REVIEW NOTES

IN

CRIMINAL LAW
Book I
2004 (2nd) Edition
Prepared By: Angel S. Ucat, Jr.
Provincial Prosecutor of Bohol, February 9, 1987 to June 24, 2000, Provincial
Legal Officer of Bohol, July 9, 2001 to June 30, 2004, Professor, College of Law, University
of Bohol, 1967 to 1995, Professor, College of Law, Divine Word College (now, Holy Name
University), 1986 to 2002 and Professor, College of Law, Bohol Institute of Technology,
2002 to the present, and Legal Practitioner
000ooo000
TO ALL MY READERS: These NOTES are taken from Supreme Court Decisions,
Decisions of the Court of Appeals, Case Digests in the IBP Journals, and from the works of
some authors and seminar lecturers.
It is for this reason that the writer does not claim
originality of this work, except that he is the one who organized this work.
TO ALL STUDENTS AND REVIEWEES FOR THE BAR EXAM: To achieve a
maximum benefit from this work, it is suggested that you study this work only after you shall
have studied the text books in Criminal Law, the Codal Provisions of the Revised Penal Code
and the applicable Special Penal Laws.
This work is not copyrighted. However, because it is not published, it enjoys the natural
copyright. Nonetheless, anyone interested in this work may have the same reproduced
without the need of asking permission from the writer.
The writer is not interested in any monetary reward for his efforts and the time spent to
prepare these notes. Hopefully, time will come when one who would avail of this work will
give thanks to the writer or his heirs with a claim that he/she has benefited from this work
because, somehow, it helped him/her in becoming a lawyer. THIS IS THE REWARD
THAT THE WRITER HAS IN HIS MIND.

Book One
INTRODUCTION

Court cannot impose a penalty for an act not punished by law.

If a person is charged criminally but there is no law punishing the act with which he
is to be punished, the court cannot refuse to take action on the case. But it will have to
dismiss the case, for the following reasons:
1. Nullum crimen, nulla poena sine lege;
2. An act or omission only constitutes a crime if it is defined and punished by law
(Art. 3, RPC); and
3. No felony shall be punishable by any penalty not prescribed by law prior to its
commission. (Art. 2l, RPC).
The rule is different if the case is civil in nature.
In such case, the court cannot dismiss the case. This is based on Art. 9 of the New
Civil Code which provides: No judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the laws. In this case, the judge may apply any rule
he desires as long as the rule chosen is in harmony with general interest, order, morals, and
public policy. Art.9, NCC, practically authorizes the court to legislate. (Floresca vs. Philex
Mining Corp, L-30642, April 30, 1985).
Pari delicto does not apply in criminal cases.
The rule on pari delicto has no application in criminal cases. Thus, in a card game
where the victim agreed with the accused that they would cheat another , but it turned out
that the victim (who agreed with the accused to cheat) was the one cheated.
Held: The accused is criminally liable for estafa through fraudulent means, that is, by
resorting to some fraudulent practice to insure success in a gambling game. (Art. 315, No. 3b, Evangelista vs People, 227 SCRA 144-145).
Characteristics of criminal law:
1st.
General.
Philippine territory.

Criminal law is binding on all persons who live or sojourn in

3
Exceptions:
a) Under principles of public international law:
(1) Sovereigns and other chiefs of States, diplomatic representatives, such as
ambassadors, public ministers (like ministers plenipotentiary, ministers
resident, and charges daffaires) and their official retinue.
(2) Treaty. Examples: The Phil-American Military Base Agreement
(already abrogated) and the Visiting Forces Agreement (VFA).
2nd. Territorial. Criminal law undertakes to punish crimes committed within the
Philippine territory. Under this theory, penal laws are enforceable only within the territory of
the Philippines. (Art. 14, NCC).
Exceptions: See Art. 2, RPC. . Application of its provisions.
3rd. Prospective. A penal law cannot make an act punishable in a manner in which
it was not punishable when the act was committed. Such a law is an ex post facto law
which is unconstitutional. In other words, crimes are punished under the laws in force at the
time of their commission. (Art. 21).
Exception: Where the new law dealing with crime establishes conditions more
lenient or favorable to the accused. Here, it can be given a retroactive effect.
Exceptions to the exception:
a) Where the new law is expressly made inapplicable to pending actions or existing
causes of action.
b) Where the offender is a habitual delinquent (criminal) under Rule 5 of Art. 62.
What does the term Pro reo mean?
Ans. It means that when a new law is enacted, it shall be applied to pending cases, so
long as it is advantageous to the accused who is not a habitual delinquent.
Construction of penal laws.
There are two rules, as follows:
1st. Penal laws are strictly construed against the government and liberally in favor of
the accused. In other words, where there is doubt as to whether an act is included in a penal
law, then the doubt shall be resolved in favor of the accused. No person should be brought
within the terms of criminal statutes who is not clearly within them, nor should any act be

4
pronounced criminal which is not clearly made so by the statute (US vs Abad Santos, 36 Phil
243).
2nd. In the construction or interpretation of the provisions of the Revised Penal Code,
the Spanish text is controlling. Reason: It was approved by the Philippine Legislature in its
Spanish text.
The two theories in Criminal Law:
1st. Classical Theory. Characteristics:
a. The basis of criminal liability is human free will and the purpose of the penalty is
retribution (punishment);
b. That man is essentially a moral creature with an absolutely free will to choose
between good and evil, thereby placing more stress upon the effect or result of the felonious
act upon man, the criminal himself;
c. It has endeavored to establish a mechanical and direct proportion between crime and
penalty. Example: The Lex Tallones in Roman Law;
d. There is a scant regard to the human element. Example: The penalty for parricide
which will be imposed upon the wife who killed her husband because of the latters acts of
cruelty on the wife. Under the RPC, the solution to this is for the court to recommend to the
President for an Executive clemency (par. 2, Art. 5,).
2nd. Positivist Theory. Characteristics:
a. That man is subdued occasionally by a strange and morbid (meaning, deceased state
of mind) phenomenon which constrains him to do wrong, in spite of or contrary to his
volition; and
b. That crime is essentially a social and natural phenomenon, and as such, it cannot be
treated and checked by the application of abstract principles of law and jurisprudence nor by
the imposition of a punishment, fixed and determined a priori; but rather thru the
enforcement of individual investigation conducted by a competent body of psychiatrists and
social scientists.
Note: The RPC, like the old penal Code, continues to be based on the principles of
the old or classical school, although some provisions of eminently positivist tendencies
(those having reference to the punishment of impossible crimes, juvenile delinquency, etc.)
were incorporated in the present Code.
ART. 2. Application of its provisions. (MEMORIZE).

5
Re No. 1. For the law to apply, the Philippine ship or airship must be registered in
the appropriate Philippine registry. If so registered, the Philippine citizenship of its owner
is immaterial.
Q. Do Philippine courts have jurisdiction over offenses committed on board foreign
vessels within Philippine territorial waters?
Ans. It depends.
1. If the vessel is public (like war vessels), No. Reason: Public vessels are always
reputed to be extensions of the territory of the country to which they belong and cannot be
subjected to the laws of another state. (US vs Fowler, 1 Phil 614). Note: This rule is similar
to the rule on crimes committed within the embassies of foreign countries.
2. If the vessel is private (a.k.a. merchant vessel), there are two fundamental rules
applicable in connection with International Law:
a. French Rule (Nationality Theory) - according to which crimes committed
aboard a foreign merchant vessel should not be prosecuted in the courts of the country within
whose territorial jurisdiction they were committed, unless their commission affects the peace
and security of the territory.
b. English Rule (Territorial Theory) - according to which, crimes perpetrated
under such circumstances are in general triable in the courts of the country within whose
territory they were committed, except where they merely affect things within the vessel or
they refer to internal management thereof.
Q. Which of the two rules (theories) is applied in the Philippines?
Ans. In P vs Wong Cheng (L-18924, Oct. 19, 1922, 46 Phil 729), the SC ruled that
the RP applies the English rule. Reason: The English rule is followed in the United States.
Considering that the Philippines is a territory of the United States (this was at the time Wong
Cheng was decided by the Supreme Court), it follows that the theories and jurisprudence
prevailing in the United States on the matter are authority in the Philippines.
Application of the two rules:
Q. Does the RP court have jurisdiction over a crime committed on board a foreign
merchant vessel by one member of the crew against another?
Ans. No, French rule applied. Reason: Matters happening on board a merchant ship
which do not concern the tranquility of the port or persons foreign to the crew, are justiciable
only by the courts of the country to which the vessel belongs. (US vs Bull, 15 Phil 14, Note:
The text of the decision does not mention the crime committed).

6
Q. Do RP courts have jurisdiction over the crime of homicide committed on board a
foreign merchant vessel by a member of the crew against another?
Ans. Yes, if the crime is committed within Philippine territorial waters. English rule
applied. Reason: Much will undoubtedly depend on the attending circumstances of the
particular case, but all must concede that felonious homicide is a subject for local
jurisdiction, and that if the proper authorities are proceeding with the case in the regular way
the consul (of a foreign country) has no right to interfere to prevent it. (P vs Wong Cheng,
46 Phil 73l).
However, if the crime is committed in the high seas, Philippine courts do not have
jurisdiction over the case. (US vs Fowler, 1 Phil. 614).
Q. A crime is committed on the high seas on board a merchant vessel. Is the crime
cognizable in Philippine courts?
Ans. It depends. If the merchant vessel is registered in accordance with Philippine
laws, then Philippine courts have jurisdiction over the crime committed. Take note that it is
the registration of the vessel, not the citizenship of the owner thereof, which is determinative
of whether or not Philippine courts have jurisdiction on the case. One exception to the
principle of territoriality are those who Should commit an offense while on Philippine ship
or airship (Art. 2, No. 1, RPC).
If the merchant vessel is not registered in the Philippines, then Philippine courts do
not have jurisdiction over crimes committed therein on the high seas. Principle of
territoriality applied.
Q. Is the mere possession of opium on board a foreign merchant vessel cognizable by
our courts if the crime is committed within RP territorial waters?
Ans. It depends.
1. If the vessel is in transit - No, for the reason that the vessel is considered as an
extension of its own nationality Where the charge is for illegal possession of prohibited
drugs, local courts do not have jurisdiction over the case as the act does not involve a breach
of public order committed on board a foreign vessel. x x x it being the primary object of our
Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed
by the use of this drug, its mere possession in such a ship, without being used in our territory,
does not bring about in the said territory those effects that our statute contemplates avoiding.
Hence, such a mere possession is not conside4red a disturbance of the public order. (Chief
Justice, U. S. vs Look Chaw, 18 Phil. 573 [1910], French rule applied).
Note: But smoking opium constitutes a breach of public order. English rule applied.
To smoke opium within our territorial limits, even though aboard a foreign vessel, is
certainly a breach of the public order here established, because it causes such drug to
produce its pernicious effects within our territory. Philippine courts have jurisdiction over

7
crimes constituting a breach of public order aboard merchant vessels anchored in Philippine
jurisdictional waters. As the Attorney-General aptly observes: x x x The idea of a person
smoking opium securely on board a foreign vessel at anchor in the port of Manila in open
defiance of the local authorities, who are impotent to lay hands on him, is simply subversive
of public order. It requires no unusual stretch of the imagination to conceive that a foreign
ship may come into the port of Manila and allow or solicit Chinese residents to smoke opium
on board. (P vs Wong Cheng, supra).
2. If RP is the terminal port - Yes. (US vs Ah Sing, L-13005, Oct. 10, 1917, EN
BANC, 36 Phil 978). Reason: Because the offender may be held liable for illegal
importation of opium.
Explanation: Where the charge is not for illegal possession of prohibited drug but is
one for illegal importation, local courts have jurisdiction. (US vs Ah Sing, supra). In this
case, upon search by the authorities, eight cans of opium were found hidden in the ashes
below the boiler of the steamers engine. They were purchased by the accused from Saigon.
Although the opium was not landed from the vessel, the accused was convicted of illegal
importation of opium.
The law violated provides: Any person who shall unlawfully import or bring any
prohibited drug into the Philippine Islands x x x . (Sec. 4, Act No. 2381, the Opium Law).
Import and bring are synonymous terms. The Federal Courts of the United States have
held that the mere act of going into a port, without breaking bulk, is prima facie evidence of
importation. Importation is not making entry of goods at the customs house, but merely
bringing them into port; and the importation is complete before entry of the Custom
House. It was not necessary that the opium be discharged or that it be taken from the ship. It
was sufficient that the opium was brought into the waters of the Philippine Islands on a boat
destined for a Philippine port and which subsequently anchored in a port of the Philippine
Islands with intent to discharge its cargo. x x x we expressly hold that any person unlawfully
imports or brings any prohibited drug into the Philippine Islands, when the prohibited drug is
found under this persons control on a vessel which has come direct from a foreign country
and is within the jurisdictional limits of the Philippine Islands. Applied to the facts herein, it
would be absurd to think that the accused was merely carrying opium back and forth between
Saigon and Cebu for the mere pleasure of so doing. It would likewise be impossible to
conceive that the accused needed so large an amount of opium (eight cans) for his personal
use. No better explanation being possible, the logical deduction is that the defendant
(accused) intended this opium to be brought into the Philippine Islands. We accordingly find
that there was illegal importation of opium from a foreign into the Philippine Islands. To
anticipate any possible misunderstanding, let it be said that these statements do not
relate to foreign vessels in transit, a situation not present. (US vs Ah Sing, supra).
7
RP courts no jurisdiction over crimes committed on board foreign vessels (even in
case of merchant vessels) if said crimes are committed on high seas. (US vs Fowler,
supra). Exceptions:

8
1st. If the offense is continuing. Thus, where the crime is committed on board a
Norwegian merchant vessel sailing from Formosa to the Philippines by failing to provide
stalls for animals in transit in violation of Act No. 55 - cognizable by the RP courts when the
forbidden condition existed during the time the ship was within the Philippine territorial
waters, regardless of the fact that the same condition existed when the ship sailed from the
foreign port and while it was on the high seas. (US vs Bull, 15 Phil 7).
2nd. Where the crime committed is piracy. (Arts. L22 & l23, RPC). Reason:
Piracy is a crime not against any particular state but against all mankind. Hence, the case is
triable in Philippine courts even if the crime is committed within the territorial jurisdiction
of another state or country. (P vs Lollo, et al, 43 Phil 19).
On territorial waters (Source: Significance of the 200-mile Exclusive Economic Zone of
the Phil, by Jorge R. Coquia, IBP Journal, vols. 3 & 4, 1979 issue, p 18l):
1. The 3-mile limit of territorial sea became outmoded as early as 1958.
2. While a 12-mile limit of territorial sea is now generally acceptable, some Latin
American States (Argentina, Brazil, Congo, Ecuador, El Salvador, Ghana, Guinea, Liberia,
Panama, Peru, Sierra Leone, Somalia and Uruguay) still claim a territorial sea of 200 miles.
3. In PD 1599, Pres. Marcos proclaimed a 200-mile Exclusive Economic Zone
(EEZ) of the Philippines to be measured from the archipelago baselines of the Philippines. (
In a case, the Court of Appeals held that our penal laws x x x may be enforced within the
200 nautical limit exclusive economic zone from the shoreline as fixed and provided for in
PD 1599. P vs Judge Toledano, June 13, 1993).
4. The US claims about 2.4 million square nautical miles of seas around it.

TITLE ONE. - FELONIES AND CIRCUMSTANCES

WHICH AFFECT CRIMINAL LIABILITY

ART. 3. Definition.
Meaning of the word act.
The word act as used in this article must be understood as any bodily movement
tending to produce some effect in the external world. (P vs Gonzales, 183 SCRA 309).

9
Mistake of fact and ignorance of the law, compared:
1. Ignorance of the law excuses no one from compliance therewith. (Art. 3, NCC).
2. Ignorance or mistake of fact relieves the accused from criminal liability, provided
that the following requisites are present:
a. That the act done would have been lawful had the facts been as the accused
believed them to be. Example: US v Ah Chong.
b. That the intention of the accused in performing the act should be lawful; and
c. That the mistake must be without fault or carelessness on the part of the accused.
Example: P vs Oanis.
Distinction between general intent and specific intent.
In felonies committed by dolus (malice), the 3rd element of voluntariness is a general
intent; whereas, in some particular felonies proof of particular specific intent is required.
Examples:
1. Intent to gain - robbery or theft.
2. Intent to kill - frustrated/attempted homicide.
3. Intent of lewd designs - forcible abduction.
Distinctions between crimes punished by the RPC (mala in [per] se)
punished by special laws (mala prohibita):
Mala in (per) se

and crimes

Mala prohibita

1. Wrongful from their nature (these are 1. The wrong is merely prohibited by
punished by the RPC, hence, criminal statute (special law), hence, criminal
intent or dolo is required);
intent is not required. The mere doing of
the act already constitutes the crime;
2. The degree of participation in the 2. The degree of participation in the
commission of the crime (principal, commission of the crime is not
accomplice, accessory) is considered in considered;
the imposition of the penalty;
3. The degree of accomplishment 3. The degree of accomplishment is not
(consummated, frustrated, attempted) is considered, except where the special law

10
considered; and

punishes the attempted/frustrated stage (P

vs Jolliffe, 105 Phil 677); and

4. Modifying circumstances (mitigating 4. Modifying circumstances

and aggravating) are considered.
considered.

are not

Requirement for prosecution of crime punished by a special law.

In a prosecution under a special law, the prosecution must show that the offender had
the intent to perpetrate the act prohibited, that is, the prohibited act is done freely and
consciously. (P vs Bayona, 6l Phil 18l). Intent need not be proved in the prosecution of acts
mala prohibita. But the prosecution must still prove that the prohibited act was intentional.
Take note, however, that where the special law uses the terms knowingly or willfully in
describing the act which is prohibited by law, criminal intent becomes an essential element of
the offense, so that it is not sufficient that the act prohibited by the special law was
committed.
Intent to commit the crime and intent to perpetrate the act, distinguished.
A person may not have consciously intended to commit a crime, but if he did intend
to commit an act, and that act is, by the very nature of things, the crime itself, then he can be
held liable for the malum prohibitum. Intent to commit the crime is not necessary, but intent
to perpetrate the act prohibited by the special law must be shown (P vs Malon Lacerna, Sept
5, 1997). Thus, where there is no proof of conspiracy between the seller of marijuana and
the person to whom he gave the package for delivery to the poseur buyer, the latter (person)
cannot be held liable for Violation of the Dangerous Drugs Act, as amended (a special law)
in the absence of any showing that he knew what was in the package. (P vs Petilla, 23l
SCRA 635).
Additional distinctions between crimes punished by the RPC and crimes punished by
special laws:
2. In the former, in the latter3. In the former, in the latter, not considered, except
where the penalty provided for by the special law follows the nomenclature of the RPC,
reclusion perpetua, reclusion temporal, etc. (P vs Simon, 234 SCRA 555).
Distinguish between a felony and a crime:
Ans. A felony is any act or omission punished by the Revised Penal Code (RPC).
Felonies are committed not only by means of deceit but also by means of fault or negligence.
Crime is the BROADER concept between the two. It covers not only acts or
omissions punished by the RPC but also those punished under special laws.

11
In other words, all felonies are crimes; but not all crimes are felonies.
Q. Are there common law crimes in our jurisdiction?
Ans. None. If there is no law punishing an act or omission of which a person is
charged, the court shall have to dismiss the case (Art. 5, RPC). In fact, customs are not
sources of criminal law. The rule is - there is no crime if there is no law punishing it.
Nullum crimen, nulla poena sine lege. (Arts. 3 & 21, RPC). However, if the court deems it
proper that the act be repressed, it shall report the matter to the Chief Executive, through the
Department of Justice, giving the reasons which induce the court to believe that said act
should be made the subject of penal legislation.
Define heinous crimes.
Ans. Heinous crimes 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. Some of these crimes are defined and penalized by the RPC, while the
rest are punished by special penal laws. What is common in these heinous crimes is that the
maximum penalty of death is imposable.
Note: These heinous crimes are the nineteen (19) crimes identified in RA 7659. You
have to include them in your answer. .
Intent distinguished from motive:
1. Intent is the purpose to use a particular means to effect such result. When the
offender, in performing an act or in incurring an omission, has the intention or desire to do an
injury to the person, property, or right of another, such offender acts with malice. Motive, on
the other hand, is the moving power which impels one to action for a definite result.
2. Intent is an essential element of a felony; motive is not; and
3. Intent(ion) is a mental process and is an internal state of mind. The intent(ion)
must be adjudged by the action, conduct and external acts of the accused. What men do is
the best index of their intent(ion). (P vs Reyes, 127 SCRA 287). Motive alone is not proof
of crime. x x x . The fact that appellants preferred to go through the requirements for judicial
redress when they initiated criminal complaints against the victims indicates prima facie that
they respect the legal process and, thus, are not the kind of persons who would instead take
the law into their own hands. It certainly cannot be said that just because appellants bore a
grudge against the Uddins (victims), they would readily resort to an extrajudicial solution
therefor. In any event, motive alone is not proof of crime. Note: The supposed grudge of the
accused-appellants against the victims was the dismissal of the criminal cases which they
caused to filed against the victims. (P vs Mangco, 230 SCRA 562, 564).

12
Instances where motive determines the crime committed:
1. Where the accused (a rebel) had a personal motive for killing the victim, he is
liable for murder. Here, the murder is not absorbed in rebellion. (P vs Paz, 14 SCRA 132).
Example: Where accused was the political enemy of the mayor who is the victim of
murder.
2. In connection with direct assault where the victim is a person in authority and the
latter is not in the actual performance of his official duty at the time of the commission of the
offense, the crime is direct assault if the same is committed by reason of the past
performance of the victim. Example: Where the municipal mayor is assaulted by the accused
while inside a cockpit in another town (of which he is not the mayor) because the mayor did
not approve the payroll of the person assaulting him. Note: Where a person in authority
(like, a mayor, is assaulted while he is in the actual performance of his official duties, under
Art 148,, the crime is always direct assault).
3. Where a building is burned and someone dies, as to whether the crime is murder
with the use of fire or arson resulting in death depends upon the motive of the offender. If to
kill - murder, if to burn - arson. Take note that there is no such crime as Arson with
homicide/murder. However, where there is reckless negligence resulting in arson, there is
such crime as Reckless Imprudence Resulting In Arson with Homicide (P vs Bueno, 103
Phil. 103).
4. a. Where the victim is kidnapped and later on killed or raped, the motive of the
offender is controlling. If the purpose was to kill, then the crime is murder and the
kidnapping is absorbed in the murder (P vs Padica, 221 SCRA 362). If the purpose was to
rape the victim, the crime committed is rape and the kidnapping is absorbed in the rape (P vs
Lactao, 227 SCRA 463, 467, citing P vs Bernal, 131 SCRA 1, P vs Gan, 46 SCRA 667).
However, where the purpose of the offender was to detain and to deprive him/her of his/her
liberty but, as a consequence of the kidnapping, the victim is killed (or died) or is raped, the
crime is kidnapping but the penalty will have to be imposed in the maximum period (death).
Here, the kidnapping is a heinous crime and may be referred to as aggravated (or qualified)
kidnapping. Thus, as amended by Sec 8 of RA 7659 (which took effect on Dec. 31, 1993,
the last par of Art 267 now reads: When the victim is killed or dies as a consequence of the
detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty
(death) shall be imposed. In spite of contrary decisions of the SC which shall now be
considered obsolete, there is no such crime as kidnapping with murder or kidnapping
with rape.
b. But there is a crime of forcible abduction with rape complex under Art. 48, RPC
(P vs Delovino, L-116132-33, Aug. 23, 1995, First Div.). However, again motive is
controlling. Forcible abduction is ABSORBED in the crime of Rape if the main (real)
objective of the accused is to rape the victim (P vs Rapisora, L-138086, Jan. 25, 2001, EN
BANC).

13
5. Where a man places cantharides (which is a stimulant for sexual desire and
contains poisonous substances) on the drink of a woman for the purpose of arousing the
sexual desire of that woman but the woman dies, the accused is guilty of homicide only not
murder with the use of poison as the qualifying aggravating circumstance. This is so
because there was no intent to kill on the part of the accused. The use of poison is inherent in
murder only where there is intent to kill the victim and the accused uses the poison to kill the
victim as a means thereof (P vs. Galura, 16 Court of Appeals Reports, 2nd Series 1970).
Note: The rule in treachery is different. If it is present where the victim is killed, the
crime is murder even if there is no intent to kill on the part of the offender. However,
the latter is entitled to the mitigating circumstance of no intent to cause so grave a
wrong. (See P vs Flores y Malarayap, 252 SCRA 31, infra). In this case, the victim was an
adult son of the mother with whom the accused had an altercation. The victim, who was
dead drunk, was sleeping on a concrete floor. In the course of the quarrel with the latters
mother, the accused kicked the head of the victim inflicting fatal injuries which caused his
death.
6. Take note that the common crimes of murder, homicide and rape which are
punished by the RPC are absorbed in some crimes punished by special laws:
a. Sec. 14, RA 6539 (Anti-Carnapping Act). x x x , and the penalty of reclusion
perpetua to death shall be imposed when the owner, driver or occupant of the carnapped
motor vehicle is killed or raped in the course of the commission of the carnapping or on the
occasion thereof. (As amended by Sec 20, RA 7659).
b. PD 532 (Anti-Piracy/Highway Robbery Law).
Sec. 3(a). Piracy. x x x If rape, murder or homicide is committed as a result or on
the occasion of piracy, or when the offenders abandoned the victims without means of
saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel,
the mandatory penalty of death shall be imposed.
Sec. 3(b) Highway Robbery/Brigandage. x x x If kidnapping for ransom or
extortion, or murder or homicide, or rape is committed as a result or on the occasion
thereof, the penalty of death shall be imposed.
7. Motive (or lack of it) is also important to establish the defense of insanity,
specially in killings involving relatives, like parricide. Unmotivated killing would usually
establish the insanity of the accused.
Intent (Art. 3) and Discernment (Art. 12 No. 3), compared:
While intent and discernment are both products of mental process, they are not the
same. Intent is a determination to do a certain thing, an aim or purpose of the mind; the
design to resolve or determination by which a person acts. Discernment is the mental
capacity to understand the difference between right and wrong. It relates to the moral
significance that a person ascribes to his act and relates to intelligence as an element of dolo,

14
distinct from intent. Even in culpable felonies, intelligence is an essential element for
incurring criminal liability. Hence, it does not follow that when a minor acted with
discernment, he had acted with criminal intent and should be held liable for intentional
felony. He may have negligently shot his friend without intent to shoot him but at the same
time recognize the undesirable result of his negligence, in which case he should be liable
only for a culpable felony. Hence, a person may not intend to shoot another but may be
aware of the consequences of his negligent act which may cause an injury to another. In a
case, a minor was charged with homicide and convicted of reckless imprudence resulting in
homicide. Here, the SC found that the accused did not intend to kill (shoot) the victim who
was his friend, but he had the discernment to understand the consequences of his negligent
act of shooting the victim. (Guevarra vs Almodover , 169 SCRA 476).
Define the term corpus delicti.
Ans. Corpus delicti literally means the body or substance of the crime or the fact
that a crime has been committed, but does not include the IDENTITY of the person who
committed it. (P vs Pascual, 44 O. G. 2789).
Q. What are the elements of corpus delicti?
Ans. The actual commission by someone of the particular crime charged. It is a
compound fact made up of two things:
1. The existence of a certain act or result forming the basis of the criminal charge;
and
2. The existence of a criminal agency as the cause of the act or result.
Note: The identity of the offender is not a necessary element of corpus delicti.
Give examples of felonies by omission:
Ans. The following are some of the felonies committed by omission (culpa):
1. Art. 116. Misprision of treason. Committed by a person who, owing allegiance
to the Philippines, without being a foreigner, and having knowledge of any conspiracy
against the government, does not disclose and make known the same to the proper authority.
2. Art. 213, par. 2 (b). Illegal exaction. Committed by an officer entrusted with
collection of taxes who voluntarily fails to issue a receipt as provided by law.
3. Art. 217. Malversation. Committed by any public officer who, by reason of the
duties of his office, is accountable for public funds or property, x x x through abandonment
or negligence, shall permit any other person to take such public funds or property, wholly or
partially.

15
4. Art. 275, par. 1. Abandonment of persons in danger. Committed by anyone
who fails to render assistance to any person whom he finds in an uninhabited place wounded
or in danger of dying.
ART. 4. Criminal liability.
Under the law, criminal liability shall be incurred by any person committing a felony
although the wrongful act done be different from that which he intended. (No. 1, Art 4).
For the law to apply, the following are the requisites:
1. That the crime (a felony) is punished by the RPC;
2. That the felony is an intentional felony. The law does not apply in the following
cases:
a. where the accused acted in self-defense (P vs Bandoy, 56 Phil 15). Here, the
accused is not liable even for negligence should he inflict injury or death to a bystander in the
act of defending himself. (P vs. Arroyo, CA, 47 O. G. 5l5l). Q. But who would be
criminally liable for the injury or death of the bystander? Ans. The unlawful aggressor.
Reason: The injury or death of the bystander is the natural, direct and logical result of the
aggression, whether foreseen or intended or not. He who is the cause of the cause is the
cause of the evil caused. (P vs Ural, 56 SCRA 138).
b. where the accused was performing a lawful duty and there was no negligence
on his part. (P vs Arroyo, CA, 47 O. G. 5151).
(1) Example: Where P, a police officer, was chasing E, an escapee from a penal
colony. In spite of several warning shots, E did not stop running. Instead, he fought back by
throwing stones against P. P then shot E. However, the latter was not hit but B, who just
emerged from the bushes, was the one hit and killed. Here, P is not criminally liable for the
death of B.
(2) Example: The same as in No. (1), except that the place where the incident
happened was a public market during a market day and that B was among the market goers.
Here, P is criminally liable for the death of B because of his negligence.
c. where the act of the accused is not punished by the RPC. Example: Where the
accused attempted to commit suicide by jumping out of the window hitting a small child on
the ground. The child died but the one who attempted to commit suicide did not. The latter
is not criminally liable for the death of the child because attempted homicide is not a crime.
There is, however, an opinion that the one attempting to commit suicide could be liable under
Art. 153, RPC (public disturbance) if his act of attempting to commit suicide causes
disturbance to the public. The writer does not agree. Public disturbance being defined and
punished by the RPC, criminal intent is therefore required. Indeed, it is difficult to ascribe to

16
one attempting to commit suicide the criminal intent to cause disturbance to the public.
Attempting to commit suicide and intending to cause disturbance cannot just go together.
d. Killing under Art. 247 of the RPC. Example: Where the husband who surprised
his wife and her paramour having sexual intercourse at the masters bedroom and shot the
paramour. The bullet which hit the paramour was the same bullet which hit the maid who
was then at the adjoining room. The husband is not criminally liable for the death of the
maid because his act of shooting the paramour is in the nature of a justifying circumstance.
Textwriters and then Justice Laurel (of the SC) believe that the penalty of destierro for the
killing is not actually a penalty on the killer but it is intended for his protection from the
retaliation committed against him by the relatives of the victim. (P vs Abarca, 153 SCRA
735).
However, where the bullet which hit the maid is a bullet different from the bullet
which hit the paramour, this time, the husband would be criminally liable for Simple
Negligence resulting in homicide, that is, if the maid died, because the husband is supposed
to know that there were other inmates in the house. If the maid only suffered physical
injuries, even if serious, the accused would only be liable for simple negligence resulting in
physical injuries. Remember, the accused did not have intent to kill insofar as the maid. or
any other third person, was concerned.
Compare P vs Abarca with P vs Buyco (80 Phil 58). Held: Where the offender killed
two persons with the same shot, the first intentionally and the 2nd accidentally, the
crime committed was the complex crime of murder with homicide. Here, the killing of
the first victim was attended with treachery because the accused shot the victim with a
submachine gun when the latter (victim) had his back turned against the accused.
3. That the wrong done to the victim be the direct, natural, and logical consequence
of the felony committed by the offender.
a. Example: W intentionally burned her husband H. Four days thereafter, H died of
pneumonia. Held: W is criminally liable for parricide for the death of H. Evidence shows
that pneumonia was a mere complication of the burns sustained by H. x x x In a case the
SC held that one who inflicts injury on another is deemed guilty of homicide. The fact that
other causes (like, that the victim had not taken proper care of himself, or has not submitted
to a surgical operation, or that unskilled or improper treatment) aggravated the wound and
contributed to the death of the victim (P vs Moldes, 61 Phil 1, 3 & 4, P vs Quianzon, 62 Phil
162), does not relieve the actor of responsibility (P vs Mananquil, 132 SCRA 196).
b. Example: X and Y, the common enemies of V, conspired to threaten V. One time
while V was at the middle of a bridge, X and Y, armed with bladed weapons, stationed
themselves at opposite ends of the bridge but advancing towards V. Knowing X and Y,
noticing their menacing attitude, and believing that X and Y would kill him, V jumped into
the water, but because V did not know how to swim, he drowned. Held: X and Y are
equally liable for the death of V being the direct, natural and logical consequence of the
threat (felony) which they committed against V. (P vs Buhay, 79 Phil 372, US vs Valdez, 41

17
Phil 497). In a case, it was held that if a man creates in another persons mind an immediate
sense of danger, which causes such person to try to escape, and in so doing, the latter injures
himself, the man who created such a state of mind is responsible for the resulting injuries. (P
vs Page, 77 SCRA 348).
c. Example: A and B conspired to rob V. For the purpose, they armed themselves
with bladed weapons. In the course of the robbery, V violently resisted. And so, B stabbed
and killed V. Here, A is equally liable with B for the crime of robbery with homicide, the
homicide being the direct, natural and logical consequence of the crime of robbery which is
the subject of the conspiracy. This, in spite of the fact that the conspiracy between A and B
was only to rob. In a case, the SC held: The fact that it was Ruben Bacho who wielded the
bolo and stabbed the deceased while his co-accused had merely used their fists in attacking
the deceased cannot be considered an indication of lack of conspiracy, because the use of the
bolo in order to inflict injury upon the deceased is not a radical departure from what the
accused have intended to commit which is to inflict serious injury upon the deceased. (P vs
Bacho, 17l SCRA 458).
d. Example: X and Y conspired to rob V. In the course of the robbery, Y raped W,
the wife of V who was present at the place where the robbery was committed. Here, X is not
equally liable with Y for the crime of robbery with rape, the rape not being the direct,
natural and logical consequence of the crime of robbery. It is obvious that robbery could be
committed without committing the crime of rape.
e. Example: A, B, X and Y conspired to rob V. For the purpose, they armed
themselves with bladed weapons. In the course of the robbery, Y raped W, the wife of V
who was present at the time of the robbery. In this case, would A, B and X be equally liable
with Y for the crime of robbery with rape? Ans. Yes. Reason for this is Art. 296 par. 2,
which provides: Any member of a band who is present at the commission of a robbery by
the band, shall be punished as principal of any of the assaults committed by the band, unless
it be shown that he attempted to prevent the same. Consequently, A, B and X will be
equally liable with Y for the rape of W, unless they, or anyone of them, attempted to prevent
the rape of V. Take note that the principal by inducement may not be liable for the other
assaults committed by the band because for the law to apply the offender must be present at
the time of the commission of the robbery by the band, unless, of course, the principal by
inducement likewise took a direct part in the actual commission of the robbery.

