
sentence, and in the orderly administration of justice, the defendant should
be forthwith remanded to the sheriff for the execution of the judgment.

· There could be no subsidiary liability if it was not expressly ordered in the

judgment.

Art. 79. Suspension of the execution and service of the penalties in

case of insanity. — When a convict shall become insane or an imbecile
after final sentence has been pronounced, the execution of said
sentence shall be suspended only with regard to the personal penalty,
the provisions of the second paragraph of circumstance number 1 of
article 12 being observed in the corresponding cases.

If at any time the convict shall recover his reason, his sentence shall be
executed, unless the penalty shall have prescribed in accordance with
the provisions of this Code.

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The respective provisions of this section shall also be observed if the
insanity or imbecility occurs while the convict is serving his sentence

· Cases of insanity:
a) After final sentence, suspend the sentence regarding the personal
penalties.
b) If he recovers, the sentence is executed unless it has prescribed.
c) The payment of civil or pecuniary liabilities shall not be suspended.

Art. 80 (as amended by PD 603: Child and Youth Welfare Code)

YOUTHFUL OFFENDER – over 9 but under 18 at time of the commission of

the offense

* A child nine years of age or under at the time of the commission of the
offense shall be exempt from criminal liability and 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. The same shall be done
for a child over nine years and under fifteen years of age at the time of the
commission of the offense, unless he acted with discernment, in which case
he shall be proceeded against in accordance with Article 192.

* The Revised Penal Code declared a youthful offender to be one who is

under 18 years old at the time he committed the crime attributed to him. For
him to be entitled to the benefits of the law, the sentence must also be made
while the accused is under 18 years of age. If the accused is already 18 years
old or above upon promulgation, he will no longer be entitled to a
suspension of his sentence.

* The suspension of the sentence is only observed if the youthful offender

commits the crime above nine years and below 18 years of age and the
promulgation of the judgment is likewise done while the accused is under 18
years of age.

* The suspension of sentence is not automatic or mandatory for the court to

implement. The youthful offender must apply for suspension.

* A youthful offender held for examination or trial who cannot furnish bail
will be committed to the DSWD/local rehab center or detention home.

Judgment of the court shall not be pronounced but suspended except

for the ff cases:

1. Those who previously enjoyed a suspension of sentence.

2. Those convicted of death or life imprisonment.
3. Those convicted for an offense by the military tribunals.

* The DSWD may dismiss the case if the youth behaves properly
* The records of the proceeding shall be privileged and shall not be disclosed
* The civil liability of the youthful offender may be voluntary assumed by a
relative or a friend
* The civil liability for acts committed by a youthful offender shall devolve
upon the offender’s father and, in the case of his death or incapacity, upon
the mother, or in case of her death or incapacity, upon the guardian. Civil

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liability may also be voluntarily assumed by a relative or family friend of the
youthful offender.

* The parent or guardian of the child is liable when he aids, abets or

connives with the commission of the crime or does an act producing,
promoting or contributing to the child’s being a juvenile delinquent.

* The penalties for the parent or guardian: Fine not exceeding 500 and/or
imprisonment not exceeding 2 years.

Art. 81. When and how the death penalty is to be executed. — The
death sentence shall be executed with preference to any other and shall
consist in putting the person under sentence to death by lethal
injection. The death sentence shall be executed under the authority of
the Director of Prisons, endeavoring so far as possible to mitigate the
sufferings of the person under sentence during the lethal injection as
well as during the proceedings prior to the execution.

The Director of the Bureau of Corrections shall take steps to insure

that the lethal injection to be administered is sufficient to cause
instantaneous death of the convict.

The death sentence shall be carried out not earlier than one(1) year but
not later than eighteen(18) months after the judgment has become final
and executory without prejudice to the exercise by the President of his
clemency powers at all times . (As amended by RA# 8177)

DEATH PENALTY

To which crimes imposed:

Applies only to those crimes which are specified under RA 7659. If a crime is
not included in the list of heinous crimes, the penalty cannot be validly
imposed for said crime.

What are heinous crimes?

These are grievous, odious and hateful offenses, which by reason of their
inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society.

What are the heinous crimes under RA 7659?

1. Treason
2. Qualified piracy / mutiny
3. Qualified bribery
4. Parricide
5. Murder
6. Infanticide

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7. Kidnapping and Serious Illegal Detention
8. Robbery with Homicide
9. Robbery with rape
10. Robbery with Intentional Mutilation
11. Robbery with arson
12. Destructive Arson
13. Rape committed with the use of deadly weapon
14. Rape committed by two or more persons
15. Rape with Homicide / Attempted rape with homicide
16. Rape under certain circumstances
17. Plunder
18. Violation of RA 6425, where quantity involved is more than or equal to
that certified under Sec. 20 thereof
19. Carnapping where the owner or occupant of the vehicle is killed

Art. 82. Notification and execution of the sentence and assistance to

the culprit. — The court shall designate a working day for the
execution but not the hour thereof; and such designation shall not be
communicated to the offender before sunrise of said day, and the
execution shall not take place until after the expiration of at least eight
hours following the notification, but before sunset. During the interval
between the notification and the execution, the culprit shall, in so far
as possible, be furnished such assistance as he may request in order to
be attended in his last moments by priests or ministers of the religion
he professes and to consult lawyers, as well as in order to make a will
and confer with members of his family or persons in charge of the
management of his business, of the administration of his property, or of
the care of his descendants.

· Designate a working day which shall not be communicated to the offender

before the sunrise of said day. The execution shall not take place until after
the expiration of at least 8 hrs following such notification.

· He can execute a will.

Art. 83. Suspension of the execution of the death sentence. — The

death sentence shall not be inflicted upon a woman while she is
pregnant or within one (1) year after delivery, nor upon any person over
seventy years of age. In this last case, the death sentence shall be
commuted to the penalty of reclusion perpetua with the accessory
penalties provided in Article 40.

In all cases where the death sentence has become final, the records of
the case shall be forwarded immediately by the Supreme Court to the
Office of the President for possible exercise of the pardoning power. (As
amended by Sec. 25, RA# 7659)

· Death sentence commuted to Reclusion Perpetua:

a) Woman, while pregnant or within 1 year after delivery (only suspended)
b) Person over 70 years old.

Art. 84. Place of execution and persons who may witness the same. —
The execution shall take place in the penitentiary or Bilibid in a space
closed to the public view and shall be witnessed only by the priests

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assisting the offender and by his lawyers, and by his relatives, not
exceeding six, if he so request, by the physician and the necessary
personnel of the penal establishment, and by such persons as the
Director of Prisons may authorize.