Q. For a member of the band to be equally liable for the other assaults, is it required
that he be present at the time of the commission of such other assaults?
Ans. No. Thus, in P vs Escober (157 SCRA 541), an En Banc decision of the SC, the
look-out (a co-conspirator) was held liable for robbery with homicide committed by a
band (this is the correct designation of the crime, not robbery in band with homicide)
although he was not present at the time the two victims were killed Take note also that the
rule under Art 296, par. 2 likewise applies to a case where the robbery is attempted or

18
frustrated when by reason or on the occasion thereof a homicide is committed (resulted)
under Art 297 (P vs Antonio Pareja, et al, Dec 9, 1996).
Requisites for death to be considered the natural consequence of the physical injuries
inflicted upon the victim.
1. That the victim at the time of the physical injuries were inflicted was in normal
health;
2. That death may be expected from the physical injuries inflicted; and
3. That death ensued within a reasonable time.
Facts: The victim suffered symptoms of tetanus 22 days after the hacking incident
and he died a day thereafter. There was evidence that after the hacking incident, the victim
was fishing in dirty irrigation canals for mud fish from which he could have been
contaminated with tetanus germs. Held: Death of the victim was not the direct, natural and
logical consequence of the (hacking) wound inflicted on the victim. (P vs Cardenas, 56
SCRA 631). The medical findings lead us to the distinct possibility that the infection of the
wound by tetanus was an efficient intervening cause later or between the time Javier (victim)
was wounded to the time of his death. The infection was, therefore, distinct and foreign to
the crime. Tetanus may have been the proximate cause of Javiers death with which
petitioner (accused) had nothing to do. (Urbano vs IAC, 157 SCRA 1-2).
Causes which may produce a result different from that intended by the offender.
Ans. They are as follows:
1. Error in personae. (Mistake in the identity of the victim). Rules:
a. Crime not committed by culpa. (P vs Itlanas, 135 SCRA 202). A deliberate
intent to do an unlawful act is essentially incompatible with the idea of reckless imprudence.
Where such an unlawful act is willfully done, a mistake in the identity of the intended victim
cannot be considered as reckless imprudence (P vs Guillen, 85 Phil. 307).
b. Not mitigating, but Art. 49, RPC, applies. Example: The accused wanted to kill
his father. However, due to mistake in the identity of the victim, he instead killed his
neighbor. Here, the accused is liable for homicide/murder, the penalty to be imposed in the
maximum period. If he wanted to kill his neighbor but instead killed his father, the accused
is liable for parricide but the penalty to be imposed will be that for homicide/murder to be
imposed in the maximum period. In other words, whichever of the two crimes carries a
lesser penalty, the lesser penalty shall be imposed but in its maximum period. In this sense,
error in personae may produce the effect of a mitigating circumstance. However, if the
penalty for the crime intended to be committed and the one actually committed are the same
(e. g., where the accused intended to kill his enemy X but actually killed another enemy Y),

19
error in personae shall not be mitigating and shall not affect the criminal liability of the
offender.
Another approach. Q. Is error in personae a mitigating circumstance?
Ans. It depends. If the penalties provided for the crime intended to be committed
and the crime actually committed are different - Yes, because in this case the penalty for the
crime with a lesser penalty shall be imposed in the maximum period. However, if the
penalties for the crime intended to be committed and the crime actually committed are the
same - No, for obvious reason.
c. Evident premeditation not appreciated. (Art. 14 No. 13. P vs Guillen, 85 Phil
307, P vs Mabug-at, 51 Phil 967). Reason: It cannot be said that he premeditated on the
killing of the actual victim.
d. Rule now settled as to treachery. (Art. 14, No. 16). Initially, the Supreme Court
rendered conflicting decisions. (1) Thus, in P vs Guevarra, L-24371, April 16, 1968, 23
SCRA 58), it was held: The purely accidental circumstance that as a result of the shots, a
person other than the one intended was killed, does not modify the nature of the crime nor
lessen his criminal responsibility, and he is responsible for the consequences of his acts. In
other words, treachery was appreciated against the accused.
(2) But in P vs. Calicdan, 138 SCRA 385. SC said No, it is not appreciated.
Reason: It shows that accused could not have consciously adopted such means, methods,
or forms in the execution thereof which tended directly and specially to insure its
execution. This is the first part of the definition of treachery.
(3) However, in P vs Isabelo Trinidad, et al., 3rd Div., (162 SCRA 214), the SC said,
Yes, treachery is appreciated against the accused. That Juan Angel, and not his mother, was
apparently the intended victim is not incompatible with the existence of treachery. Treachery
may be taken into account even if the intended victim of the attack was not the person whom
the accused killed. In Trinidad, the SC put emphasis on the second part of the definition of
treachery, i. e., without risk to himself (offender) from the defense which the offended party
might make.
(4) Finally, in P vs. Herrera, L-140557-58, Dec. 2001, En Banc, the SC held that
treachery is not appreciated where the actual victim was not the intended victim.
Issue: Citing People vs Basao (310 SCRA 743, 777 [1999]), the SOLGEN contends
that assuming the real object of the assault was Enrique Ganan and that the death of Corazon
Cajipo was purely accidental, it does not modify the nature of the crime nor lessen the
accuseds criminal liability because when accused-appellant fired his gun, the attack was
made in continuous aggression that cannot be broken up to constitute separate, distinct and
independent assaults.

20
Held: We agree but only insofar as it affirms accused-appellants culpability for the
death of Corazon. It cannot be said that a crime against a victim was qualified by
treachery where he was hurt solely because he was in the wrong place at the wrong time
(P vs Guillermo, L-113787, Jan. 28, 1999, 302 SCRA 507 [1999]). The flaw in the
SOLGENs argument lies in his failure to appreciate the kind of firearm used and the number
of shots fired by the malefactor in relation to an apparent confusion of what constitutes a
complex crime under the RPC. In this case, the SC said that the cases do not fall under any
of the two instances of complex crimes under Art. 48, RPC. Be that as it may, the sad fact
remains that for being at the wrong place at the wrong time, Corazons life came to an abrupt
end. This is all that the SC said. No further explanation why treachery was not appreciated.
For the purpose of the BAR, it is suggested that the reason given by the SC in People vs
Calicdan, supra, be the one used. MEMORIZE People vs. Herrera because this is a
RULING CASE.
In People vs. Ceferino Guillermo, L-113787, Jan. 28, 1999, it was held: It cannot be
said of the crime committed against him (unintended victim who was fatally injured, but did
not die), however, that it was qualified by treachery since he was hurt solely because he was
at the wrong place at the wrong time. Thus, in killing and injuring two people, accusedappellant committed two grave felonies. Since they were the result of one single act, a
complex crime was committed - that of murder with frustrated homicide (P vs Buyco,
80 Phil. 58 [1948]).
2. Aberratio ictus. (Mistake in the blow). This is different from error in personae
because here, the intended victim is present. Example: With intent to kill, A shot B with a
revolver but instead hit and fatally wounded C, a bystander. Held: A is liable for the
complex crime of Attempted Homicide/Murder (with B as the victim) with Serious Physical
Injuries (with C as the victim). Take note that with respect to C, it could not be said that the
crime was committed by culpa because of As intent to kill B which is an intentional felony.
The crime was only serious physical injuries insofar as C was concerned because of the lack
of intent to kill on the part of A.
3.
Praeter intentionem. (The injurious result is greater than that intended).
Accused is liable for the result because of Art. 4. Art. 49 does not apply. Example: Where
the accused only intended to inflict physical injuries upon the victim but, due to poor aim, the
accused hit a vital part of the victims body who died. Held: Accused is liable for homicide
(P vs. Tomotorgo, 136 SCRA 238). Another example: The husband (accused) only wanted
to inflict physical injuries on his wife when he choked the latter who died. Held: Accused
liable for parricide. But the accused is entitled to the mitigating circumstance of no intent to
cause so grave a wrong than that committed. (Art. 13 No. 3). The court may likewise
recommend to the Chief Executive, through the Department of Justice, for a Presidential
clemency pursuant to the 2nd par. of Art. 5, RPC.
Art. 4, par. 1 not applicable to the following case.
Facts: The accused, who was not a regular medical practitioner, tied a girl, wrapped
her feet with rags saturated with petroleum and thereafter set them on fire causing injuries.

21
Charged for his acts, the accused raised the defense that he undertook to render medical
assistance to the victim in good faith and to the best of his ability to cure her of her illness
(ulcer).
Held: While, indeed, there was no intention to cause an evil but to provide a remedy
to the victim, the accused was liable for injuries through imprudence (US v Divino, 12 Phil.
175).
The reason why Art. 4, par. 1 does not apply to the case is that the accused did not
commit an intentional felony. If at all, he committed the crime of illegal practice of
medicine, but this is punished by a special law.
Impossible crime.
The RPC provision which defines and penalizes an impossible crime follows the
Positivist Theory and is intended to punish criminal tendencies. The commission of an
impossible crime is indicative of criminal propensity or criminal tendency on the part of the
actor. Such person is a potential criminal. The requisites:
1. That the act performed would be an offense against persons or property;
2. That the act was done with evil intent.
committed by culpa);

(Hence, impossible crime cannot be

3. (a) That its accomplishment is inherently impossible or (b) that the means
employed is either inadequate or ineffectual.
Examples:
(1) One tries to kill another by putting in his soup what he believes to be an arsenic
when in fact it is common salt.
(2) One who attempts to murder a corpse (P vs Balmores, 85 Phil 493).
(3) There was a case decided by the Court of Appeals holding that the rape of the
victim who was already dead before the rape was committed was an impossible crime. The
decision was criticized by authors because during that time rape was a crime against chastity.
Take note that an impossible crime should have been a crime against person or property.
However, in view of the Anti-Rape Law of 1997 (RA 8353), reclassifying rape as a crime
against person, the decision of the CA is now correct.
4. That the act performed should not constitute a violation of another provision of the
RPC.
a. Example: Armed with a firearm, X aimed it at Y demanding money, who did not
have any. Q. Did X commit an impossible crime? Ans. Yes, because had Y the money,

22
then the crime could have been robbery. Q. But, is X criminally liable for an impossible
crime of robbery? Ans. No, because his act constitutes a violation of another provision of the
RPC which is grave threats (Art. 282, No. 1). Hence, X was criminally liable for the said
crime - not for an impossible crime of robbery. Take note that the principle applicable is that
the offender shall be punished for impossible crime only when his acts cannot be punished
under any other provisions of the RPC.
b. Example: A, B, C and D, all armed with armalites, proceeded to the house of X.
Y, a neighbor of X, who happened to be passing by, pointed to the four culprits the room that
X occupied. The four culprits then peppered the room with bullets. Unsatisfied, A even
threw a hand grenade that totally destroyed Xs room. However, unknown to the four
culprits, X was not inside the room and nobody was hit or injured during the incident. Are
A, B, C and D liable for any crime?
Ans. Yes. They are liable for the crime of destructive arson because of the
destruction of the room of X with the use of an explosive, the hand grenade. Under the law,
liability for an impossible crime is to be imposed only if the act committed would not
constitute any other crime punished under the RPC. Although the facts of the case are
parallel to the case of Intod vs CA (215 SCRA 52), where it was ruled that the liability of the
offender was for an impossible crime, no hand grenade was used in said case, which
constitutes a more serious crime though different from what was intended.
Q. What are the kinds of impossible crime?
Ans. The are as follows:
1. Legal impossibility. This occurs where the intended acts even if completed,
would not amount to a crime. Example: Where the accused wanted to commit the crime of
simple seduction but the victim is above 18 years of age. Legal impossibility is a valid
defense of the accused. It is not punished under our laws.
2. Physical or factual impossibility. This occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the intended crime.
Example: Where the accused fired several shots directed towards the bedroom of the
intended victim believing that the latter was already sleeping during that time (night) but it
turned out that the intended victim slept in another house that night. This is an impossible
crime. (Intod vs CA, 215 SCRA 52). Here, there was physical impossibility of the felony of
homicide or murder being committed. Absence of the intended victim may not be considered
as a supervening event independent of the will of the perpetrator that would categorize the
act as frustrated homicide/murder. This is because if the same were sustained, par. 2 of Art.
4 of the RPC would be useless.
3. Inadequate means. When the actor adopts/employs means that are not adequate
to produce the act, but the actor believes that the means he employed is sufficient. Example:
Where one used arsenic to poison another but the arsenic was lacking in quantity to cause
death by poisoning.

23
4. Ineffectual means. When the means employed would not produce the desired
effect/result but the actor believes it to be adequate. Example: Where the poison used to kill
another had already expired.
A little twist to the case of Intod vs CA connected with P vs Abarca (Art. 247).
The accused went to the house of the paramour of his wife thinking that the paramour
was there. He fired his gun inside the house for the purpose of killing the paramour. But the
paramour was not there. Q. In this case, did the accused commit an impossible crime? Ans.
No, because in that case, the accused did not have an evil or criminal intent which is required
for one to commit an impossible crime. Remember that Art. 247 is an absolutory cause
which is in the nature of a justifying circumstance.
Q. Is an impossible crime really a crime?.
Ans. No. It is only called an impossible crime because the act gives rise to criminal
liability. But actually no felony is committed. Hence, it is neither a crime against person nor
against property. The accused is to be punished for his criminal tendency or propensity
although no crime was committed. VERY IMPORTANT. Felonies are defined and
penalized in Book Two of the RPC which begins with Art. 114 on Treason. An impossible
crime is treated in Book One of the RPC (containing General Provisions, etc.), specifically
under Arts. 4 and Art. 59.
ART. 6. Consummated, frustrated, and attempted felonies.
Stages in the development of a crime:
1. Internal acts - not punishable.
2. External acts:
a. Preparatory acts - Ordinarily, not punishable. Exceptions:
(1) Possession of picklocks which is preparatory to the commission of robbery (Arts.
299 and 302) is punishable under Art.304.
(2) Conspiracy and proposal to commit treason (Art. 115), or coup detat, rebellion
or insurrection (Art. 136) and conspiracy to commit sedition (Art. 141).
b. Acts of execution (overt acts) - punishable under the RPC.
Q. When is the commission of a felony deemed commenced directly by overt acts?
Ans. When the following requisites are present:
1. That there be external acts; and

24
2. That such external acts have direct connection with the crime intended to be
committed.
Intent vs overt acts.
Intent is a quality of the mind and implies a purpose only. This is not punishable.
While an attempt (overt acts) implies an effort to carry that purpose into effect.
Example: At early dawn, the accused was surprised by a policeman making an
opening to a wall of the house and store of the victim. Q. Did the accused commit the crime
of attempted robbery? Ans. No, because while the first requisite of overt act is present, the
2nd requisite is lacking. The accused s act of attempting to make an opening had no direct
connection with the crime of robbery by the use of force upon things. The crime actually
committed is attempted trespass to dwelling. The act of the accused is an indeterminate
offense which is one where the purpose of the offender in performing an act is not certain.
Its nature in relation to its objective is ambiguous. (P vs Lamahang, 6l Phil 703). Take note
that even if, upon being arrested, the accused admitted to the policeman that his intention was
to rob, the answer is still the same. Reason: The admissions of the accused (and his
utterances at the time of the commission of the crime) are not decisive of the crime
committed. It is determined by his acts. Thus, where A ran after B brandishing a bolo and
shouting repeatedly I will kill you, the crime is not attempted homicide. It is only threats,
grave or other light threats, depending upon the other circumstances of the case.
Preparatory acts and overt acts, compared through examples.
1. Preparatory acts - where A, who has decided to kill B, sharpens a bolo with
which he intended to use in killing B. This is not a crime.
2. Overt acts - where A strikes B with the bolo. This is now a crime (attempted
homicide/murder) even if B is not injured.
Equivocal overt acts, examples.
Drawing or trying to draw a pistol is not an overt act of homicide. To constitute
attempted homicide, the accused must fire his firearm, with intent to kill, at the offended
party with or without inflicting an injury on the latter, provided that where an injury is caused
the same is not fatal. In fact, the crime would still be attempted homicide even if the firearm
would not fire as where the accused aimed his pistol at the victim but when he pressed the
trigger it jammed and no bullet was fired from the pistol. This is an instance where the
offender failed to perform all the acts of execution which should produce the felony because
of an accident.
Compare the following:
1. Where a person discharges a firearm within any town or public place - Alarms
and scandals (Art 155, RPC).

25

2. Where a person shoots at another with a firearm without intent to kill - Discharge
of firearm (Art 254, RPC).
3. Raising a bolo as if to strike the offended party with it is not an overt act of
homicide. Here, the crime actually committed is Other Light Threats (Art 285, par 1, US vs
Simeon, 3 Phil 688). If a blow with the bolo was struck and there was intent to kill on the
part of the accused, the act of striking the offended party with the bolo would be an overt act
of the crime of homicide, hence, the crime of attempted homicide is committed.
Overt act may not be by physical activity.
There are felonies where, because of the nature or the manner of committing them,
the overt acts are not performed with bodily movement or by physical activity.
Example: Proposal consisting in making an offer of money to a public officer for the
purpose of corrupting him is the overt act in the crime of corruption of public officer (Art
212, US vs Gloria, 4 Phil 341).
Example: Mere proposal, that is, making immoral or indecent advances to a woman
interested in matters pending before the accused (a public officer) or to a woman under his
custody where the accused is a warden, consummates the crime of Abuses against Chastity
(Art 245).
Example. Under Section 6 of RA 7610, there is an attempt to commit child
prostitution: (a) when any person who, not being a relative of a child, is found alone with the
child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or
other similar establishments, vessel, vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to believe that the child is about to be
exploited in prostitution and other sexual abuse; (b) when any person is receiving services
from a child in a sauna parlor or bath, massage clinic, health club and other similar
establishments.
Directly by overt acts.
The law requires that the offender commences the commission of the felony directly
by overt acts. Example: If A induced B to kill C, but B refused to do so, A cannot be held
liable for attempted homicide, because, although there was an attempt on the part of A, such
an attempt was not done directly by physical activity. The inducement made by A to B is in
the nature of a proposal which is not punished by law. However, if, pursuant to his
agreement with A, B commenced the commission of the crime by shooting C with intent to
kill, but missed and did not injure C, both A and B are guilty of attempted homicide/murder
because of the conspiracy.
Phases in the commission of an offense.

26
1. Subjective phase. It is that portion of the acts constituting the crime, starting
from the point where the offender begins the commission of the crime to that point where he
has still control over his acts, including their (acts) natural course. If between these two
points the offender is stopped by any cause or accident outside of his own voluntary
desistance, the subjective phase has not been passed and it is an attempt.
Re spontaneous desistance. So that the accused would not be liable for his acts, his
spontaneous desistance must take place at the subjective phase. This is, however, without
prejudice to his criminal liability to the offense he had already committed before his
desistance. Thus, if the accused attempted to kill the victim but he desisted after he had
inflicted a non-fatal injury with a bolo on the victim, he is still liable for physical injuries.
Likewise, where the accused intended to rape the victim but desisted after he had touched
the private parts of the latter, he is still liable for acts of lasciviousness (US vs Basilio, 9 Phil
16).
2. Objective phase. If the offender is not stopped but continues until he performs
the last act, it is frustrated, provided the crime is not produced. Example: After the complete
taking of the subject of theft, the thief desisted and returned the thing to the owner. Held:
The thief is liable for consummated theft. Reason: Desistance took place after the objective
phase of the offense. However, the accused is entitled to the mitigating circumstance which
is analogous to voluntary surrender (Art 13, Nos 7 and 13).
In a frustrated felony, the offender performs all the acts of execution.
In spite of the decisions of the SC in P vs Bio (94 Phil 885) and in US vs Eduave (36
Phil 210), the belief of the accused should not be considered in determining whether or not
the crime is frustrated. What should be considered is whether all the acts of execution
performed by the offender would produce the felony as a consequence.
In homicide or murder mortal wound on victim required for crime to be frustrated.
In crimes against persons as homicide which requires the victims death to
consummate the felony, it is necessary for the frustration thereof that a mortal wound be
inflicted, because then the wound could produce the felony as a consequence (P vs Guihama,
et al, 13 CA 557). In a case, the attending physician testified that the victim had to be
confined in a hospital between 7 to 14 days, but due to prompt and efficient attention of the
doctor, the victim was discharged from the hospital in five days time. Held: Frustrated
murder. Reason: The gravity of the offense does not depend upon the skill of the doctor or
prompt attendance to the patient by the doctor (P vs Mision, L-63480, Feb. 26, 1991, 194
SCRA 432).
Re the 4th element of a frustrated felony. By reason of causes independent of the will
of the perpetrator.
Hence, if the cause which prevented the consummation of the offense was the
offenders own and exclusive will, the 4th element does not exist. Thus, where after the

27
accused (a doctor, husband of the victim) mixed arsenic with the soup drank by his wife, the
accused himself was the one who saved her by washing out the stomach of the victim and
administered to her adequate antidote, the crime of frustrated parricide is not committed.
Reason: Although the subjective phase of the crime had already been passed, the most
important requisite of a frustrated crime, i.e., that the cause which prevented the
consummation of the offense be independent of the will of the perpetrator, was lacking
(Guevara). The crime cannot be considered attempted parricide because the accused already
had performed all the acts of execution. At most, the crime committed would be physical
injuries, as the poison administered, being an injurious substance, could cause the same. The
intent to kill which the accused entertained in the beginning disappeared when he prevented
the poison from producing the death of his wife (Reyes).
Circumstances determinative of stage of commission of crime.
There are circumstances to be considered to determine whether the crime is
attempted, frustrated, or consummated, as follows: (1) the nature of the offense, (2) the
elements constituting the felony and (3) the manner of committing the felony. Examples:
Nature of the offense.
Arson.
Attempted. When the accused had poured gasoline under the house of another and
was about to strike a match to set the house on fire when he was apprehended. The acts
performed by the accused are directly connected with the crime of arson, the offense he
intended to commit. The pouring of the gasoline under the house and the striking of the
match could not be for any other purpose.
Frustrated. The fact of having set fire to some rags and jute sacks, soaked in
kerosene oil, and placing them near the wooden partition of the house (intended to be
burned). Here, no part of the house is burned (US Valdez, 39 Phil 240).
Consummated. If any part of the house, no matter how small, is burned, the crime of
arson is consummated. The consummation of the crime of arson does not depend upon the
extent of the damage caused (P vs Hernandez, 54 Phil 122).
Compare Theft and Estafa.
Theft. Consummated where the accused abstracted leather belt from the baggage of
a Japanese and secreted it in the drawer of his desk in the Customs Office where it was
found by other Customs employees. Here, the accused had no occasion to freely dispose of
the stolen article (US vs Adiao, 38 Phil 754).
Estafa. Accused was a salesman of a certain company. After he had received the
amount of P7.50 for the sale of the books of the company, he put it in his pocket with intent
to misappropriate the amount. Held: Frustrated estafa (US vs Dominguez, 41 Phil 408).

28
Note: In the Adiao case, the theft was consummated because theft is committed by
mere removal of a personal property belonging to another with intent to gain. In the
Dominguez case, the estafa was frustrated because, although the accused had already taken
the amount to his possession, the essential element of damage or prejudice to the offended
party was still lacking because of the timely discovery of the felonious act by the employer.
In fact, in an analogous case, it was held: The trial court correctly convicted the accused of
attempted estafa, as only the intent to cause damage and not the damage itself has been
shown (Koh Tieck Heck vs People, 192 SCRA 533).
Compare the two kinds of robbery.
1. In robbery with the use of force upon things, mere removal of personal property
is not sufficient to consummate the crime. Thus, where the accused were caught in the act of
taking it out through the opening on the floor of the building where the crime was
committed, the robbery is frustrated (P vs del Rosario, CA, 46 O. G. 4332). In robbery by
the use of force upon things (Arts 299 & 302), since the offender must enter the building to
commit the crime, he must be able to carry out of the building the thing taken to consummate
the crime. (Note: This rule is similar in theft where the place where the crime is committed
is surrounded by a wall or fence and one gets in and out of the place through a check point
(there is a security guard). Here, for taking to be complete, the perpetrator must succeed in
passing through the check point with the stolen loot).
2. In robbery with violence against or intimidation of persons (Art 294), the crime
is consummated the moment the offender gets hold of the thing taken and or is in a position
to dispose of it freely. This is the same rule in case of Theft, as a rule.
Manner of committing the crime.
Formal crimes. Consummated in one instant, no attempt. Examples: Slander, False
testimony.
Crimes consummated by mere attempt or proposal. Examples:
1. Flight to enemy country (Art 121). Consummated by mere attempt to flee.
2. Corruption of minors (Art 340). Mere proposal to the minor to satisfy the lust of
another consummates the offense.
3. Abuses against chastity (Art 245). Consummated by mere solicitation or the
making of immoral or indecent advances to the victim (woman).
Felony by omission (Crime committed by culpa). No attempted or frustrated stage
because in this kind of felony the offender does not execute acts. He omits to perform an act
which the law requires him to do.

29
Crimes requiring intervention of two persons to commit them consummated by mere
agreement.
Example: Betting in sport contests (Art 197) and corruption of public officer (Art
212). Here, the offer made by one to the other constitutes attempted felony if the offer is
rejected (US vs Basa, 8 Phil
). However, in P vs Quin, L-42653 (Unreported), upon facts
similar to the Basa case, the SC held that the crime committed was frustrated bribery
(corruption of public officer) under Art 212 in relation to Art 6. But, in US vs Te Tong (26
Phil 453), where the amount of P500 was accepted by the police officer to be used as
evidence against the giver. Held: Attempted bribery.
Note: While the crime of adultery requires the intervention of two persons, it is not
consummated by the mere agreement between a wife and her paramour to have sexual
intercourse because, in adultery, the gravamen of the offense is sexual intercourse.
Material crimes.
Generally, there are three stages of execution, namely, attempted, frustrated and
consummated.
1. Rape may either be attempted or consummated. Even the slightest penetration to
the labia consummates the rape. If there is no penetration, rape is attempted. Thus, where, in
spite of efforts on the part of the accused to make a penetration, due to the fact that the
vaginal organ of the victim, who was only three years and eleven months old, was
underdeveloped, there was doubt whether the accused succeeded in penetrating the vagina of
the victim, the crime would have been only attempted rape, however, the SC convicted the
accused of frustrated rape (P vs Eria, 50 Phil 998). The decision in Eria was, in effect,
rendered obsolete In P vs Nopia (113 SCRA 599), where, under the same facts as in Eria,,
the SC held that the crime committed was attempted rape. Finally, in P vs Orita, 184 SCRA
105, 115, an En Banc decision, the SC expressly abandoned Eria declaring that the
provision of Art 335, RPC, on frustrated rape is a dead provision and that Eria is a stray
decision. In spite of Orita, however, Congress, in enacting Rep Act No. 7659 (the Heinous
Crimes Law), which took effect on Dec 31,1993, still insisted in providing for frustrated
rape. Finally, in Rep Act No. 8353 (the Anti-Rape Law of 1997), which took effect on Oct
22, 1997, Congress respected Orita by not providing for frustrated rape in the law (Art.266B).
2. Impossible crime. There is no attempted or frustrated stage in connection with
impossible crime. In this crime, the accused has already performed all the acts for the
execution of an offense, but nevertheless the crime is not produced by reason of the fact that
the act intended is by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate or ineffectual to produce the result
desired by him (Art 59).
ART. 8. Conspiracy and proposal to commit felony.

30
Conspiracy as a felony distinguished from conspiracy as a manner of incurring
criminal liability.
When the conspiracy relates to a crime actually committed, it is not a felony but only
a manner of incurring criminal liability, that is, when there is conspiracy, the act of one is
the act of all. Be careful, the rule does no say the crime of one is the crime of all. (MEMO
THE FOLLOWING). 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 (Art 62 No. 3). Thus, where a wife and her paramour conspired to kill the
husband (who was killed), the wife is criminally liable for parricide (because of her
relationship with the victim), while the paramour is criminally liable for murder/homicide.
Even if the conspiracy relates to any of the crimes of treason, rebellion and sedition
(also applicable to coup detat), but any of them is actually committed, the conspiracy
(though punished in the RPC) is not a separate offense, it is absorbed in the crime actually
committed, and, like in other cases, it is only a manner of incurring criminal liability.
Requisites of conspiracy.
1. That two or more persons come to an agreement;
2. That the agreement concern the commission of a felony; and
3. That the execution of the felony is decided upon.
Some decided cases on conspiracy.
1. The acts of the accused must show a common design. It is fundamental for
conspiracy to exist that there must be a unity of purpose and unity in the execution of the
unlawful objective. x x x Obedience to a command does not necessarily show concert of
design. Although the accused are relatives and had participated with some degree of
simultaneity in attacking their victims, nevertheless, this fact alone does not prove conspiracy
(P vs Dorico, 54 SCRA 172). Conspiracy transcends companionship (Jaculina vs Napolcom,
200 SCRA 489, 496). In other words, the mere fact that a person is a companion of the
offender does not make the companion a co-conspirator.
2. Apart from the fact that the finding of implied conspiracy is based on non-existent
factual premises, the trial court also failed to consider certain circumstances which negate the
presence of conspiracy. Thus, it did not appreciate the manifest lack of overt acts on the part
of the appellants in helping Camarongan. They did not have any gun; they did not shield the
victim; they did not intervene in the killing in any way. While such passive attitude betrays
total disconcern for civic duty, still, it is no proof that appellants were one with the killer in
his mad desire to kill. Conspiracy, while inferable from the circumstances, must still be
proved clearly and convincingly, as clearly and convincingly proved according to

31
jurisprudence as the commission of the crime itself (P vs Benavidez, 127 SCRA 188, 189,
citing P vs Cerdenia, 51 Phil 393 and P vs Dorico, 54 SCRA 172).
3. Spontaneous reactions of appellant-accused to felonious act of actual assailant
negativing conspiracy. Certain fact may be cited to show the lack of a common design to
kill. As found by the lower court, immediately after Drilon had fired the first shot, Iraque
(appellant) ran to him pleading, dont do it. The records likewise reflect the
uncontroverted testimony of appellant Libaton to the effect that when he returned to the
barracks after the incident, he asked Drilon why he had to shoot at the car, and the latter
responded by saying, because he started the car. These spontaneous reactions to Drilons
felonious act strongly indicate not only the absence of a common plan or purpose to do away
with the deceased, but also that assailants act in firing his gun was so sudden and
unexpected, it caught his companions unaware (P vs Drilon, Jr;, 123 SCRA 72, 73).
4. Simply because a person in a chain of processing officers happens to sign or initial
a voucher as it is going the rounds , it does not necessarily follow that said person becomes
part of a conspiracy in an illegal scheme. Proof, not mere conjectures or assumptions,
should be proffered to indicate that the accused had taken part in, to use this Courts words in
Arias vs Sandiganbayan, the planning, preparation and perpetration of the alleged
conspiracy to defraud the government for, otherwise, any careless use of the conspiracy
theory (can) sweep into jail even innocent persons who may have (only) been made unwitting
tools by the criminal minds really responsible for that irregularity (Isagani Sabiniano vs CA,
et al, Oct 6, 1995). Such person is not liable for Estafa Through Falsification of Public
Documents. Documents cannot be a substitute for the proof required by law to establish the
guilt of the accused beyond reasonable doubt (Macadangdang vs Sandiganbayan, 170 SCRA
308-309
5. Where five accused agreed to chase the three victims whom they suspected to be
cattle rustlers, their liability for killing two of the latter is individual and separate. At first
blush, the confessions and admissions against penal interest (of the five accused) may show
conspiracy. The accused agreed to pursue the three Isaac brothers, Edipolo going after
Cesario Ibac, Charles and Juan going after Rogelio Ibac, and Pedro and Cabayan going after
Reynaldo Ibac (the prosecution witness). Yet, this particular arrangement, which was
dictated by the behavior of the Ibac brothers, disclosed individual and separate liability rather
than collective responsibility. That is the peculiarity of this case. Edipolo alone was
responsible for the killing of Cesario, Charles and Juan for the killing of Rogelio. Pedro and
Cabayan have no criminal liability at all because their prey (Reynaldo) was able to escape (P
vs. Maguedato, 134 SCRA 594, 595).
6. Mere knowledge, acquiescence or agreement to cooperate is not enough to make
one a co-conspirator. Thus, when the two accused met the victims, husband and wife, on the
street, and the first accused shot the husband, while the second accused shot the wife, it was
held that the two are separately liable (P vs Alas, L-118335-36, June 19, 1997).
7. Even where conspiracy is established but the accused simply participated in a
minor manner so that the crime could be carried out just the same, the accused is liable

32
only as accomplice (P vs Nierra, 98 SCRA 335). In case of doubt, the law leans towards no
criminal liability or a lesser liability. Mere presence at the scene of the crime cannot by itself
be considered as an indication of conspiracy (P vs Buntan, Sr., 221 SCRA 421, P vs Eduardo
Tani, May 2, 1995). .
8. Theft; Intent to gain. Where theft has been committed through complicity, it is
not necessary that each and everyone of the conspirators may have resolved to benefit
personally from the taking; it is enough that they intended that anyone of them should benefit
therefrom (Venturina vs SB, 193 SCRA 40). This is the same rule in forcible abduction.
Thus, for the conviction of several defendants for the crime of forcible abduction, it is
enough that there was lewd design by one of them and that that the same was known to the
others who cooperated in the commission of the felony (P vs. Deleguiado, et al., CA, 38 O.
G. 3587).
9. Conspiracy is not the product of negligence but of intentionality on the part of
cohorts (Magsusi vs Sandiganbayan, et al, En Banc, Jan 3, 1995). There is no conspiracy in
crimes committed by culpa (Lampa vs People, 73 Phil 82). However, there maybe joint
responsibility. When the concurrent or successive negligent acts or omissions of two or
more persons, although acting independently of each other, are, in combination, the direct
and proximate cause of a single injury to a 3rd person, and it is impossible to determine in
what proportion each contributed to the injury, either is responsible for the whole injury,
even though his act alone might not have caused the entire injury (P vs Angeles, CA-GR
No. 5620-R, Dec 11, 1950, 4 Velayo 345, citing 38 Am Jur 946-947). Thus, where the
regular driver of a passenger bus allowed the conductor to drive it during which the bus,
because of the negligent driving of the conductor, hit and killed a pedestrian, both the driver
and the conductor are equally liable for the death of the pedestrian although there is no
conspiracy between the two. The drivers negligent act was his act of allowing the conductor
to drive although the latter was not a licensed driver.
10. Doctrine of instant conspiracy. Unlike evident premeditation, conspiracy
arises on the very instant the plotters agree, expressly or impliedly, to commit the felony and
decide to pursue it (P vs Monroy, et al, 104 Phil 759; P vs Bautista, et al., 76 No. 4 O. G.
587, Jan. 28, 1980 issue).
A conspiracy may be entered into after the commencement of
the overt acts leading to the consummation of the crime (P vs Montealegre, L-67948, May
31, 1988).
11. Although conspiracy is a joint act, there is nothing irregular if a supposed coconspirator is acquitted and others convicted. Generally, conspiracy is only a means by
which a crime is committed: the mere act of conspiring is not itself punishable. Hence, it
does not follow that one conspirator alone (an alleged inducer) cannot be convicted when
there is a conspiracy. As long as the acquittal of a co-conspirator does not remove the basis
of a charge of conspiracy, other conspirators may be found guilty of the offense (p vs
Tiguman, et al., May 24, 2001).
Q. Does mere presence of a person at the place where a crime is committed make him a
co-principal in the commission thereof?

33

Ans. It depends.
Yes, if there is conspiracy because such presence is considered lending moral
assistance to his co-conspirators. But he must perform an overt act in furtherance of the
conspiracy (P vs Cortez, 57 SCRA 308). Active participation of the accused in the
conspiracy is necessary to make him criminally liable (P vs Madera, 57 SCRA 349). Thus,
the accused who stood guard at the gate ready to repel any assistance on behalf of the fallen
mayor was held liable for murder on the basis of conspiracy (P vs So, 127 SCRA 135, 136).
A co-conspirator need not fire a shot. It suffices that he was present and gave moral support
to the assailant (P vs Zapatero, 58 SCRA 450). Conspiracy to strike at the enemy being
clearly established, all the accused are likewise guilty of illegal possession of one
submachine gun found in the jeep wherein they were riding. It is not necessary to point out
who among them is the real possessor (Sarmiento y Cahiwat vs People, 98 SCRA 556).
Where conspiracy is established, the inconsistency in the prosecutions evidence as to who
stabbed or shot the victim is of no moment (P vs Nebreja, 203 SCRA 45, 46). Aggression
committed by the accused-petitioners although directed against the other members of the
group of the victim and not on the deceased would not relieve them from the consequence of
the acts jointly done by another member of the petitioners group who stabbed the deceased
(Pring vs CA, 138 SCRA 185, 186). This is so because the aggression against the other
members of the group of the victim actually prevented them from assisting the victim and
that is sufficient participation of the petitioners in the conspiracy.
No, in the absence of conspiracy (P vs Madera, 57 SCRA 349). Mere presence at
the scene of the crime is not an indication of conspiracy. In People vs Tolentino, L139179, April 3, 2002, it was held that mere presence at the scene of the crime or even
knowledge of the plan or acquiescence thereto are not sufficient grounds to hold a
person liable as a conspirator. Thus, it cannot be surmised that conspiracy existed just
because Loreno and accused-appellant Leysa were both seen raising their arms and
aiming at the victim. Mere simultaneous aiming by appellant and his co-accused at the
victim with their firearms does not by itself demonstrate concurrence of will or unity of
action or purpose that could be a basis for their collective responsibility. There is,
however, an exception under Rep Act No. 8049 (the Anti-Hazing Law). A fraternity or
sororitys adviser who is present when the acts constituting the hazing were committed and
failed to take any action to prevent the same from occurring shall be liable as principal (Sec.
4, RA 8049). Here, the presence of ANY person during the hazing is prima facie evidence of
participation as a principal unless he prevented the commission of the acts punishable under
the law.
Where there is conspiracy, will treachery in connection with the killing of the victim be
appreciated against the principal by inducement if he was not present at the time of the
commission of the crime (of murder)?
Ans. It depends. MEMO Art. 62 No. 4, RPC, which provides: The circumstances
which consist in the material execution of the act, or in the means employed to accomplish it,

34
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).
Yes, if he had knowledge that a high-powered firearm be used in the killing of the
victim through ambush (P vs Borja, 91 SCRA 342, citing P vs Carandang, et al, 54 Phil 503).
No, if the mode of committing the crime was not agreed upon (P vs Otero, 51 Phil
201).
Q. Compare conspirators with accomplices.
Ans. Conspirators and accomplices have one thing in common: they know and agree
with the criminal design. However, as pointed out in People vs Vera (L-128966, Aug. 18,
1999), they differ in the following:
Conspirators

Accomplices

1. Conspirators know the criminal intention 1. Accomplices come to know the criminal
because they themselves have decided intention after the principals have reached a
upon such course of action;
decision, and only then do they agree to
cooperate in its execution;
2. Conspirators decide that a crime should 2. Accomplices merely concur in it - they
be committed; and
merely assent to the plan to commit a crime
and cooperate in its accomplishment; and
3. Conspirators are the authors of a crime.

3. Accomplices are merely their

instruments who perform acts not essential
to the perpetration of the crime.

Q. Is it possible for two or more persons who conspired in the commission of the
SAME ACT are criminally liable for different crimes?
Ans. Yes, for the following reasons:
1. It must clearly be understood that the rule in conspiracy is - The ACT of one is
the act of all. It is not - The CRIME of one is the crime of all.
2. Art. 62 No. 3, provides: 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

35
of the principals, accomplices and accessories as to whom such circumstances are attendant.
Thus:
a. Where a wife and her paramour, with conspiracy, killed the husband. The wife is
liable for parricide while the paramour is liable for murder or homicide (P vs Patricio, 46
Phil. 875). Knowledge of the relationship between wife (one of the guilty parties) and the
husband (person slain) does not make the paramour, a stranger to that relationship guilty of
parricide (P vs Patricio, supra).
b. Where a domestic servant conspired with her friend in the commission of the
crime of theft with her employer as the victim. The servant is liable for qualified theft while
her friend is liable only for simple theft (Art. 310, P vs Valdellon, L-21487, Sept. 27, 1924,
2nd Div., 46 Phil. 145).
However, Art. 62 No. 3, does not apply in the following cases:
c. A private individual who conspired with a public officer or employee with
authority to effect an arrest and detain (e. g., a police officer), in the commission of the
crime of arbitrary detention is criminally liable for the said crime (Art. 124, P vs Camerino,
CA, G. R. No. 4207-R, Dec. 14, 1956).
d. A private individual or even a public officer or employee who did not abuse his
official position but who conspired with one who abused his official position (i. e. either he
had custody of the document or intervened in its execution) in the falsification of an
official/public document will be equally liable for the said crime. (Art. 171, US vs Ponte, by
analogy).
e. A private individual or even a public officer or employee who is not entrusted
with the custody of public funds or property but who conspired with such public officer or
employee will be equally liable with the latter for the crime of malversation of public funds
or property (Art. 217, US vs Ponte, L-5952, Oct. 24, 1911, EN BANC, P vs Rodis, 105 Phil.
1294, US vs Dato and Ilustre, 37 Phil. 359, P vs Sendaydiego, et al., L-33252-54, Jan. 20,
1978, 2nd Div.).
Comment: In connection with Nos. (a) and (b), the reason why the crimes committed
by the principal offenders are different from their co-conspirator is their personal relations
(wife and domestic servant, respectively) with the offended parties. In Nos. (c), (d) and (e),
however, the principal offenders do not have personal relations with the offended parties.
What is controlling here is the nature of the respective official duties of the principal
offenders.
In United States vs Rufino Ponte, et al., L-5952, Oct. 24, 1911, EN BANC, a
prosecution for the crime of malversation of public funds or property, the Supreme Court
explained the reasons for the different approach in Nos. (c), (d) and (e), above, as follows:
In the action which the text describes as a crime there is perfect unity: the private
party does not act independently from the public officer; rather, he knows that the funds of

36
which he wishes to get possession are in the latters charge, and instead of trying to abstract
them by circumventing the others vigilance, he resorts to corruption, and in the officers
unfaithfulness seeks and finds the most reprehensible means for accomplishing a deed which
by having a public officer as its moral instrument assumes the character of a social crime. If
the article were not so interpreted, it would be necessary to agree that the act, in spite of its
evident unity, would constitute not one but two distinct crimes, and the persons participating
therein, although they acted together throughout, would be guilty of two different kinds of
wrongdoing. Moreover, the rule of article 80 (now, Art. 62 No. 3), which prevents
extension from some culprits to others of the responsibility that arises from their personal
qualities, is restricted by fundamental principles and by the article itself, wherein it is
applied to the consideration of the extenuating and aggravating circumstances which may
affect the persons respectively responsible for the crime, and it neither can nor must
influence in any way the characterization of the facts. x x x
As a rule, proposal, like conspiracy, not punished as a crime. There is, however, a
proposal which is an overt act of corruption of public officer.
One who offers money to a public officer to induce him not to perform his duties, but
the offer is rejected by the public officer, is liable for attempted bribery ( US vs Gloria, 4
Phil. 341). Although the act performed by the offender is in the nature of a proposal, and is
not punishable because it does not involve treason, rebellion or coup detat, nevertheless, the
proposal in this case is an overt act of the crime of corruption of public officer (Art. 212,
RPC).
Art. 10. Offenses not subject to the provisions of this (RP) Code.
Where an act is punished by a special law and the act is only in its attempted/frustrated
stage, is the act punishable?
Ans. It depends upon whether the special law punishes the attempted/frustrated stage
(P vs Jolliffe, 105 Phil 677) or not (US vs Lopez Basa, 8 Phil 89). Yes, in the case of the
former, No, in the case of the latter.
Where an offense is punished by a special law are modifying circumstances to be
appreciated in the imposition of the penalty?
Ans. It depends.
Yes, if the penalty provided for by the special law follows the nomenclature of the
RPC, e. g., reclusion perpetua, reclusion temporal, etc. (P vs Simon, 234 SCRA 555). In P
vs Macatanda, 109 SCRA 35, the SC held that PD 533 (the Anti-Cattle Rustling Law) is not
a special law but instead an amendment of Art. 310 of the RPC. Qualified theft where large
cattle is the object of the offense. It will be noted that the penalties provided for in the decree
follow the nomenclature of the RPC. In imposing the indeterminate penalty under the
Indeterminate Sentence Law, follow the rule provided for crimes punished by the RPC if the
penalty provided for by the special law follows the nomenclature of the RPC.

37
No, if otherwise. Example: Minority is not mitigating in crimes in violation of the
Dangerous Drugs Act (P vs Mangusan, 189 SCRA 624-625). Note: As amended by Rep Act
No. 7659 (the Heinous Crimes Law), the penalties imposable under the Dangerous Drugs Act
are mixed, some follow the nomenclature of the RPC, others follow the penalties usually
provided for by special laws.
Compare the following.
There is subsidiary imprisonment in offenses punished by a special law although the
latter is silent about it. Here, the RPC is given suppletory effect to the special law (P vs
Cubelo, 106 Phil 496), unless the latter should specially provide the contrary (P vs Giok To,
96 Phil 913, P vs Moreno, 60 Phil 712).
ART. 11. Justifying circumstances.
Self-defense (par 1), defense of relatives (par 2), and defense of stranger (par 3),
common requisites.
1. Unlawful aggression, and
2. Reasonable necessity of the means employed to prevent or repel it.
Additional requisites for pars 2 & 3.
1. For par 2 (defense of relatives) - in case the provocation was given by the person
attacked, that the one making the defense had no part therein.
2. For par 3 (defense of stranger) - that the person defending be not induced by
revenge, resentment or other evil motive. Note: Where the relative to be defended is not
included in par 2, e. g., 2nd cousin, the additional requirement for par 3, and not for par 2, will
apply.
MEMO the following relatives:
1. For the purpose of the justifying circumstance of defense of relatives (Art 11, par
2): spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or
his relatives by affinity in the same degrees, and those by consanguinity within the 4th civil
degree.
2. For the purpose of relationship as an alternative circumstance under Art 15, par 2:
spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by
affinity in the same degrees of the offender.
3. For the purpose of exempt accessories under Art 20: spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity
within the same degrees.

38
4. For the purpose of the crime of parricide under Art 246: father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse.
The same relatives for the purpose of aggravated Serious physical injuries under Art 263, 2nd
to the last par.
5. For the purpose of the persons exempt from criminal liability for the crimes of
theft, swindling (estafa) or malicious mischief under Art 332: spouses, ascendants and
descendants, or relatives by affinity in the same line; the widowed spouse with respect to the
property which belonged to the deceased spouse before the same shall have passed into the
possession of another; and brothers and sisters and brothers-in-law and sisters-in-law, if
living together.
Re par 1 (Self-defense).
The first requisite for self-defense says that the aggression must be unlawful. Take
note that there are two kinds of aggression: (1) lawful and (2) unlawful.
The fulfillment of a duty or the exercise of a right in a more or less violent manner is
an aggression, but it is lawful. Examples:
1. The act of a chief of police who used violence by throwing stones at the accused
when the latter was running away from him to elude arrest for a crime committed in his
presence.
2. The husband who assaulted the paramour of his wife in the act of adultery
committed right there at the conjugal dwelling (Art 247).
3. Under Art 429, NCC, a person may use reasonable force or violence to protect
his property. If in protecting his property such person uses force to prevent its being taken by
another, the owner of the property is not an unlawful aggressor, because he is merely
exercising a right.
Meaning of unlawful aggression.
In order to consider that unlawful aggression was actually committed, it is necessary
that an attack or material aggression, an offensive act positively determining the intent of the
aggressor to cause an injury shall have been made; a mere threatening or intimidating
attitude is not sufficient to justify the commission of an act which is punishable per se, and
allow a claim of justification on the ground that it was committed in self-defense. Examples:
1. Rule in the absence of credible evidence. In case of doubt, the presumption is,
the one who felt he had the right to demand an explanation started the aggression (US vs
Laurel, 22 Phil 1252, P vs Ramos, 97 Phil 4).
2. An attack with fist blows is unlawful aggression (P vs Montalbo, 56 Phil 443).
But, there was no reasonable necessity to inflict upon the assailant a mortal wound with a

39
dagger (P vs Pasco, Jr., 137 SCRA 137, P vs Madali, 188 SCRA 69, cited in P vs Gutierrez,
209 SCRA 206).
3. Self-defense cannot be successfully claimed where the accused stabbed the victim
while the latter was in the act of merely throwing an empty pot at him (P vs Labinia, 115
SCRA 223).
4. Injurious words or threats do not constitute an unlawful aggression (US vs Santos,
17 Phil 87). Mere shouting threats and poundings on the door of the accused - not unlawful
aggression (P vs Binondo, 214 SCRA 764, citing P vs Masangkay, 157 SCRA 320). Mere
threatening attitude is not unlawful aggression. Thus, when the accused arrived at the house
of the victim, the latter, with a knife in her hand and in a threatening manner, asked the
accused what had brought her there, the accused had no right to kill the victim as there was
no aggression on the part of the latter (US vs Guysayco, 13 Phil 292). However, hurling
insults or using offensive language is sufficient provocation which is a mitigating
circumstance (P vs Sotelo, 55 Phil 396). But, threat to inflict a real injury is unlawful
aggression. Examples taken from the Decision of the Supreme Court of Spain on Sept. 29,
1905:
a) When one aims a revolver at another with the intention of shooting him;
b) The act of a person in retreating two steps and placing his hands in his pocket with
a motion indicating his purpose to commit an assault with a weapon ; and
c) The act of opening a knife and making a motion as if to make an attack.
5. A light push on the head with the hand (P vs Yuman, 61 Phil 786) or shove, not
followed by other acts, do not constitute unlawful aggression (P vs Sabio, L-23734, April 27,
1967). But, a slap on the face is an unlawful aggression (P vs Roxas, 58 Phil 733). Reason:
Since the face represents a person and his dignity, slapping it is a serious personal attack. It
is a physical assault coupled with a willful disregard, nay, a defiance, of an individuals
personality. It may, therefore, be frequently regarded as placing in real danger a persons
dignity, rights and safety (P vs Sabio, supra). Take note that where the victim of an assault is
a person in authority, laying hands (slapping) on his face is already sufficient to constitute the
crime of direct assault for the reason that where the victim of such crime is a person in
authority, force need not be serious (US vs Gumban, 39 Phil. 176).
6. A strong retaliation for an injury or threat may amount to an unlawful aggression.
Thus, when a person who was insulted, slightly injured or threatened, made a strong
retaliation by attacking the one who gave the insult, caused the slight injury or made the
threat, the former became the offender, and the insult, injury or threat should be considered
only a provocation mitigating his liability (US vs Carrero, 9 Phil 544).
7. Strong retaliation is not self-defense. In retaliation, the aggression that was
begun by the injured party already ceased to exist when the accused attacked him. In selfdefense, the aggression was still existing when the aggressor was injured or disabled by the

40
person making the defense. The attack made by the deceased and the killing of the deceased
by the accused should succeed each other without appreciable interval of time. Thus, in
order to justify homicide on the ground of self-defense, it is essential that the killing of the
deceased by the accused be simultaneously with the attack made by the deceased, or at least
both acts succeed each other without appreciable interval of time (US vs Ferrer, 1 Phil 56).
Note: In P vs Avelino, 54 O. G. 7252, the Court of Appeals held that when the killing of the
deceased by the accused was after the attack made by the deceased, the accused must have no
time nor occasion for deliberation and cool thinking. The rationale of the SC in People vs
Abarca (supra) is the same where a husband (accused) invoked Art. 247 (Death x x x
inflicted under exceptional circumstances), an absolutory cause,
when he killed the
paramour of his wife although an hour had passed between the time the accused discovered
his wife having sexual intercourse with the victim (paramour) and the time the latter was
actually shot. x x x Said the SC, but the killing should have been actually motivated by the
same blind impulse, and must not have been influenced by external factors. The killing must
be the direct by-product of the accused s rage.
8. A public officer exceeding his authority may become an unlawful aggressor.
Thus, where a police investigator maltreats a suspect for the latter to admit the commission of
an offense, there is an unlawful aggression on the part of the police investigator.
9. There is no unlawful aggression where there is agreement to fight. Reason:
Where the fight is agreed upon, each of the protagonists is at once assailant and assaulted,
and neither can invoke the right to self-defense, because aggression which is an incident in
the fight is bound to arise from one or the other of the combatants (P vs Qunto, 55 Phil 116).
Exception: Where the aggression is done ahead of the agreed time and place.
Defense of property compared with defense of home.
Defense of property. Can be invoked as justifying circumstance only when it is
coupled with an attack on the person of the one entrusted with said property (P vs Apolinar,
CA, 38 O. G. 2870). However, Dean Antonio L. Gregorio, commenting on People vs
Apolinar, said: Attacking the person is not an element of self-defense of rights but is merely
an incident to the 2nd requisite regarding the reasonableness of the means employed to repel
the act of unlawful taking of ones property. In effect, the SC agreed with Dean Gregorio in
the case of P vs. Narvaez, 121 SCRA 329, cited below.
Facts: One of the victims in this case was the landlord of the accused-appellant. The
accused and his family were leasing the land of the landlord. The landlord gave the tenant
(accused) until Dec. 31, 1968 within which to vacate the land, but, before the period arrived,
the landlord fenced-off and chiseled the estate and the house of the tenant.
Held: The landlord committed an unlawful aggression. The act of the victims in
ordering and actually fencing of the house and rice mill of the accused constitutes unlawful
aggression against his rights. The landlord had no right to destroy or cause damage to
appellants house, nor to close his accessibility to the highway while he was pleading with
them to stop and talk things over. However, shooting the victims was disproportionate to the

41
aggression. Tenant (accused) guilty of homicide but entitled to the mitigating circumstance
of incomplete self-defense. (P vs Narvaez, En Banc, L-33466-67, April 20, 1983, 121
SCRA 389).
Defense of home. Violent entry to anothers house at nighttime by a person who is
armed with a bolo, and forcing his way into the house, shows he was ready and looking for
trouble, and the manner of his entry constitutes an act of aggression. The owner of the
house need not wait for a blow before repelling the aggression, as that blow may prove
fatal (P vs Mirabiles, 45 O. G. 277).
Prob. V was raped by A. After the rape, A fell asleep just beside V. Observing A to be
already snoring, V stealthily got the knife which A used to threaten V, and, with it,
stabbed A killing the latter almost instantly. Charged with homicide for killing A, V
raised the defense of defense of her honor. Is Vs defense tenable?
Ans. No. In defense of rights (honor included) under Art. 11 No. 1 of the RPC, it is
required inter alia that there be (1) unlawful aggression, and (2) reasonable necessity of the
means employed to prevent or repel it. Thus, aggression must be continuing at the time the
unlawful aggressor (rapist) was injured (or killed) by the person making the defense. In the
case presented, unlawful aggression on the part of A was no longer existing considering that,
at the time he was stabbed by V, he was already sleeping. Hence, there was nothing to
prevent or repel.
At most, V can only be credited with the mitigating circumstance of
immediate vindication of a grave offense committed against her.
2nd requisite of defense of a person or right: reasonable necessity of the means
employed to prevent or repel the unlawful aggression.
In emergencies where the person or life of another is imperiled, human nature does
not act upon processes of normal reason but in obedience to the instinct of self-preservation.
The reasonableness and necessity of the means employed depend upon the circumstances of
the case.
Reasonableness of the means used, test thereof.
This will depend upon the following:
1. The nature and quality of the weapon used by the aggressor,
2. The physical condition, character, size and other circumstances of the aggressor,
and those of the person defending himself, and
.3. The place and occasion of the assault.
Note: Perfect equality between the weapon used by the one defending himself and
that of the aggressor is not required, because the person assaulted does not have sufficient

42
tranquility of mind to think, to calculate and to choose which weapon to use (P vs Padua, CA,
40 O. G. 998).
Reasonableness of means employed does not imply material commensurability between
the means of attack and defense.
What the law requires is rational equivalence, in the consideration of which enter as
principal factors the following: (a) the emergency, (b) the imminent danger to which the
person attacked is exposed, and (c) the instinct, more than the reason, that moves or impels
the defense. The proportionateness thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury (P vs Encomienda, 46 SCRA 522, Masipequia vs
CA, 176 SCRA 699,700).
Reasonableness of the means employed where the aggressor is unarmed.
Compare the following:
1. In People vs Paras (L-3959, Dec. 16, 1907, First Div., 9 Phil 367), it was held
that the accused acted in self-defense although the aggressor was unarmed and the one
defending himself, who was attacked with fist blows, fell down to the ground and while on
the ground, was repeatedly kicked, fired four shots at the aggressor wounding him three
times. The incident happened during the darkness of the night. In People vs BoholstCaballero, 61 SCRA 180, it was likewise held that the accused acted in self-defense. In this
case, while the victim (husband of the accused) was kneeling over the accused while she lay
on her back on the ground and the victim was choking her, the accused got the knife inserted
at the belt of the victim and plunged it at the body of the victim resulting in the latters death.
2. But in People vs Roxas (L-39630, Nov. 13, 1933, EN BANC, 58 Phil 733) and in
P vs Bergao (L-29398, Nov. 1, 1928, EN BANC, 52 Phil 313), the SC held that the means
employed by the accused were unreasonable where the accused killed with an automatic
knife or with a bolo an unarmed aggressor. Unfortunately, the text of People vs Roxas
does not tell us how the incident giving rise to the case happened. However, in People vs
Bergao, the victim kicked the accused hitting the latters stomach who fell down as a result
of the kick. Upon standing up, the accused grabbed a bolo and hit the victim with it.
Comment. Although the Roxas and Bergao decisions are doctrinal they being EN
BANC decisions, it is believed that the issue of whether the use of a firearm or a bladed
weapon against an unarmed aggressor is a reasonable means would depend on the related
issue of whether the life of the person attacked (accused) is in danger. Thus, where the
situation would be the same as in People vs Boholst-Caballero (supra), where the victim
(aggressor) was kneeling over the accused while she lay on her back on the ground and the
victim was choking her, and thus her life was therefore in danger, it is believed that the use
of a bladed weapon (knife) against the unarmed aggressor would be a reasonable means.
Reasonableness of the necessity of the means employed when one defending himself is a
peace officer, different from that of private individual.

43
Connect with Art 11, par 5. The peace officer, in the performance of his duty,
represents the law which he must uphold. While the law on self-defense allows a private
individual to prevent or repel an aggression, the duty of a peace officer requires him to
overcome his opponent. The fact that a policeman, who was armed with a revolver and a
club, might have used his club instead, does not alter the principle since a policemans club
is not a very effective weapon as against a drawn knife and a police officer is not required to
afford a person attacking him the opportunity for a fair and equal struggle (US vs Mojica, 42
Phil 784).
Jurisprudential rules on self-defense.
1. Failure to explain to prison official that accused acted in self-defense after he was
arrested for stabbing, belies said plea (P vs Alquizar, 92 SCRA 698, P vs Sarol, 129 SCRA
125). Failure of the accused when he surrendered to the police to inform them that he had
really acted in self-defense is fatal to his defense (P vs Sarol, 139 SCRA 125).
2. The claim of self-defense was not sustained where, after the incident, the accused
did not report to the authorities (P vs Espidol, CA, 40 O. G. 3690, P vs Pelayo, 24 SCRA
1026, P vs Tapano, 164 SCRA 696-697, and instead ran away (P vs Marciales, 166 SCRA
436-437, or he threw away the weapon used (P vs Jotoy, 222 SCRA 801). Also see P vs
Mario Alivado, Aug. 14, 1995).
.
3. Furthermore, why was the knife or kris, with which the deceased was allegedly
armed at the time (of the incident) not presented by anyone to the authorities or in court?
All the people in the party were either relatives, friends or guests of the sister of the
appellant and if there was such a weapon used in the alleged unlawful assault upon the latter,
that weapon should have been presented to the police (P vs Casimiro Tinio, Jr., 81 No. 30 O.
G. 3020, July 29,. 1985 issue).
4. But, the act of immediately surrendering to the police is not necessarily a proof of
lack of evil intent (P vs Abletes, 58 SCRA 241).
5. The fact that the accused declined to give any statement when he surrendered to a
policeman is inconsistent with the plea of self-defense (P vs Manansala, L-235l4, Feb. 17,
1970, 66 O. G. 6988). Had he done so, the same should have carried weight to support his
defense of self-defense as the said statement should have been admissible as part of the res
gestae.
6. Failure of the accused to invoke self-defense at the outset and instead waived
preliminary investigation is fatal to his defense (P vs Amparado, 139 SCRA 71).
7. Several wounds on the victim negate self-defense (P vs Amania, 220 SCRA
347, P vs Sarol, 139 SCRA 125). These indicate clearly that appellants act was no longer
one of self-preservation but a determined effort to kill his victim (P vs Juan Ganzagan, Jr.,
Aug. 11, 1995). Numerous wounds on the body of the victim indicate plurality of assailants
(P vs Laredo, 185 SCRA 383, 385).

44
8. Self-defense, like alibi, is a defense which can easily be concocted (P vs Pay-an,
84 SCRA 353).
9. Constant shifting of the defense version from that of absolute denial that he
shot at the deceased to that of accidental shooting and finally to that of self-defense,
discredits the accused as a witness in his own behalf (P vs Ruiz, 110 SCRA 155).
Re par. 2. Defense of relatives also requires that there be unlawful aggression.
Mistake of fact applies. However, unlawful aggression does not have to exist as a
matter of fact. It may be made to depend upon the honest belief of the one making the
defense (US vs Esmedia, 17 Phil 260). Example: Where A attacked and wounded B with a
dagger, causing the latter to fall down, but B immediately stood up and defended himself by
striking A with a bolo and as a result A was seriously wounded and fell in the mud with B
standing in front of A in a position as if to strike again in case A would stand up. There is no
doubt that A was the unlawful aggressor. But when the sons of A came, what they saw was
their father lying in the mud wounded. They believed in good faith that their father was the
victim of an unlawful aggression. If they killed B under such circumstances, they are
justified. In this case, there was a mistake of fact on the part of the sons of A.
Q. Suppose, the person defending his relative was also induced by revenge or hatred,
would there be a legitimate defense of relative?
Ans. Yes, for as long as the three requisites of defense of relatives are present. This is
where the distinction between defense of relatives and defense of stranger is important.
Where the relative defended is not embraced in No. 2 of Art 11, e. g., a distant cousin (not
within the 4th civil degree), the one defending is no longer exonerated from liability where he
is induced by revenge, resentment, or other evil motive.
Self-defense in Libel.
There is also self-defense in libel. P vs Chua Hiong (CA, No. 10413-R, Oct 20,
1954, 51 O.G. 1932, April 1955 issue), echoes the truism that self-defense is mans inborn
right. In a physical assault, retaliation becomes unlawful after the attack has ceased because
there would be no further harm to repel. But this is not the case when it is aimed at a
persons good name. Once the aspersion is cast its sting clings and the one defamed may
avail himself of all the means to shake it off. He may hit back with another libel which, if
adequate, will be justified.
But if the answer is unnecessarily libelous, there is no self-defense (P vs Royo, CA
No. 17444-R, Aug 24, 1957, 53 O. G. 8618, Dec 1957). Retaliation or vindictiveness cannot
be the basis of self-defense (P vs Dianalan, CA No. 06043-R, Jan 15, 1968, 65 O. G. 3965,
April 1969 issue).
Re par 4. Q. What are the requisites for avoidance of greater evil or injury?

45
Ans. There are three as provided for in the law, as follows:
1. That the evil sought to be avoided actually exists,
2. That the injury feared be greater than that done to avoid it, and
3. That there be no other practical and less harmful means of preventing it.
Additional requisites (based on jurisprudence):
4rth requisite. The greater evil should not be brought about by the negligence or
imprudence of the accused. Thus, where a driver drove his car at full speed, disregarding the
condition of the place, and, although he saw a big truck at a distance of 500 meters away, he
did not slacken his speed. When his car and the truck were about to collide, the driver had to
choose whether to swerve to the left (where he would fall into a precipice) or to the right
(where he would hit a pedestrian). If the driver chooses the right, he is liable because,
although he was faced with a greater evil, that state of necessity was brought about by his
own reckless imprudence.
5th requisite. Nor shall the greater evil be brought about by the criminal act of the
offender. Thus, if the husband surprises his wife having sexual intercourse with her
paramour, the paramour will not be justified if he kills the husband while in the act of
shooting him (paramour).
Par 4 of Art 11 shall be connected with the following:
1. Art. 432, NCC. The owner of a thing has no right to prohibit the interference of
another with the same, if the interference is necessary to avert an imminent danger and the
threatened damage, compared to the damage arising to the owner from the interference, is
much greater. This is the defense of self-help recognized in civil law. However, the owner
may demand from the person benefited indemnity for the damage to him. (P vs Ricohermoso,
56 SCRA 431).
2. Art. 101, RPC, par 2. In cases falling within subdivision 4 of Art 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.
Re par. 5. Fulfillment of duty or lawful exercise of right or office.
1. Example: Where at the time the escapee (a convicted prisoner) was about to be
caught and, instead of surrendering to the policeman (accused) when the latter told him to
surrender, the escapee attacked the accused with a bamboo spear, and when the accused was
not hit, the escapee run away in spite of a warning shot by the accused, the accused was
justified in shooting and killing the escapee. (P vs Delima, L-18660, Dec. 22, 1922, First
Div., 46 Phil 738).

46
2. Example. A police officer in plain clothes fought back a bag snatcher who stabbed
him (police officer). The police officer drew his side-arm and the thief ran away. If he were
not a police officer, he is not supposed to run after the snatcher as there is no more unlawful
aggression - the act would not be justified. However, considering that he is a police officer,
under par. 5, should he fire warning shots, and after being ignored by the snatcher he fires at
him thereby killing him, the act is still justified. This is already in the performance of a duty.
Note for No. 2. In P vs Oanis, et al. (74 Phil. 257) it was held: The defense of having
acted in the fulfillment of a duty requires as a condition, inter alia, that the injury or offense
committed be the unavoidable or necessary consequence of the due performance of the duty.
It is not enough that the accused acted in the fulfillment of a duty.
Whether shooting an offender is justified under fulfillment of duty or exercise of right
depends upon crime committed by offender.
1. Shooting an offender who refused to surrender is justified. Example: A attacked
and injured B, the municipal mayor. Thereafter, A ran away and refused to be arrested by C,
the chief of police, who was present at the time A attacked B. Held: The act of C in
shooting A was justified (L-39270-71, Oct. 30, 1934, EN BANC, P vs Gayrama, 60 Phil
796). Hence, A cannot claim self-defense for killing C. As early as US vs Magno (8 Phil
314), a 1907 case, the SC already established the guideline that firing at a prisoner who
persisted in his attempt to escape is justified if there is no other remedy to prevent him from
getting away. And, in People vs Lagata (L-1940-42, March 24, 1949, 2nd Div., 83 Phil 1500,
SC held that while custodians of prisoners should take care to avoid the latters escape, only
absolute necessity would authorize them to fire against the prisoners. In this case, the
SC did not appreciate in favor of the accused (custodian of prisoners) his claim of
performance of duty because the escape of the prisoners was brought about by his
negligence.
2. But shooting a thief who refused to be arrested by a security guard of a private
establishment is not justified. Example: A security guard accosted a thief who had stolen
ore in the tunnel of a mining company. The thief fled and continued to flee in spite of the
warning shots made by the security guard. The guard shot and killed the thief. Held: The
security guard acted in the performance of his duty, but exceeded the fulfillment thereof by
shooting the deceased. Guilty of homicide (P vs Bentres, CA, 49 O. G. 4919). Take note
that this rule is analogous to the rule on defense of property.
Comparison of the Gayrama (SC) and the Bentres (CA) cases:
a) In the Gayrama case, the chief of police (accused) was a public officer; in the
Bentres case, the security guard was employed in a private establishment; and
b) In the Gayrama case, the crime committed by the victim was against persons; in
the Bentres case, the crime committed by the victim was against property. It is therefore
believed that there is no conflict in the Gayrama and Bentres cases.

47
Re par 6. Obedience to an order issued for some lawful purpose, requisites:
1. That an order has been issued by a superior;
2. That such order must be for some lawful purpose, and
3. That the means used by the subordinate to carry out said order is lawful.
Subordinate not liable for carrying out an illegal order of his superior if he is not
aware of its illegality and he is not negligent.
This is a case of a mistake of fact. Example: The victim in this case was a puppet
mayor (appointed by the Japanese government during the 2nd World War) of a municipality
of Abra, while one of the accused was the military mayor. The military mayor was directed
to appoint a jury of 12 men to try the puppet mayor for treason and after the trial the puppet
mayor was convicted and sentenced to death. The record of the trial was forwarded to higher
authorities who approved the conviction including the penalty and the record was returned to
the military mayor for execution of judgment. However, a higher ranking military official
rendered an opinion that the jury was an illegal body and hence does not have authority to try
and decide criminal cases. Such opinion and the directive to defer the execution of the
puppet mayor was transmitted to the military official who was the immediate superior of the
military mayor but the said official could not transmit the said directive to the military
mayor. So, the military mayor and his co-accused executed the judgment against the puppet
mayor. Held:
When the accused acted upon orders of superior officers, which he, as
military subordinate, could not question, and obeyed the orders in good faith, without being
aware of their illegality, without any fault or negligence on his part, he is not liable because
he had no criminal intent and he was not negligent (P vs Beronilla, 96 Phil 566).
Important distinctions between justifying (Art 11) and exempting (Art 12)
circumstances:
1. While justifying circumstances inhere in the act committed which is lawful, an
exempting circumstance is personal to the offender. In essence, in justifying circumstance
there is neither crime nor criminal; in exempting circumstance, there is a crime but there is
no criminal.
2. Generally, there is no civil liability on the part of the accused where there is a
justifying circumstance. Exception: See Art 11 No. 4 (Any person who, in order to avoid an
evil or injury, does an act which causes damage to another) in relation to Art 101 No. 4; in
exempting circumstance, generally, there is civil liability. Exceptions: Art 12 No. 4 (Any
person who, while performing a lawful act with due care, causes an injury be mere accident
without fault or intention of causing it) and Art. 12 No. 7 (Any person who fails to perform
an act required by law when prevented by some lawful or insuperable cause) in relation to
Art 101.

48
Absolutory causes, explained.
Those where the act committed is a crime but for reason of public policy and
sentiment there is no penalty. In other words, in absolutory causes, there is a crime and a
criminal.
ART. 12. Circumstances which exempt from criminal liability.
Re No. 1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.
Insanity; defined; test.
Insanity is a manifestation in language or conduct, of disease or defect of the brain,
or a more or less permanently diseased or disordered condition of the mentality, functional or
organic, characterized by perversion, inhibition, or by disordered function of the sensory or
of the intellective faculties, or by impaired or disordered volition. (Definition of insanity in
Sec. 1039 of Revised Administrative Code of 1917., applied;
P vs Dungo, 199
SCRA 860).
To constitute insanity, there must be complete deprivation of intelligence or that there
be total deprivation of the freedom of the will (P vs Formigones, 87 Phil 658, P vs Puno, 105
SCRA 151, P vs Edwin Caneta, et al., L-110855-56, June 28, 1999). In the absence of proof
as to complete impairment or loss of intelligence, schizophrenia is considered a mere
mitigating circumstance (P vs Pascual, 220 SCRA 440, 446, citing P vs Rafanan, 204 SCRA
75). This abandoned the doctrine in P vs Bonoan (64 Phil 93) holding to the effect that
schizophrenia (dementia praecox) was embraced in the term insanity. There is a difference
between insanity and one who has worked himself up into such a frenzy of anger that
he fails to use reason or good judgment (US vs Vaquilar, 27 Phil 89, 91). In People vs
Roger Austria, July 31, 1996, it was held: Schizophrenia may be embraced in the term
insanity.
Mere abnormality of mental faculties is not enough, especially if the offender has not
lost consciousness of his acts. At most, it is only mitigating (Art 13 No. 9).
Evidence required to establish insanity.
Held: We have stated that when insanity of the defendant is alleged as a ground of
defense or reason for his exemption from responsibility, the evidence on this point must refer
to the time preceding the act under prosecution or at the very moment of its execution. x x x
In order to ascertain a persons mental condition at the time of the act, it is permissible to
receive evidence of his mental condition during a reasonable period before and after. Direct
testimony is not required nor are specific acts of disagreement essential to establish
insanity as a defense. A persons mind can only be plumbed or fathomed by external acts.
Thereby his thoughts, motives and emotions may be evaluated to determine whether his
external acts conform to those of people of sound mind. To prove insanity, clear and

49
convincing circumstantial evidence would suffice (P vs Bonoan, 64 Phil. 87; P vs
Renegado, 57 SCRA 275 [1974], cited in P vs Roger Austria, L-111517-19, July 31, 1996,
2nd Division).
Sanity is presumed.
The quantum of evidence required to overthrow such presumption is proof beyond
reasonable doubt. The State should guard against some murderer escaping punishment
through a general plea of insanity _(P vs Dungo, 199 SCRA 860). In case of doubt on
accuseds claim of insanity, the doubt shall be resolved in favor of sanity (P vs Dungo,
supra). Example: A perusal of appellants testimony further negates his plea of insanity.
His recall of the events that transpired before, during and after the stabbing incident, as well
as the nature and contents of his testimony, does not betray an aberrant mind. His memory
conveniently blanks out only as to the number of wounds he inflicted on the victim. This,
appellant attributes to insanity but we are far from convinced. A man may act crazy but it
does not necessarily and conclusively prove that he is legally so (P vs Elyboy So y Orbes,
Aug 28, 1995, P vs Erlindo Yam-id, June 21, 1999).
Mental disturbances embraced in the term insanity:
1. Epilepsy. A chronic disease characterized by fits occurring at intervals, attended
by convulsive motions of the muscles and loss of consciousness. Where the accused
claimed that he was an epileptic but it was not shown that he was under the influence of an
epileptic fit when he committed the offense, he is not exempt from criminal liability (P vs
Mancao, et al, 49 Phil 887).
2. Malignant malaria. Thus, one who was suffering from malignant malaria when
she wounded her husband who died as a consequence is not criminally liable, because such
illness affects the nervous system and causes among others such complication as acute
melancholia and insanity at times (P vs Lacena, 69 Phil 350).
3. Somnambulism (sleepwalking). This circumstance is either embraced in the term
insanity under Art 12 No. 1 (P vs Gimema, 55 Phil 604), or that the act is not voluntary
under Art 12 No. 5 or No. 6 (US vs Odicta and P vs Taneo, 58 Phil 255).
Other mental disturbances not embraced in insanity:
1. Kleptomania. If the unlawful act of the accused is due to his mental disease or
mental defect producing an irresistible impulse, even to take anothers property, the same
should be considered as covered by the term insanity. In the case of P vs Bonoan (64 Phil
87), a 1937 case, an irresistible homicidal impulse was considered embraced in the term
insanity. It maybe said that a person who has lost the power of his will, at the moment, also
lost consciousness of his acts. (Justice Luis B Reyes, Circumstances Affecting Criminal;
Liability, UPLC, Criminal Law & Procedure, 1969). If the mental disease or mental defect
of the accused only diminishes the exercise of his will-power, and did not deprive him of the
consciousness of his acts, then kleptomania, if it be the result of his mental disease or mental

50
defect, is only a mitigating circumstance. Note:
US courts have conflicting opinions.
Some believe that it is an exempting circumstance; others, mitigating. In the Philippines, the
question has not been brought before the court for its determination.
2. Feebleness is not insanity. In the case of P vs Formigones, supra, it was held that
feeblemindedness is not exempting because the offender could distinguish right from wrong.
It may be mitigating (Art 13, No. 9).
3. Hypnotism. Whether or not hypnotism is so effective as to make the subject act
during artificial somnambulism, is still a debatable question.
Evidence of insanity must refer to the time preceding the act or at the moment of its
execution (P vs Balondo, 30 SCRA 155).
So, if the evidence consisted of the performance of insane acts subsequent to the
commission of the crime, the presumption of sanity governs. The accused cannot be
acquitted (P vs Robios, L-138453, May 29, 2002). To submit the accused to a psychiatric
test to determine his sanity three years after the commission of the crime is not possible to
ascertain his mental condition when he committed the crime with which he is charged.
(Dean Antonio L. Gregroio, Defenses Available To The Accused Under The Revised Penal
Code, UPLC, Criminal Law, 1980).
Accuseds voluntary surrender and admission of the killing of his wife is evidence that
he is not insane (P vs Ambal, 100 SCRA 325).
His attempt to end his life in atonement of his guilt for killing his wife is a
manifestation of remorse which revealed an awareness of a wrongdoing but not an insane act
(P vs Magallano, 100 SCRA 570).
Q. What are the legal effects of insanity of the accused?
Ans. They are as follows:
1. Exempting circumstance if it occurred at the time of the commission of the crime
(Art. 12 No. 1);
2. Ground for suspension of arraignment if the accused is insane during that time
(Sec. 11, Rule 116, 2000 Rules of Criminal Procedure); and
3. Ground for suspension of the execution and service of the penalties if insanity
occurs after final sentence has been pronounced. x x x 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 Arts.92 & 93 of the RPC.