Art. 85. Provisions relative to the corpse of the person executed and its
burial. — Unless claimed by his family, the corpse of the culprit shall,
upon the completion of the legal proceedings subsequent to the
execution, be turned over to the institute of learning or scientific
research first applying for it, for the purpose of study and investigation,
provided that such institute shall take charge of the decent burial of
the remains. Otherwise, the Director of Prisons shall order the burial of
the body of the culprit at government expense, granting permission to
be present thereat to the members of the family of the culprit and the
friends of the latter. In no case shall the burial of the body of a person
sentenced to death be held with pomp.

Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision

correccional and arresto mayor. — The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision correccional and arresto
mayor, shall be executed and served in the places and penal
establishments provided by the Administrative Code in force or which
may be provided by law in the future.

*Death Penalty is now prohibited under R. A. 9346

Art. 87. Destierro. — Any person sentenced to destierro shall not be

permitted to enter the place or places designated in the sentence, nor
within the radius therein specified, which shall be not more than 250
and not less than 25 kilometers from the place designated.

· Destierro shall be imposed in the ff cases:

a) Death or serious physical injuries is caused or are inflicted under
exceptional circumstance
b) Person fails to give bond for good behavior
c) Concubine’s penalty for the crime of concubinage
d) Lowering the penalty by degrees

· Execution of Destierro
a) Convict shall not be permitted to enter the place designated in the
sentence nor within the radius specified, which shall not be more than 250
and not less than 25 km from the place designated.

b) If the convict enters the prohibited area, he commits evasion of sentence

Art. 88. Arresto menor. — The penalty of arresto menor shall be served
in the municipal jail, or in the house of the defendant himself under
the surveillance of an officer of the law, when the court so provides in
its decision, taking into consideration the health of the offender and
other reasons which may seem satisfactory to it.

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· Served where:
 In the municipal jail
 In the house of the offender, but under the surveillance of an officer of the
law whenever the court so provides in the decision due to the health of the
offender. But the reason is not satisfactory just because the offender is a
respectable member of the community.

EXTINCTION OF CRIMINAL LIABILITY

Art. 89. How criminal liability is totally extinguished. — Criminal

liability is totally extinguished:

Re-election to public office is not one of the grounds by which criminal liability
is extinguished. This is only true to administrative cases but not criminal
cases.

(1) By the death of the convict, as to the personal penalties and as to

pecuniary penalties, liability therefor is extinguished only when the
death of the offender occurs before final judgment.

· Extinguishment of criminal liability is a ground of motion to quash.

· Criminal liability whether before or after final judgment is extinguished

upon death because it is a personal penalty.

· Pecuniary penalty is extinguished only when death occurs before final

judgment.

(2) By service of the sentence

· Crime is a debt, hence extinguished upon payment.

· Service does not extinguish civil liability.

(3) By amnesty, which completely extinguishes the penalty and all its
effects

AMNESTY – is an act of the sovereign power granting oblivion or general

pardon. It wipes all traces and vestiges of the crime but does not extinguish
civil liability

(4) By absolute pardon

· PARDON – an act of grace proceeding from the power entrusted w/ the

execution of laws, which exempts the individual from the punishment the
law inflicts for the crime.

* Pardon, although absolute does not erase the effects of conviction. Pardon
only excuses the convict from serving the sentence. There is an exception to
this and that is when the pardon was granted when the convict had already
served the sentence such that there is no more service of sentence to be
executed then the pardon shall be understood as intended to erase the effects
of the conviction. But if he was serving sentence when he was pardoned, that
pardon will not wipe out the effects of the crime, unless the language of the

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pardon absolutely relieve the offender of all the effects thereof. Considering
that recidivism does not prescribe, no matter how long ago was the first
conviction, he shall still be a recidivist.

* When the crime carries with it moral turpitude, the offender even if granted
pardon shall still remain disqualified from those falling in cases where moral
turpitude is a bar.

* In Monsanto v. Factoran, Jr., 170 SCRA 191, it was held that absolute
pardon does not ipso facto entitle the convict to reinstatement to the public
office forfeited by reason of his conviction. Although pardon restores his
eligibility for appointment to that office, the pardoned convict must reapply for
the new appointment.

AMNESTY PARDON
Extended to classes of persons who Exercised individually by the
may be guilty of political offenses President (any crime)
Exercised even before trial or Exercised when one is convicted
investigation
Looks backward and abolishes the Looks forward and relieves the
offense itself offender of the consequences
Does not extinguish civil liability Same
A public act that needs the A private act of the President
declaration of the President with the
concurrence of Congress
Courts should take judicial notice Must be pleaded and proved

* Pardon becomes valid only when there is a final judgment. If given before
this, it is premature and hence void. There is no such thing as a premature
amnesty, because it does not require a final judgment; it may be given before
final judgment or after it.

(5) By prescription of the crime

· When the crime prescribes, the state loses the right to prosecute
· Prescription of a crime – is the loss/forfeiture of the right of the state to
prosecute the offender after the lapse of a certain time.

(6) By prescription of the penalty

· Means: the loss/forfeiture of the right of government to execute the final
sentence after the lapse of a certain time. Conditions: there must be final
judgment and the period has elapsed.

(7) By the marriage of the offended woman, as provided in Art 344 of

this Code

* In the case of marriage, do not say that it is applicable for the crimes under
Article 344. It is only true in the crimes of rape, abduction, seduction and
acts of lasciviousness. Do not say that it is applicable to private crimes
because the term includes adultery and concubinage. Marriages in these

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cases may even compound the crime of adultery or concubinage. It is only in
the crimes of rape, abduction, seduction and acts of lasciviousness that the
marriage by the offender with the offended woman shall extinguish civil
liability, not only criminal liability of the principal who marries the offended
woman, but also that of the accomplice and accessory, if there are any.

* Co-principals who did not themselves directly participate in the execution

of the crime but who only cooperated, will also benefit from such marriage,
but not when such co-principal himself took direct part in the execution of
the crime.

* Marriage as a ground for extinguishing civil liability must have been

contracted in good faith. The offender who marries the offended woman must
be sincere in the marriage and therefore must actually perform the duties of
a husband after the marriage, otherwise, notwithstanding such marriage,
the offended woman, although already his wife can still prosecute him again,
although the marriage remains a valid marriage. Do not think that the
marriage is avoided or annulled. The marriage still subsists although the
offended woman may re-file the complaint. The Supreme Court ruled that
marriage contemplated must be a real marriage and not one entered to and
not just to evade punishment for the crime committed because the offender
will be compounding the wrong he has committed.

* The grant of probation may be considered as a form of extinction of

criminal liability which was bestowed while accused who has never been
incarcerated, was out on bail, may thus be categorized as total extinction
thereof. However, if it was granted after the conviction of the accused who
was in jail, it can be considered as partial extinction only. It must be noted
however, that unlike in service of sentence, in probation, the probationer is
still required to report to Probation Officer at a certain period until the
duration of the probation period.

Art. 90. Prescription of crime. — Crimes punishable by death, reclusion

perpetua or reclusion temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in

fifteen years.