51
Re par 2. A person under nine years of age.
The phrase under nine years should be construed nine years or less as may be
inferred from the next subsequent paragraph which does not totally exempt a person over
nine years of age if he acted with discernment (Guevara). This defect in the law had already
been corrected in Art 189 of PD 603 and the law now reads: Nine years or under.
Nine years and under compared with over 70 years.
Take note that while senility is said to be the 2nd childhood of a person and although
nine years and under is exempting, over 70 years is only mitigating (Art 13 No. 2).
Under the RPC, the life of a human being is divided into four periods:
No.1. The age of absolute irresponsibility - 9 years or under (infancy);
No.2. The age of conditional responsibility - between 9 and 15 years;
No.3. The age of full responsibility - 18 to 70; and
No.4. The age of mitigated responsibility - over 9 and under 15, the offender acting
with discernment; 15 or over but less than 18; over 70.
Re No. 3. A person over nine years of age and under fifteen, unless he has acted with
discernment.
The presumption is that a minor under 15 years of age acted without discernment.
(On the other hand, the presumption is that every person is sane). The burden is therefore on
the part of the prosecution to prove that the minor acted with discernment. And so that the
prosecution could discharge its burden, it is indispensable that the claim that the accused
acted with discernment be alleged in the information/complaint. The allegation of with
intent to kill in the information charging a minor of homicide is sufficient allegation of
discernment (P vs Nieto, 103 Phil 1133).
Discernment, explained.
The mental capacity of the minor to understand the difference between right and
wrong, and such capacity may be known and should be determined by taking into account all
the facts and circumstances afforded by the records in each case, the very appearance, the
very attitude, the very comportment, and behavior of said minor, not only before and during
the commission of the act, but also after and even during the trial (P vs Doquea, 68 Phil 58).
Discernment may be shown by (1) the manner the crime was committed or (2) the conduct of
the offender after the commission of the crime.

52
Examples:
1. Manner of committing the crime. Where the minor committed the crime during
nighttime to avoid detection or took the loot to another town to avoid discovery (P vs
Magsino, L-40176, May 3, 1934).
2. Conduct of the offender. The accused, 11 years old, shot the offended party,
who had caught him shooting at the latters mango fruits, with a slingshot hitting the latter in
one of the eyes, and after having done so, said: Putang ina mo, mabuti matikman mo. It
was held that the 1st part of the remark clearly manifested the perverted character of the
accused and the 2nd part reflected his satisfaction and elation upon the accomplishment of his
criminal act. These facts indicate discernment on the part of the minor (P vs Alcabao, CA,
44 O. G. 5006).
Disposition of an accused who is 9 years or under or over 9 years but under 15 who did
not act with discernment under Art. 189 par 2 in relation to Art 192 of PD 603.
A child 9 years of age or under at the time 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 9 and under 15 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 Art 192, PD 603. Here, the youthful offender shall be
committed to the DSWD, or to any government training institution or duly licensed agency
or any other responsible person until he reaches the age of 21 (not until he reaches the age of
18, although this is now the age of majority as provided for in RA 6809).
Compare Art 80, RPC and Art 192 of PD 603.
In Art 80, the suspension of sentence is mandatory, in PD 603, it is not mandatory,
the accused has to apply for suspension of sentence. The difference in the approach
regarding suspension of sentence between Art 80 of the RPC and Art 192 of PD 603 has
already been rendered academic by Sec 5 par (a) of Rep Act No. 8369 (An Act Establishing
The Family Court), the pertinent portion of which reads: Provided, That if the minor is
found guilty, the court shall promulgate the sentence and ascertain any civil liability which
the accused may have incurred. The sentence, however, shall be suspended, without need of
application pursuant to PD No. 603, otherwise known as the Child and Youth Welfare
Code. In other words, we have now reverted to the provisions of Art 80 of the RPC.
Re par 4. Accident.
Q. What is an accident?
Ans. It is something that happens outside the sway of our will, and although it comes
about through some of our will, lies beyond the bounds of humanly foreseeable

53
consequences. (If the consequences are plainly foreseeable, it will be a case of negligence
[Albert]).
Q. What are the elements of accident?
Ans. The elements are as follows:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident; and
4. Without fault or intention of causing it.
Prob. A struck B with fist blow hitting the latters shoulder. In self-defense, B struck A
with his gun which accidentally fired hitting and seriously wounding A. Is B criminally
liable for his act?
Held: No. When B drew his gun and with it struck A after the latter had given him a
fist blow, B was performing a lawful act. The striking with the gun was a legitimate act of
self-defense.
Question. But was the striking done with due care as required by the 2nd element of
exemption? Ans. We believe so since the striking could not have been done in any other
manner except how it was done by B. Whether the gun was cocked or uncocked, the striking
could not have been done in any other manner. The injury, therefore, that resulted from the
firing of the gun was caused by accident and without any fault or intention on the part of B in
causing it in accordance with the 3rd and 4th requisites. The trial court puts much stress on
the fact that since B allegedly had his finger on the trigger with the gun already cocked it was
reckless and imprudent of him to have used the gun in striking A. We do not agree. Under
the circumstances, striking A and not shooting him was the more prudent and reasonable
thing to do, whether the gun was cocked or uncocked (P vs Vitug, 8 CA Rep 905; P vs
Tiongco, CA, 63 o. G. 3610).
But, the act of drawing a weapon in the course of a quarrel, not being in self-defense, is
unlawful - it is light threats (Art 285, par 1), and there is no room for the invocation of
accident as a ground for exemption (P vs Reyta, Jr., 13 CA Rep 1190).
Examples of accident:
1. Facts: The accused, while hunting, saw wild chickens and fired a shot. The slug,
after hitting a wild chicken, recoiled and struck the tenant who died from the bullet wound.
Is the accused criminally liable?

54
Held: No. If life is taken by misfortune or accident while the actor is in the
performance of a lawful act executed with due care and without intention of doing harm,
there is no criminal liability. (US vs Taedo, 15 Phil 196). Here, the accused was engaged
in the performance of a lawful act when the accident happened. He was not negligent
because the deceased (tenant) was not in the direction at which the accused fired his gun. It
was not foreseeable that the slug would recoil after hitting the wild chicken.
The Taedo case was asked in the Bar. Take note that the answer would be the same
even if the firearm used by the accused is unlicensed. Although the accused committed the
crime of illegal possession of firearm, still the accused could not be liable for homicide for
the death of the tenant under Art 4 of the RPC, because, for the law to apply, meaning, for
one to be liable for a result different from that intended by him, he must commit a felony,
that is, punished by the RPC. Illegal possession of firearm is punished by a special law (PD
1866 as amended by Rep. Act No. 8294), not by the RPC. However, in this case, the accused
is criminally liable for Illegal Possession of Firearm.
2. Just as the truck being driven by the accused was passing the slow-moving road
roller, a boy about 10 or 12 years of age jumped from the step of the side board of the road
roller directly in front of the truck, and was not knocked down, ran over and instantly killed.
Held: Accused acquitted (US vs Knight, 26 Phil 216).
Where accident is not exempting.
1. Where death supervened during a robbery, it is immaterial that the former was
not caused by the accused and that it was accidental. Thus, where in the course of the
robbery the victim suffered a heart attack and died, the accused are liable for the crime of
robbery with homicide (P vs Veloso, 112 SCRA 173). Reason: The phrase the crime of
homicide shall have been committed in Art 294 No. 1 of the RPC implies that the robbers
would only be liable for the killing if they commit the crime of homicide/murder, is a poor
translation of the Spanish text. The correct interpretation is, in order to determine the
existence of the crime of robbery with homicide it is enough that a homicide resulted by
reason or on the occasion of the robbery (P vs Mangulabnan, et al, 99 Phil 992). Take note
that the criminal liability of the robbers for the accidental homicide is pursuant to Art 4 No.
1 of the RPC, the death of the victim being the natural, direct and logical consequence of the
crime of robbery (a felony) which they committed.
2. The same rule applies where the victim of kidnapping dies while being detained.
Even if the cause of the death be an accident, the kidnappers would still be liable for the
death of the victim. Here, the crime of kidnapping is a heinous crime and the maximum
penalty of death shall be imposed (Art. 267, last par.).
Re par 5. Any person who acts under the compulsion of an irresistible force.
The requisites:
1. That the compulsion is by means of physical force;

55
2. That the physical force must be irresistible; and
3. That the physical force must come from a 3rd person. This is external. (Thus,
passion and obfuscation which results in loss of self-control and therefore something
internal to the accused, is not included).
Before a force can be considered to be irresistible, it must produce such an effect
upon the individual that, in spite all resistance, it reduces him to a mere instrument and, as
such, incapable of committing a crime. It must be such that, in spite of resistance of the
person on whom it operates, it compels his members to act and his mind to obey. Such a
force can never consist in anything which springs primarily from the man himself; it must be
a force which acts upon him from the outside and by a 3rd person (US vs Elicanal, 15 Phil
209).
Re par 6. Any person who acts under the impulse of an uncontrollable fear of an equal
or greater injury.
The requisites:
1. 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; and
2. That it promises an evil of such gravity and imminence that the ordinary man
would have succumbed to it (US vs Elicanal, supra).
The accused must not have the opportunity for escape or for self-defense. Thus,
where the accused who testified that he was intimidated into committing the crime had
several opportunities of leaving the gang which had decided to kidnap the victim, his theory
that he acted under intimidation is untenable (P vs Parulan, 88 Phil 623).
Re par 7. Any person who fails to perform an act required by law when prevented by
some lawful or insuperable cause.
The requisites:
1. That an act is required by law to be done;
2. That a person fails to perform such act; and
3. That his failure to perform such act was due to some lawful or insuperable cause.
When prevented by some lawful cause.
Example: In the case of a priest to whom someone had confessed that there is a
conspiracy to commit treason. Under Art 116, RPC, any person who has knowledge of such
conspiracy and who does not disclose it to the proper officials (city mayor, city prosecutor

56
[fiscal], provincial governor or provincial prosecutor [fiscal]) shall be liable for Misprision of
Treason. Here, even if the priest does not disclose his knowledge to the proper authorities,
he is exempt from criminal liability because under the law the priest cannot be compelled to
reveal any information which he came to know by reason of the confession made to him in
his professional capacity.
(Sec 24-d, Rule 130, Rules of Court on privileged
communication).
When prevented by some insuperable cause.
Example: The police officer detained the offended party for three days (or more than
the number of hours as allowed under Art 125, RPC) because to take him to the nearest
justice of the peace required a journey for three days by boat as there was no other means of
transportation (US vs Vicentillo, 29 Phil 118).
Note: In Art. 125, RPC, as amended by Executive Order No. 272, prom. on July 25,
1987, the allowable periods of detention are: 12, 18, 36 hours, depending upon whether the
crime for which the offender is arrested and detained is punishable by light penalties, or their
equivalent; by correctional penalties, or their equivalent; and by afflictive or capital penalties,
or their equivalent.
Absolutory causes.
1. Those provided for in the RPC are found in the following articles: Arts. 6, 20,
124, last par, 247, pars 1 & 2, 280 par 3, 332, and 344 par 4.
2. Those not provided for by the RPC:
a. The discharge of an accused to be used as a state witness under (1) Sections 17
& 18, Rule 119, 2000 Rules on Criminal Procedure, and under (2) RA 6981 (Witness
Protection Program and Benefit Act) administered by the Dept. of Justice.
Here, the
discharge of the accused in both instances operates as an acquittal.
b. PD 1508 (now Rep Act No. 7160, the Local Government Code of 1991), re
felonies where the maximum penalty imposable is imprisonment of one year or a fine of not
exceeding P5,000. If the civil aspect of the case is settled amicably at the barangay
(lupon/pangkat) level, the State could no longer file the criminal aspect of the case.
Assurance of a public officer, not absolutory cause.
Thus, the accused who delivered to the barrio lieutenant (barangay captain) a gun
and ammunition when the latter announced that anyone who is concealing firearms should
surrender them so that he will not be penalized is not exempt from criminal responsibility
arising from the possession of the unlicensed firearm and ammunition. In fact, not even the
President could give such an assurance of immunity to any violator of the Firearms Law. His
constitutional power of clemency can be exercised only after conviction (P vs Alabas, CA 52
O. G. 3091, Ref: 145 SCRA 407).

57
Entrapment and instigation explained and distinguished.
Entrapment

Instigation

1. Ways and means are resorted to for the

purpose of trapping and capturing the
lawbreaker in the execution of his criminal
plan;

1. The instigator practically induces the

would-be accused into the commission of
the offense and himself becomes a coprincipal;

2. Entrapment is no bar to the prosecution 2. But when there is instigation, the

and conviction of the lawbreaker; and
accused must be acquitted; and
3. Entrapment is not a defense.

3. It is an absolutory cause, hence, a

defense.
(If you will make the one
committing the crime by the use of
instigation liable, the one inducing should
also be held liable as a principal by
inducement. But that will be against public
policy since the one inducing is a peace
officer who acted in the performance of
duty, hence, there is no criminal intent on
his part).

In entrapment, government witnesses (assets) not accomplices.

The fact that government witnesses made the purchase of the marijuana does not
make them accomplices, for the following reasons:
1. Their only purpose is to secure evidence to convict the violator, hence, there was
no intent to perpetrate the act prohibited by law on their part; and
2. Entrapment (buy-bust operation) is a procedure sanctioned by the RPC (P vs
Ramos, Jr., 203 SCRA 237).
Discovery, neither entrapment nor instigation.
There is neither instigation nor entrapment when the violation of the law is simply
discovered. The plain view doctrine is applied here. Example: Where a police officer in
plainclothes buys from the seller of goods or commodities (without intention on the part of
the police officer to find out whether the seller has violated any law) and finds that there is an
overprice in the price thereof. (Note: Refer to the work of the writer in connection with
Search & Seizure, for a more detailed discussion of the plain view doctrine).

58
ART. 13. Mitigating circumstances.
Re No. 1. Incomplete justifying or incomplete exempting.
This is otherwise known as incomplete justifying circumstance or incomplete
exempting circumstance because all the requisites necessary to justify the act or to exempt
from criminal liability in the respective case are not attendant. This kind of mitigating
circumstance is privileged and which entitles the accused to a reduced penalty of one or two
degrees lower (Art 69) depending upon the number of requisites which are present.
Ordinary and privileged mitigating circumstances, compared.
Ordinary mitigating circumstance

Privileged mitigating circumstance

1. Can be offset by any aggravating 1. Cannot be offset by any aggravating

circumstance
circumstance.
2. Causes the prescribed penalty to be
imposed in its minimum period, provided
that the penalty is divisible and there is no
aggravating circumstance to offset it.

2. Lowers the prescribed penalty by one or

two degrees depending upon the law.
Always subject to a specific provision of
the RPC.

MEMO. When the RPC provides that a specific circumstance lowers the penalty by one or
two degrees, the circumstance is a privileged mitigating circumstance. On the other hand,
if the RPC provides that a specific circumstance raises the penalty higher by one or two
degrees, that circumstance is a qualifying aggravating circumstance.
Re No. 2. That the offender is under 18 years of age.
Age at time of commission of crime vs age at time of promulgation of judgment of
conviction.
It is the age of the accused at the time of the commission of the crime which should
be determined. But a minor (at the time of the commission of the offense) who is already an
adult at the time of his conviction is not entitled to a suspended judgment under existing law
(Arty 80, RPC, as amended by Art 192 of PD 603 and lately by Sec 5(a) of RA 6359
(Family Court). (P vs Casiguran, 94 SCRA 244).
Rules on minority.
1. Where the accused testified that he was less than 18 years old when the crime was
committed and the prosecution made no attempt to prove otherwise, he is entitled to the
privileged mitigating circumstance of minority although his testimony was not corroborated

59
by other proof. At least, a reasonable doubt must be resolved in favor of the accused. Since
there is nothing in the record to show that the testimony of the accused about his age is
untrue, such testimony must be accepted as a fact, until such fact is disproved by other
evidence (P vs Tismo, 204 SCRA 535, Joaquin E. David vs CA, et al., L-11168-69, June 17,
1998, P vs Monteron, L-130709, March 6, 2002, Reyes vs CA, L-127703, Jan. 18, 2002).
2. a. Age of the victim in statutory rape. Take note, however, of the strict rule of
the SC when it comes to the issue of establishing the age of the victim in statutory rape.
Thus, in P vs Vargas, L-116513, June 26, 1996, the SC held: x x x we agree with the
accused-appellant that the prosecution failed to establish that the age of the victim was below
twelve (12) years old - one of the essential elements of the crime of statutory rape (P vs
Pedro Malabago, Dec. 2, 1996). In P vs Rebancos (172 SCRA 425, 429) we admitted oral
testimony to prove the age of the victim for it was given by the victims mother who had
personal knowledge of the birth of the victim. In said case, the prosecution also presented
the victims baptismal certificate in lieu of the birth certificate which could not be produced
as the birth was not registered. In the case at bar, however, no birth or baptismal certificate
was presented to prove the age of the victim. Neither was there a showing that said
documents were lost or destroyed to justify their non-presentation. The trial court should not
have relied on the testimony of the offended party as to her age nor on the testimony of her
aunt. x x x Both testimonies are hearsay. The aunt testified that she knew the victims birth
date as the victims mother told her (the aunt). Nor was it correct for the trial court to judge
the victims age by considering her appearance. As correctly pointed out by appellant
(accused), the victim could easily be mistaken for a child below 12 years of age. The
difference of two or three years in age may not always be readily apparent by mere physical
manifestations or appearance . Indeed, there is generally no noticeable difference between
the appearance of a ten (10) year old child from that of a twelve (12) year old. The age of the
victim is an essential element in the crime of statutory rape and must be indubitably proved
by the prosecution. As there was failure of proof by the prosecution, appellant cannot be
convicted of statutory rape.
b. Where the alleged age of the victim of sexual assault is between 13 and 18, the
testimony of the victim and her mother are not sufficient to establish the age of the victim.
Reason: In this era of modernism and rapid growth, the victims mere physical appearance is
not enough to gauge her exact age (P vs Quezada, L-135557-58, 30 January 2002, P vs
Rodriguez, L-133984 Jan. 30, 2002).
The stand of the Supreme Court where the victim is below ten years of age may be
divided into two.
1. a. Where it was less exacting in the evidentiary requirements. Facts: In this
case, the victims age and her relationship with appellant (accused) have been properly
recited in the indictment and proven during the trial. The Information clearly stated that
appellant had carnal knowledge of his daughter, Judelyn Abao, six years old. Judelyn
testified as to her age and relationship with appellant. Appellant himself admitted in court
that Judelyn is his daughter and confirmed that she was six years old.

60
Held: There is no more need to present the live birth certificate of Judelyn or other
equally acceptable official document concerning her date of birth to determine Judelyns age.
Such independent proof can be dispensed with in cases where the court can take judicial
notice of the victims tender age in view of the manifest minority of the victim. Judicial
notice of the victims age may be taken when the victim is 10 years old or below. The
concurrence of the special qualifying circumstances of the victims minority and her
relationship with appellant, the rape committed by appellant is qualified as heinous. The
imposition of the death penalty is thus warranted. (P vs Doroteo Abao, L-142728, Jan. 23,
2002, EN BANC).
b. Where the Supreme Court was exacting in the evidentiary requirements.
Facts: Victim of aggravated statutory rape was, as alleged in the information, five (5) years
of age and a niece of the accused. The birth certificate of the victim was not submitted in
evidence to establish her age.
Held: Under par. 5 of Art. 266-B of the RPC, death shall be imposed when the
victim is a child below seven (7) years old. In the instant case, the Information alleged the
circumstance that the victim, x x x was five (5) years of age. However, it is significant to
note that the prosecution failed to present her birth certificate or other authentic document or
evidence showing this fact. Proof of age is critical, considering that the victim, at the time of
the rape, was alleged to have been just two (2) years less than seven (7) years. (P vs
Mayorga, 346 SCRA 458, Nov. 29, 2000). Given the similarities in physical features and
attributes between a five-year-old and a seven-year-old child, courts cannot take judicial
notice of this circumstance. Independent proof of age is necessary to convince this Tribunal
that the victim was indeed below seven (7) years of age when she was raped and that,
therefore, the imposition of the death penalty was justified. (Ibid.).
The Court here emphasizes that the severity, as well as the irreversible and final
nature, of the penalty of death once carried out makes the decision-making process in capital
offenses aptly subject to the most exacting rules of procedure and evidence (P vs Liban, 345
SCRA 453, 465,
Nov. 22, 2000). We have consistently ruled that the age of the victim
must not only be specifically alleged in the information, but must likewise be established
beyond reasonable doubt during the trial. (Ibid.). Neither her obvious minority, nor the
absence of any contrary assertion from the defense (P vs Javier, 311 SCRA 122, July 26,
1999) can exonerate the prosecution from these twin requirements. Judicial notice of age,
without the requisite hearing conducted under Sec. 3, Rule 129 of the Rules of Court,
would not be considered enough compliance with the law. (P vs Liban, supra). To establish
the age of the victim, the prosecution should have presented credible testimonial evidence or
her birth certificate; or, in lieu thereof, any other documentary evidence like a baptismal
certificate, school records or documents of a similar nature. (P vs Rivera, L-139180, July 31,
2001; P vs Liban, supra, P vs Tabanggay, 334 SCRA 575, June 29, 2000, cited in P vs Benito
Lachica y Llamas, L-143677, May 9, 2002, EN BANC).
2. In P vs Valindo, L-140027, March 18, 2002, another EN BANC decision of the
Supreme Court, Ramona Franco testified that she is the mother of Jewelyn (the victim) who
was born on October 16, 1991 in Carpa, Baliuag, Bulacan. (The rape was allegedly

61
committed sometime in Nov. 1997). She tried to secure a copy of Jewelyns birth certificate
from the Local Civil Registry but was told that her daughters birth was not registered there.
She was then required to submit an Affidavit To Prove Birth, but still she was not issued
Jewelyns birth certificate.
Held: (Note: The Supreme Court cited its decision in P vs Abao, supra, and its
reasons for holding that the age of the victim was duly established). The trial court carefully
noted in its Decision that Jewelyn then was only seven (7) years old. Ramona Franco, the
victims mother, categorically testified that her daughter was born on October 16, 1991. This
Court has ruled that the testimony of the mother is admissible as she is in the best position to
know when she delivered her child. Even the appellant (accused) himself admitted, when he
testified x x x , that she (victim) was about seven (7) years old.
3. Where the only prosecution evidence was the testimony of the victim that she was
below seven (7) years old (she stated her date of birth), but the same was neither questioned
by the accused nor rebutted in the trial court, it was held that the same was sufficient
evidence to establish the age of the victim pursuant to Sec. 40, Rule 130 (P vs Llanita, L134101, 5 Sept. 2001). However, in People vs Lachica (L-143677, May 9, 2002) the SC
said: No independent proof was presented to show that the victim was below seven (7) years
old when raped, and nothing else could be elicited from the records to ascertain her correct
age. Claim that victim was below 7 years old not established.
Re No. 3. No intent to cause so grave a wrong.
This circumstance can be taken into account only when the facts proven show that
there is a notable and evident disproportion between the means employed to execute the
criminal act and its consequences ( P vs Rabao, 36 Phil 904). Example: In the course of
their quarrel, A (accused) delivered a fistic blow upon B (victim) hitting the latter. Because
of the blow, B fell down hitting his head on a concrete pavement causing his death. Here, it
is clear that a fistic blow could not normally cause death but, nevertheless, the victim died
because of his fall.
It is the intention of the offender at the moment when he is committing the crime
which is considered, not the intention at the planning stage. Example: Where the
conspiracy is to commit robbery only, but during the commission of the crime, the victim
was robbed and killed. Here, no intention to commit so grave a wrong cannot be appreciated
as a mitigating circumstance .
Q. Is no intent to commit so grave a wrong appreciated in favor of the accused where
the crime of murder is committed with treachery as the qualifying aggravating
circumstance?
Ans. There are seemingly conflicting decisions of the SC:
In People vs Enriquez, 58 Phil 536, the SC said Yes. Reason: As murder in this
jurisdiction results from the presence of qualificative circumstances based for the most part

62
upon the manner in which the crime is committed , and not upon the state of mind of the
accused, it is permissible upon conviction for murder with treachery as the qualifying
aggravating circumstance to allow the mitigating circumstance that the offender had no
intention to commit so grave a wrong. Enriquez was reiterated by the SC in P vs Flores y
Malarayap, 252 SCRA 31. Here, the victim was an adult (married with six children) who
was lying dead drunk on a pavement. While the accused had an altercation with the mother
of the victim, the accused kicked the victim resulting in the latters death. Although the
accused only intended to inflict physical injuries on the victim, he was held criminally liable
for murder (pursuant to Art 4, RPC) because of treachery considering that the victim could
not have put up any defense against the accused and so there was no risk on the part of the
accused from the defense which the victim could have made. No intent to cause so grave a
wrong appreciated in favor of the accused.
In P vs Herila (51 SCRA 31), an En Banc decision, there was also treachery. No
intent to cause so grave a wrong was not appreciated in favor of the accused because the SC
noted that the victim had already fallen helpless and was in a lying position when he was
hacked by the accused-appellant. In view thereof, the SC entertained no doubt that the
appellant really intended to kill the victim.
Comment. Take note that there is no conflict between the Enriquez and Herila
cases. As to whether the mitigating circumstance of no intent to cause so grave a wrong
would be appreciated in favor of the accused in murder with treachery as the
qualifying aggravating circumstance, it all depends upon the other circumstances
present, not only on the circumstance of treachery.
No intent to commit so grave a wrong cannot be appreciated in Evasion Thru
Negligence (Art 224) because such mitigating circumstance is not applicable to felonies
committed by negligence. Reason: In felonies thru negligence, the offender acts without
intent. Hence, there is no intent on the part of the offender which may be considered
diminished (P vs Medina, CA, 40 O. G. 4196).
Q. Is Art 13, par 3 applicable to felonies where the intention of the offender is
immaterial?
Ans. This is not settled. In P vs Cristobal (CA, No. 8739, Oct 31, 1942), it was held
that the said mitigating circumstance is not applicable in unintentional abortion. However, in
P vs Flameo, CA, 58 O. G. 4060), it was held applicable in the same case of unintentional
abortion. Comment: It is believed that, considering that in felonies committed by culpa,
the intention of the offender is immaterial, no intent to cause so grave a wrong cannot be
appreciated in favor of the accused.
Rule where there is conspiracy (no intent to cause so grave a wrong).
Prob. A and B conspired to kill C, their common enemy. During the incident, A
simply inflicted fistic blows upon C while B stabbed and killed C with a dagger. In this case,
can A invoke no intent to cause to grave a wrong to mitigate his criminal liability? Ans. No.

63
Reason: In conspiracy, the act of one is the act of all. Thus, when B stabbed C it was as if A
likewise stabbed C.
REMEMBER. No intent to cause so grave a wrong cannot be availed of by one charged
and convicted of violating the Anti-Hazing Law (Sec 4, RA 8049). This is expressly
provided for in the law.
Re No. 4. Sufficient provocation.
Q. What is provocation?
Ans. Any unjust or improper conduct or act of the offended party, capable of
exciting, inciting, or irritating any one.
Facts to be considered as to whether or not sufficient provocation exists:
1. The act constituting the provocation,
2. The social standing of the person provoked, and
3. The place and the time when the provocation is made.
To be mitigating, provocation must be immediate to the commission of the wrong.
Thats why the SC wrongly applied the law in P vs Deguia, et al, April 20, 1951, because,
after the provocation, the accused went home and later returned fully armed and killed the
deceased (who had given the provocation). Connect with the aggravating circumstance of
dwelling. So that dwelling would not be appreciated against the accused, the sufficient
provocation of the victim must be given immediate to the commission of the offense (Art 14
No. 3).
Sufficient provocation as a requisite of incomplete self-defense (Art. 13 No. 1 in relation
to Art. 11, Third) compared with sufficient provocation (Art. 13 No. 4), as mitigating
circumstance.
Ans. As an element of self-defense, it pertains to its ABSENCE on the part of the
person defending himself; while as a mitigating circumstance, it pertains to its PRESENCE
on the part of the offended party (P vs CA, L-103613, Feb. 23, 2001).
Re No. 5. Immediate vindication of a grave offense.
Although the law says: That the act was committed in the immediate vindication of a
grave offense, etc., a lapse of time is allowed between the vindication and the doing of the
grave offense. Reason: The word immediate used in the English text is not the correct
translation. The Spanish text uses proxima.

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Examples:
1. In P vs Palaan (L-34976, Aug 15, 193, unpublished), the killing of the paramour
by the offended husband one day after the adultery was still considered proximate.
2. In P vs Diokno (63 Phil 601), the mitigating circumstance was appreciated
although the lapse of time between the grave offense (abducting the daughter of the accused
by the deceased) and the vindication (killing of the deceased) was two or three days.
3. But, in P vs Benito (62 SCRA 351), it was held: Passage of several hours (six
hours and thirty minutes) after provocation negates mitigating circumstance of immediate
vindication of grave offense. Accused was given several hours to reflect and hold his
temper. Stated otherwise, the act of killing did not immediately or proximately follow the
supposed sufficiently insulting and provocative remarks. Note: In this case, the SC did not
treat the insulting remarks of the victim as a grave offense. It only treated it as a mere
provocation. Hence, No 4 (sufficient provocation), not No. 5, of Art 13 was applied.
Re No. 6. Passion or obfuscation.
Requisites for passion or obfuscation to constitute a mitigating circumstance:
1. The same must arise from lawful sentiments.
Q. Can passion or obfuscation be appreciated if the relationship between the accused
and the victim is illicit?
Ans. Our jurisprudence is not well-settled. Thus, in US vs Hicks (L-4971, Sept. 23,
1909, First Div., 14 Phil 217), the SC said No. However, in US vs dela Cruz (L-7094,
March 29, 1912, First Div., 22 Phil 429), P vs Engay (CA, 47 O. G. 4306), P vs Yuman (L43469, Aug. 21, 1935, EN BANC, 61 Phil 786) and in P vs Bello (L-18792, Feb. 28, 1964,
EN BANC, 10 SCRA 298), the appellate courts said Yes. And, in P vs Pacot (L-6229596, March 22, 1984, EN BANC, 128 SCRA 504), the SC reverted to the ruling in Hicks and
said No. In the Pacot case, the victim was the common-law wife of a married man and at
the same time the sweetheart of the accused. According to the accused, he killed the victim
because she kicked his genitals when he did not assure her that he would marry her.
1. The case of US vs Hicks, supra.
Facts: For about five years, the accused (Hicks) and the deceased (Agustina) lived
illicitly as husband and wife without the benefit of marriage. Afterwards, the deceased left
the accused and lived illicitly with another man (Wallace). Enraged by such conduct, the
accused killed the deceased.
Held: Even if it is true that the accused acted with obfuscation because of jealousy,
the mitigating circumstance cannot be considered in his favor because the causes which

65
mitigate criminal responsibility for loss of self-control are such which originate from
legitimate feelings, and not those which arise from vicious, unworthy and immoral passions.
2. The case of People vs. Beatriz Yuman, supra.
Facts: Marciano Martin and Beatriz Yuman, without being joined in lawful wedlock,
lived as husband and wife for three or four years until Feb. 26, 1935, when Marciano left
their common dwelling. On the afternoon of March 5, 1935, Beatriz went to look for him at
the cockpit of Mandaluyong. From there they came to Manila in a vehicle and while on the
way they talked of his absence and the many debts they had. Martciano intimated to
Beatriz his determination to end their relations, and urged her to return home alone. When
they arrived in the district of Sampaloc at the corner of Legarda and Bustillos streets, they
alighted and she suggested that they go home together, to which Marciano, rude and hostile,
objected warning her at the same time not to meddle with his affairs and to do as she pleased,
whereupon Beatriz stabbed him with the penknife she was carrying thereby inflicting a
wound in the right lumbar region which injured the kidney. When Marciano realized that
he had been wounded, he started to run pursued by Beatriz, weapon in hand. In his flight,
Marciano ran into traffic policeman Eduardo Dizon whom he asked to arrest that woman
who had wounded him. Policeman Dizon saw Beatriz and commanded her to surrender the
penknife, which she did instantly. When asked why she had wounded Marciano she replied
that Marciano after having taken advantage of her had abandoned her. Immediately the
aggressor was arrested and placed in custody, where she freely and voluntarily gave to the
police officials the statement Exhibit D, from which we took, with respect to the act and
circumstances of the aggression, the foregoing statement of facts because in our opinion the
said statement constitutes a true, correct and spontaneous version of the occurrence.
During the trial, Beatriz testified as follows:
Q. Was there motive on your part to justify your assaulting him?
A. There was none.
Q. And why did you stab him?
A.I did (not) have any intention of attacking him either; as a matter of
fact I was looking for him so that we could live together.
Q. If you had no intention to attack him, and much less to kill him,
why did you open that penknife?
A. That penknife was closed, so much so that I only opened it when I
felt dizzy and my sight became dim and in fact I do not know where I hit
him.
Held: That she acted under obfuscation. We believe that this mitigating
circumstance should be taken into consideration in favor of the accused, in view of
the peculiar circumstances of the case, especially the fact that the accused had
been abandoned by the deceased after living together for three or four years, and the
harsh treatment which the deceased gave the accused on the afternoon of the day in
question, a short time before the aggression. The facts of the instant case are

66
different from those upon which a contrary ruling was laid down by the court in the
cases of U. S. vs Hicks (14 Phil. 217) and People vs. Hernandez (43 Phil. 1044).
3. The case of People vs. Guillermo Bello, supra.
The Issue. The remaining area of conflict is reduced to whether the accused may lay
claim to a second mitigating circumstance, that of having acted on a provocation sufficiently
strong to cause passion and obfuscation. The defense submits that accused is so entitled,
because the deceaseds flat rejection of petitioners (accuseds) entreaties for her to quit her
calling as a hostess and return to their former relation, aggravated by her sneering statement
that the accused was penniless and invalid (baldado), provoked the appellant, as he testified,
into losing his head and stabbing the deceased. The state disputes the claim primarily on the
strength of the rule that passion and obfuscation can not be considered when arising from
vicious, unworthy, and immoral passions (US vs Hicks, 14, Phil. 217).
Held: We are inclined to agree with the defense, having due regard to the
circumstances disclosed by the record. It will be recalled that the lower court found that
the accused had previously reproved the deceased for allowing herself to be caressed by a
stranger. Her loose conduct was forcibly driven home to the accused by Marasigans remark
on the very day of the crime that the accused was the husband whose wife was being used
by Maring for purposes of prostitution, a remark that so deeply wounded the appellants
feelings that he was driven to consume a large amount of wine (tuba) before visiting Alicia
(the deceased) to plead with her to leave her work. Alicias insulting refusal to renew her
liaison with the accused, therefore, was not motivated by any desire to lead a chaste life
henceforth, but showed her determination to pursue a lucrative profession that permitted her
to distribute her favors indiscriminately. We can not see how the accuseds insistence that
she live with him again, and his rage at her rejection of the proposal, can be properly
qualified as arising from immoral and unworthy passions. Even without benefit of wedlock,
a monogamous liaison appears morally of a higher level than gainful promiscuity.
Comment: The Yuman and Bello cases, though doctrinal because they are EN
BANC decisions, shall not be relied upon as authority to disregard the first requisite of
passion or obfuscation which is : the same must arise from lawful sentiments. It must be
noted that, if the SC appreciated passion or obfuscation in the said cases, it was because of
the peculiar circumstances obtaining therein. Take note that the Yuman and Bello cases did
not expressly abandon the SC ruling in US vs Hicks, which, it is believed shall be the
general rule and the rulings in the Yuman and Bello cases, as the exception.
Exercise of right or fulfillment of duty not proper source of passion or obfuscation.
Thus, where the deceased, owner of the corn-field destroyed by the carabao of the
accused, took and delivered the said carabao to the barangay captain, after the accused
refused to pay the deceased for the damages of his corn field, cannot claim passion or
obfuscation on the basis of the act of the deceased for the reason that the deceased in so
doing was exercising a right and fulfilling his duty when he delivered the carabao to the
barangay captain.