Those punishable by a correctional penalty shall prescribe in ten

years; with the exception of those punishable by arresto mayor, which
shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one

year.
The crime of oral defamation and slander by deed shall prescribe
in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest
penalty shall be
made the basis of the application of the rules contained in the first,
second and
third paragraphs of this article. (As amended by RA 4661, approved
June 19, 1966.)

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· In computing for the period, the first day is excluded and the last day
included. Subject to leap years.

· When the last day of the prescriptive period falls on a Sunday or a legal
holiday, the info can no longer be filed the following day.

· Simple slander prescribes in 2 months and grave slander in 6 months.

· Since destierro is a correctional penalty, it prescribes in 10 years. Afflictive
penalties, 15 years.

· If compound penalty, basis will be the highest penalty

Offense punished with a fine

To determine whether the prescriptive period of an offense punished with a

fine is imposed as a single or as an alternative penalty, such fine should not
be reduced or converted into a prison term. It should be classified into an
afflictive, correctional, or light penalty pursuant to Article 26.

* When fine is imposed as an alternative penalty to imprisonment (imposed

together with a penalty lower than the fine), and fine constitute a higher
penalty than the penalty of imprisonment, the basis of the prescriptive
period should be the fine.

* The rule on prescription as to fines does not refer to subsidiary

imprisonment. It takes into consideration the nature of the penalty as
afflictive, correctional and light.
It is a rule that prescriptive period is always based on the fine even if there is
a subsidiary imprisonment.

· Prescription begins to run from the discovery thereof. Interrupted when

proceedings are instituted and shall begin to run again when the
proceedings are dismissed.

* The defense of prescription cannot be waived and it may be raised during

the trial or even on appeal. However, the defense of prescription of crime
cannot defeat the right of the state to recover its properties which were
unlawfully acquired by public officials.

· Prescription does not take away the court’s jurisdiction but only absolves
the defendant and acquits him.

* Extinction of crime by prescription does not extinguish civil liability unless

extinction proceeds from a declaration in a final judgment that the fact from
which the civil liability might arise did not exist.

* Where the special law such as the Copyright Law provides for its own
prescriptive period, said special law will govern. Act 3326 will not be applied.

Art. 91. Computation of prescription of offenses. — The period of

prescription shall commence to run from the day on which the crime is

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discovered by the offended party, the authorities, or their agents, and
shall be interrupted by the filing of the complaint or information, and
shall commence to run again when such proceedings terminate without
the accused being convicted or acquitted, or are unjustifiably stopped
for any reason not imputable to him.

The term of prescription shall not run when the offender is

absent from the Philippine Archipelago.

The aforementioned rule, however is not applicable in the following

cases:

A. In continuing crimes where the prescriptive period will start to run only at
the termination of the intended result;

B. In crimes which are not concealed because there is a constructive notice to

the public, such as to those which involve a public document registered in
public offices. It is a rule that registration is tantamount to a declaration to
the whole world. In such cases, the prescriptive period shall commence from
the time of the registration of the document.

C. In the crime of false testimony where the prescriptive period is reckoned

from the day of final judgment is rendered by the court and not at the time
the false testimony was made.

· If there is nothing concealed (appears in a public document); the crime

commences to run on the date of the commission
· Period of prescription for crimes that is continuing never runs

· Crime needs to be discovered by:

a) Offended party
b) Authorities
c) Their agents

· If a person witnesses the crime but only tells the authorities 25 years later,
prescription commences on the day the authorities were told.

“Commission of the crime is public” -- This does not mean alone that the
crime was within public knowledge or committed in public.

Illustration:
In the crime of falsification of a document that was registered in the proper
registry of the government like the Registry of Property or the Registry of
Deeds of the Civil registry, the falsification is deemed public from the time the
falsified document was registered or recorded in such public office so even
though, the offended party may not really know of the falsification, the
prescriptive period of the crime shall already run from the moment the
falsified document was recorded in the public registry. So in the case where
a deed of sale of a parcel of land which was falsified was recorded in the
corresponding Registry of Property, the owner of the land came to know of
the falsified transaction only after 10 years, so he brought the criminal
action only then. The Supreme Court ruled that the crime has already
prescribed. From the moment the falsified document is registered in the

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Registry of Property, the prescriptive period already commenced to run
(Constructive notice rule).

· What interrupts prescription?

a) Preliminary examination or investigation which is similar to judicial
proceeding
b) Filing the proper complaint with the fiscal’s office and the prosecutor.
Police not included.
c) Filing complaint with the court that has proper jurisdiction.

The prescription of the crime is interrupted or suspended –

(1) When a complaint is filed in a proper barangay for conciliation or

mediation as required by Chapter 7, Local Government Code, but the
suspension of the prescriptive period is good only for 60 days. After which the
prescription will resume to run, whether the conciliation or mediation is
terminated or not;

(2) When criminal case is filed in the prosecutor’s office, the prescription of
the crime is suspended until the accused is convicted or the proceeding is
terminated for a cause not attributable to the accused.

* Holiday is not a legal efficient cause which interrupts the prescription of

the offense. Where the last day to file an information falls on a Sunday or
legal holiday, the prescriptive period cannot be extended up to the next
working day.

* But where the crime is subject to Summary Procedure, the prescription of

the crime will be suspended only when the information is already filed with
the trial court. It is not the filing of the complaint, but the filing of the
information in the trial which will suspend the prescription of the crime.

* If the case involves a minor offense and it is filed in the fiscal’s office, the
filing of the case in the fiscal’s office will not interrupt the running of the
period of prescription.

· When the period commences to run again

a) When the proceeding is terminated without the accused being convicted or

acquitted.

b) When the proceeding is unjustifiably stopped for a reason not imputable

to the offender.

· “when such proceedings terminate” – termination that is final; an

unappealed conviction or acquittal

· “unjustifiably stopped for any reason” – example: accused evades

arrest, proceedings must be stopped.

· Art 91 applies to a special law when said law does not provide for the
application but only provides for the period of prescription.

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* The prevailing rule now is, prescription of the crime is not waivable, when a
crime prescribes, the State loses the right to prosecute the offender, hence,
even though the offender may not have filed a motion to quash on this ground
the trial court, but after conviction and during the appeal he learned that at
the time the case was filed, the crime has already prescribed, such accused
can raise the question of prescription even for the first time on appeal, and the
appellate court shall have no jurisdiction to continue, if legally, the crime has
indeed prescribed.

Art. 92. When and how penalties prescribe. — The penalties imposed
by final sentence prescribe as follows:

1. Death and Reclusion Perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the
penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year.

· Note that final sentence must be imposed

* The penalty, to be subject of prescription must have been imposed by final

judgment. Thus, if A after conviction by the trial court, appealed the
decision, and escaped from jail where he has been detained during the trial,
the penalty will never prescribe. In prescription of penalty, the offender must
be serving sentence, and must have escaped, committing the crime of
Evasion of Sentence. From the day he escaped, the prescription of penalty
commence to run.

Problem: A was sentenced to reclusion temporal for homicide and while

serving sentence, for January 1, 2005. He must be able to elude authorities
up to January 2, 2020 to consider the penalty prescribed. Supposed he was
arrested after five (5) years of escape – that is, on January 1, 2010, and was
able to hide for just ten (10) more years. The five-year period during his first
escape must have to be considered for purposes of completing the fifteen
(15)-year period for the prescription of the penalty of Homicide.

· If a convict can avail of mitigating circumstances and the penalty is

lowered, it is still the original penalty that is used as the basis for
prescription. However, if the convict already serves a portion of his sentence
and escapes after, the penalty that was imposed (not the original) shall be
the basis for prescription.

· Fines less than 200 fall under light penalty. Those above are correccional.

Art. 93. Computation of the prescription of penalties. — The period of

prescription of penalties shall commence to run from the date when the
culprit should evade the service of his sentence, and it shall be
interrupted if the defendant should give himself up, be captured, should
go to some foreign country with which this Government has no
extradition treaty, or should commit another crime before the
expiration of the period of prescription.

· Elements:
a) Penalty is final.

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b) Convict evaded the sentence.
c) Convict has not given himself up.
d) Penalty has prescribed because of lapse of time from the date of the
evasion of the service of the sentence.

* On the prescription of the penalty, the period will only commence to run
when the convict has begun to serve the sentence. Actually, the penalty will
prescribe from the moment the convict evades the service of the sentence. So if
an accused was convicted in the trial court, and the conviction becomes final
and executory, so this fellow was arrested to serve the sentence, on the way
to the penitentiary, the vehicle carrying him collided with another vehicle
and overturned, thus enabling the prisoner to escape, no matter how long
such convict has been a fugitive from justice, the penalty imposed by the
trial court will never prescribe because he has not yet commenced the
service of his sentence. For the penalty to prescribe, he must be brought to
Muntinlupa, booked there, placed inside the cell and thereafter he escapes.

· Interruption of the period

 If the defendant surrenders
 If he is captured
 If he should go into a foreign country with which the Philippines has no
extradition treaty

* Presently the Philippines has an extradition treaty with Taiwan, Indonesia,

Canada, Australia, USA andSwitzerland.

If he should commit another crime before the expiration of the period of
prescription.

* The moment the convict commits another crime while he is fugitive from
justice, prescriptive period of the penalty shall be suspended and shall not run
in the meantime. The crime committed does not include the initial evasion of
service of sentence that the convict must perform before the penalty shall
begin to prescribe, so that the initial crime of evasion of service of sentence
does not suspend the prescription of penalty, it is the commission of other
crime, after the convict has evaded the service of penalty that will suspend
such period.

 Acceptance of a conditional pardon (People v. Puntilos)

· If a government has an extradition treaty with the country to which a

convict escaped and the crime is not included in the treaty, the running of
the prescription is interrupted.

· Sentence evasion clearly starts the running of the prescription. It does not
interrupt it.

Acceptance of the conditional pardon interrupts the prescriptive period.

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· Rolito Go case: since he was captured, he is only supposed to serve the
remainder of his sentence. Reason: during the period he escaped, his
existence is one of fear and discomfort.

Art. 94. Partial Extinction of criminal liability. — Criminal liability is

extinguished partially:

1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is
serving his sentence.

Conditional pardon – contract between the sovereign power of the executive

and the convict.

· Convict shall not violate any of the Penal laws of the Philippines
· Violation of conditions:
 Offender is re-arrested and re-incarcerated
 Prosecution under Art. 159

Commutation – change in the decision of the court by the chief regarding

the:
(1) Degree of the penalty; and
(2) By decreasing the length of the imprisonment or fine.

· Commutation allowed when:

A) Person over 70 yrs old
B) 10 justices fail to reach a decision affirming the death penalty
· Consent not necessary in commutation
· Prisoner is also allowed special time allowance for loyalty which is 1/5
deduction of the period of his sentence.

PAROLE – consists in the suspension of the sentence of a convict after

serving the minimum term of the indeterminate penalty, without granting
pardon, prescribing the terms upon which the sentence shall be suspended.
In case his parole conditions are not observed, a convict may be returned to
the custody and continue to serve his sentence without deducting the time
that elapsed.

CONDITIONAL PARDON PAROLE

Given after final judgment Given after service of minimum
penalty
Granted by Chief Executive Given by the Board of Pardons and
Parole
For violation, convict shall not be For violations, may be re-arrested,
prosecuted under Article 159 convict serves remaining sentence

Good conduct allowance during confinement

Deduction for the term of sentence for good behavior

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Good conduct allowance

This includes the allowance for loyalty under Article 98, in relation to Article
158. A convict who escapes the place of confinement on the occasion of
disorder resulting from a conflagration, earthquake or similar catastrophe or
during a mutiny in which he has not participated and he returned within 48
hours after the proclamation that the calamity had already passed, such
convict shall be given credit of 1/5 of the original sentence from that allowance
for his loyalty of coming back. Those who did not leave the penitentiary under
such circumstances do not get such allowance for loyalty. Article 158 refers
only to those who leave and return.

Art. 95. Obligation incurred by person granted conditional pardon. —

Any person who has been granted conditional pardon shall incur the
obligation of complying strictly with the conditions imposed therein
otherwise, his noncompliance with any of the conditions specified shall
result in the revocation of the pardon and the provisions of Article 159
shall be applied to him.

· Condition of pardon is limited to unserved portion of the sentence, unless

an intention to extend it beyond the time is manifest.

Art. 96. Effect of commutation of sentence. — The commutation of the

original sentence for another of a different length and nature shall have
the legal effect of substituting the latter in the place of the former.

Art. 97. Allowance for good conduct. — The good conduct of any
prisoner in any penal institution shall entitle him to the following
deductions from the period of his sentence:

1. During the first two years of his imprisonment, he shall be allowed a

deduction of five days for each month of good behavior;

2. During the third to the fifth year, inclusive, of his imprisonment, he

shall be allowed a deduction of eight days for each month of good
behavior;

3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of ten days for each
month of good behavior; and

4. During the eleventh and successive years of his imprisonment, he

shall be allowed a deduction of fifteen days for each month of good
behavior.

· Allowance for good conduct not applicable when prisoner released under
conditional pardon.

· Good conduct time allowance is given in consideration of good conduct of

prisoner while he is serving sentence.

Allowances for Good Conduct per Year

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 Years Allowance
First 2 years 5 days per month of good behavior
3rd to 5th years 8 days per month of good behavior
Following years up to 10th year 10 days per month of good behavior
11th year and successive years 15 days per month of good behavior

Art. 98. Special time allowance for loyalty. — A deduction of one-fifth

of the period of his sentence shall be granted to any prisoner who,
having evaded the service of his sentence under the circumstances
mentioned in article 158 of this Code, gives himself up to the
authorities within 48 hours following the issuance of a proclamation
announcing the passing away of the calamity or catastrophe to in said
article.