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2. That the act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time (text-many days before) during
which the perpetrator might recover his normal equanimity (P vs Guillano, 107 Phil 1169).
Examples:
No passion or obfuscation after half-hour (P vs Matbagon, 60 Phil 887), several
hours (P vs Aguilando, et al, 92 Phil 588), 24 hours (P vs Sarikala (37 Phil 486), or more
than five hours (P vs Sicat, 213 SCRA 603) had elapsed.
3. The obfuscation must not be caused by an unlawful act (P vs Demiar, 108 Phil
651).
In Demiar, the accused claimed that he raped the victim because his bestial instinct
was aroused when he saw the victim bathing in the river wearing only scanty clothing. Held:
Passion and obfuscation not mitigating.
Q. May passion and obfuscation lawfully arise from causes existing only in the honest
belief of the offender?
Ans. Yes. (1) US vs Ferrer (1 Phil 56), where the accused entertained the belief that
the deceased had caused his dismissal from his employment. (2) In P vs Zapata, et al (L11074, Feb 27, 1960), where the belief entertained in good faith by the accused that the
deceased cast upon their mother a spell of witchcraft which was the cause of her serious
illness, is so powerful a motive as to naturally produce passion or obfuscation.
Vindication of grave offense cannot co-exist with passion and obfuscation and be based
on one and the same fact or motive.
Reason: One single fact cannot be made the basis of different modifying
circumstances (Viada). Exception: When there are other facts although closely connected.
Example: Where the victim eloped with the daughter of the accused (this is a grave offense
which is the basis of the vindication) and when the latter attempted to talk with the victim,
he refused to deal with the accused (this is the basis of passion and obfuscation).
Passion or obfuscation compatible with lack of intention to commit so grave a wrong (P
vs Cabel, 5 CAR [2s] 507, 515), but, it is incompatible with treachery.
Reason: While in the mitigating circumstance of passion or obfuscation the offender
loses his reason and self-control, in the aggravating circumstance of treachery, the mode of
attack must be consciously adopted. One who loses his reason and self-control cannot
deliberately employ a particular means, method or form of attack in the execution of a crime
(P vs Wong, 18 CAR [2s] 934). In other words, where treachery is established, passion or
obfuscation cannot be appreciated in favor of the accused.

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Re No. 7. Voluntary surrender and voluntary plea of guilty.
Requisites of voluntary surrender:
1. Must be coupled with an admission of the act (killing) or a desire to own the
responsibility for the act (of killing). P vs Canoy, 90 Phil 633; P vs Rogales, 6 SCRA 830).
a. Although in surrendering the firearms to the authorities, it is not clear whether the
accused also sought to surrender his person to the authorities, the accused is given the benefit
of the doubt - voluntary surrender appreciated in his favor (P vs Jereza, 189 SCRA 690, 691).
b. Where the accused threw away the knife that he used in stabbing the victim which
he did out of fear, as he himself testified, this goes against the voluntariness and spontaneity
of his surrender (P vs Deopante, 263 SCRA 691, P vs Santillana, L-127815, June 9, 1999).
2. The surrender must be spontaneous, that is, the idea of an inner impulse, acting
without external stimulus.
a. The conduct of the accused, not his intention alone, after the commission of the
offense, determines the spontaneity of the surrender. Hence, not mitigating where the
surrender was initiated by the accuseds father (P vs Santos, 85 SCRA 630). But, there is
spontaneity even if the surrender is induced by fear of retaliation of the victims relatives.
b. Actual spontaneous surrender to the authorities must be proven. In order that
voluntary surrender may be appreciated, it is necessary that the same be spontaneous in such
manner that it shows the intent of the accused to surrender unconditionally to the authorities,
either because he acknowledges his guilt or because he wishes to save them the trouble and
expense necessarily incurred in his search and capture (P vs Sakam, 61 Phil 27, P vs
Villasenor, 35 SCRA 460).
c. It must be proven that the accused freely placed himself at the disposal of the lawenforcing authorities. So the fact that the accused did not escape nor go into hiding after the
commission of the crime of murder and in fact he accompanied the chief of police to the
scene of the crime without however surrendering to him and admitting complicity in the
killing did not amount to voluntary surrender to the authorities x x x (P vs Canoy, 90 Phil
633, P vs Rubinial, 110 Phil 119). It was further held in the Canoy case that where the
accused was arrested by the chief of police in his employers house to which that officer was
summoned and it does not appear that the chief of police was sent for by the accused himself
so that he could surrender to the said peace officer, voluntary surrender to the authorities
cannot be appreciated. (Aquino, The Revised Penal Code, 1987 Ed, Vol 1, p 281).
d. The fact that the accused-appellant did not resist but peacefully went with the
policemen does not mean that he voluntarily surrendered (P vs Ramilla, 227 SCRA 583). For
voluntary surrender to be appreciated, the law does not require that the same be effected prior
to the issuance of the warrant of arrest. But, in P vs Mabuyo (63 SCRA 532), it was held:
The fact that it took the accused almost nine months (or, after two years and five months in P

69
vs Pagsanjan, 221 SCRA 735, 737) after the issuance of the warrant of arrest against him
before he presented himself to the police authorities negates the spontaneity of his surrender.
e. Voluntary surrender is appreciated where the records do not show that the accused
(charged with malversation) was arrested prior to his posting of a cash bail bond (Valle vs
Sandiganbayan, L-97651, Oct. 13, 1992, EN BANC, 214 SCRA 532).
f. Voluntary surrender appreciated where three (3) days after the death of the
victim, the accused read in the local newspaper that the victim had six children. This
bothered his conscience, prompting him to go to the police and admit his guilt. Held:
Voluntary surrender was spontaneous. (P vs Boquilla, L-136145, March 8, 2002
g. We disagree with appellees (State through the SOLGEN) submission that there
was no voluntary surrender as Sion (accused-appellant) surrendered to a mere barangay
kagawad or sangguniang barangay member, and not to the police authorities, implying that
the former is not a person in authority. This ignores Sec 338, Local Government Code which
expressly provides that for purposes of the RPC, the punong barangay, sangguniang members
and members of the lupong tagapamayapa in each barangay shall be deemed as person in
authority in their jurisdiction (P vs Federico Sion, et al, Aug 11, 1997).
Plea of guilty, requisites:
1. It must be made prior to the presentation of the evidence for the prosecution.
Even if the first witness presented by the prosecution had not finished testifying during the
direct examination when the accused withdrew his former plea of not guilty and substituted
it with the plea of guilty, the plea is not mitigating (P vs Lambino, 103 Phil 504). In other
words, the testimony of the first witness for the prosecution need not be completed, i. e., the
direct, the cross, the redirect, and recross need not be completed so as to bar the plea of guilty
from being considered as mitigating.
2. Withdrawal of plea of not guilty and pleading guilty before presentation of
evidence by the prosecution is still mitigating, provided this is done before the prosecution
begins presenting its first witness.
What is the legal effect of a plea of guilty to a lesser offense?
Ans. It depends. The plea being qualified, the same is not mitigating (P vs Noble
(77 Phil 93). It is believed that this rule still applies under the plea-bargaining scheme
authorized in Sec. 2, Rule 116 of the 2000 Rules on Criminal Procedure, although as to
whether the plea be appreciated as a mitigating circumstance could be the subject of
stipulation during the plea bargaining.
Exception: Charged with murder, upon arraignment, the accused entered a plea of
guilty to homicide and he did not admit the existence of evident premeditation which was
alleged in the information as the qualifying aggravating circumstance. During the trial, the
prosecution could not prove evident premeditation. Held: Plea of guilty is mitigating. It is

70
not the fault of the accused that the prosecutor filed the wrong information. (P vs Limosnero,
147 SCRA 232; P vs Yturriaga, 86 Phil 534).
Plea of guilty is not mitigating in culpable felonies.
Art. 365 par. 5 expressly provides: In the imposition of these penalties, the courts
shall exercise their sound discretion, without regard to the rules prescribed in Art. 64. Art.
64, on the other hand, mandates that mitigating and aggravating circumstances shall be
observed by the courts in the imposition of penalties which contain three (3) periods.
Re No. 10. Analogous mitigating circumstances.
Examples of analogous mitigating circumstances:
1. Over 60 years old with failing eyesight as similar to over 70 years of age (par. 2);
2. Esprit de corps, similar to passion and obfuscation;
3. Voluntary restitution of stolen property, similar to voluntary surrender;
4. Extreme poverty and necessity, similar to incomplete justification based on state of
necessity;
5. The act of the accused in testifying for the prosecution without being discharged
as a state witness as being analogous to plea of guilty (P vs Navasca, 76 SCRA 70).
Where the accused pleaded guilty, his remorse or repentance for his crime cannot be
admitted as an analogous mitigating circumstance.
x x x Reason for this is that remorse or repentance is included in plea of guilty.
Thus, in P vs De la Cruz (63 Phil 874), we held that a confession of guilt constitutes a cause
for the mitigation of the penalty because it is an act of repentance and respect for the law. It
indicates a moral disposition in the accused favorable to his reform (P vs Gravino, 122 SCRA
123, 125).
The following are not mitigating:
1. Condition of running amuck.
2. Good public record of the accused, that is, that he is a hero.

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Circumstances which are neither exempting nor mitigating:
1. Mistake in the blow (Art 4).
2. Mistake in the identity of the victim (Art 4 par 1). However, this is subject to the
provisions of Art. 49.
3. Entrapment of the accused.
4. Accused is over 18 years of age.
5. Performance of righteous action.
Mitigating circumstances are personal to the offenders (Art 62 No. 3). Exception:
Art 333 where the accused wife is unjustifiably abandoned by the husband. The wife
commits adultery. HELD: Both accused are entitled to the mitigating circumstance.
Reason: Unity of the act of adultery, that is, the crime cannot be committed by the wife
alone (P vs Avelino, CA).
Comment: This decision is, however, of doubtful validity
considering Art. 62 No. 3 which provides: 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.
ART. 14. Aggravating circumstances.
Re No. 1. Taking advantage of public position.
Case. Where the Municipal Mayor falsifies the police blotter by deleting from the
entry therein recording the names of those persons arrested in a police raid of an illegal
gambling game the name of his political follower who was included therein.
Held: The crime committed by the mayor is falsification by private individual under
Art 172, RPC (P vs Ponferrada, 54 Phil 68, P vs Segovia, 54 Phil 75) and not falsification
by public officer under Art 171, RPC, but with the aggravating circumstance of taking
advantage of public position. Precisely, the mayor had access to the police blotter because
of his public position which he took advantage of. Although a public official, the mayor did
not commit the crime under Art 171 because for this crime to be committed, the accused
must take advantage of his official (not public) position. And, an offender may be said to
take advantage of his official position if (a) he has the duty to make or to prepare or
otherwise intervene in the preparation of the document, or (b) he has the official custody of
the document which he falsifies (P vs Santiago Uy, 53 O. G. 7236; US vs Inosanto, 20 Phil
376).

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Connect with Art 14 No. 4. Abuse of confidence.
Case. Where a co-boarder living in the same room of the victim stole the things of
the victim at the time the latter was away.
Held: The crime committed is only simple theft under Arts. 308 and 309 and not
qualified theft under Art 310 but with the aggravating circumstance of abuse of confidence.
For the crime to be qualified theft, the qualifying aggravating circumstance is grave abuse of
confidence which exists only if, as between the offender and the offended party, there is a
relation of dependence, guardianship or vigilance, absence of which, the crime is only
simple theft with abuse of confidence as aggravating (P vs de la Cruz y Amada, 82 Phil 388,
US VS Koc Song, 63 Phil 369).
Connect with Art. 14 No. 19. Breaking of a wall, roof, floor, door, or window.
Case. Where the offender destroyed a portion of the glass wall of a jewelry store
and after making an opening he inserted his hand and got a valuable necklace.
Held: The crime committed is only simple theft with breaking of a wall as an
aggravating circumstance and not robbery with force upon things. For the crime to be
robbery, after breaking the wall (roof, floor, door or window), the culprit should enter the
house or building in which the robbery is committed. Inserting a hand inside the store is not
equivalent to the phrase shall enter the house or building in which the robbery is
committed as provided in Art 299 (a) (1) which connotes the idea that the culprit himself
(and not only his hand, a part of a persons body) enters the building.
Go back to Art 14 No. 1. Taking advantage of public position.
Failure in official duties is tantamount to taking advantage of public position. Thus,
the fact that the defendant was the vice-mayor of the town at the time he voluntarily joined a
band of brigands made his liability greater (US vs Cagayan, 4 Phil 424). However, in P vs
Pacifico Sumaoy, et al, Oct 22, 1996, it was held that if the accused could have perpetrated
the crime without his position, then there is no abuse of public position. Sumaoy was
reiterated in P vs Joyno, March 15, 1999. It is therefore believed that US vs Cagayan does
not state the correct rule because anyone, not necessarily a public official (vice-mayor) can
join a band of brigands. In fact, taking advantage of official position was not appreciated
where a Congressman resisted arrest in a gambling den. Reason: An ordinary person would
have resisted just as stoutly (P vs Jose Veloso, 48 Phil 169).
Considered inherent in robbery with intimidation where accused was a PC sergeant
(police officer, NBI, other law enforcer). Reason: Taking advantage of public position being
part of the intimidation employed by the accused ( US vs Rabadillas, 2 Phil 423).
VERY IMPORTANT. Taking advantage of public position not ordinary or generic
aggravating circumstance. (Neither is it qualifying).

73
Art. 62 (1) (a) provides: 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. (As amended by Sec. 23 of RA 7659). This is the
same rule applicable to quasi-recidivism (Art. 160, RPC) and complex crime (Art. 48, RPC).
Re No. 2. With contempt of or with insult to public authorities.
Is the Chief of Police included in the term public authorities (also called persons in
authority)?
Ans. Yes. In P vs Regala (113 SCRA 613), the SC expressly abandoned Siojo and
Verso holding that agents of persons in authority are embraced in the term public
authorities. In the Regala case, the SC likewise held that the Chief of Police is a person in
authority. (Note: In P vs Siojo, 6l Phil 307, P vs Verso, et al, 21 SCRA 1403, the SC
simply considered the Chief of police as an agent of a person in authority).
Teachers, professors, supervisors of public and duly recognized private schools,
colleges and universities, as well as lawyers are persons in authority only for the purpose of
Direct Assault (Art 148) and Simple Resistance and Disobedience (Art 151), but not for
the purpose of the aggravating circumstance in par 2 of Art 14, RPC. In other words, the
aggravating circumstance that the crime be committed in contempt of or with insult to the
public authorities is not appreciated even where a crime is committed in the presence of
teachers, professors, etc (P vs Tac-an, 182 SCRA 601). Note: The opening sentence of par 3
of Art 152, reads as follows: In applying the provisions of Arts. 148 and 151 of this Code,
teachers, professors, x x x (shall be deemed persons in authority).
Re No. 3. Rank, age, sex, and dwelling.
When all the four aggravating circumstances (of rank, age, sex, dwelling) are present,
must they be considered as one?
Ans. Yes (Albert). Note: In connection with No. 6 (Art 14) where there are three
circumstances enumerated (nighttime, uninhabited place and band) the Supreme Court of
Spain in its decision of April 5, 1884 held that the said circumstances shall only be treated as
one. However, in its decision of April 27, 1897, it held that they may be considered
separately when their elements are distinctly perceived and can subsist independently,
revealing a greater degree of perversity (P vs Santos, et al, 91 Phil 320, Note: Text of the
decision is in Spanish; P vs Cunanan, 110 Phil 313). Take note of the different rule in the
aggravating circumstances of nighttime, uninhabited place and band (Art. 14 No. 6, infra).
Insult or disregard to the victims age, rank or sex, taken into consideration only in
crimes against persons or honor. Not in crimes against property, including robbery with
homicide (P vs Ga, 186 SCRA 790, P vs. Punzalan, et al, prom Nov 8, 1991.
.

74
Compare the Ga case with P vs Solis (182 SCRA 182) wherein it was held that
although evident premeditation is inherent in robbery, the same may be appreciated against
the offenders if the evident premeditation included the killing of the victim.
Of the age of the offended party explained.
This circumstance applies to tender age as well as to old age. This circumstance was
applied in a murder case where one of the victims was a boy of 12 years (US vs Batag, 38
Phil 746).
Rank, age and sex not applicable to the following cases:
1. When the offender acted with passion and obfuscation.
2. When there exists a relationship between the offended party and the offender.
Where the accused (husband) and the offended party (wife) were divorced and they had a
misunderstanding regarding the custody of their child which precipitated the act of the
husband in shooting his former wife.
3. When the condition of being a woman is indispensable in the commission of the
crime, like in parricide, rape, abduction, seduction.
Being a woman need not mean disregard of sex.
The mere fact that the victim was a woman does not justify the appreciation of
disregard of sex as an aggravating circumstance. There must be some specific disrespect
shown to the victims womanhood (P vs Ursal, 121 SCRA 409, 410).
Disregard of sex is absorbed in treachery (P vs Clementer, 58 Phil 742). Disregard of
age, rank or sex, likewise absorbed in abuse of superior strength (P vs Punzalan, et al, prom
Nov 8, 1991.
Requisites for provocation so that dwelling will not be appreciated as aggravating
circumstance:
1. Given by the owner of the dwelling. Note: Considering that the prevailing
doctrine is that dwelling is aggravating even if the same does not belong to the offended
party (P vs Parazo, 272 SCRA 512, En Banc), it is believed that, in spite of the language of
the law, the first requisite should now read: Given by the offended party.
2. Sufficient.
3. Immediate to the commission of the crime.

75
What must be the nature of the building or structure so that the same may be
considered as a dwelling?
Ans. . The building or structure need not be exclusively used for rest and comfort.
Thus, in P vs Gonzales (92 Phil 1078) and in P vs Masilongan (l04 Phil 621), the SC
appreciated dwelling as an aggravating circumstance although a store was used as a dwelling
(P vs Valdez, et al, 64 Phil 860; US vs Bondal, 3 Phil 89). And, in P vs Brioso, et al, 155
SCRA 463, the SC appreciated dwelling as an aggravating circumstance although the victims
were just residing in a make-shift shed. The foregoing stand of the Supreme Court in effect
abandoned its earlier ruling holding that a combination house and store (P vs Magnaye, 89
Phil 233) or a market stall where the victim slept is not a dwelling (Reyes).
When the deceased had two houses where he used to live, the commission of the
crime in any of them is attended by the aggravating circumstance of dwelling. (Note: Under
the Family Code, where a person has two or more houses, he can only have one family
home).
1. Even if the offender did not enter the dwelling, this circumstance applies.
Where the victim was inside his house but the offender shot him from the outside (P
vs Perreras, L-139622, 31 July 2001, P vs Morial, L-129295, 15 August 2001).
2. Even if the crime was actually committed outside of the dwelling, this circumstance
applies.
a. Thus, even if the killing took place outside the dwelling, it is aggravating provided
the commission of the crime was begun in the dwelling. But, dwelling was not aggravating
in a case where the deceased was called on from his house and he was murdered in the
vicinity of his house (P vs Lumasag, 56 Phil 19).
b. Dwelling is still aggravating where the victim was dragged from the kitchen of
her dwelling and raped in a nearby house (P vs de la Torre, L-98431, 15 Jan. 2002).
What dwelling includes.
It includes the dependencies, the foot of the staircase and the enclosure under the
house (P vs Alcala, 46 Phil 739). However, if the deceased was only about to step on the
first rung of the ladder when he was assaulted, this aggravating circumstance is not
applicable (P vs Sespene, et al, 102 Phil 199).
Instances wherein dwelling is not aggravating:
1. When both the offender and the offended party are occupants of the same house
(US vs Rodriguez, 9 Phil 136), and this is true even if the offender is just a servant in the
house (P vs Caliso, 58 Phil 283). Exception: In adultery (US vs Ibaez, 33 Phil 611).

76
Exception to the exception: Where the paramour also lives in the same house. But, in this
case, the aggravating circumstance is abuse of confidence (US vs Destrito, 23 Phil 28).
2. Dwelling was aggravating in a murder case where the offender and the offended
party lived in the same house but in different rooms or apartments . Reason: The apartments
may be treated as separate dwellings (US vs Chu Ning Co, L-3418, March 8, 1907, 7 Phil
710). However, in People vs Punzalan, et al, L-78853, Nov. 8, 1991, First Div., it was
held: Dwelling should be disregarded because the accused x x x all resided in the servants
quarter of Mrs. Fules (victim) residence. The servants quarter may be assimilated to the
victims house, the former being an appendage of, or attachment to, the latter. Comment:
Take note that neither Chu Ning Co nor Punzalan is doctrinal. Hence, either approach may
be made for the purpose of the BAR.
3. In robbery by the use of force upon things. However, dwelling is aggravating in
(a) robbery with violence or intimidation and (b) robbery with homicide (P vs Veloso, 112
SCRA 173, P vs Pareja, et al, L- 88043, Dec. 9, 1996).
4. In trespass to dwelling.
5. When the owner of the dwelling (offended party) gave sufficient and immediate
provocation.
Q. Is dwelling aggravating if the same does not belong to the offended party?
Ans. Yes (P vs Basa, 83 Phil 622), where the victims were guests. Reason: RPC
speaks of dwelling not domicile. It does not mean that the victim owns the place where he
lives or dwells, be he a lessee, boarder, or a bed spacer (P vs de la Torre, L-98431, Jan. 15,
2002). The Basa case was reiterated in P vs Parazo, 272 SCRA 512, EN BANC, prom on
May 14, 1997. The case of P vs Ramolete (56 SCRA 66), where it was held that dwelling
was not aggravating because the victim was only a visitor at the place where the crime was
committed is now obsolete.
Dwelling not included in treachery.
Although nighttime (P vs Catapang, L-128126, June 25, 2001, First Div.) and abuse
of superior strength are always absorbed in the qualifying circumstance of treachery,
dwelling cannot be included therein (P vs Ruzol, L-8699, Dec. 26, 1956, 100 Phil 537).
Although an EN BANC decision, Ruizol did not give the reason why dwelling is not
absorbed in treachery.
Re No. 4. Obvious ungratefulness, that is, manifest and clear.
This circumstance exists when a visitor commits robbery or theft in the house of the
host (Reyes). But, in Mariano vs People (68 Phil 724), the act of stealing the property of the
host was considered as committed with abuse of confidence.

77
Re No. 5. Crime committed in palace of Chief Executive, or in his presence, or where
public authorities are engaged in discharge of duties, or place dedicated to religious
worship.
Place where public authorities are engaged in the discharge of their duties (par 5),
distinguished from contempt or insult to the public authorities (par 2):
1. In both, the public authorities are in the performance of their duties.
2. Under par 5, the public authorities who are in the performance of their duties must
be in their office; in par 2, the public authorities are performing their duties outside of their
office.
3. Under par 2, the public authorities should not be the offended parties; under par 5,
they may be the offended parties (US vs Baluyot, 40 Phil 395).
REMEMBER: Under the third distinction, where a public authority is the offended
party, the crime would be Direct Assault but the aggravating circumstance of contempt of or
with insult to the public authority is absorbed in the crime the same being inherent in the
definition of the crime of Direct Assault. Hence, the aggravating circumstance of contempt
of or with insult to the public authority could no longer be appreciated against the offender.
On the other hand, where a public official is assaulted inside his office, the crime is Direct
Assault and where public authorities are engaged in the discharge of their duties can still be
appreciated against the offender for the reason that the place (where public authorities are
engaged in the discharge of their duties) is not inherent in the crime of Direct Assault.
Official or religious functions, not necessary.
The place of the commission of the felony (par 5) if it is Malacaang Palace or a
church, is aggravating, regardless of whether State or official or religious functions are being
held.
The Chief Executive need not be in Malacaang Palace.
His presence alone in any place where the crime is committed is enough to constitute
the aggravating circumstance. (Art. 14 No. 5). This aggravating circumstance is present
even if he is not engaged in the discharge of his duties in the place where the crime is
committed (Reyes). Hence, be careful. The facts of the problem may state that the President
is in a house of his/her friend to attend the birthday party of the latter. If a crime be
committed in his/her presence, the aggravating circumstance of the crime being committed
in the presence of the Chief Executive is present.
Re place dedicated to religious worship.
Church, Yes, but cemetery, No. For this aggravating circumstance to apply, the
offender must have the intention to commit a crime when he entered the place. Thus,

78
where the offender inflicted physical injuries on a priest because the latter insulted him inside
the church, this aggravating circumstance is not present (P vs Jaurigue, 76 Phil 174).
Re No. 6. Nighttime, uninhabited place or band. Requisites:
l. When it facilitated the commission of the crime. This is the Objective Test;
2. When specially sought for by the offender to insure the commission of the crime
or for the purpose of impunity (P vs Pardo, 79 Phil 568). This is the Subjective Test;
3. When the offender took advantage thereof for the purpose of impunity (P vs
Matbagon, 60 Phil 887).
For the purpose of impunity, defined.
To prevent his (accuseds) being recognized, or to secure himself against detection
and punishment (P vs Matbagon, supra).
Nighttime, defined.
That period of darkness beginning at the end of dusk and ending at dawn. Nights are
from sunset to sunrise (Viada; Art 13, NCC).
Nighttime by and of itself not an aggravating circumstance.
Not aggravating when crime began at daytime (P vs Luchico, 49 Phil 689). For it to
be aggravating, the commission of the crime must begin and be accomplished in the
nighttime. So that if accomplished during daytime, nighttime is no longer aggravating (US
vs Dowdell, et al, 11 Phil 4).
Not aggravating when the place of the crime is illuminated by light (P vs Joson, CA,
62 o. g. 4604). But aggravating even if flashlights were used (P vs Rogelio Soriano, et al,
122 SCRA 740) or where the victim lit a match stick (P vs Berbal, 176 SCRA 202, 204).
Not aggravating where accused called on the victims house (P vs Talay, 101 SCRA
332). Here, after the call was made, the widow of the victim saw the two accused with guns.
She could have told her husband (victim) what she saw. And so, when the victim opened the
door, he must have done so with caution as his natural reaction. No treachery.
Nighttime not appreciated as aggravating circumstance where there was only a
chance or accidental encounter between the victims and the malefactors during nighttime (P
vs de los Reyes, 203 SCRA 707, 708).

79
What is an uninhabited place?
Ans. According to Reyes, it is one where there are no houses at all, a place at a
considerable distance from town, or where the houses are scattered at a great distance from
each other. This was also the thinking of the Supreme Court and of the Court of Appeals in
the following old cases when they respectively held: A place about a kilometer from the
nearest house or other inhabited place is considered an uninhabited place (P vs Mendova, et
al, 100 Phil 818), or some 500 meters away (P vs Atitiw, et al, CA, 66 O. G. 4040).
Recent decisions of the Supreme Court, no longer consider distance as controlling.
Thus, in People vs Desalisa, 229 SCRA 35, 36, the SC held: An uninhabited place
is determined not by the distance of the nearest house to the scene of the crime but whether
or not in the place of the commission, there was reasonable possibility of the victim receiving
some help. Thus, it was held that this aggravating circumstance was present where the crime
was committed on the sea (US vs Angeles, 6 Phil. 480, cited in US vs Alim, et al, EN BANC,
38 Phil. 1). In People vs. Ely Cabiles, 248 SCRA 207, it was held: The term uninhabited
place (despoblado) refers not to the distance of the nearest house to the locus criminis. The
more important consideration is whether the place of commission affords a reasonable
possibility for the victim to receive help. For despoblado to be aggravating, it must be
established that solitude was purposely sought or taken advantage of to facilitate the
commission of the crime. Comment: This must be so because the place where a crime may
be committed though far from houses is a place where persons or even vehicles usually pass
by. Hence, in this case, uninhabited place is not aggravating.
Q. What is a band?
Ans. Whenever more than three armed malefactors shall have acted together in the
commission of an offense, it shall be deemed to have been committed by a band.
For the purpose of band, a stone is considered arm (P vs Bautista, 28 SCRA 184,
cited in P vs Manloto, 169 SCRA 394, 395); also clubs (US vs de la Cruz, et al, 12 Phil 87).
If one of the four armed persons is a principal by inducement (and does not take part
in the actual commission of the offense), they do not form a band. All the armed men, at
least four in number, must take direct part in the execution of the act constituting the crime
(Art 17, par 1). Also, where the information alleged that all four defendants (robbers) were
armed, but after trial one of them was acquitted, there could be no aggravating circumstance
of band (P vs Estante, Jr., 92 SCRA 122).
By a band is aggravating in crimes against property or against persons or in the crime
of illegal detention or treason.

80
Connect with Art. 306. Who are brigands.
Instance where band is a crime.
Brigandage is the crime of mere formation of a band for the purpose of committing
robbery in the highway, or kidnapping persons for the purpose of extorting ransom, or for
any other purpose to be attained by force and violence.
Here, band is no longer an
aggravating circumstance. It is the crime in itself. However, the moment the brigands
commit a crime, brigandage is no longer punished as a crime. It is only treated as the
aggravating circumstance of band.
The foregoing rule
is the same as the rule in conspiracy to commit treason
(rebellion, coup detat, and sedition), which is a crime in itself. The moment, however, the
crime of rebellion (etc.) is committed, only the said crime is punished and conspiracy is
considered only for the purpose of determining collective responsibility of the malefactors.
Cuadrilla (band) should be distinguished from the following:
1. An organized/syndicated crime group as defined in Sec. 23 of RA 7659 (the
Heinous Crimes Law) as a group of two or more persons collaborating, confederating or
mutually helping one another for the purpose of gain in the commission of any crime. If a
felony is committed by a syndicated or organized group, the maximum of the penalty shall
be imposed.
2. Under Sec. 4(4) of PD 1613, the Arson Law, (only impliedly repealed by RA
7659 under its Sec. 26), the penalty for arson shall be imposed in the maximum period if the
offense is committed by a syndicate. The crime is committed by a syndicate if planned or
carried out by a group of three or more persons. This is a special aggravating circumstance.
Nighttime, uninhabited place and band may be treated as distinct aggravating
circumstances when they appear to be independent of each other (P vs Cunanan, 110 Phil
313, P vs Santos, et al, 91 Phil 320). Take note of the different rule in the aggravating
circumstances of disregard of rank, age, sex and dwelling (Art. 14 No. 3, supra).
Re No. 7. Re calamity or misfortune.
Take note of the following apparently conflicting decisions of the SC:
1. P vs Lareza (73 Phil 658). The commission of robbery in wartime was considered
aggravating. Comment. The decision appears to be a minute resolution. No reason given.
It is believed this is no longer controlling at present considering that recent decisions of the
SC are to the effect that a circumstance not included in Art. 14, RPC cannot be treated as an
aggravating circumstance for the reason that, unlike Art. 13, Art. 14 does not include
analogous aggravating circumstances.

81
2. P vs Quemuel (76 Phil 135). But, the abnormal conditions immediately following
the liberation (2nd World War) were considered as analogous mitigating circumstance in the
crime of illegal possession of firearms.
Comment. It is believed that there really is no conflict between the Lareza and
Quemuel cases. In the former, the crime committed was robbery. There was intent to gain
and the crime involved moral turpitude. In the latter, the intention of the offender could have
been self-defense which is even a justifying circumstance.
Connect with Art 310. Qualified theft.
If the crime of theft is committed on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular accident or civil disturbance, the theft is
qualified.
Re No. 8. Aid of armed men.
The armed men must take part directly or indirectly in the commission of the offense
as accomplices, like acting as look-out (US vs Abaigar, 2 Phil 417). However, the principals
must not conspire with the armed men, otherwise, the latter themselves become principals.
Thus, this aggravating circumstance is 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 (P vs Piring, 63 Phil 546).
Aid of armed men distinguished from band (par 6).
1. By a band requires that more than three armed malefactors shall have acted
together in the commission of an offense. Aid of armed men is present even if one of the
offenders merely relied on their aid, for actual aid is not necessary.
2. Aid of armed men is absorbed in by a band. If there are four armed men, aid of
armed men is absorbed in by a band. If there are only three or less armed men, aid of armed
men may be aggravating.
Re Nos. 9 & 10. The four forms of repetition:
1. Recidivism (Art 14 No. 9),
2. Reiteracion or habituality (Art 14 No. 10),
3. Multi-recidivism or habitual delinquency (Art 62 No. 5), and
4. Quasi-recidivism (Art 160).

82
Recidivism, explained.
1. Recidivist, defined. A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of another crime embraced in the
same title of this (RPC) Code, no matter how many years had intervened (P vs Colocan,
60 Phil 898).
2. Although recidivism requires that both crimes be embraced in the same title of the
RPC, applying Art 10 of the RPC (as reported in the book of Justice Reyes) recidivism was
considered aggravating in a usury case (P vs Hodges, L-45446, May 25, 1939, 68 Phil 178).
Comment: A reading of the text of Hodges, however, shows that, actually the aggravating
circumstance appreciated by the SC against the accused was reiteracion or habituality (Art.
14 No. 10).
Although the Usury Law is still suspended at present, the Hodges ruling
applies to other offenses punished by special laws.
REMEMBER. The aggravating
circumstance applicable is reiteration or habituality (not recidivism).
3. But, there is no recidivism if the judgment for the previous case is still on appeal.
Reason for this is that the judgment in the previous case (another crime) is not yet a final
judgment which is a requisite for recidivism.
4. Neither is there recidivism if the subsequent conviction is for an offense
committed before the offense involved in the prior conviction. (P vs Baldera, 86 Phil 189).
Reason: This particular aggravating circumstance is based on the greater perversity of the
offender, as shown by his inclination to crimes. If the crime subject of the subsequent
conviction was committed before, there is no such showing.
Effect of pardon on recidivism.
Even an absolute pardon does not obliterate the fact that the accused was a recidivist,
because pardon only excuses the accused from the service of the penalty but not the effects of
conviction. Comment: It is believed that, likewise, an absolute pardon cannot erase the fact
that the crime for which the accused was convicted involved moral turpitude which
disqualifies the offender from being a candidate to a local elective position pursuant to the
provisions of Sec. 40(a) of RA 7160. (Rolando P. Dela Torre vs Comelec, et al., L-121592,
July 5, 1996, EN BANC).
However, if the offender had already served the sentence at the time he was extended
an absolute pardon, the pardon shall erase the effects of conviction including recidivism
because there is no more penalty to pardon. It can therefore be inferred that the purpose of
the pardon is to erase the effects of the crime.
Compared with the effect of amnesty.
On the other hand, amnesty extinguishes the penalty and its effects, hence, in this
case, the felony subject of the amnesty would not be considered for the purpose of
determining whether the accused is a recidivist (US vs Sotelo, 28 Phil 147, US vs Francisco,
10 Phil 185).

83
Recidivism compared with quasi-recidivism.
Recidivism

Quasi-recidivism

1. Both the prior and the present crimes 1. It is enough that the second crime is a
shall be embraced in the same title of the felony (that is, punished by the RPC). But
RPC;
the first offense may be punished by a
special law (P vs Peralta, 113 Phil 201).;
2. May be offset by an ordinary (generic) 2. Cannot be offset by a mitigating
mitigating circumstance;
circumstance (P vs Villacores, 97 Phil 567,
P vs Buynay, 128 SCRA 31), except by a
privileged mitigating circumstance;
3. The first and the second crimes may be 3. The first and the second crimes may
the same crimes;
likewise be the same crimes, in spite of the
word another in the epigraph of Art 160,
provided the second crime is punished by
the RPC (P vs Yabut, 58 Phil 499);
4. Where the offender is previously
convicted in a final judgment of homicide
and in the second crime for robbery with
homicide, he is not a recidivist because the
first crime is a crime against person while
the second crime is a crime against
property (i. e., the prior and present crimes
are not embraced in the same title of the
RPC (P vs Asibar, 117 SCRA 856).

4. Where the offender is previously

convicted in a final judgment of homicide
and in the second crime for robbery with
homicide, the accused may be a quasirecidivist (P vs Balictar, 91 SCRA 500, P
vs Perete, 1 SCRA 1290).

Recidivism inherent in quasi-recidivism (P vs Yabut, 58 Phil 542) and habitual

delinquency.
1. In other words, where quasi-recidivism is appreciated against the accused,
recidivism cannot be appreciated as a separate aggravating circumstance.
2. While recidivism is likewise inherent in habitual delinquency (P vs Ocampo, 100
Phil 513), it shall be considered as aggravating circumstance in the imposition of the
principal penalty (P vs Espina, 62 Phil 607), otherwise, it may result in a lighter penalty
which defeats the purpose of the additional penalty for habitual delinquency. However,
being inherent in habitual delinquency, recidivism shall no longer be appreciated for the
purpose of imposing the additional penalty for habitual delinquency.