· Special time allowance for loyalty of prisoners:

 The article applies only to prisoners who escaped
 deduction of 1/5 of the period of sentence of prisoner who having evaded
the service of his sentence during the calamity or catastrophe mentioned in
Article 158, gives himself up to the authorities w/in 48 hrs ff the issuance of
the proclamation by the President announcing the passing away of the
calamity or catastrophe.
 deduction based on the original sentence and not on the unexpired portion

· Art 158 provides for increased penalties:

- a convict who has evaded the service of his sentence by leaving the penal
institution on the occasion of disorder resulting from conflagration,
earthquake or similar catastrophe or during mutiny in which he did not
participate is liable to an increased penalty (1/5 of the time still remaining to
be served – not to exceed 6 months), if he fails to give himself up to the
authorities within 48 hrs ff the issuance of a proclamation by the President
announcing the passing away of the calamity.

Art. 99. Who grants time allowances. — Whenever lawfully justified,

the Director of Prisons shall grant allowances for good conduct. Such
allowances once granted shall not be revoked.

a) Authority to grant time allowance for good conduct is exclusively vested in

the Director of prisons (e.g. provincial warden cannot usurp Director’s
authority).
b) It is not an automatic right and once granted, cannot be revoked by him.

CIVIL LIABILITY

Acts or omissions resulting in felonies produce two classes of injuries.

The first injury is directed against the state and is known as “social
injury”. The offended party is the government or the collective right of our
people. It is repaired through the imposition of penalties. The second injury
is directed to the private offended party and is known as “personal injury”.

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The injury is caused to the victim of the crime who may have suffered
damage, either to his person, to his property, or to his honor which is
compensated by way of indemnity which is civil in nature.

A person criminally liable is also civilly liable. The award of civil damages
arising from crime is governed by the Revised Penal Code, subject to the
provisions of Article 32, 33 and 34 of the New Civil Code. Procedural aspect
of the civil liability of the accused, Rule 111 of the Revised Rules of Court
governs. Section 1, Rule 111 provides that:

Section 1. Institution of criminal and civil actions. – When a criminal action is

instituted, the civil action for the recovery of civil liability is implied
instituted with the criminal action, unless the offended party waives the civil
action, reserves his right to institute it separately, or institutes the civil
action prior to the criminal action.

A waiver of any of the civil actions extinguishes the others. The institution
of, or the reservation of the right to file, any of said civil actions separately
waives the others.

In no case may the offended party recover damages twice for the same act or
omission of the accused.

In cases wherein the amount of damages, other than actual, is alleged in the
complaint or information, the corresponding filing fees shall be paid by the
offended party upon the filing thereof in court for trial.

Civil liability in the aforecited rule is predicted on the crime committed by

the offender. If the civil liability arose from crimes covered under Articles 32,
33 and 34 and 2176 of the New Civil Code, an independent civil action can be
instituted, either before or after the filing of the criminal case, provided that in
the latter case, the offended party makes an express reservation to file a
separate civil action. When a civil action is filed as stated above, the same is
suspended upon filing of the criminal action, meaning, the trial is not to be
done until the criminal case is resolved or decided. This rule, however, is not
applicable if the civil liability that is separately instituted, arises or
originates from the provisions of Articles 32, 33 and 34 of the Civil Code.

It is necessary, however that the civil liability under all said articles arise
from the same act or omission of the accused.

When the civil liability arising from the crime is different from civil liability
arising from the Civil Code, if civil liability is already awarded in the criminal
action, the offender cannot again claim civil liability arising from crime, and
one arising from quasi-delict.

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Art. 100. Civil liability of a person guilty of felony. — Every person
criminally liable for a felony is also civilly liable.

Basis:
> Obligation to repair or to make whole the damage caused to another by
reason of an act or omission, whether done intentionally or negligently and
whether or not punishable by law.

* If the crime is one from which no civil liability may arise, like Illegal
Possession of Firearm (P.D. 1866 as amended by R.A. 8294), or illegal sale,
transport or possession of prohibited drugs (R.A. 64225 as amended by R.A.
7659), the convict incurs no civil liability.

Dual character of the crime as against:

a) The state because of the disturbance of peace and order

b) The private person injured unless it involves the crime of treason,
rebellion, espionage, contempt and others where no civil liability arises on
the part of the offender either because there are no damages or there is no
private person injured by the crime.

* The civil liability of the accused may be enforced in the criminal action or
in a direct civil action. The choice is in the offended party. If his preference is
to prosecute the civil action in the criminal proceedings, he cannot be
compelled to institute a separate civil action instead. (People vs. Guido, 57
Phil. 52)
Damage that may be recovered in criminal cases:

· Crimes against persons, like crime of physical injuries – whatever he spent

for treatment of wounds, doctor’s fees, medicines as well as salary or wages
unearned.

· Moral Damages: seduction, abduction, rape or other lascivious acts,

adultery or concubinage, illegal or arbitrary detention or arrest, illegal
search, libel, slander or any other form of defamation, malicious
prosecution.

· Exemplary Damages: imposed when crime was committed with one or more
aggravating circumstances.

NOTES:

* If there is no damage caused by the commission of the crime, offender is

not civilly liable.

* Dismissal of the info or the crime action does not affect the right of the
offended party to institute or continue the civil action already instituted
arising from the offense, because such dismissal does not carry with it the
extinction of the civil one.

* When accused is acquitted on ground that his guilt has not been proven
beyond reasonable doubt, a civil action for damages for the same act or
omission may be instituted.

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* When during the trial what was established was only the civil aspect of the
case and the same facts adduced did not constitute a crime, civil liability is
also awarded. (Padilla vs. Court of Appeals, 129 SCRA 558)

* Exemption from criminal liability in favor of an imbecile or insane person,

and a person under 9 yrs, or over 9 but under 15 who acted without
discernment and those acting under the impulse of irresistible force or under
the impulse of an uncontrollable fear of an equal or greater injury does not
include exemption from civil liability.

* Acquittal in the criminal action for negligence does not preclude the
offended party from filing a civil action to recover damages, based on the
theory that the act is quasi-delict.

* When the court found the accused guilty of criminal negligence but failed
to enter judgment of civil liability, the private prosecutor has a right to
appeal for the purposes of the civil liability of the accused. The appellate
court may remand the case to the trial court for the latter to include in its
judgment the civil liability of the accused.

* Where the accused was convicted in a criminal case but the court did not
make any pronouncement on his civil liability, such omission on the part of
the court will not operate to prevent or bar the offended party to file a
separate civil action. (Bachrach Motors, Inc. vs. Gamboa, 101 Phil. 1219)
Silence is the declaration that the same is reserved by the complainant and
will not operate as res judicata.
* Before expiration of the 15-day for appealing, the trial court can amend the
judgment of conviction by adding a provision for the civil liability of the
accused, even if the convict has started serving the sentence.