84
Parolee for crime of homicide is quasi-recidivist if he commits another felony while
still on parole (P vs Balictar, 91 SCRA 500, P vs Perete, 1 SCRA 1290).
Reason for this is that, during the period of his parole, a parolee is actually serving
his sentence for the previous crime although he is serving it outside of jail. With due respect,
it is believed that the contrary answer prepared by UP to a Bar Question in 1991 is wrong.
Reiteracion or habituality, explained.
The offender has been previously punished (served sentence) for an offense to which
the law attaches (attaches means the penalty provided for by law, not the penalty actually
imposed by the court) an equal or greater penalty or for two or more crimes to which it
attaches a lighter penalty.
Habitual delinquency and Recidivism, compared.
Habitual delinquency
1. At least three (3)
required;

Recidivism

convictions are 1. Two (2) convictions by final judgment

will suffice;

2. The crimes are specified (serious or less 2. Crimes not specified - enough that they
serious physical injuries, robbery, theft, be embraced in the same title of the RPC;
estafa, and falsification);
3. A time limit is fixed - not more than 10 3. No fixed period within which the
years between the first and the 2nd convictions must be had.
It is
conviction; and between the 2nd and 3rd imprescriptible; and
conviction, and so on. Each subsequent
conviction must come within 10 years from
the preceding conviction OR release of the
offender from the penalty thereof; and
4. An additional penalty shall be imposed 4. The penalty for the present offense shall
depending on whether it is already the 2nd, be imposed in the maximum period if not
3rd, 4th, or 5th conviction. and so on . . . .
offset by a mitigating circumstance.
Re No. 11. Price, reward or promise.
Q. Is this aggravating circumstance
reward?
Ans. The issue is now settled.

applicable to the one who gave the price or

85
In US vs Alim (L-13312, April 1, 1918, EN BANC, 38 Phil 1), the SC said Yes it
affects both. But in People vs Talledo, et al L-1778, Feb. 23, 1950, EN BANC, (85 Phil
539), the SC said No. The aggravating circumstance of price or reward cannot be
considered against the other accused (principal by inducement) for the reason that it was not
she who committed the crime in consideration of said price or reward. That is, the giver is
not bound by this aggravating circumstance.
Comment: Although Talledo is an EN BANC decision, the ruling therein is only a
sort of an obiter, hence, not doctrinal. Thus, the pertinent portion thereof reads: Neither
may the supposed aggravating circumstance of price or reward be considered against
Leonora for the reason that it was not she who committed the crime in consideration of the
said price or reward. Besides, these aggravating circumstances with the exception of that of
premeditation were not alleged in the information, and were not mentioned or discussed in
the decision appealed, neither were they considered by the Office of the SOLGEN for
purposes of increasing the penalty imposed by the trial court. All that the SOLGEN asks for,
is the confirmation of said decision. x x x
In P vs Caete (129 SCRA 451), the SC said Yes, the aggravating circumstance of
price or reward affects not only the person who received the money or the reward but also the
person who gave it.
Comment: What is disturbing in this case (Caete) is that the SC cited for its
authority the Talledo case wherein the SC said No. It is believed that Caete should have
cited People vs Alincastre (L-29891, Aug. 30, 1971, EN BANC, 40 SCRA 391).
The case of People vs Alincastre, supra.
Held: Citing People vs Talledo (L-1778, Feb. 23, 1950), it is urged - under
appellants sixth assignment of error - that the aggravating circumstance of price or reward
should not be considered against Mamerto Lorenzo (the giver), inasmuch as it was not he,
but Nenito Alincastre (recipient), who committed the crime in consideration of a price or
reward. We find no merit in this pretense. The Talledo case is not authority on this
question. The relevant passage in the decision therein was part of the reasons given to
explain why some members of the court - not the majority - believed that the evidence was
not sufficiently strong to warrant the imposition of the death penalty. Besides, in US vs
Maharaja Alim (38 Phil. 1, 7), it was held:
As a price and reward were offered by Maharaja Alim to the other
defendants, this circumstance classifies (qualifies) the crime as murder. As
all the defendants contributed towards the attendance of this circumstance, it
should affect each and all of them (US vs Parro, 36 Phil. 923; US vs Valdez,
30 Phil. 293; US vs Indanan, 24 Phil. 203; Derecho Penal, Vol. II, pp. 117118).

86
Indeed, the established rule in the Spanish jurisprudence is to the effect that the
aggravating circumstance of price, reward or promise thereof affects equally the offeror
and the acceptor. x x x
In fact, under certain conditions - such as those obtaining in the case at bar - the
circumstance under consideration may evince even a greater moral depravity in the offeror
than in the acceptor. x x x
Evident premeditation is absorbed in reward or promise (P vs Ty Sui Wong, 83 SCRA
125).
But the rule is applicable only to the inductor (US vs Manalinde, (L-5292, Aug. 28,
1909, First Div., 14 Phil 77), that is, not absorbed insofar as the one actually committing the
crime is concerned. Thus, where it was agreed to commit the crime in consideration of
reward and after such agreement sufficient time elapsed before the crime is actually
committed, in this case, evident premeditation and price, reward or promise may exist
independently (US vs Rober, 7 Phil 726, US vs Manalinde, supra, P vs Young, 83 Phil 702,
P vs Ulip, 89 Phil 629).
Where a person hiding under the pseudonym NPA Commander Helen has been
extracting money from the accused who hired a co-accused to identity the former and when
said co-accused was able to do so, the first accused stabbed the victim (the one extracting
money), it was held that the promise or reward cannot be aggravating as it was made to
identity a person not to kill her (P vs Iserolaga, 263 SCRA 143).
Re par 12. By means of fire. Compare the following:
1. Art. 326-A, as amended by Sec 5 of PD 1613 and as further amended by RA 7659.
Where the intention of the offender was to commit arson but death resulted, the crime
committed is Arson. The mandatory penalty is death.
2. Art 248 (as amended by RA 7659). Where the intention of the offender is to
commit murder, the crime committed is murder with fire as the qualifying aggravating
circumstance. Here, the penalty is lighter - reclusion perpetua to death.
Regarding the penalties imposed on both crimes, it now appears that we give more
importance to property (arson) than to a persons life (murder).
REMEMBER THIS. While there cannot be a complex crime of arson with
homicide, this is true only where the crime committed is intentional or deliberate. However,
where there is negligence, and someone dies in connection with a building (property) being
burned, the crime is reckless imprudence resulting in arson with homicide (P vs Bueno, 103
Phil 103).
Re No. 13. Evident premeditation. Requisites:

87
1. The time when the offender determined to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination; and
3. A sufficient lapse of time between the determination and execution, to allow him
to reflect upon the consequences of his act.
Q. What is sufficient lapse of time?
Ans. SC decisions are conflicting as to what is sufficient and what is not sufficient
lapse of time. However, from the cases, the following have been considered as sufficient:
1. Four hours (P vs Lazada, 70 Phil 525);
2. Three and one-half hours (P vs Mostoles, et al, 85 Phil 883);
3. More than one-half day (P vs Diaz, 55 SCRA 178).
In the following cases, SC decisions are conflicting:
In People vs Dumdum, Jr. (L-35279, July 30, 1979, EN BANC, 92 SCRA 198), it
was held that one hour was sufficient. But, in People vs Crisostomo (L-38180, Oct. 23,
1981, EN BANC, 108 SCRA 288), the SC did not consider two hours as sufficient.
However, in People vs Boniao (L-100800, Jan. 27, 1993, Third Div., 217 SCRA 653, it was
held that about five (5) hours was sufficient. Boniao cited People vs Mojica (L-17234,
March 31, 1964, EN BANC, 10 SCRA 515), it was held that almost two hours (from 4:15
pm to 6:00 pm, or one hour and forty-five minutes) was sufficient.
Comments: Although an En Banc decision, Crisostomo ([1981] two hours not
sufficient), did not abandon previous rulings on what is sufficient time to appreciate evident
premeditation. Hence, Mojica (1964), also an En Banc decision (one hour and forty-five
minutes was sufficient) and Dumdum, Jr. ([1979] one hour sufficient), likewise an En Banc
decision, were not deemed abandoned.
Q. Where conspiracy is established, may evident premeditation be likewise deemed
established?
Ans. It depends.
Where conspiracy is directly established with proof of the attendant deliberation and
selection of the method, time and means of executing the crime, the existence of evident
premeditation can be taken for granted (US vs Cornejo, 28 Phil 457, P vs Timbang, et al, 74
Phil 295, P vs Custodio, et al, 97 Phil 698, P vs Regallario, 220 SCRA 368). In other words,
there is no need to prove evident premeditation independently of conspiracy.

88
However, when the conspiracy is only implied, evident premeditation may not be
appreciated in the absence of evidence as to how and when the plan to kill the victim was
hatched or what time had elapsed before it was carried out (P vs Custodio, supra, P vs
Peralta, 25 SCRA 759, P vs Pareja, 30 SCRA 693).
Where the actual victim is not the intended victim (error in personae), evident
premeditation is not appreciated against the accused (P vs Guillen, 85 Phil 307).
But the foregoing conclusion is only the general rule. Evident premeditation may
exist even if a person other than the intended victim was killed, if it is shown that the
conspirators were determined to kill anyone who may defend the victim (P vs Belga, 258
SCRA 583). Evident premeditation may likewise exist even if at the time the offender
determined to commit the crime, a definite victim had not been settled upon (P vs Balatucan,
206 SCRA 81, 90), or where the offender premeditated the killing of any person (US vs
Zalsos, et al, 40 Phil 103, or where the accused run amuck (US vs Manalinde, 14 Phil 77).
While inherent in robbery and other crimes against property, evident premeditation
may be appreciated in robbery with homicide (a crime against property) if the premeditation
included the killing of the victim (P vs Nabual, 28 SCRA 747, P vs Manansala, 211 SCRA
66, p VS Solis, l82 SCRA 182).
An important Rule.
If the crime cannot be committed without the offender having to think consciously of
its commission, evident premeditation is not an aggravating circumstance because the
premeditation is inherent in the nature of the crime. Examples: Robbery, theft, estafa, etc.
Re No. 14. Craft, fraud, and disguise, explained.
Q. What is craft?.
Ans. This involves intellectual trickery and cunning on the part of the accused.
Examples: Pretending to be a bona fide passenger of a taxi-cab whose driver is robbed by
the accused. In a case, craft was present as appellant (accused) used victims son-in-law to
call the victim in the middle of the night. x x x had not Romeo cunningly utilized Antonio,
the son-in-law of the victim, to call the latter in the middle of the night, the probability is that
the victim would have been more suspicious of a midnight caller and would not have been
induced to respond (P vs Yap, 125 SCRA 203, 206-207).
Q. What is fraud?.
Ans. Insidious words or machinations used to induce the victim to act in a manner
which would enable the offender to carry out his design.

89
Craft distinguished from fraud.
When there is a direct inducement by insidious words or machinations, fraud is
present; otherwise, the act of the accused done in order not to arouse the suspicion of the
victim constitutes craft. Thus, where the victims in the robbery were riding on their vehicle
and the offenders who were all known to the victims, pretended that they needed a ride.
Held: This is not fraud. Craft was used by the offenders in order not to arouse the victims
suspicion and thus made them vulnerable (P vs P vs Noli Manuzon, et al, Aug 18, 1997).
Q. What is disguise?
Ans. Resorting to any device to conceal identity.
Where the accused covered his face with a handkerchief, that is disguise. But, if in
spite of the use of a handkerchief to cover his face, the culprit was recognized by the victim,
disguise was not considered aggravating (P vs Sonsona, May 25, 1956).
Re No. 15. Abuse of superior strength.
For this aggravating circumstance to be considered, the use of force must be
excessive and out of proportion to the means of the defense (P vs Crisostomo, 160 SCRA
47). Thus, abuse of superiority was present when the victim was simultaneously attacked by
several persons (P vs Plaza, 14 0 SCRA 277). (However, in P vs Sumban, 123 SCRA 218, P
vs Lopez, 132 SCRA 188-189, it was held that treachery was present where several persons
hacked and stabbed their victims).
To consider this aggravating circumstance, it is not enough that the offender is
physically stronger than the offended party, or that the latter is a woman and the offender is a
man. Likewise, mere numerical superiority does not necessarily involve this circumstance.
It is essential that in committing the felony, the offender took advantage of superior strength,
a fact that the circumstance of the case may show. Thus, in P vs Dominador Escoto y Cruz,
May 11, 1995, it was held: All that we can gather from the testimony of prosecution witness
Torno is that after their chance meeting with Robert and immediately following a brief chase,
Dominador and Wilfredo were able to catch up with their victim. Suddenly, Wilfredo
stabbed Robert on the chest and then Dominador also knifed the latter. Although Mabina
stated that pinagtulungan na siya, yet, when asked to elaborate thereon, she could only say
that Dominador held Robert while Wilfredo was stabbing the latter. She could not tell
whether it was a limb or the body of Robert, and correspondingly, which one or what part
Dominador was actually holding, because at that time she was shouting for help. Taking
advantage of superior strength not established. The sketchy evidence for the prosecution
does not provide sufficient basis to convince this Court that the crime was committed by the
offender by intentionally relying on and abusing or taking advantage of their combined
superior strength.
There is no abuse of superior strength when one acted as principal and the other two
acted as accomplices (P vs Cortez, et al, 55 Phil 143). Reason: Where abuse of superior

90
strength is to be appreciated as an aggravating circumstance from the mere fact that more
than one person participates in the offense, it must appear that the accused cooperated
together in some way designed to weaken the defense. This would make them guilty in the
character of principals. However, in P vs Yap (125 SCRA 203, 206-207), it was held: There
was abuse of superior strength because although Herminio did not directly take part in
attacking the victim, he acted as look-out and his presence with a gun prevented anybody
from coming to succor to the victim. Herminio even cocked his gun while Romeo was
mercilessly hacking the victim and pointed the gun at Antonio to ensure non-interference.
Take note of the following:
1. If there are two or more offenders, abuse of superiority implies conspiracy (P vs
Cagod, 81 SCRA 110).
2. Although they are separate and distinct concepts, abuse of superior strength
absorbs band (P vs Medrana, 110 SCRA 130). On the other hand, band absorbs aid of armed
men (Art 14, No. 8).
3. Abuse of superiority is absorbed in treachery; cannot be appreciated as independent
aggravating circumstance when treachery is present (P vs Eleuterio de Leon, et al, Sept 28,
1995).
4. Aid of armed men and abuse of superior strength are absorbed in treachery (P vs.
Pascua, L-130963, Nov. 27, 2001).
Analysis: Consequently, aid of armed men, band and abuse of superior strength, cannot
be appreciated, that is, not one of them can be appreciated, if treachery is present in the
commission of a crime against persons.
By a band and abuse of superiority compared:
1. By a band is appreciated when the offense is committed by more than three (3)
armed malefactors regardless of the comparative strength of the victim(s); the gravamen of
abuse of superiority is taking advantage by the culprits of their collective strength to
overpower their relatively weaker victim(s).
2. In abuse of superiority, what is taken into account is not the number of aggressors
nor the fact that they are armed, but their relative physical strength (might) vis-a-vis the
offended party. Thus, even if there be one malefactor, abuse of superiority may still
exist.
Means be employed to weaken defense.
Aggravating circumstance present where offender caused the intoxication of victim.

91
1. The aggravating circumstance of means be employed to weaken the defense is
present when the offender, who had the intention to kill the victim, made the victim
(deceased) intoxicated, thereby materially weakening the latters resisting power (P vs
Ducusin, 53 Phil 280).
2. When intoxication of victim constitutes treachery. If in his intoxicated state it
was impossible for the victim to put up any sort of resistance at the time he was attacked,
treachery may be considered because in this case the killing was done without risk to the
offender arising from the defense which the victim could have made (P vs Ducosin, supra).
Re No. 16. Treachery, requisites:
1. That at the time of the attack, the victim was not in a position to defend himself;
and
2. That the offender consciously adopted the particular means, method or form of
attack employed by him.
Rules re treachery:
1. Applicable only to crimes against persons.
2. Means, methods or forms need not insure accomplishment of crime. Note: The
law says, to insure its execution.
3. The mode of attack must be consciously adopted. Thus, the accused must make
some preparation to kill the deceased in such a manner as to insure the execution of the crime
or to make it impossible or hard for the person attacked to defend himself or to retaliate; and
the mode of attack must be thought of by the offender, and must not spring from the
unexpected turn of events.
4. Treachery can only be considered as a qualifying circumstance that would affect
the nature of the crime and not as a generic aggravating circumstance that would raise the
penalty to death (P vs Bagano, L-139531, January 31, 2002). Rule: Once a circumstance is
used to qualify a crime, the same could no longer be considered as a generic aggravating
circumstance (P vs Reynes, L-134607, Dec. 12, 2001).
Decisions in connection with the 3rd rule in treachery.
1. Facts: After the victim was shot on the knee and being rendered helpless, he was
then shot to death. Held: Treachery was present. x x x Certainly, the means employed by
the accused (appellants) tended directly and specially to insure the execution of the crime
without risk to themselves arising from any defense which the victim might have made (P vs
Buensuceso, 132 SCRA 143, 144).

92
2. Facts: The shooting of Chapman (victim) was carried out swiftly and left him
with no chance to defend himself. Held: We have consistently ruled that mere suddenness
of the attack on the victim would not by itself, constitute treachery. x x x There is no
evidence on record to prove that appellant consciously and deliberately adopted his mode of
attack to insure the accomplishment of his criminal design without risk to himself. It appears
to us that appellant acted on the spur of the moment. Treachery not present (P vs Teehankee,
Jr., Oct 6, 1995).
3. Held: x x x However, the attack on Hilda, the maid, was unplanned. The accused
instinctively stabbed her as he was about to leave the room of his first victim (Rosita), when
Hilda suddenly appeared at the door and shouted saklolo, which impelled the accused to
strike her at that very instance to keep her silent. We hold there was no treachery in the
killing of Hilda (P vs Manalang, 123 SCRA 583, 584, P vs Calinawan, 83 Phil 647, P vs
Caete, 44 Phil 478).
4. If the meeting between the victim and the accused was a casual one, there is no
treachery even where the victim was shot on the back while running away (P vs Escoto, 144
SCRA 85).
5. Not all sudden attacks are treacherous. Thus, a driver who, after a vehicular
accident, suddenly hits the head of the other driver with a lead pipe is guilty of homicide, not
murder, where the sudden attack is not preconceived and intended to deprive the victim of a
chance to fight or retreat, but is triggered by the sudden infuriation on the part of the accused
because of an act of the victim. Such action is not treacherous (P vs Aguiluz, March 11,
1992).
6. There is no treachery where retaliation was expected (P vs Anin, 64 SCRA 729),
as where the victim was aware of the hostility of the assailants just before the attack (P vs
Rivera, 221 SCRA 647). Reason: By the exercise of a reasonable degree of anticipatory
caution and vigilance, the victim either could or should have been able to defend himself
since he had all the opportunity to do so and could have prepared for or anticipated the
attack. This is so since criminal justice inclines in appropriate cases to the milder form of
liability.
7. Facts: Where advantage was taken by the accused of the relative confusion
created by the shower on the crowd, so that his act and identity would not be detected by the
people in the dance hall, and so that his escape would be facilitated. Held: The fact that the
accused took advantage of the relative confusion so that the act and his identity would not
be detected and so that his escape would be facilitated adequately establishes treachery (P vs
Tillos, Feb 21, 1968).
Treachery appreciated in the following cases:
1. Although the victim sensed that he was being tailed by the accused-appellant and
he was able to turn around and see his attackers, the suddenness of the assault and the

93
immediate infliction of four consecutive stab wounds ensured that he would not be able to
retaliate or defend himself (P v Abajuela, G.R. No. 134484, 30 January 2002)
2. It is immaterial that the victim initially grappled with Campomares (one of the
accused) and was even able to hit the latter with the camera. Crucial is the moment when
Rosita (the other accused) came with a bladed weapon, and with the victim in a sitting
position with his arms raised and held by Campomares, said victim was repeatedly stabbed
by Rosita (P v Campomares, G.R. No. 132568, 6 Feb 2002).
3. That the wife of the victim, and most probably so, the victim himself, noticed that
accused-appellant was carrying a knife, does not negate treachery (P v Orpilla, G.R. No.
118073, 25 January 2002).
4. The alleged animosity between the victim and the accused-appellant as well as
their encounter, which preceded the shooting incident, will not preclude the finding of
treachery (P v Sebastian, G.R. No. 131734, 7 March 2002).
5. The warning that appellant allegedly gave the victim a month before the actual
shooting does not count. It was established that at the time of the shooting, the victim was
totally unprepared for the attack (P v Reynes, G.R. No. 134607, 12 December 2001).
6. Even if the victim may have been forewarned of a possible danger to his person
ten days before his death, the attack was nevertheless treacherous as it was executed in such a
manner as to make it impossible for the victim to defend himself or to retaliate (P v Cabote,
G.R. No. 136143, 15 November 2001).
Evidentiary rules to prove treachery:
1. The general rule is that treachery cannot be appreciated against the accused where
the prosecution could not present any eyewitness surrounding how the killing was done (P
vs Torrejas, 43 SCRA 158, reiterated in P vs Antinomenes Duero, May 22, 1985).
2. Where no particulars are known as to the manner in which the aggression was
made or how the act which resulted in the death of the deceased began and developed, it can
in no way be established from mere suppositions that the accused perpetrated the killing with
treachery. Reason: When the manner of attack was not proven, the defendant should be
given the benefit of the doubt and the crime should be considered homicide only (P vs
Samonte, Jr., 64 SCRA 319). Exceptions:
a. When the victim was tied (P vs Bernida, et al, 17 SCRA 520) elbow to elbow, his
body with many wounds and his head cut off, treachery may be considered, although no
witness saw the killing (US vs Santos, 1 Phil 222). Where the victim was killed while bound
(US vs Cabe, 1 Phil 265, US vs Valdez, et al, 40 Phil 876, P vs Escalona, 111 Phil 494).
b. The killing of a child is murder even if the attack was not shown (P vs Laggui,
CA, 34 O. G. 1708, P vs Valerio, Jr., 112 SCRA 208, P vs Ambuat, 64 Phil 1060), or of
minor children (P vs Abuyen, 213 SCRA 569, 570, P vs Caritativo, April 1, 1996). Reason:

94
Killing a child is characterized by treachery, because the weakness of the victim due to his
tender age results in the absence of any danger to the accused (US vs Oro, 19 Phil 554).
In the following cases, there was evidence on the manner of attack against the victim(s):
1. There is treachery when accused stabbed the victim while the latter was grappling
with another, thus rendering him helpless and unable to put up any defense (P vs Lingatong,
181 SCRA 424, P vs Catalino, Jr. & Rafael Fabrigas, Sept 5, 1996).
2. Facts: Accused (appellant) Buenaventura Gamit held Hilarion Allarde (victim)
fast from behind without saying a word and while in this position, Paulino Valdez (the other
accused) inflicted a wound in the abdomen of the victim with a knife. Held: This position
constitutes a form of aggression tending to insure its execution without any risk to the
aggressor arising from any defense which the deceased might make.
The crime was
committed with treachery (US vs Valdez, 40 Phil 876, 877, prom March 12, 1920) However,
in the recent case of P vs Agapinay, 186 SCRA 812, 813, it was held: Abuse of superior
strength, not treachery, exists where the victims arms were held by two accused while being
stabbed by another accused. Note: What distinguishes the Valdez case from the Agapinay
case is that in the former only one accused held the victim.
Treachery and intent to kill.
Intent to kill is not necessary in murder with treachery (P vs Cagoco, 58 Phil 524).
But, in P vs Pajenado (31 SCRA 812, citing P vs Enriquez, 58 Phil 536), the SC abandoned
the Cagoco ruling. However, in P vs Flores y Malarayap, 252 SCRA 31, prom Jan 18, 1996,
the SC reverted to the Cagoco ruling. Thus, murder may be committed even without intent to
kill on the part of the accused if there is treachery. In this case, however, the accused may
be entitled to the mitigating circumstance of no intent to cause so grave a wrong than that
committed.
Intent to kill is, however, necessary in murder committed by means of fire (US vs
Burns, 41 Phil 418), otherwise, the crime may be arson, that is, even if death results. In other
words, the motive of the accused is determinative of whether the crime is murder or arson.
Must treachery be present in the beginning of the assault?
Ans. It depends.
1. When the aggression is continuing, treachery must be present in the beginning of
the assault (P vs Caete, 44 Phil 478). Not considered even if present in subsequent stage (P
vs Magallanes, July 8, 1997).
2. When the assault was not continuous in that there was an interruption, it is
sufficient that treachery was present at the moment the fatal blow was given (US vs Baluyot,
40 Phil 385).

95
Rules where there two or more persons who are subjects of the attack:
1. Treachery is not present where the assault on one of the victims (which could be
characterized by treachery) must have put the others on guard (P vs Doniego, 9 SCRA 341),
except if the attack on the second victim came in a split second as he ran away (P vs
Gregorio, 255 SCRA 380). Likewise, treachery was present when the victim was running
away when shot from behind. Here, the victim ran away because she had knowledge that the
accused had just killed two persons, both her relatives (P vs Sto Tomas, 138 SCRA 206,
208).
2. Victims having been forewarned, alevosia cannot be appreciated against the
accused (P vs Bernardo, 222 SCRA 502). Exceptions:
a. There is treachery when, although the victim was forewarned of his impending
death, he was shot in the back while he was entirely defenseless and the killers were under no
risk whatsoever from any retaliation the victim might make (P vs Carmina, 193 SCRA 429,
430).
b. Even if appellant shouted at the victim from behind to stop walking, there is still
treachery where the victim was not aware thereof as well as the warning shouts of the
victims wife. x x x A cry or signal from the assailant does not make his attack less
treacherous (P vs Lorenzo, 132 SCRA 17, 19).
There is no treachery where the attack is preceded with a quarrel or altercation
between the offender and the victim. Exceptions:
1. Treachery appreciated although killing was preceded by a quarrel because the
victim was on top of a coconut tree and therefore could not defend himself while the assailant
fired at him (P vs Toribio, 198 SCRA 529).
2. Treachery still exists although the victim initially kicked the accused, if retaliation
by the accused was consummated by treachery, as where the victim ran away and he was
stabbed several times more while already lying prostrate on the ground (P vs Macariola, 120
SCRA 92).
A frontal attack on the victim does not negate treachery.
Case. Appellant and his two companions suddenly appeared, surrounded the victim
and appellant stabbed the unarmed victim at least twice. No provocation from the victim
who was walking alone on a street without any inkling that appellant would attack him.
Frontal attack does not necessarily negate treachery. Presence of defense wounds on
victims body does not rule out treachery. The victims act of parrying with his bare hands
the first thrust inflicted by appellant was an instinctive reaction to the attack; after all, the law
recognizes mans natural instinct to protect himself from impending danger (P vs David
Savatierra, July 24, 1997).

96
Nighttime is inherent in treachery.
Nighttime cannot be appreciated separately from treachery (P vs Ortiaga, June 30,
1997).
Exception: There was treachery in the commission of the offense at bar. The
victims hands were tied at the time they were beaten. Since treachery rests upon an
independent basis, the circumstance of nighttime is not absorbed therein, but can be
perceived distinctly therefrom (P vs Berdina, et al, 17 SCRA 520). Likewise, in P vs Rufino
Bacalto, et al, Aug 14 1997) it was held: Killing of a child of tender years who cannot be
expected to put up a defense is attended with treachery even if the manner of attack is not
shown. x x x Nighttime here is not absorbed in treachery because the existence of the latter
rests upon an entirely different basis, x x x .
Re Nos. 17 & 2l. Ignominy and cruelty.
Ignominy, explained.
A circumstance pertaining to the moral order, which adds disgrace and obloquy to
the material injury caused by the crime.
Which adds ignominy to the natural effects of the act, explained.
According to this clause, the means employed or the circumstance brought about
must tend to make the effects of the crime more humiliating or to put the offended party to
shame.
Ignominy is present where one rapes a married woman in the presence of her husband
(US vs Iglesia, et al, 21 Phil 55, P vs Detuga, et al, Sept 30, 1987). Note: Under Art. 266B, No. 3, RA 8353, the Anti-Rape Law of 1997, rape of a married woman in the presence of
her husband is no longer a mere aggravating (generic) circumstance. It is now an inherent
element in the crime of aggravated rape. The law provides: The death penalty shall also be
imposed x x x when the rape is committed in full view of the spouse, parent, any of the
children or other relatives within the third civil degree of consanguinity.
Ignominy is present when a woman is raped in the presence of her betrothed (US vs
Casaas, 5 Phil 377). (Casaas is still good even under RA 7659 (the Heinous Crimes Law)
and RA 8353). Likewise present where the victim was raped successively by four men (US
vs Camiloy, 36 Phil 757). But not present when a man is killed in the presence of his wife
(US vs Abaigar, 2 Phil 417).
Neither ignominy nor cruelty.
The aggravating circumstance of outraging or scoffing at the corpse of the deceased
applies against the accused since it is established that he mocked or outraged at the person of
the corpse of the victim (who was killed by the accused) by having an anal intercourse with
her after she was already dead (P vs Butler, 120 SCRA 281, 306).

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Considering that outraging or scoffing at the corpse of the deceased is a special
qualifying circumstance in murder (Art 248 No. 6), the same must therefore be alleged in the
information, otherwise, the same cannot be appreciated against the accused even if proved
during the trial. However, there is a questionable decision of the SC in P vs Calijan (226
SCRA 792, 798, prom Sept 28, 1993, 1st Div), wherein it was held: Where the cadaver of
the victim was thrown into the river, such act of the accused was in effect scoffing at the
corpse which is a special aggravating circumstance in the crime of murder (Art 248 par 6).
However, since the same was not alleged in the information but proved during the trial, it
should be treated merely as a generic aggravating circumstance. Note: With due respect,
there are (now) two reasons why the forgoing pronouncement of the SC is not tenable.
First, scoffing at the corpse is not included in Art 14, hence, it cannot be treated as a generic
aggravating circumstance. Second, under the 2000 Rules on Criminal Procedure, whatever
may be the kind of aggravating circumstance, the same shall be alleged in the
information/complaint, otherwise, the same cannot be appreciated by the court even if proved
during the trial (Sec. 8, Rule 110). (Needless to state, Sec. 8, Rule 110 could not have been
in the mind of the SC when it promulgated the decision in P vs Calijan on Sept. 28, 1993).
Re par 18. Unlawful entry.
When unlawful entry is present.
There is no unlawful entry if the door is broken and thereafter an entry is made by the
culprit through the broken door. Reason for this is that in an unlawful entry, the entry must
be effected by a way not intended for the purpose and a door, of course, is intended for
entrance or egress. Where the door is broken, what applies is par 19 (that as a means to the
commission of a crime, a wall, roof, floor, door, or window be broken).
Re par 19. That as a means to the commission of a crime a wall, roof, floor, door, or
window be broken.
Cutting of the canvass of the tent where soldiers are sleeping is covered by par 19
(US vs Matanug, 11 Phil 192).
Take note that par 19 is aggravating only if it is resorted to enter the building and not
where the purpose is to get out of the place.
Re par 20. Use of motor vehicle.
Use of vehicle is aggravating where victims vehicle was used by the accused for
their original intention of kidnapping with ransom with the accused pretending to hitch a ride
with the victim whom they later killed while driving the jeep which was also used in their
escape (P vs Masilang, 142 SCRA 673, 675).
Use of motor vehicle is not aggravating if it was used only to facilitate the escape of
the culprits (P vs Veloso, 112 SCRA 173). But, aggravating if used to commit the crime and
to facilitate escape (P vs Cuadra, 85 SCRA 576).

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Re par 21. Cruelty.
Q. What is cruelty?
Ans. There is cruelty when the culprit enjoys and delights in making his victim
suffer slowly and gradually, causing his unnecessary physical pain in the consummation of
the criminal act (P vs Dayug, et al, 49 Phil 423).
Requisites:
1. That the injury caused be deliberately increased by causing other wrong; and
2. That the other wrong be unnecessary for the execution of the purpose of the
offender.
Number of wounds alone does not show cruelty, it being necessary to show that the
accused deliberately and inhumanly increased the sufferings of the victim (P vs Aguinaldo,
55 Phil 610, P vs Artienda, 90 SCRA 944).
Not present where other wrong was done after the victim was dead (P vs Berbasal, 48
Phil 439). Here, outraging or scoffing at the corpse may be present.
Ignominy distinguished from cruelty.
Ans. Ignominy (par 17) involves moral suffering, while cruelty (par 21) refers to
physical suffering.
Q. Does the aggravating circumstance of cruelty consist in the material execution of the
act, or in the means employed to accomplish it?
Ans. It will be noted that cruelty is but other wrong in the commission of the crime,
and it is not necessary for its commission. Such being the case, cruelty does not consist in
the material execution of the act, and neither can it be the means to accomplish it.
Consequently, it could only be appreciated as against the accused who is responsible for the
cruelty even in the presence of conspiracy provided the conspirators did not participate or
cooperate in the cruelty (Reyes, Art 62 No. 4).
Special aggravating circumstances.
1. When an article of the RPC states that the felony shall be punished by the maximum
period of the penalty prescribed. Examples:
a. Art. 48 - complex crime;
b. Art. 49 - penalty to be imposed upon the principals when the crime committed is
different from that intended;

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c. Art 160 - quasi-recidivism;
d. Art. 267 (Kidnapping and serious illegal detention). 2nd and 3rd pars. - which
prescribe the penalty of death when the kidnapping or detention was committed for the
purpose of extorting ransom from the victim (as amended by RA 7659);
e. Art 295 (Robbery with physical injuries, committed in an uninhabited place and
[or] by a band, or with the use of firearm on a street, road or alley) - which prescribes higher
penalty for robbery with physical injuries committed in an uninhabited place, or by a band, or
with the use of forearm on a street, road, or alley;
f. Art 296 (Definition of a band and penalty incurred by the members thereof) which prescribes higher penalty for robbery by a band when any of the arms used is an
unlicensed firearm; and
g. Art. 350 (Marriage contracted against provisions of laws), 2nd par. If either of the
contracting parties shall obtain the consent of the other by means of violence, intimidation or
fraud, he shall be punished by the maximum period of the penalty provided in the next
preceding paragraph.
2. When a special penal law states that the offense shall be punished by the maximum
period of the penalty prescribed. Examples:
a. Sec. 23, RA 7659:
(1) When in the commission of the crime, advantage was taken by the offender of his
public position, the penalty to be imposed shall be in its maximum (period) regardless of
mitigating circumstances.
(2) The maximum penalty shall be imposed if the offense was committed by any
group 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.
b. If the crime of arson is committed by a syndicate. The offense is committed by a
syndicate if it is planned or carried out by a group of three (3) or more persons (Sec. 4 No. 4,
PD 1613).
Special aggravating circumstance cannot be offset by any mitigating circumstance.
The penalty shall be imposed in the maximum period, regardless of the number and
nature of the mitigating circumstances present. However, if a privileged mitigating
circumstance is present, the penalty is lowered by one or two degrees, but the lower penalty
is to be imposed in the maximum period (P vs Parba, 142 SCRA 158).