* An INDEPENDENT CIVIL ACTION may be brought by the injured party

during the pendency of the criminal case provided the right is reserved.

Reservation is necessary in the following cases:

1. Any of the cases referred to in Art 32 (violation of ones fundamental

rights).

2. Defamation, fraud and physical injury (bodily injury and not the crime of
physical injury) (Art.33)

3. Civil action is against a member of a city or municipal police force for

refusing or failing to render aid or protection to any person in case of danger
to life or property (Art.34)

4. In an action for damage arising from fault or negligence and there is no

preexisting contractual relation between the parties (quasi-delict)(Art.2176).

Art. 101. Rules regarding civil liability in certain cases. — The

exemption from criminal liability established in subdivisions 1, 2, 3, 5
and 6 of article 12 and in subdivision 4 of article 11 of this Code does

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not include exemption from civil liability, which shall be enforced
subject to the following rules:

First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability

for acts committed by an imbecile or insane person, and by a person
under nine years of age, or by one over nine but under fifteen years of
age, who has acted without discernment, shall devolve upon those
having such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under

his authority, legal guardianship or control, or if such person be
insolvent, said insane, imbecile, or minor shall respond with their own
property, excepting property exempt from execution, in accordance
with the civil law.

Second. In cases falling within subdivision 4 of Article 11, the persons

for whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.

The courts shall determine, in sound discretion, the proportionate

amount for which each one shall be liable.

When the respective shares cannot be equitably determined, even

approximately, or when the liability also attaches to the Government,
or to the majority of the inhabitants of the town, and, in all events,
whenever the damages have been caused with the consent of the
authorities or their agents, indemnification shall be made in the
manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of Article 12, the

persons using violence or causing the fears shall be primarily liable and
secondarily, or, if there be no such persons, those doing the act shall be
liable, saving always to the latter that part of their property exempt
from execution.

General Rule: Exemption from criminal liability does not include exemption
from civil liability.

Exception: No civil liability in par 4 and 7 of art 12. Par 1,2,3,5 and 6 are
NOT exempt from civil liability although exempt from criminal liability.

Who are civilly liable for:

a. acts of insane or minor exempt from criminal liability

5. Primarily devolve upon persons having legal authority or control
over him, if at fault or negligent (except if proven that they acted without
fault or with due diligence)
6. If no fault or negligence, or even with fault but is insolvent and
there are no persons having legal authority over them, the property of the
insane, minor or imbecile not exempt from execution shall be held liable.

b. over 15 but under 18 w. discernment

1. Civil code says parent (dad then mom)

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2. Guardians
3. Minors own property where a guardian ad litem shall be appointed.

* In actual practice, when a minor or an insane person is accused of a crime,

the court will inquire who are the persons exercising legal control upon the
offender.

When the names of such persons are made known to the court, they are
required to participate in the proceedings, not only to help the accused in his
defense but also for said persons in legal authority to protect their interests
as persons primarily liable to pay the civil liability caused by the minor or
insane. They may, however, invoke the defense embodied under Article 2180
of the New Civil Code which provides that in order to escape civil liability; the
persons primarily liable must prove that they observed all the diligence of a
god father of a family to prevent damages.

* In the event that the minor or insane has no parents or guardian, the court
will appoint a guardian ad litem to protect the interests of the minor or
insane. In such a case, the court will render judgment fixing the civil liability
of the minor or insane and under such a situation, the property of the minor
shall be primarily liable in the payment of civil liability.

*Final release of a child based on good conduct does not remove his civil
liability for damages.

c. persons acting under an irresistible force or uncontrollable fear

1. Persons using violence or causing the fear are primarily liable
2. If there are none, those doing the act

d. no civil liability in justifying circumstances EXCEPT: par 4 of Art 11,

the one benefited by the act is civilly liable.

e. civil liability in case of state of necessity

Those who benefited by the act and court shall determine the proportionate
amount for which each shall be liable. If the government or majority of the
inhabitants are liable, such will be determined by special laws or
regulations.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and

proprietors of establishments. — In default of the persons criminally
liable, innkeepers, tavernkeepers, and any other persons or
corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances
or some general or special police regulation shall have been committed
by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken
by robbery or theft within their houses from guests lodging therein, or
for the payment of the value thereof, provided that such guests shall
have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such innkeeper or his

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representative may have given them with respect to the care and
vigilance over such goods. No liability shall attach in case of robbery
with violence against or intimidation of persons unless committed by
the innkeeper's employees.

Elements of Par 1:
1. That the innkeeper of the establishment or his employee committed a
violation of municipal ordinance or some general or special police regulation.
2. A crime is committed in such establishment.
3. Person criminally liable is insolvent.

* When the foregoing circumstances are present in the commission of the

crime, the civil liability of the offender shall also be the civil liability of the
owners of the establishments. Such civil liability arises only if the person
criminally liable is insolvent because the nature of the liability of the
innkeeper and the others is only subsidiary.

Elements of Par 2:
1. Guests notified in advance the innkeeper of the deposit of such goods
within the inn.

2. Guests followed the directions of the innkeeper with respect to the care
and vigilance over the such goods.

3. Such goods of the guest lodging therein were taken by robbery with force
upon things or theft.

· When all these are present, the innkeeper is subsidiarily liable.

· No civil liability in case of robbery with violence against or intimidation of

person, unless committed by the innkeeper’s employees.

· Actual deposit of the things of the guest to the innkeeper is not necessary,
it is enough that they were within the inn.

* The Supreme Court ruled that even though the guest did not obey the rules
and regulations prescribed by the management for safekeeping of the
valuables, this does not absolve management from the subsidiary civil
liability. Non-compliance with such rules and regulations by the guests will
only be regarded as contributory negligence, but it won’t absolve the
management from civil liability.

Art. 103. Subsidiary civil liability of other persons. — The subsidiary

liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

Elements
A. Employer, teacher, person or corporation is engaged in any kind of
industry.

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B. Any of their servants, pupils, workmen, apprentices of employees commits
a felony while in the discharge of his duties which are related to the
business of his employer.

C. The said employee is insolvent and has not satisfied his civil liability.

Industry – any department or branch of art, occupation or business;

especially one which employs so much labor and capital is a distinct branch
of trade.
 Hospitals are not engaged in industry; hence not subsidiarily liable for
acts of nurses.

 Private persons w/o business or industry, not subsidiarily liable.

* There is no need to file a civil action against the employer in order to enforce
the subsidiary civil liability for the crime committed by his employee, it is
enough that the writ of execution is returned unsatisfied.

* In the trial of the case, if the court will allow the participation of the
employer to protect its civil liability, it cannot put up the defense of diligence
of a good father of a family. Such kind of defense is available only if the
action is based or predicated on quasi-delict under Article 2180 of the Civil
Code.