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Qualifying Circumstance; Drug Addiction.
Facts: This is a case of rape of a 12-year old girl, a mental retardate with the
mentality of a 6-year old. The accused is a young man who is a habitual drug addict.
Although already 12 years old at the time of the incident, the court considered the
victim as one below 12 years old because she was a mental retardate with the mentality of a
6-year old.
The incident happened on May 11, 1987, that is, long before the effectivity of the
Heinous Crimes Law (RA 7659) and the Anti-Rape Law (RA 8353). Hence, the prosecution
was under Art. 335 of the RPC.
Held: While it is true that the appellant (accused) deserves compassion for being the
abandoned child of his estranged parents, nevertheless, his drug addiction should not be an
excuse for him to commit such serious offense as rape. Under section 17 of the Dangerous
Drugs Act of 1972, as amended by BP Blg. 179, when a crime (meaning, ANY CRIME
punished by the RPC) is committed by an offender who is under the influence of dangerous
drugs, such state shall be considered as a qualifying aggravating circumstance in the
definition of a crime and the application of the penalty provided for in the Revised Penal
Code. In affirming the penalty of reclusion perpetua imposed by the RTC, the Supreme
Court said: This should serve as a sufficient deterrent if not a warning to those who are
inclined to if not actually habitually addicted to drugs. Their addiction will be no excuse but
will aggravate any offense they commit. They would deserve no mercy under the law. This
observation holds true especially for the drug pushers. They are the bane of society. (P vs
Anthony Belgar y Mayor, L-92155, March 11, 1991, SC First Division).
Qualifying circumstances which have the effect of raising the penalty for the offense by
one degree:
1.
Art 286 (Grave coercions), 2nd par. If the coercion be committed for the
purpose of compelling another to perform any religious act or to prevent him from so doing,
the penalty next higher in degree shall be imposed.
2. Art 365 (Imprudence and negligence), last par. The penalty next higher in degree
to those provided for in this article (Art 365) shall be imposed upon the offender who fails to
lend on the spot to the injured parties such help as may be in his hands to give.
Rules applicable to all aggravating circumstances including special aggravating
circumstances:
1. Under the 2000 Rules on Criminal Procedure, a qualifying or (generic)
aggravating circumstance shall have to be specified (alleged) in the complaint or information
so that the same could be appreciated by the court (Sec. 8, Rule 110). Even if proved during
the trial but not alleged in the complaint or information, the same cannot be appreciated by
the court. Nonetheless, it can be the source of civil awards even if not so alleged but the

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same is proved during the trial (Art. 2219, NCC, P vs Suela, L-133570-71, Jan. 15, 2002; P
vs Catubig, L-137842, Aug. 23, 2001; P vs Lachica, L-143677, May 9, 2002, EN BANC).
2. Sec. 8, Rule 110 is given retroactive effect only if not doing so would result in the
imposition of the death penalty (P vs Legaspi, L-136164-65, April 20, 2001).
ART. 15. Alternative circumstances, their concept.
Other relatives included:
1. Stepfather/stepmother and stepson/stepdaughter (P vs Bersabal, 48 Phil 439); and
2. Adopted parent and adopted child (Reyes).
But, the relationship between uncle and niece is not included (P vs Balondo, 30
SCRA 155).
Rules re relationship:
1. Mitigating in crimes against property by analogy to Art 332 where relationship is
exempting. Note: In Art 332, relationship is an absolutory cause.
2. Mitigating in trespass to dwelling which is a crime against security (US vs Ostrea,
et al, 2 Phil 93).
3. General rule in crimes against persons:
a. Mitigating where the victim is a relative of lower degree than the offender; and
aggravating where the victim is a relative of higher degree than the offender or where the
offender and the victim are relatives of the same degree. Note: In P vs Canitan (8 SCRA
358), it was held that for relationship to be aggravating the victim must be of a higher degree.
Here, relationship (the victim was the brother-in-law of the accused) was not held as
aggravating.
b. It is wrong to say that brothers/sisters, brothers-in-law/sisters-in-law are of the
same level. The older is, of course, of higher level than the younger (Reyes). Reyes believes
that Canitan states the correct rule. Exceptions:
(1) Art. 263. Aggravating in serious physical injuries although the offended party is
a descendant of the offender. But, where the crime is less serious physical injuries or slight
physical injuries, follow the general rule.
(2) Aggravating in homicide or murder. Exceptions: Where other conditions
attending the commission of the crime is present:

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(2.1) Where the accused killed his brother-in-law who committed adultery with the
wife of the accused (US vs Ancheta, 1 Phil 30) - mitigating.
(2.2) Where the victim was suffering from an attack of insanity and the accused, his
brother-in-law, in his desire to place the deceased under control, struck him with a club (US
vs Velarde, 36 Phil 991) - mitigating.
4. Always aggravating in crimes against chastity (P vs de Leon, 50 Phil 539, P vs
Porras, 58 Phil 578). Reasons: Because of the nature and effect of the crime committed - it
is shocking to our moral sense (Reyes).
Connect with Criminal Procedure.
Where the wife conspired with her paramour in the killing of her husband, she could
not be convicted of parricide if the information against her and her paramour is for Murder.
However, if her being the wife of the victim is established by evidence during the trial, she
could be convicted of murder, as charged, with relationship as an aggravating (alternative)
circumstance (P vs Jumawan, 116 SCRA 739). Take note that the Jumawan case was
decided long before the 2000 Rules of Criminal Procedure took effect. Presently, however,
considering that the rules now require that all aggravating circumstances shall have to be
alleged in the complaint/information so that the court shall have the authority to appreciate
the same as such, it is believed that the Jumawan case is now OBSOLETE.
Relationship is also exempting (absolutory cause) under certain circumstances, as
follows:
1. Art. 20 - - Accessories who are exempt from criminal liability.
2. Art. 247 - - Death or physical injuries inflicted under exceptional circumstances
(an absolutory cause);
3. Art. 332 - - Persons exempt from criminal liability.
Re intoxication.
Drunkenness or intoxication is mitigating if accidental, not habitual or subsequent to
the plan to commit the crime (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 441). To
be mitigating, the state of intoxication of the accused must be proved or established by
sufficient evidence (P vs Rabanillo, 307 SCRA 613, May 26, 1999). But if intoxication is
proved, then in the absence of truth to the contrary, it is presumed to be unintentional or
not habitual (Aquino, The Revised Penal Code, supra, 4. 442, citing U. S. vs Fitzgerald, 2
Phil. 419, P vs. Bautista, 30 SCRA 558, Nov. 28, 1969, P vs Baroy, L-137520-22, May 9,
2002). In People vs. Vega (208 Phil. 221, June 29, 1983), the Court ruled that intoxication
was present when the rape was committed, because the evidence had not established that the
drunkenness of the accused was intentional or habitual. Hence, this mitigating circumstance
should be appreciated where the accused committed the felony in a state of intoxication, and

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there was no sufficient proof that it was habitual or subsequent to the plan to commit the
felony (P vs Mendoza, 254 SCRA 18, Feb. 22, 1996; P vs Alfredo Baroy, et al, EN BANC,
L-137520-22, May 9, 2002). .
The moment intoxication is established by satisfactory evidence, it is presumed to be
non-habitual or unintentional. But, the accused cannot just depend on a testimony of a
prosecution witness that, at the time of the incident, he (accused) was drunk. It must be
noted that the best witness to such drunkenness is the accused himself. (P vs Permonette Joy
Fortich, et al, 281 SCRA 600, the SC, citing P vs Apduhan, 24 SCRA 798; P vs Joel Pinca,
L-129256, Nov. 17, 1999).
In the instant case, accused-appellant claimed that prior to the shooting he joined his
victim in a drinking spree. Nonetheless, he failed to prove the approximate quantity of his
intake as to sufficiently affect his mental faculties and consequently entitle him to a
mitigation of his offense. Accused failed to prove he was in a state of intoxication at the
time of the commission of the crime. On the contrary, the records showed no disturbance in
the reasoning powers of the accused. In fact, from his narration of the events that transpired
prior to and after the shooting, he seemed to be fully aware and cognizant of everything that
occurred. (P vs Dante Domingo y Limpot, First Division, L-131817, Aug. 8, 2001; P vs
Francisco Nanas, EN BANC, L-137299, Aug. 21, 2001).
In a case, it was held that, under normal circumstances, a glass of beer is not so
intoxicating as to diminish a mans rational capacity (P vs Baroy, supra).
Reason why intoxication is an alternative circumstance.
This Courts takes judicial notice of the fact that generally a person under the
influence of liquor, even if not to the point of intoxication as in this case, is prone to be
impulsive, irascible, or combative and less inhibited in his reaction to whatever offends him
(P vs Aguiluz, 207 SCRA 187, 193).
Other mitigating circumstances absorbed in non-habitual intoxication.
As non-habitual intoxication implies disturbance of the reasoning powers of the
offender, his lack of instruction cannot have any influence over him, and obfuscation cannot
be considered independently of non-habitual intoxication (P vs Baterna, 49 Phil 997).
Rule re lack of instruction.
1. Generally mitigating in all crimes. However, to be mitigating, illiteracy must be
coupled with lack of intelligence (P vs Quiao, CA, CR Nos. 06515-16, July 11, 1991, 91 No.
7 O. G. 999, Feb 13, 1995 issue). Exceptions:
a. Not mitigating in crimes against property. But, in US vs Maqui (27 Phil 97), it was
held mitigating in theft of large cattle. Also in robbery with homicide (P vs Mantawar, 80
Phil 817). However, the doctrine in Maqui and Mantawar were abandoned in:

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(1) Not held mitigating in P vs Enot (6 SCRA 325), a robbery with homicide case.
Reason: No one however unschooled may be so ignorant as not to know that theft or
robbery, or assault upon the person of another is inherently wrong and a violation of the law.
(2) In P vs San Pedro (95 SCRA 306), not held mitigating in the crimes of theft or
robbery.
2. Not mitigating in crimes against chastity (Malesa vs Dir, 59 Phil 406), in treason
(P vs Lansanas, 82 Phil 193), but held mitigating in P vs Marasigan (85 Phil 427), a treason
case.
3. Not mitigating in murder (P vs Mutya, 106 Phil 116l), or in homicide (P vs
Dejaresco, 129 SCRA 576). Exceptions:
a. P vs Laolao, et al (106 Phil 1165) - mitigating where the accused were so ignorant
as to believe in witchcraft.
b. In P vs Mantala (106 Phil 1161) - mitigating where the accused were ignorant
people living in a barrio almost 20 kms. away from civilization.
Compare alternative
circumstances:

circumstances

with

absolutory

causes

and

extenuating

1. Alternative circumstances - those circumstances which may either mitigate or

aggravate the criminal liability of the offender depending upon the circumstances of the
case (Art. 15).
2. Absolutory causes - here, a crime is committed and there is a criminal (unlike an
exempting circumstance, where, although a crime is committed, there is no criminal), but, for
reasons of public policy, the state either waives its right in prosecuting the offender, or, if
prosecuted, the penalty will not be imposed. (Example: Art. 332, RPC; Art. 247, RPC;
instigation).
3. Extenuating circumstances - not included in Art. 13, RPC, but which likewise
mitigate the criminal liability of the offender. Examples:
a. Art. 255 - Infanticide, where committed by the mother, or the maternal
grandparents of the child, or either of them, if committed to conceal their dishonor.
b. Art. 258 - Abortion, practiced by the woman herself or by the parents of the
pregnant woman, if committed by the woman to conceal her dishonor. (Note: Unlike
infanticide, the parents, or either of them, of the pregnant woman are not entitled to a
mitigating circumstance even if they practiced the abortion on their daughter to conceal their
dishonor. See Art. 258, par. 3).

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VERY IMPORTANT. Even if you know that the circumstance is included in Art. 15,
RPC, do not answer Alternative Circumstance. The proper way to do it is to state
mitigating or aggravating, as the case may be, in your answer. Or, after identifying the
circumstance as either mitigating or aggravating, you may indicate alternative in
parenthesis, thus - mitigating (alternative).

TITLE TWO. - PERSONS CRIMINALLY

LIABLE FOR FELONIES
ART. 16. Who are criminally liable.
Rules re light felonies:
1. Punishable only if consummated (Art 7), except in crimes against persons or
property, in which case, punishable even if only attempted or frustrated.
2. Only principals and accomplices are liable for light felonies. Here, there is no
exception.
ART. 17. Principals.
Re No. 1. Principal by direct participation.
Conspiracy is presumed when the crime is committed by a band (US vs Perez, 13 Phil
187). Exception: Where at the start of the encounter between the constabulary forces and an
insurgent band, the accused, who was with the band, fled from the scene of the fight and did
not take part therein, he is not criminally liable (US vs Fresnido, 4 Phil 522). Reason: There
was voluntary desistance on the part of the said accused during the attempted stage.
Liability of a co-conspirator for another conspirators acts which differ radically and
substantially from that which they intended to commit.
1. Example: Where the conspiracy was to inflict physical injuries to the victim but
one of the conspirators inflicted a fatal injury resulting in the death of the victim. Held: All
are equally liable for the homicide/murder because criminal liability shall be incurred by any
person committing a felony (physical injuries, the subject of the conspiracy) although the
wrongful act done be different from that which he intended to commit (Art 4, RPC).
Besides, because of conspiracy, the act of one of the conspirators in inflicting a fatal injury to
the victim is considered as the act of all conspirators (P vs Enriquez, 58 Phil 536).
2. Other defendants are not liable for the killings of persons not covered by the
conspiracy (P vs Umali, 96 Phil 185), unless the killing of other persons are the necessary,
direct and logical consequence of the intended crime, as where the other persons attempted to
help the intended victim.

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3. But, the conspiracy may cover persons previously undetermined where there was
a general plan to kill anyone who might put up a violent resistance (P vs Belga, 258 SCRA
583).
4. A conspirator is not liable for anothers crime which is not an object of the
conspiracy or which is not a necessary and logical consequence thereof. Thus, where three
persons conspired to commit robbery only, but in the course of the robbery one of them
killed an inmate of the house, only the one responsible for the killing shall be liable for
robbery with homicide. Exceptions:
a. Where the killing is a natural, direct, and logical consequence of the robbery, as
where the one killed shouted for help during the robbery (Art 4, applied).
b. Where the robbery was committed by a band, in which case all those who were
present at the time of the commission of the robbery would likewise be equally liable for the
homicide, unless it be shown that the ones not responsible for the killing attempted to prevent
the same (Art 296, par 2).
When there is conspiracy, the fact that an element of the offense is not present as
regards one of the conspirators is immaterial.
Thus, in the crime of abduction, all will be liable although only one acted with lewd
designs. Reason: Once conspiracy is established the acts of one are considered the acts of all
(P vs Loyola, et al, CA, 51 O. G. 253). Exception: In the crime of parricide the element of
relationship must be present as regards all the offenders; the same rule applies in qualified
theft where grave abuse of confidence is the qualifying aggravating circumstance, otherwise,
Art 62, par 3 applies (P vs Patricio, 46 Phil 875). Here, relationship, an essential element of
the felonies (parricide and qualified theft), arises from the private relation of the offender
with the offended party.
But, in malversation (US vs Ponte, et al, 20 Phil 379), arbitrary detention (P vs
Camerino, CA, 14207, Dec 14, 1956), and falsification by public officer of an
official/public document (US vs Ponte, supra)., the rule is different. Private persons, or
other public officials who are not accountable officials (malversation), or who do not have
the authority to detain (arbitrary detention), or who do not take advantage of their official
positions (falsification by public officer) shall equally be liable for the said crimes. Reason:
In malversation, arbitrary detention and falsification by public officer, Art 62 No. 3 does not
apply.
If an express or implied conspiracy is proven, then all the conspirators may be regarded
as co-principals regardless of the extent of their actual participation in the execution of
the crime.
Their liability is joint or collective. They are all co-principals, whether they took
direct part in the execution of the crime, induced its commission or cooperated in its
consummation.

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If there is no conspiracy, nor community of design nor unity of purpose among the
participants in the crime, then their liability is individual, separate or several (Acquino, The
Revised Penal ode, Vol 1, 1987 ed, p 485).
There could be no conspiracy to commit an offense through negligence, but there may
be equal liability.
Thus, a professional driver who allowed his conductor to drive the truck in a
negligent manner resulting in the death of passengers is equally liable as co-principal with
the conductor. Here, the negligence of the driver consists in allowing the conductor, an
unlicensed driver, to drive (P vs Santos, CA 44 O. G. 1289).
Generally, there is no conspiracy where the crime is punished by a special law.
But, again, there may be a joint criminal liability. Thus, under the Pure Food &
Drugs Act (Act 1655), the owner was held equally liable with his employee who sold an
adulterated coffee, although the owner did not know that the coffee sold by the employee
was adulterated (US vs Siy Cong Bieng, et al, 30 Phil 577).
At first blush, it seems that the foregoing ruling of the SC is wrong in light of the
settled rule that criminal liability is personal to the actor. However, a reading of Sec 12 of
Act 1655 would tell us that the ruling is correct. The pertinent section in effect provides that
an act or omission of an employee within the scope of his employment is considered an act or
omission of the employer.
The principals by direct participation must be at the scene of the crime (situs criminis),
personally taking part in its execution.
Exception: Where the conspiracy was to kidnap and kill the victim. Only one of the
conspirators kidnapped the victim after which he turned over the victim to the other
conspirators for execution and left the spot where the victim was killed. Held: The
conspirator kidnapping the victim is equally liable (as principal by direct participation) with
those who executed the killing (P vs Santos, et al, 84 Phil 104). Reason: By kidnapping the
victim he already performed his part (as principal by direct participation) and the killing was
done by his co-conspirators in pursuance of the conspiracy.
Re No. 2. Principals by induction.
There are two ways by which one maybe a principal by induction:
1. By forcing another to commit a crime, in the following manner:
a. By using irresistible force, or
b. By causing an uncontrollable fear.

108
Note: Here, only the principal by induction is criminally liable. The ones induced
are exempted from criminal liability under Art 12 Nos. 5 & 6.
2. By directly inducing another to commit a crime, in the following manner:
a. By giving price, or offering reward or promise, and
b. By using words of command.
Note: Here, there is collective criminal responsibility. Exceptions - Where the
person induced has no knowledge that an offense has been committed. Examples:
(1) Theft. Where the person inducing pretends to be the owner of the object of the
offense taken by the one induced.
(2) Falsification. Where the person induced (a clerk) has no knowledge of the falsity
of the facts recited in the document, e. g., community tax certificate.
(3) Violation of PD 705. Where the one inducing another to cut trees in a forest
pretends to the one induced that he (the one inducing) has the required permit/license to cut.
Requisites for using words of command to make the one giving them a principal:
1. The one uttering the words of command must have the intention of procuring the
commission of the crime;
2. The one who made the command must have an ascendancy or influence over the
person who acted;
3. The words used must be so direct, so efficacious, so powerful as to amount to
physical or moral coercion;
4. The material executor of the crime has no personal reason to commit the crime.
Case. F and S, father and son, respectively, are the common enemies of V. One
time, while S and V were fighting, the former being armed with a bladed weapon, F arrived
and shouted as follows: Kill him now - dont worry , Ill help you. Immediately after the
shout, S stabbed and killed V.
Q. In this case, is F a principal by induction in the killing of V?
Ans. No, because one requisite is not present, that is, that the material executor of the
crime (S) has no personal reason to commit it. In the case at bar, S had a personal reason to
kill V because, like F, he was also an enemy of V. As stated in the problem, F and S are
the common enemies of V.

109
Example: Words of a bystander who said as the victim was being stabbed by others:
Kill him and we will bury him, does not make the former liable as principal by inducement
as her words were not the efficient cause of the commission of the crime (P vs Agapinay, 186
SCRA 812). For one to be liable as a principal by inducement, the inducement must be made
directly with the intention of procuring the commission of the crime and that such
inducement must be the determining cause of the crime.
Effect of acquittal of the principal by direct participation upon the liability of the
principal by inducement.
One cannot be held guilty of having instigated the commission of a crime without
first being shown that the crime has been actually committed by another. Here, the principal
by induction shall likewise be acquitted (P vs Ong Chiat, 60 Phil 788).
Exception: Where the one charged as principal by direct participation is acquitted
because he acted without criminal intent or malice, or because of irresistible force or
uncontrollable fear, his acquittal is not a ground for the acquittal of the principal by
inducement (P vs Po Giok To, 96 Phil 913). Another is where the person induced is
exempted from criminal liability under Art 332, RPC.
Re No. 3. Principal by indispensable cooperation.
Requisites:
1 The cooperation must be indispensable, that is, without which the crime would not
have been accomplished, otherwise, the offender is only an accomplice.
2. The cooperation must be by another act, i. e., it should not be the act of one
who could be classified as principal by direct participation. .Examples:
a. An accused who told his brother-in-law to hit the victim and who held the victim
while his brother-in-law stabbed the latter to death is a co-principal by indispensable
cooperation and inducement (P vs Mario & Dulay, 108 Phil 574).
b. A person who stands guard while the house is being robbed is a principal thereto.
The fact that appellants did not enter the victims house did not mitigate, much less abate,
their criminal responsibility. By standing guard outside the house, each of them performed
an indispensable role in the attainment of their common objective. This action on their part,
performed to ensure the success of their nefarious design, clearly indicated the existence of
conspiracy which justified the lower court in holding each and all of them liable for the
felony committed as well as the consequences thereof (P vs Canumay, 130 SCRA 301).
Even the look-out is liable for robbery with homicide (P vs Escober, 157 SCRA 541), even if
he did not participate in the killing of the victims, x x x unless it clearly appears that he
endeavored to prevent the homicide. However, where there is no conspiracy, the person
who entertains the owner of the house while robbers are assaulting it, so that he will not
return thereto until after the robbery has been consummated, is only liable as an accomplice

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in the crime, inasmuch as he cooperated therein by a simultaneous act, although not an
indispensable one for its accomplishment (Viada, Vol 1, p 370, cited in US vs Driz, 26 Phil
133, 136, also cited in P vs Resayaga, 159 SCRA 426). In fact, even co-conspirators maybe
adjudged as mere accomplices where their participation was not indispensable, as where one
only acted as look-out and the other merely delivered the murder weapon to the triggerman
(P vs Nierra, 96 SCRA 1; En Banc). It is true, strictly speaking, that as co-conspirators, they
should be punished as co-principals. However, since their participation was not absolutely
indispensable to the consummation of the murder, the rule that the court should favor the
milder form of liability may be applied to them (P vs Tamayo, 44 Phil 38, and other cases).
In some exceptional situations, having community of design with the principal does not
prevent a malefactor from being regarded as an accomplice if his role in the perpetration of
the homicide or murder was, relatively speaking, of a minor character (P vs Ubia, 97 Phil
515, P vs Largo, 99 Phil 1061).
c. Where accused-appellant grabbed the waist of the victim and placed his hands
around it, thereby pinning the arms of the deceased and it was at that juncture that his coaccused stabbed the victim, in holding the appellant liable as principal by indispensable
cooperation, the SC said: as he cooperated in the execution thereof by another act, without
which, it (murder) could not have been committed. Reyes believes, however, that the one
who held the victim should instead be held liable as a principal by direct participation.
d. Where the appellant seized the deceased by his elbows from behind clearly
preventing the latter from moving and defending himself so that although there was no
anterior conspiracy, appellant and the assailant showed unity of criminal purpose and intent
immediately before the actual stabbing such that without said act of holding, the crime would
not have been accomplished (the victim could have parried the blow or run away), this made
him a principal by indispensable cooperation and not merely as an accomplice (Dacanay vs
People, 94 Phil 383).
Liability of four accused who took turns in raping the victim.
Held: Each is responsible not only for the act of rape committed personally by him,
but also for the rape committed by the others, because while one of them was having sexual
intercourse with the girl the others were holding her so that each one of them cooperated in
the consummation of the rape committed by the others by acts without which it could not
have been accomplished. Each accused is liable for four rapes, as principal by direct
participation and as principal by indispensable cooperation (P vs Villa, et al, 81 Phil 193).
What about where the only participation of the accused (in the crime of rape committed
by two or more persons) was removing the panty of the victim and holding her legs?
Ans. His liability is only that of an accomplice. Not having sexual intercourse with
the victim, there is doubt as to the intention of the said accused (P vs Tigulo, L-34334, Nov.
7, 1979, 2nd Div., 94 SCRA 183).

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Comment: The ruling in Tigulo is doubtful. Considering that the accused conspired
with the others who had sexual intercourse with the victim, his actual participation in the
commission of the crime became immaterial. Like in a case where A and B conspired to kill
V. A held the hands of V while B stabbed and killed V. In this case, both A and B are
equally liable for the homicide/murder although As act of holding the hands of V could not
have killed V. This is because where there is conspiracy, the act of one is the act of all (the
other).
Back to the Tigulo case. It is noted that, although in the body of the decision the SC
held the accused only liable as an accomplice, in the dispositive portion thereof, the penalty
imposed by the court on the said accused was just the same as the others who had sexual
intercourse with the victim - reclusion perpetua. Happily, the SC corrected itself in P vs
Arenas, L-92068, June 5, 1991, 198 SCRA 172, 185, 3rd Div, wherein it was held: That
conspiracy accompanied the consummation of the rape is borne out by the evidence on
record. The combined actuations of all the accused, including the appellant, indicate a
common design to commit the crime of rape. While the appellant himself did not have
carnal knowledge of the victim, his tacit and spontaneous cooperation by holding her
hands, makes him a co-conspirator. As such he becomes a principal in the commission of
rape.
Possessor of recently stolen property is principal.
It is clear from Sec. 5[j], Rule 131, of the Rules of Court, that the possessor of a
recently stolen article is considered a principal, not merely as an accessory or an accomplice,
unless he proves in a satisfactory manner that he is but an accessory or an accomplice thereto
and that another person, from whom the article came, was the one who stole it from the
owner thereof (P vs Javier, L-36509, Feb. 25, 1982, 112 SCRAS 186).
ART. 18. Accomplices.
Participation of an accomplice, requisites therefor:
1. That there be community of design, that is, knowing the criminal design of the
principal by direct participation, he concurs with the latter in his purpose. Example: Where
A inflicted physical injuries to B, then, unexpectedly, C stabbed and killed B. In this case, A
is not an accomplice to the homicide because A could not have concurred in the criminal
design of C.
2. That he cooperates in the execution of the offense by previous or simultaneous
acts, with the intention of supplying material or moral aid in the execution of the crime in
an efficacious way.
Define the term accomplice.
An accomplice is one who, not being a principal as defined in Art. 17 of the Revised
Penal Code, cooperates in the execution of the offense by previous or simultaneous acts (Art.

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18, RPC). There must be a community of unlawful purpose between the principal and the
accomplice and assistance knowingly and intentionally given (US vs Belco, 11 Phil. 526), to
supply material and moral aid in the consummation of the offense and in an efficacious way
(P vs Tamayo, 44 Phil. 38, cited in P vs. Cresencio Doble, et al., L-30028, May 31, 1982, EN
BANC).
But the complicity which is penalized requires a certain degree of cooperation whether
moral - through advice, encouragement or agreement, or material - through external
acts, like lending to the principal in the commission of the crime the weapon used by
the latter in committing the crime.
Mere silence and presence, while they are simultaneous acts, do not constitute
cooperation; failure to give alarm, being a subsequent act, does not make one an accomplice,
such failure being a subsequent act (P vs Silvestre, et al, 56 Phil 353). Thus, in P vs Fronda,
222 SCRA 71-72, it was held: Where the accused-appellant did not report the incident to the
authorities for a period of three years, coupled with the fact that he was handed and received
a hunting knife from the armed men who killed the victim, appellant is held liable as
accomplice to the crime of murder.
3. That there be a relation between the acts done by the principal and those
attributed to the person charged as accomplice.
Example: B and S are brother and sister, respectively. S was raped by R. Because
of the incident, both S and B had the intention of killing R. One time, S went to the house of
R and while S was already inside the house of R and seeing R there, S shot and killed R.
During that time, B, armed with a bladed weapon, was already there outside the house of R
with the same purpose of killing B. However, S did not know of Bs plan to kill R and
neither did B know of Ss plan to kill R. In this case, B is not an accomplice to the homicide
committed by S, there being no relation between the acts done by S and the acts done by B.
(P vs Tamayo, et al 44 Phil 38).
When there is no conspiracy between or among the accused but they were animated by
one and the same purpose to accomplish the criminal objective, those who cooperated
by previous or simultaneous acts but cannot be held liable as principals are
accomplices.
Examples: Where there is no conspiracy between two or more persons in
committing the crime of homicide/murder: When the victim died as a result of wounds
received from two persons acting independently of each other and the wounds inflicted by
either could have caused the death of the victim, both aggressors are guilty of homicide (US
vs Abiog, 37 Phil 137, p vs Perigrino, et al, CA 53 O. G. 4504). The same rule applies where
it could not be determined who inflicted which wound (P vs Buensuceso, 132 SCRA 143,
144). But, where A had already fatally wounded the victim at the time B attacked and
wounded the said victim, B is only liable as an accomplice if the wound which he inflicted
hastened the death of the victim (P vs Ibali, 88 Phil 724).

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As to acts performed, there is no clear-cut distinction between the acts of the
accomplice and those of the principal by direct participation. That is why in case of
doubt, it shall be resolved in favor of lesser responsibility, that is, that of a mere
accomplice. Examples:
1. Like the principal by indispensable cooperation, the accomplice cooperates with
the principal by direct participation. But the cooperation of an accomplice is only necessary
not indispensable In murder/homicide cases, the wounds inflicted by an accomplice should
not have caused the death of the victim (P vs Azcona, et al, 59 Phil 580, P vs Tamayo, 56
Phil 587, P vs Cortes, et al, 55 Phil 143, P vs Antonio, et al, 73 Phil 421).
2. Accused who employed craft to lure the victim to come out of the house to be
killed is liable as an accomplice (P vs Barbosa, 86 SCRA 217).
Under Rep. Act No. 8049 (Anti-Hazing Law), the following are considered as
accomplices:
1. The owner of the place where the hazing is conducted if he has actual knowledge
of the hazing conducted therein but failed to take any action to prevent the same from
occurring. Note: If the owner, who is a fraternity or sororitys adviser, was present when
the acts constituting the hazing were committed but failed to take any action to prevent the
same from occurring, he shall be liable as principal, not only as an accomplice. RECALL
the following:
a. In spite of the existence of conspiracy between/among two or more persons,
MERE PRESENCE of a co-conspirator at the situs of the crime does not make him
criminally liable for the crime committed if he does not perform any act towards the
accomplishment of the crime subject of the conspiracy. Exception: (1) A fraternity or
sororitys adviser who is present when the acts constituting the hazing were committed and
failed to take any action to prevent the same from occurring shall be liable as principal (Sec.
4, RA 8049). (2) Here, the presence of ANY person during the hazing is prima facie
evidence of participation as a principal unless he prevented the commission of the acts
punishable under the law.
b. General rule. The mitigating circumstance of no intent to cause so grave a wrong
as that committed can be taken into account if it is shown that there is a notable and evident
disproportion between the means employed to execute the criminal act and its
consequences (US vs Reyes, 36 Phil. 904, 907). Exception: Sec. 4, RA 8049. Any person
charged under this provision shall not be entitled to the mitigating circumstance that there
was no intention to commit so grave a wrong.
2. School authorities, faculty members who consent to the hazing or who have actual
knowledge thereof but failed to take any action to prevent the same from occurring.

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Compare the following:
1. Accomplice could be liable for a crime different from that which he had
previous knowledge.
Where two persons had knowledge that the principals intended to commit the crime
of abduction, and they remained in the street in front of the victims house to act as look out,
they were held liable as accomplices in the crime of homicide which was actually committed
(US vs De Jesus, 2 Phil 514). Reason: Where the accomplices consented to aid in the
commission of the crime of forcible abduction (a crime in which the use of force is
involved), they would be responsible as such accomplices for the resulting homicide, the
commission of which might reasonably have been regarded as a possibility in attempting to
carry out the abduction, and this even if it appears that the purpose to commit the homicide
on the part of the principal was unknown to the accomplices. It is sufficient that the crime
actually committed was the natural or probable consequence of the crime intended (Art 4,
applied). In fact, in a case, it was held: One can be an accomplice even if he did not know of
the actual crime intended by the principal provided that he was aware that it was an illicit act
(P vs Doctolero, 193 SCRA 632, 634).
2. But, one cannot be liable as an accomplice for a crime befalling another
victim.
When the owner of a gun knew that it would be used to kill a particular person, and
the principal used it to kill another person, the owner of the gun is not an accomplice as to the
killing of the victim (P vs de la Cerna, et al, 21 SCRA 569). Reason: here, it could not be
said that the owner of the gun concurred with the principal (community of design) in the
killing of the victim.
Exceptions: Where Art. 4, RPC applies, as follows (where the killing of the other
person is a result of):
a. Error in personae,
b. Aberratio ictus, and
c. Stray bullets.
3. Accomplice may be liable for crime different from that which principal
committed.
Where the principal killed the victim with treachery, but there was no treachery on
the part of the accomplice. Reason: Art. 62 par. 4 provides that the circumstances which
consist in the material execution of the act or in the means employed to accomplish it (among
them treachery), shall serve to aggravate the liability (or qualify the crime) only of those
persons who had knowledge of them at the time of the execution of the act or their
cooperation therein (P vs Babiera, 52 Phil. 98).

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ART. 19. Accessories.
Re No. 1. By profiting themselves or assisting the offender to profit by the effects of the
crime.
1. Knowledge of the commission of the crime may be acquired subsequent to the
acquisition of stolen property. To declare the accused guilty as accessory, it is not necessary
that he should have acquired the property knowing at the time that it had been stolen. It is
sufficient that after acquiring that knowledge he concealed or disposed of the property,
thereby depriving the owner thereof (US vs Montano, 3 Phil 110).
2. In profiting by the effects of the crime, the accessory must RECEIVE the property
from the principal. He should not TAKE it WITHOUT THE CONSENT of the principal. If
he took it without the consent of the principal, he is not an accessory but a principal in
ANOTHER crime of theft. Theft may be committed by taking with intent to gain, personal
property from the one who stole it, without the latters consent.
3. Take note that the accessory to the crime of theft or robbery is punished as
principal under PD 1612 for Violation of the Anti-Fencing Law. The State may thus choose
to prosecute him either under the RPC as an accessory or under PD 1612 (Dizon-Pamintuan
vs People, 234 SCRA 63), that is, the fence cannot be prosecuted under both the RPC and
PD 1612.
What is the participation of one who buys or receives property stolen/robbed from
another?
Ans. It depends:
1. Proceeds of robbery or theft under the RPC - as accessory under Art 19 No. 1 or as
principal under PD 1612.
2. Proceeds of either highway robbery or piracy under Sec 4 of PD 532 - as an
accomplice.
PD 1612.
Mere possession by buyers of properties subjects of robbery or theft constitutes a
prima facie evidence of fencing. This presumption is disputable (Norma Dizon-Pamintuan
vs People, L-111426, July 11, 1994, First Div., 234 SCRA 63, 72, cited in D. M. Consunji,
Inc vs Ramon Esguerra, et al, July 30, 1996).
Petitioner (complainant) contends that mere possession by respondents of the
stolen plywood constitutes prima facie evidence of fencing according to Sec 5 of PD 1612.;
further, the sales invoices presented by respondent spouses did not exculpate them because
such invoices cannot overcome the presumption. Held: Petitioners position is untenable.
In Dizon-Pamintuan vs People, supra, we discussed the elements of fencing, as follows:

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1. Robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of robbery or
theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes or buys and sells,
or in any manner deals in any article, item, object or anything of value, which has been
derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, etc has been
derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another. (Note:
In Lim vs CA, 222 SCRA 286, 287, it was held that intent to gain need not be proved in
crimes punishable by a special law, such as PD 1612. In other words, it is enough that intent
to gain is alleged in the information. There is no need to prove it during the trial because
mere possession by the accused of the objects of robbery or theft constitutes prima facie
evidence of fencing. In fact, the law does not require proof of purchase of the stolen articles
by the accused/respondent, as mere possession thereof is enough to give rise to the
presumption of fencing [Ernesto P. Dumlao, Sr. Vs CA, et al, L-11343, Aug 22, 1996]).
Thats why, the burden is on the respondent/accused to prove that he did not have intent to
gain.
Presumption of fencing from mere possession of stolen goods reasonable and does not
offend presumption of innocence enshrined in fundamental law (Dizon-Pamintuan,
supra).
In the instant case, the lst and 2nd elements were duly established. The question is
whether the third element exists.
Dizon-Pamintuan gives us the guidelines:
(definitions/descriptions of know and should know. Bottom line: between two equally
plausible states of cognition or mental awareness, the court should choose the one which
sustains the constitutional presumption of innocence). In Dizon Pamintuan, the accused was
unable to rebut the prima facie presumption by failing to present her supplier/dealer, who
allegedly was the source of the stolen jewelry; neither did she establish that the latter was a
licensed supplier/dealer of jewelry. This is not so in the case at bar. Private respondents
presented sales receipts from known hardware stores/registered business establishments
covering their purchases of the plywood; thus the prima facie presumption was successfully
disputed. Admittedly, there is no jurisprudence to the effect that a receipt is a sufficient
defense against charges of fencing. But logically, and for all practical purposes, such receipt
is proof - although disputable - that the transaction in question was legitimate. Absent other
evidence, the presumption of innocence remains. Hence, mandamus does not lie to compel
the investigating prosecutor to file the corresponding information against the respondents.
(D. M. Consunji vs DOJ Undersecretary Esguerra, et al, July 30, 1996).
Confession of thief, an employee, not sufficient to convict buyer, if employer did not
report the theft.

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The accused cannot be convicted of fencing for having bought articles allegedly
stolen by an employee and sold to him, where the employer from whom such articles were
stolen, never reported any theft or loss of such articles to the police nor did she (employer)
complain of such felonious taking of her property to any public authority since she forgave
the employee (thief). The confession of the thief (employee) is insufficient to convict
without evidence of the corpus delicti. The first element of fencing is absent, i. e.., that a
crime of robbery or theft has been committed (Tan vs People, Aug. 26, 1999).
The Anti-Fencing Law authorizes award of damages to offended party.
Consequently, the latter may intervene actively in the prosecution of the case with
the assistance of a private prosecutor (Lim vs CA, 222 SCRA 229).
Distinguish between fencing (PD 1612) and accessory to the crimes of robbery and theft.
Fencing

Accessory

1. Mere possession of any goods, article,

item, object of value which has been the
subject of robbery or theft shall be prima
facie evidence of fencing;

1. The holder or possessor of the stolen

property is presumed to be the principal of
the crime unless it be proven in a
satisfactory manner that he is but a mere
accessory thereto;

2. Immaterial whether or not possessor has 2. Accessory should have knowledge of the
knowledge that the object is a fruit of the commission of the crime of robbery or
crime of robbery or theft;
theft;
3. Fencing is malum prohibitum;

3. Malum in se;

4. PD 1612 prescribes a higher penalty 4. An accessorys liability is subordinate to

based on the value of the property; and
that of the principal; and
5. A person who buys or sells an item
derived from the crime of robbery or theft
is liable as a principal (in the crime of
fencing) and hence the penalty imposed
upon him is that of a principal and not that
of an accessory.

5. Under the RPC, an accessory is a person

who profits for him or assists the offender
to profit from the effects of the crime and
the liability of such accessory is two
degrees lower than that imposed upon the
principal of the consummated crime of
robbery or theft.