Distinctions between the civil liability of the employer under Article 103 of
the Revised Penal Code and his liability under Article 2180 of the New Civil
Code:

1. As to the source of the civil liability of the offender-employer.

Under Article 103 of the Revised Penal Code, the civil liability arises from
crime, while under Article 2180, the obligation arises from quasi-delict.

2. As to the nature of the liability of the employer.

The liability of the employer under the RPC is subsidiary, while under the
Civil Code, it is direct and primary.

3. As to whether a separate complaint must be filed against the

employer.

Under the RPC, the filing of a separate complaint against the operator for
recovery of subsidiary liability is clear from the decision of conviction against
the accused. Under the Civil Code, the complaint must be filed against the
employer because his liability is direct and primary.

4. As to the necessity of previous conviction in a criminal case.

The RPC requires previous conviction of the offender-employer. Such is not

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required under the Civil Code.

5. As to the availability of the defense of the “exercise of diligence of a

good father of the family in the selection and supervision of
employee.”

This defense is not available to defeat the employer’s subsidiary liability

under the RPC. On the other hand, the Civil Code allows such defense in
favor of the employer.

* A judgment of conviction sentencing a defendant employee to pay an

indemnity is conclusive upon the employer in an action for the enforcement
of the latter’s subsidiary liability. (Rotea vs. Halili, 109 Phil. 495)

* Acquittal of the driver in the criminal case is not a bar to the prosecution of
the civil action based on quasi-delict. The source of obligation in the criminal
case is Article 103, or obligations arising from crime, while the civil action is
based on Article 2176 or quasi-delict. Article 1157 of the Civil Code provides
that quasi-delicts and acts or omissions punishable by law are two different
sources of obligations. (Virata vs. Ochoa)

Art. 104. What is included in civil liability. — The civil liability

established in Articles 100, 101, 102, and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

· First remedy granted by law is no. 1, in case this is not possible no. 2.
· In either case, no. 3 may be required.
· RESTITUTION – in theft, the culprit is duty bound to return the property
stolen

· REPARATION – in case of inability to return the property stolen, the culprit

must pay the value of the property stolen.

· In case of physical injuries, the reparation of the damage cause would

consist in the payment of hospital bills and doctor’s fees to the offended
party.

· INDEMNIFICATION – the lost of salary or earnings

Art. 105. Restitution. — How made. — The restitution of the thing

itself must be made whenever possible, with allowance for any
deterioration, or diminution of value as determined by the court.

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The thing itself shall be restored, even though it be found in the
possession of a third person who has acquired it by lawful means,
saving to the latter his action against the proper person, who may be
liable to him.

This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the requirements
which, by law, bar an action for its recovery.

The convict cannot by way of restitution, give to the offended party a similar
thing of the same amount, kind or species and quality. The very thing should
be returned.

If the property stolen while in the possession of the third party suffers
deterioration due to his fault, the court will assess the amount of the
deterioration and, in addition to the return of the property, the culprit will be
ordered to pay such amount.

General Rule: the owner of the property illegally taken by the offender
can recover it from whosoever is in possession thereof. Thus, even if the
property stolen was acquired by a 3rd person by purchase without knowing
that it has been stolen, such property will be returned to the owner.

Exception: Purchased in a public sale or auction in good faith.

Restitution or restoration presupposes that the offended party was

divested of property, and such property must be returned. If the property is
in the hands of a third party, the same shall nevertheless be taken away from
him and restored to the offended party, even though such third party may be
a holder for value and a buyer in good faith of the property, except when
such third party buys the property from a public sale where the law protects
the buyer.

If the thing is acquired by a person knowing that it was stolen, then he is
an accessory and therefore criminally liable (liable under anti-fencing law)

The third party who acquired the stolen property may be reimbursed with
the price paid therefor if it be acquired at (a) a public sale and (b) in good
faith

Circumstances which bar an action for recovery:

1. Torrens title
2. When sale is authorized

When the liability to return a thing arises from a contract, not from a
criminal act, the court cannot order its return in the criminal case.

Restitution may be ordered, even if accused is acquitted, provided the

offense is proved and it is shown that the thing belongs to someone else.

* The obligation of the offender transcends to his heirs, even if the offender
dies, provided he died after judgment became final, the heirs shall assume the
burden of the civil liability, but this is only to the extent that they inherit

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property from the deceased, if they do not inherit, they cannot inherit the
obligations.

When crime is not against property, no restitution or reparation of the

thing can be done.

* Some believed that this civil liability is true only in crimes against property,
this is not correct.

Regardless of the crime committed, if the property is illegally taken from the
offended party during the commission of the crime, the court may direct the
offender to restore or restitute such property to the offended party. It can
only be done if the property is brought within the jurisdiction of that court.

The court has authority to order the reinstatement of the accused

acquitted of a crime punishable by the penalty of perpetual or temporary
disqualification.

* If the property cannot be restituted anymore, then the damage must be

repaired, requiring the offender to pay the value thereof, as determined by
the court. That value includes the sentimental value to the offended party, not
only the replacement cost. But if what would be restored is brand new, then
there will be an allowance for depreciation, otherwise, the offended party is
allowed to enrich himself at the expense of the offender.

Art. 106. Reparation. — How made. — The court shall determine the
amount of damage, taking into consideration the price of the thing,
whenever possible, and its special sentimental value to the injured
party, and reparation shall be made accordingly.
Notes:
Reparation will be ordered by the court if restitution is not possible.

· Reparation shall be
a) The price of the thing
b) Its sentimental value

Art. 107. Indemnification — What is included. — Indemnification for

consequential damages shall include not only those caused the injured
party, but also those suffered by his family or by a third person by
reason of the crime.

· Indemnity refers to crimes against persons; reparation to crimes against

property.

* Indemnification of consequential damages refers to the loss of earnings, loss

of profits. This does not refer only to consequential damages suffered by the
offended party; this also includes consequential damages to third party who
also suffer because of the commission of the crime.

· Indemnity for medical services still unpaid may be recovered.

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· Contributory negligence on the part of the offended party reduces the civil
liability of the offender.

· The civil liability may be increased only if it will not require an aggravation
of the decision in the criminal case on which it is based.

· The amount of damages for death shall be at least 50,000, even though
there may have been mitigating circumstances.

· In addition:
1. Payment for the loss of the earning capacity of the deceased
2. If the deceased was obliged to give support, the recipient who is not an
heir, may demand support from the defendant
3. The spouse, illegitimate and illegitimate descendants and ascendants of
the deceased may demand for moral damages.

· MORAL DAMAGES may be recovered in the ff:

1. Physical injuries
2. Seduction, abduction, rape
3. Adultery, concubinage
4. Illegal or arbitrary detention
5. Illegal search
6. Libel, slander, defamation
7. Malicious prosecution

· EXEMPLARY DAMAGES may be imposed when the crime was committed

with one or more aggravating circumstances; cannot be recovered as a
matter of right, the court will decide whether they should be adjudicated.

* Indemnification also includes the award of attorney’s fees. Private

prosecutor is therefore entitled to the award of attorney’s fees.

Art. 108. Obligation to make restoration, reparation for damages, or

indemnification for consequential damages and actions to demand the
same — Upon whom it devolves. — The obligation to make restoration
or reparation for damages and indemnification for consequential
damages devolves upon the heirs of the person liable.

The action to demand restoration, reparation, and indemnification

likewise descends to the heirs of the person injured.

· The heirs of the person liable has no obligation if restoration is not possible
and the deceased left no property.

· Civil liability is possible only when the offender dies after final judgment.

· If the death of the offender took place before any final judgment of
conviction was rendered against him, the action for restitution must
necessarily be dismissed.

* An action for damages by reason of wrongful death may be instituted by

the heirs of the deceased against the administrator or executor of the estate

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of the deceased offender. It cannot be brought by the administrator of the
victim’s estate.

Art. 109. Share of each person civilly liable. — If there are two or more
persons civilly liable for a felony, the courts shall determine the
amount for which each must respond.

* In case of insolvency of the accomplices, the principal shall be subsidiarily

liable for their share of the indemnity and in case of the insolvency of the
principal, the accomplices shall be subsidiarily liable, jointly and severally
liable, for the indemnity due from said principal.

* When there are several offenders, the court in the exercise of its discretion
shall determine what shall be the share of each offender depending upon the
degree of participation – as principal, accomplice or accessory. If within each
class of offender, there are more of them, such as more than one principal or
more than one accomplice or accessory, the liability in each class of offender
shall be subsidiary. Anyone of them may be required to pay the civil liability
pertaining to such offender without prejudice to recovery from those whose
share have been paid by another.

* If all the principals are insolvent, the obligation shall devolve upon the
accomplice(s) or accessory(s). But whoever pays shall have the right of
recovering the share of the obligation from those who did not pay but are
civilly liable. In case the accomplice and the principal cannot pay, the liability
of those subsidiarily liable is absolute.

* To relate with Article 38, when there is an order or preference of pecuniary

(monetary) liability, therefore, restitution is not included here.

* There is not subsidiary penalty for non-payment of civil liability.

* The owners of taverns, inns, motels, hotels, where the crime is committed
within their establishment due to noncompliance with general police
regulations, if the offender who is primarily liable cannot pay, the
proprietor, or owner is subsidiarily liable.

* Felonies committed by employees, pupils, servants in the course of their

employment, schooling or household chores. The employer, master, teacher is
subsidiarily liable civilly, while the offender is primarily liable.

Art. 110. Several and subsidiary liability of principals, accomplices

and accessories of a felony — Preference in payment. —
Notwithstanding the provisions of the next preceding article, the
principals, accomplices, and accessories, each within their respective
class, shall be liable severally (in solidum) among themselves for their
quotas, and subsidiaries for those of the other persons liable.

The subsidiary liability shall be enforced, first against the property of

the principals; next, against that of the accomplices, and, lastly,
against that of the accessories.

Whenever the liability in solidum or the subsidiary liability has been

enforced, the person by whom payment has been made shall have a

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right of action against the others for the amount of their respective
shares.

· Subsidiary liability will be enforced on:

1. First, against the property of the principal
2. Second, against that of the accomplice
3. Third, against that of the accessories

Illustration: Two principals, two accomplices and two accessories were

convicted in a homicide case, and the indemnity to the heirs of the victim
was fixed at Php600,000.00. The quota of the principals was fixed at
Php300,000.00; the accomplices at Php200,000.00 and the accessories at
Php1,000.00 and as between themselves, the liability of each was ½. If both
principals were insolvent, their quota would be borne by the two accomplices
whose liability would be Php250,0000.00 each for a total of Php500,000.00,
the quota of both principals and accomplices. If the accessories were
insolvent, the principals would bear their quota. Subsidiarily and in default
of the principals, the accomplices would bear the quota of the accessories.

Art. 111. Obligation to make restitution in certain cases. — Any person

who has participated gratuitously in the proceeds of a felony shall be
bound to make restitution in an amount equivalent to the extent of
such participation.

Notes:
1. This refers to a person who has participated gratuitously in the
commission of a felony and he is bound to make restitution in an amount
equivalent to the extent of such participation.
2. The third person must be innocent of the commission of the crime
otherwise he would be liable as an accessory and this article will not apply.

Art. 112. Extinction of civil liability. — Civil liability established in

Articles 100, 101, 102, and 103 of this Code shall be extinguished in
the same manner as obligations, in accordance with the provisions of
the Civil Law.

· Civil liability is extinguished by:

1. Payment or performance
2. Loss of the thing due
3. Condonation or remission of the debt
4. Confusion or merger of the rights of creditor and debtor
5. Compensation
6. Novation

· Other causes of extinguishment of obligations: annulment, rescission,

fulfillment of a resolutory condition and prescription.

· Civil liability may arise from

1. Crime – Revised Penal Code
2. Breach of contract – Civil Code
3. Tortious act – Civil Code

· The civil liability from any of these is extinguished by the same causes
enumerated above.

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· The accused shall still be liable for the payment of the thing stolen even if it
is lost or destroyed.

* Civil liability of the offender is extinguished in the same manner as civil

obligation is extinguished but this is not absolutely true. Under civil law, a
civil obligation is extinguished upon loss of the thing due when the thing
involved is specific. This is not a ground applicable to extinction of civil liability
in criminal case if the thing due is lost, the offender shall repair the damages
caused.

* The judgment for civil liability prescribes in ten years. It may be enforced
by writ of execution within the first five years and by action for revival of
judgment during the next five years. Insolvency is not a defense to an action
to enforce judgment.

Art. 113. Obligation to satisfy civil liability. — Except in case of

extinction of his civil liability as provided in the next preceding article
the offender shall continue to be obliged to satisfy the civil liability
resulting from the crime committed by him, notwithstanding the fact
that he has served his sentence consisting of deprivation of liberty or
other rights, or has not been required to serve the same by reason of
amnesty, pardon, commutation of sentence or any other reason.

Notes:
· Unless extinguished, civil liability subsists even if the offender has served
sentence consisting of deprivation of liberty or other rights or has served the
same, due to amnesty, pardon, commutation of the sentence or any other
reason.

· Under the law as amended, even if the subsidiary imprisonment is served for
non-payment of fines, this pecuniary liability of the defendant is not
extinguished.

· While amnesty wipes out all traces and vestiges of the crime, it does not
extinguish the civil liability of the offender. A pardon shall in no case exempt
the culprit from the payment of the civil indemnity imposed upon him by the
sentence.

· Probation affects only the criminal aspect of the crime.

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