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PD 1612 (the Anti-Fencing Law), its purpose.
Before PD 1612, a fence could only be prosecuted for and be held liable as an
accessory, as the term is defined in Art. 19 of the RPC. The penalty applicable to an
accessory is obviously light under the rules prescribed in Arts. 53, 55, and 57 of the RPC,
subject to the qualification set forth in Art. 60 thereof. Noting, however, the reports from law
enforcement agencies that there is rampant robbery and thievery of government and private
properties and that such robbery and thievery have become profitable on the part o the
lawless elements because of the existence of ready buyers, commonly known as fence, of
stolen properties, PD 1612 was enacted to impose heavy penalties on persons who profit
by the effects of the crimes of robbery and theft. Evidently, the accessory in the crimes
of robbery and theft could be prosecuted as such under the RPC OR under PD 1612 (i.e.,
not under both). However, in the latter case, he ceases to be a mere accessory but becomes
a principal in the crime of fencing. Elsewise stated, the crimes of robbery and theft on the
one hand, and fencing, on the other, are separate and distinct offenses (P vs Hon. de
Guzman, L-77368, Oct. 5, 1993). The state may thus CHOOSE to prosecute him either
under the RPC or PD 1612, although the preference for the latter would seem inevitable
considering [1] that fencing is a malum prohibitum, and [2] PD No. 1612 creates a
presumption of fencing (Sec. 5) and [3] prescribes a higher penalty based on the VALUE of
the property (Sec. 3). (Norma Dizon-Pamintuan vs People, supra).
Comments. Considering that robbery or theft and fencing are DISTINCT offenses, for
the purpose of Criminal Procedure, the venue for the former could be likewise distinct from
that of the latter. (P vs. Hon. Jose C. De Guzman, et al., L-77368, Oct. 5, 1993). In De
Guzman, it was held that Violation of PD 1612 is not a continuing crime. The crimes of
robbery and fencing are clearly then 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 of robbery or theft. Neither is the crime of
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. It may
not be suggested, for instance, that, in the crime of bigamy which presupposes a prior
subsisting marriage of an accused, the case should thereby be triable likewise at the place
where the prior marriage has been contracted. (Ganchero vs Bellosilli, 28 SCRA 673
[1969]).
However, if the fence is charged as accessory to the crime of robbery or theft, then
the accessory shall be impleaded (included) in the same information for robbery or theft, i.
e., regardless of the place where the accessory intervened after the commission of the crime.
Q. Is joyriding sufficient to make one criminally for theft?
Ans. It depends. As to the principal, Yes, because the mere pleasure of joyriding
already constitutes intent to gain which is an essential element of the crime of theft
(Villacorta, et al vs. Insurance Commissioner, et al, 100 SCRA 467). As to the accessory,
No. It was held that the benefits (profits) referred to in Art 19 No. 1 refer to material

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benefit. Joyriding does not give any material benefit to one who rides on a vehicle stolen
by another. Hence, the one simply riding thereon for the purpose of joyriding is not an
accessory to the crime of qualified theft. (P vs Morales, CA, 71 No. 5 O. G. 529). Note:
The incident giving rise to the Morales case took place before the Anti-Carnapping Law
took effect).
Q. When is profiting by the effects of the crime punished as the act of an accomplice
and not the act of accessory?
Ans. When a person knowingly acquired or received property taken by the
brigands (Art. 307, RPC). Under the law (Art. 306), the penalty imposable to brigands is
prision mayor in its medium period to reclusion temporal in its minimum period. Under Art.
307, RPC, the penalty imposable to the one acquiring or receiving the property taken by
such brigands, is one degree lower, i. e,. prison correccional in its medium period to prision
mayor in its minimum period.
Re No. 2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
Body of the crime referred to in this number means the corpus delicti. Examples:
1. Where one assists in the burial of the body of the victim (US vs Leal, et al, 1 Phil
118). Reason: If the body of the victim cannot be found, the crime cannot be proved.
Hence, concealing of the body of the victim is in effect concealing the crime itself.
One cannot be convicted as an accessory if he merely removed the corpse from the
scene of the crime and brought it to another place, without any attempt to bury or conceal the
same (P vs de la Cruz, 100 Phil 624).
In illegal possession of firearm, prosecution thereof may prosper even if the firearm
subject thereof is not recovered (P vs Lucas, CA, No. 3326-R, July 31, 1950, 5 Velayo 866).
In such case, the crime may be established by a slug or spent shell of the firearm. Or, if the
same was used in inflicting injury to another, the bullet wound is sufficient evidence to
establish illegal possession of firearm. Take note that where the victim is killed, the illegal
possession is only treated as an aggravating circumstance to the crime of homicide/murder.
2. By placing a weapon in the hand of the victim after the latter died, thus making
it appear that the killing was done in self-defense (US vs Cuison, 20 Phil 433).
One who kept silent with regard to the crime he witnessed is not an accessory (US vs
Caballeros, et al, 4 Phil 350). Reason: Failure to report to the authorities the commission of
a crime is not an offense. Such an omission is not one of the different acts enumerated in Art
19. Here, there is no evidence that Caballeros participated in the commission of the crime.
However, in a case, it was held: x x x Punzalans flight from the scene of the crime with his
companions, and his failure, if he were truly innocent, to report to the police what he knew
about the crime after reading it in the newspapers further demonstrates his knowledge of the

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plan. Here, conspiracy was established. Punzalan criminally liable as a co-principal (P vs
Escobar, 157 SCRA 541, 566).
3. Where X has knowledge that Y, his brother, is involved in a conspiracy to commit
treason. X did not disclose such fact to the proper authorities (mayor, city prosecutor,
governor, provincial prosecutor). Held: X is guilty of misprision of treason (Art 116).
Where X assists Y in the latters escape, X is still liable because, although his act is that of
an exempt accessory under Art 20 and, in fact, he is punished as an accessory (to the crime of
treason), his participation is not that of an accessory to the crime of treason but that of a
principal in the crime of Misprision of Treason (Art 116). Exception: Where X is a priest
and he acquired knowledge of the activities of Y through confession. Here, even if X does
not disclose his knowledge, he is exempt from criminal liability because under the law the
priest cannot be compelled to reveal any information which he came to know by reason of
the confession made to him in his professional capacity (Sec 24-d, Rule 130).
Q. What about the sole eyewitness to the crime who falsely tells the authorities that he
has no knowledge of the commission of the offense, is he liable as an accessory?
Ans. Yes, because in effect he conceals the body of the crime in order to prevent its
discovery. Thus, in P vs Talingaan, 84 SCRA 19, 20, En Banc, it was held: One who
conceals or assists in the escape of the principal of the crime, as where she says to the police
investigators that she does not have anybody in mind as who killed her husband although she
knew the assailants, can be held guilty as an accessory to the crime of murder, which was
the crime committed, not accessory to parricide although the accessory is the wife of the
victim.
From the foregoing cases, it is clear that one who has knowledge of the commission
of a crime without participating in the commission thereof but does not report the same to the
authorities cannot be held liable as accessory thereof. But, the moment he is investigated
surrounding the incident giving rise to the criminal case and falsely tells the authorities
about what he knows, then this time he could be held criminally liable as an accessory.
In fact, it is believed that he could be held liable for Obstruction of Justice under Sec 3(i) of
PD 1829 which provides: Giving of false or fabricated information to mislead or prevent
the law enforcement agencies from apprehending the offender or from protecting the life or
property of the victim; x x x .
When is the conviction of the accessory possible even if the principal is acquitted?
Ans. In the following cases:
1. Where the crime was in fact committed but the principal was not held criminally
liable because of an exempting circumstance (Art 12).
2. Where the provisions of Art 332 applies to the principal.

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Apprehension and conviction of principal not necessary for conviction of accessory.
1. This is well-settled in connection with Nos. 1 & 2 of Art 19.
2. In connection with No. 3 of Art 19, there used to be a conflict in the decisions of
the Court of Appeals. One line of decisions says that it is not necessary (P vs Billon, 48 O.
G. 1391, P vs Inovero, et al, 65 O. G. 3168), while the other line says it is necessary (P vs
Barlam, 59 O. G. 2474). The latest doctrine is to the effect that, under No. 3 of Art 19, the
apprehension and conviction of the principal is not necessary for the accessory to be held
criminally liable. The ruling in the Billon case was upheld in P vs Nueva, CA No. 15193,
CR Feb 16, 1976, 74 No. 7 O. G. 1424, Feb 13, 1978issue).
Prevailing doctrine.
For one to be found guilty and punished as an accessory, it is not necessary that there
be a principal duly convicted (Cuello Calon). Neither the letter nor the spirit of the law
requires that the principal be convicted before one may be punished as an accessory. As long
as the corpus delicti is proved and the accessorys participation as such shown, he can be
held criminally responsible and meted out the corresponding penalty (Inovero, et al vs
Coronel, CA, 65 O. G. 3160). Finally, the SC, in Vino vs People, 178 SCRA 626-627, held:
As long as the commission of the offense can be duly established in evidence, the
determination of the liability of the accomplice or accessory can proceed independently of
that of the principal. The foregoing rule is the same rule applicable to a co-conspirator. A
conspirator may be convicted although the others are still at large (Villa vs SB, 208 SCRA
283).
Q. Can there be an accessory even after the principal is convicted?
Ans. Yes, by presenting oneself to serve out the sentence in lieu of the culprit. But
the crime committed by the principal culprit must be treason, parricide, murder or an attempt
to take the life of the President, or that he is known to be habitually guilty of some other
crime, when the accessory is a private individual. However, where the accessory is a public
officer and he abuses his public functions, the crime committed by the principal may be any
crime.
If the accessory publicly uses the name of the principal convicted of a crime
(regardless of the crime committed by the principal), the State may choose to prosecute the
accessory for Obstruction of Justice under Sec 3 (d) of PD 1829 which provides: Publicly
using a fictitious name for the purpose of x x x evading x x x the execution of judgment, x x
x.
Two kinds of accessories under par. 3 of Art. 19:
1. Public officer; requisites:
a. The principal committed any crime (Reyes, not light felony);

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b. The accessory must harbor, conceal, or assist in the escape of the principal with
abuse of his public function.
2. Private individual/civilian; requisites:
a. The principal must be guilty of the following crimes: (1) treason, (2) murder, (3)
parricide, (4) attempt on the life of the chief executive OR known to be habitually guilty of
some other crime;
b. The accessory harbors, conceals or assists in the escape of the author of the crime.
ARTS. 17, 18 & 19.
Q. What are the degrees of criminal liability of the following?:
1. Those who stabbed and held the arms of the victim - principal.
2. Those who merely pelted the victim with rocks as he (victim) ran away accomplices (P vs Agapinay, 186 SCRA 812).
3. A person who assaults the victim already fatally wounded by another - accomplice
(P vs Cagalingan, 186 SCRA 812).
4. A person who took care of a stolen carabao - accessory (Taer vs CA, 186 SCRA
598).
ART. 20. Accessories who are exempt from criminal liability.
Prob. F, the father of C, is the chief of police of a certain municipality. C
committed murder and, instead of arresting C, F helped him in his escape. Q. Is F guilty of
any offense?
Ans. F is an accessory to the crime of murder committed by C but there is an
absolutory cause in favor of F because he is an exempt accessory considering his relationship
to C. It is, however, believed that F is criminally liable under Art 208, RPC (Dereliction of
duty in the prosecution of offenses) which punishes one who shall maliciously refrain from
instituting prosecution for the punishment of violators of the law. This is a case where the
private interest of F as an exempt accessory conflicts with public interest considering the
official duty of F as a chief of police. F shall be held liable under Art 208 because it is wellsettled that where a private interest conflicts with public interest, the latter shall prevail.
However, there is no question that F could likewise be held liable for Obstruction of Justice
under Sec 3c of PD 1829 for facilitating the escape of C whom he knows or has reasonable
ground to believe or suspect, has committed the crime of murder, an offense which is
punishable under existing penal laws.

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A little twist to the problem.
Assume that an information for murder had already been filed against C at the time F
assisted him (C) in his escape.
Ans. In this case, it is believed that F could only be held criminally liable for
Obstruction of Justice under Sec. 3 (c) of PD 1829.

Title Three. PENALTIES

ART. 21. Penalties that may be imposed.
Q. What is the purpose of the State in punishing crimes?
Ans. To secure justice. The State has an existence of its own to maintain, a
conscience of its own to assert, and moral principles to be vindicated. Penal justice must
therefore be exercised by the State in the service and satisfaction of a duty, and rests
primarily on the moral rightfulness of the punishment inflicted. (Albert).
Q. May the courts make adjustments of the penalties based on the changing value of
the Philippine peso?
Ans. No. They are not authorized to adjust penalties according to the changing value of the
legal currency, as this clearly falls within the province of the legislature (P vs Gervacio, 102
Phil 687).
TAKE NOTE, however, that, although under Art. 2206 of the New Civil Code (RA
386), the death indemnity is only P3,000, through the years, the Supreme Court has been
constantly adjusting the death indemnity based on the decrease in the purchasing power of
the peso, so that, presently, death indemnity has been fixed by the Supreme Court in the
amount of P75,000, P50,000 as moral damages and P25,000 as exemplary damages (P vs
Benito Lachica y Llamas, L-143677, May 9, 2002, EN BANC).
ART. 22. Retroactive effect of penal laws.
Q. In point of time, what law governs the criminal jurisdiction of courts?
Ans. The law in force at the time of the filing of the complaint or information (P vs
Fontanilla, 23 SCRA 1227, P vs. Mariano, 71 SCRA 600, 606).
But, what is the penalty which the court shall impose?
Ans. That penalty provided for by law at the time of the commission of the crime
(Arts. 366 & 22). Exception: Where the penalty for the new law is favorable to the accused

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who is not a habitual delinquent. In this connection, there is a Supreme Court decision to the
effect that a favorable penal law (involving jurisdiction) will not be given retroactive effect if
the accused himself refuses to invoke said law and wants his case to be decided under the old
law (Ferrer y Rodriguez vs Pecson, 92 Phil 172). The Ferrer case is, however, rendered
obsolete in P vs Simon, 234 SCRA 555, wherein the SC En Banc held: Courts of justice are
under obligation to apply sua sponte the provisions of Art. 22, RPC where a later law is
favorable to the accused, although the latter does not invoke its application.
Procedural remedy where at the time a new law favorable to the accused takes effect, a
convict under the old law had already fully served the sentence in accordance with the
new law.
The proper remedy of the convict is to file a petition for a writ of habeas corpus.
The court convicting the accused could no longer correct the sentence so as to reduce the
penalty imposed under the old law because once a judgment is already final and executory
(and, in fact, already executed because the convict had already served the sentence), no court
in the land has authority to change the judgment.
ART. 25. Penalties which may be imposed.
Take note that the 1987 Constitution (Sec 19-1, Art III) did not abolish the death
penalty. It simply prohibits its imposition (P vs Muoz, 170 SCRA 107).
Congress revived the death penalty in RA 7659 (the Heinous Crimes Law, otherwise
known as the Death Penalty Law) which was approved on Dec. 13, 1993 (by then President
Aquino) and took effect on Dec. 31, 1993 (P vs Danny Godoy, 250 SCRA 676).
Q. Where the accused is acquitted, may public censure be included in the judgment of
acquittal?
Ans. No, because censure is a penalty. If the accused is acquitted, the court has no
authority to censure him. Censure, however light a punishment it may be is repugnant and is
contrary to acquittal (P vs Abella). If the court finds that the acts charged and proved are
immoral, unethical or otherwise reprehensible, but do not constitute a crime, then the court
may exercise its disapproval of those acts to avoid the impression that by acquitting the
offender, it approves or admires his conducts (P vs Maneses).
ART. 26. Fine - When afflictive, correctional, or light penalty.
The issue. At issue is Sec. 32 of RA 4670 (Magna Carta for Public School Teachers),
which provides: Penal Provision. - A person who shall wilfully interfere with, restrain
or coerce any teacher in the exercise of his rights guaranteed by this Act shall, upon
conviction, be punished by a fine of not less than one hundred pesos nor more than one
thousand pesos, or by imprisonment, in the discretion of the court.

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Ruling: Points of reference important for exercise of discretion. In declaring the
imprisonment portion of the penalty as unconstitutional, the SC held that it is not for the
courts to fix the term of imprisonment where no points of reference have been provided by
the legislature. What valid delegation presupposes and sanctions is an exercise of discretion
to fix the length of service of a term of imprisonment which must be encompassed within
specific or designated limits provided by law, the absence of which designated limits will
constitute such exercise as an undue delegation, if not an outright intrusion into or
assumption, of legislative power.
The suggested application of the so-called rule or principle of parallelism, whereby a
fine of P1,000.00 would be equated with one year imprisonment, does not merit judicial
acceptance. A fine, whether imposed as a single or as an alternative penalty, should not and
cannot be reduced or converted into a prison term; it is to be considered as a separate and
independent penalty consonant with Art. 26 of the RPC. It is likewise declared a discrete
principal penalty in the graduated scales of penalties in Art. 71 of said Code. There is no rule
for transmutation of the amount of a fine into a term of imprisonment. Neither does the Code
contain any provision that a fine when imposed in conjunction with imprisonment is
subordinate to the latter penalty. In sum, a fine is as much a principal penalty as
imprisonment. Neither is subordinate to the other. (P vs Hon. Judge Dacuycuy, et al., EN
BANC, L-45127, May 5, 1989).
Explain the RULE or PRINCIPLE OF PARALLELISM.
As may be gleaned from the SC decision in the Dacuycuy case, the rule or principle
means the transmutation of the amount of a fine into a term of imprisonment. According
to the SC, such rule or principle does not merit judicial acceptane.
ART. 27. Reclusion perpetua.
Q. Is the penalty of reclusion perpetua a divisible penalty considering its specific
duration as provided for in Sec. 21 of RA 7659 (twenty [20] years and one [1] day to
forty [40] years)?
Ans. No. After deliberating on the motion and re-examining the legislative history of
RA 7659, this Court concludes that although Sec. 17 of RA 7659 has fixed the duration of
reclusion perpetua from twenty (20) years and one (l) day to forty (40) years, there was
no clear legislative intent to alter its original classification as an indivisible penalty. If
reclusion perpetua was reclassified as a divisible penalty, then Art. 63 of the RPC would lose
its reason and basis for existence. To illustrate, the first par. of Sec. 20 of the amended RA
6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs
involved are of any of the quantities stated therein. If Art. 63 of the Code were no longer
applicable because reclusion perpetua is supposed to be a divisible penalty, then there would
be no statutory rules for determining when either reclusion perpetua or death should be the
imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as
the penalty in drug case, regardless of the attendant modifying circumstances.

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This problem revolving around the non-applicability of the rules in Art. 63 assumes
serious proportions since it does not involve only drug cases, as aforesaid. Under the
amendatory sections of RA 7659, the penalty of reclusion perpetua to death is also imposed
on treason by a Filipino (Sec. 2), qualified piracy (Sec. 3), parricide (Sec. 5), murder (Sec. 6),
kidnapping and serious illegal detention (Sec. 8), robbery with homicide (Sec. 9), destructive
arson (Sec. 10), rape committed under certain circumstances (Sec. 11), and plunder (sec. 12).
Now then, if Congress had intended to reclassify reclusion perpetua as a divisible
penalty, then it should have amended Art. 63 and Art. 76 of the RPC. The latter is the
law on what are considered DIVISIBLE PENALTIES under the Code and what should be the
duration of the periods thereof. There are, as well, other provisions of the RPC involving
reclusion perpetua, such as Art. 41 on the accessory penalties thereof and pars. 2 and 3 of
Art. 61 which have not been touched by a corresponding amendment. What then may be the
reason for the amendment fixing the duration of reclusion perpetua? The deliberations in the
Bicameral Conference Committee and in both Chambers of Congress do not enlighten us on
this, except the cryptic statement of Senator Tolentino x x x on the elimination of the new
penalty of life imprisonment by the Bicameral Conference Committee. It may however, be
pointed out that although the RPC did not specify the maximum of reclusion perpetua,
it is apparent that the maximum period for service of this penalty shall not exceed forty
(40) years. (Comment. This is reasoning by analogy to Art. 70 of the RPC. If those
sentenced to serve three penalties are released after 40 years, regardless of the total of the
said penalties, there is really no reason why a convict on whom the ONE penalty of reclusion
perpetua is imposed cannot be released after 40 years). At most then, in fixing a specific
duration for reclusion perpetua, Sec. 21 of RA 7659 merely restated the existing
jurisprudence. (P vs Lucas, L-108172-73, Jan. 9, 1995, EN BANC, P vs Magallano, et al.,
L-114872, Jan. 16, 1997, P vs Tiburcio Baculi y Elpedes, 246 SCRA 756).
Where the penalty imposable as provided for by the RPC is reclusion perpetua, it is
wrong for the trial court to impose a penalty of life imprisonment. The two are not the
same. Their differences are as follows:
1. Reclusion perpetua is that penalty provided for in the RPC for crimes defined and
penalized therein, except for some crimes defined by special laws which impose reclusion
perpetua, such as violations of RA 6425, as amended by RA 7659. On the other hand, life
imprisonment is a penalty usually provided for in special laws
2. Reclusion perpetua has accessory penalties; life imprisonment does not have
accessory penalties unless, the special law providing for such penalty provides for accessory
penalties.
3. Reclusion perpetua has a duration of 20 years and 1 day to 40 years under RA
7659,;life imprisonment has no duration.
4.
Reclusion perpetua may be reduced by one or two degrees while life
imprisonment cannot, in spite of the presence of mitigating circumstances.

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Imprisonment for life is not the same as life imprisonment. The proper penalty if
provided for by a special law is life imprisonment. The impression created when the
phrase imprisonment for life is used is that the convict will stay in prison for the rest of his
natural life (P vs Lucero, 229 SCRA 1, 3). There is no such penalty as imprisonment for
life. This penalty is imposed only by RTC judges who should better go back to the law
schools.
ART. 28. Computation of penalties.
Where accused is in jail pending appeal, receipt of decision confirming conviction
does not change detention of accused into service of judgment.
The reading (should be execution of judgment) of the decision of the CA to the
accused was still a necessary step previous to the actual commitment of the accused (P vs
Enriquez, et al, 107 Phil 201).
What are the legal consequences if the judgment of the CA (or the SC) affirming the
conviction of the accused is not executed?
Ans. They are:
1. The accused would continue to be credited only with 4/5 of his detention
considering that it is still considered as preventive imprisonment, except where he voluntarily
agreed in writing to abide by the rules imposed on convicted prisoners, in which case, the
execution of the judgment becomes immaterial because, at any rate, the accused would still
be entitled to full credit for his preventive imprisonment, and, under the 2000 Rules of
Criminal Procedure, Rule 114, Section 16, which is also provided for in Art. 29, the accused
shall be released the moment his preventive imprisonment equals the penalty imposable for
the crime committed.
2. Without the execution of judgment, the accused is not entitled to good conduct
allowance (Art 94 No. 3).
3. Without the execution of judgment, the accused would not be criminally liable for
Evasion of service of sentence (Art 157) if he escapes. However, if the accused commits a
felony after the receipt of the decision of the appellate court, he is a quasi-recidivist (Art
160) regardless of whether or not the decision of the appellate court is executed. This is so
because the execution of a final judgment is not required for Art 160 to apply.
ART. 29. Period of preventive imprisonment deducted from term of imprisonment.
Even if the accused is meted the penalty of reclusion perpetua, he is still entitled to
the full credit of his preventive imprisonment because Art. 29 does not make any distinction
between temporal and perpetual penalties (P vs Rolando Corpuz, 231 SCRA 480).

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The confinement of a youthful offender in a correctional institution is not considered an
imprisonment. (P vs Soler, 63 Phil 868).
In spite of the foregoing settled rule, under Art 197 of PD 603 (The Child & Youth
Welfare code), the youthful offender shall be credited with the full time he spent in actual
confinement and detention. And, it is not even necessary that he agreed to abide by the
disciplinary rules imposed upon convicted prisoners for the youthful offender to be entitled
to the full credit.
Case.
The accused was under preventive imprisonment. After trial, he was
convicted but the penalty imposed was destierro and the period of his preventive
imprisonment far exceeded the duration of the destierro. Q. Must the accused be required to
serve the destierro?
Ans. As a matter (substantial) justice, the accused need not serve the penalty of
destierro (P vs Magonawal, et al, 63 SCRA 106).
REMEMBER THE FOLLOWING.
1. Among those disqualified to enjoy the benefits under this article are 1. recidivists,
or (those who) have been convicted previously twice or more times of any crime. Although
not clearly mentioned in the law, a habitual delinquent is among those who are disqualified
to enjoy the benefits of the law, because, according to the Supreme Court, a habitual
delinquent is necessarily a recidivist or that at least he has been convicted previously twice or
more times of any crime (P vs Gona, L-47177, Nov. 4, 1940).
2. On the other hand, under the Indeterminate Sentence Law, habitual delinquents are
expressly disqualified to enjoy the benefits of the law. However, recidivists (P vs Arellano,
69 Phil 678) and quasi-recidivists (P vs Dimalanta, 92 Phil 239) are entitled to the benefits of
the Indeterminate Sentence Law.
ART. 34. Civil interdiction. (Connect with Art. 41).
Q. What is the status of a contract of sale disposing of a parcel of land executed by a
convict (while serving sentence)?
Ans. It depends. If the penalty imposed upon the convict for which he is serving
sentence is reclusion temporal or higher, the sale is voidable because, among the accessory
penalties of the said principal penalties, is civil interdiction. When a convict suffers from
civil interdiction, he is not capacitated to enter into a contract inter vivos. (Note: However,
such convict may execute a valid donation mortis causa or a will, both of which take effect
only after the death of the convict).
However, if the penalty imposed upon the convict is prision mayor or lower, the
contract is perfectly valid because the said penalty does not carry with it the accessory
penalty of civil interdiction.

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Be careful of the following:
The problem may state that the penalty imposed upon the convict is death. Take note
that, for obvious reason, the death penalty does not carry any accessory penalty. It is only
when the penalty is commuted or the convict is granted pardon that the death penalty carries
accessory penalties among which is civil interdiction. See Art. 40. Hence, even if the
judgment of conviction is already final and executory (that is, after the mandatory review by
the Supreme Court), if, before a death convict is executed, he enters into a contract inter
vivos, the same is perfectly valid, on the assumption that all the elements of a valid contract
are present. If, after the contract is perfected, the penalty of the convict is commuted or he is
pardoned, this supervening event will not affect the validity of the contract. A valid contract
remains valid and the same will not be affected by the supervening incapacity of the
contracting parties.
ART. 35. Effects of bond to keep the peace.
This is not an accessory penalty. Although included in the list of principal penalties
(Art. 25), there is no crime defined in the RPC for which this penalty is imposed.
Do not confuse this article with Bond for good behavior (Art. 284) which is
prescribed by the RPC for the crimes of grave and light threats. Here, the person making the
threats may be required to give bail conditioned that he would not molest the person
threatened, failing which he shall be sentenced to destierro.
ART. 36. Pardon; its effects.
As a penalty, accessory penalties do not have to be expressly imposed - they are
deemed imposed with the principal penalty (Art 73).
However, the rule in pardon is different. Where the accused-convict is extended a
pardon, accessory penalties are not deemed included, unless expressly so stated in the
pardon. Exception: When an absolute pardon is granted after the term of imprisonment has
expired, it removes all that is left of the consequences of conviction although there is no
mention of the accessory penalties (Cristobal vs Labrador, et al, 71 Phil 34).
Before the 1987 Constitution, pardon could be accepted by an accused whose case
was still pending appeal, and his acceptance of the pardon constitutes an implied
abandonment of his appeal (Monsanto vs Factoran, 170 SCRA 190). However, the 1987
Constitution has restored the former limitation of final conviction as precondition to a valid
grant of pardon. Hence, at the present, the accused cannot be extended pardon if his case
is still pending appeal. The proper procedure for the accused who is interested that he be
pardoned is to file a Motion To Withdraw his Appeal. The trouble, however, is that, it is a
settled rule in this jurisdiction that the withdrawal of an appeal is not a matter of right on the
part of the accused-appellant, but is lodged within the discretion of the appellate court.

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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 41). 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 (Art 36,
par 1). However, in case of conditional pardon, the conditions cannot operate beyond the
terms of the original sentence (Infante vs Prov Warden of Neg Occ, 92 Phil 310).
Connect with the Probation Law.
Where the accused is granted probation under PD 968, as amended, it stays the
execution of the principal penalty including the accessory penalties (Baclayon vs Mutia, 129
SCRA 149-150). However, the grant of probation does not bar the offended party from
having the civil aspect of the case executed or from filing an administrative case against the
accused so that the latter, who is a public officer, could be suspended from office.
Compare the following: pecuniary liabilities, pecuniary penalties and civil liability.
Pecuniary liabilities (Art.
38)

Pecuniary Penalties (Art.

89 No. 1)

1. The reparation of the 1. The fine.

damage caused.
2. The indemnification of 2. The costs
consequential damages.
proceedings.
3. The fine.

4. The costs
proceedings.

Civil Liability (Art. 104).

1. Restitution.

of

the 2. The reparation of the

damage caused.
3. The indemnification of
consequential damages.

of

the

Comment. Of the three terms, pecuniary liabilities is the broadest term because it
includes pecuniary penalties (which accrue to the state) and civil liabilities (which accrue to
the private offended party).
If properties of offender be insufficient for payment of all his pecuniary liabilities,
court has no authority to disregard the order of payment as provided for by law, same
being mandatory (Domalaon vs Yap, et al, CA 59 O. G. 6675).

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Mandamus would therefore lie against the court which orders that the fine be
preferred in the payment. Should the offender be insolvent, the proper remedy of the court is
to require the accused to undergo subsidiary imprisonment (Art 39). Thats why, in all
cases where the court imposes a fine as a penalty, it shall embody in its decision that the
convict shall undergo subsidiary penalty in case of insolvency. Although mandatory upon
the courts, a convict cannot be required to undergo subsidiary imprisonment (a form of
subsidiary penalty) if the decision is silent regarding subsidiary penalty (P vs Fajardo, 65
Phil 539). Subsidiary penalty is therefore different from accessory penalty in that in the
case of the latter, the same need not be included in the judgment. The law will just come in
(Art 73).
ART. 39. Subsidiary penalty.
The opening sentence of this article reads: If the convict has no property with which
to meet the fine x x x . And the pertinent portion of No. 5 of this article reads as follows:
The subsidiary personal liability which the convict may have suffered by reason of his
insolvency x x x . Based on the foregoing, Reyes believes that a convict who has property
enough to meet the fine cannot choose to serve the subsidiary penalty instead of paying the
fine. However in P vs Abelardo, 66 SCRA 545, it was held: There is nothing in the law
which says that before subsidiary imprisonment may attach, there must be prior
determination of the question of solvency of the accused. Hence, the moment he cannot pay
the fine, that means he is insolvent and he must serve the same in the form of subsidiary
imprisonment. So, accused has to choose to pay the fine or serve in jail.
When the principal penalty imposed is higher than prision correccional no subsidiary
imprisonment shall be imposed upon the culprit (Art 39 No. 3).
In this connection, the additional penalty for habitual delinquency should be
included in determining whether or not subsidiary penalty should be imposed (P vs
Concepcion, 59 Phil 518).
Take note that subsidiary imprisonment, like accessory penalties, is not essential in
determining jurisdiction (P vs Caldito, 72 Phil 263). On the other hand, the penalty for
habitual delinquency is a real penalty that determines jurisdiction (P vs Costosa, 70
Phil l0).
Q. Is there subsidiary penalty for offenses punished by special laws?
Ans. Yes (P vs Cubelo, 106, Phil 496), unless otherwise provided in the said special
laws (P vs Moreno, 60 Phil 712). Moreno is in accordance with Art 10, RPC which, in
part, provides: This Code shall be supplementary to such (special) laws, unless the latter
shall specially provide the contrary. In other words, if the special law is silent as to whether
the convict may be required to undergo subsidiary imprisonment (penalty), then subsidiary
imprisonment will apply. Bearing this in mind, that portion of the decision of the CA in P vs
Araneta, 91 No. 1 O. G. 36, Jan 2, 1995 issue, which is in connection with a violation of
BP 22 wherein it was Held: No subsidiary imprisonment in case of insolvency considering

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that BP 22 is a special law and considering further that it does not provide for the imposition
of subsidiary imprisonment in case of insolvency is a wrong.
The subsidiary penalty is the same deprivation as those which the principal penalty
consists (No. 4). Thus, if the penalty imposed is imprisonment, the subsidiary penalty must
be imprisonment also. If the penalty imposed is destierro, the subsidiary penalty must be
destierro also. If the penalty imposed is suspension, the subsidiary penalty must be
suspension also. This is because par 4 of Art 39 reads: shall continue to suffer the same
deprivations as those of which the principal penalty consists. For the forgoing reason, do
not use the term subsidiary imprisonment because subsidiary penalty does not always come
in the form of subsidiary imprisonment.
The convict who served subsidiary penalty may still be required to pay the fine in case
his financial circumstances should improve (Art 39 No. 5).
This is anti-poor. The convict who is placed on probation under PD 968, as amended,
and who therefore does not serve a prison sentence, is treated by the law in a different way.
Thus, par 2 of Sec 16 of PD 968, as amended, reads as follows: The final discharge of the
probationer shall x x x fully discharge his liability for any fine imposed as to the offense for
which probation was granted.
ART. 40. Death - Its accessory penalties.
Facts: The dual killings were committed in December 1985. On Feb. 2, 1987, the
Constitution took effect proscribing (prohibiting) the imposition of the death penalty. On
Dec. 31, 1993, RA 7659 (The Heinous Crimes Law) took effect, reinstating the death
penalty. On Oct. 7, 1997, the RTC rendered its judgment imposing upon the accused the
death penalty.
Held: The accused cannot be sentenced to death just because the same was
reinstated at the time the trial court rendered judgment against them. When the 1987
Constitution took effect, the provision therein proscribing the imposition of the death penalty,
being more favorable to the accused, could have been retroactively applied to them. (P vs
Gano, L-134373, March 5, 2001). However, the cases at bar were decided by the trial court
on October 7, 1997. In the interim, RA 7659 took effect on Jan. 1, 1994 (should have been
Dec. 31, 1993), reinstating the death penalty. The accused cannot be faulted for the delay in
the disposition of the cases against them. (P vs Dumalahay, L-131837-38, April 2, 2000, EN
BANC). In criminal cases, all doubts shall be resolved in favor of the accused. Hence, the
accused should only be sentenced to suffer the penalty of reclusion perpetua.
NOTE: Take note of the leniency of the SC in favor of the accused. At the time the
crime was committed in December, 1985, the death penalty could be imposed; the death
penalty could likewise be imposed at the time of the rendition of judgment by the trial court.
However, after the commission of the crime but before the judgment could be rendered, the
death penalty was proscribed by the 1987 Constitution. It is clear therefore that the moment

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there is an opportunity for the death penalty not to be imposed, then that moment is
controlling for the purpose of not imposing the death penalty.
ART. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.
Case. A boat used to transport passengers when it capsized and sank resulting in the
death of some of its passengers cannot be seized solely upon the ground that it was used as an
instrument of the crime of multiple homicide through reckless imprudence, the allegations
in the information that the accused therein had steered the boat in a reckless and negligent
manner at an excessive rate of speed with overloaded passengers, and in violation of customs
and maritime laws and by reason of their inexcusable lack of precaution, failed to perform
their acts with due diligence, did not make the boat itself the subject of the offense, because
the subject matter thereof was the negligent handling of the boat which was not in the boat,
but in the body, in the minds and in the muscular power of the one handling the wheel.
The term instruments or effects of the crime does not include within its range,
human inventions that can be used for peaceful and legal purposes, but only those in fact
used for a criminal purpose, and even where so used, only those which exclusively were the
instruments or products of the criminal mind (Jose Tanaleon vs The City Fiscal of Iloilo City,
et al, 62 No. 30 O. G. 5432, CA, July 25, 1966 issue).
Requisites for the court to validly order the confiscation and forfeiture of the proceeds
or instruments of the crime:
1. Filing of the corresponding criminal case (Philips vs Mun Mayor, 105 Phil 1344).
If only a civil case is filed against the offender, the forfeiture will not lie.
2. The proceeds or instruments of the crime shall be submitted in evidence (US vs
Filart, et al, 30 Phil 80). Without the proceeds or instruments of the crime being submitted in
evidence, the court does not acquire jurisdiction over them. Hence, the court has no authority
to order their confiscation and forfeiture.
What is the procedure in the following cases?
1. Where the property belongs to an innocent 3rd person. The 3rd person may file a
Motion for Intervention in the criminal case praying for the release to him of the property so
that a hearing could be conducted thereon (P vs Delgado, CA, 64 O. G. 785). Or, the 3rd
person may file an independent civil action for recovery of the property with a prayer for the
issuance of a writ of replevin.
2. Where articles were already ordered forfeited by the Commissioner of Customs
and such order is already final, the court has no authority to order the return of such articles
to the accused even if the latter is acquitted (Com of Customs vs Encarnacion, et al, 95 Phil
439, P vs Valenzuela, 135 SCRA 712). In the Valenzuela case, the SC dismissed from
service the RTC Judge who ordered the return of the articles to the accused. The dismissal
was based on the doctrine of res ipsa loquitur. In said Valenzuela case, the accused was

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acquitted on a defense that he was not the owner of the foreign currency ordered confiscated
by the Commissioner of Customs, and yet, in the same judgment of acquittal, the court
ordered that the said currency be returned to the accused.
In US vs Hart (24 Phil 579), it was held: Confiscation and forfeiture are additional
penalty. So, if not imposed in the judgment, there can be no confiscation or forfeiture.
However, in case of appeal, the appellate court has authority to order the confiscation and
forfeiture if the trial court failed to do so (P vs Exconde, 101 Phil 1125). The Hart case is of
doubtful validity and the authority of the appellate court in Exconde, appears to be
superfluous. Confiscation and forfeiture are accessory penalties (Art 25), not additional.
Hence, they are deemed imposed upon the convict together with the principal penalty even if
the judgment is silent about them ( Art 73, P vs Silvallana, 61 Phil 636).
ART. 47. Cases in which death penalty shall not be imposed.
Q. Is the death penalty a cruel and unusual punishment?
Ans. No. The death penalty, as such, is not excessive, unjust or cruel, within the
meaning of that word in the Constitution. Punishments are cruel when they involve torture or
lingering death. Cruel punishment implies something inhuman and barbarous, something
more than the mere extinguishment of life (P vs Marcos, L-65048, Jan. 9, 1987, 147 SCRA
204, 216).
Q. What are the three instances when the death penalty (although it is the penalty
imposable) shall not be imposed?
Ans. They are:
1. When the guilty person is below 18 years of age at the time of the commission of
the crime;
2. When the guilty person is over 70 years of age; and
3. 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 all these three cases, the penalty shall be commuted to reclusion perpetua. Take
note that the commutation of the penalty of death to reclusion perpetua does not require the
action of the President. The courts can just apply the law.
Where the accused is a minor over 15 but under 18 at the time of the commission of
the crime, applying the law (Art 47), the death penalty shall be commuted to reclusion
perpetua. There is, however, doubt in the strict application of Art 47 in the following cases:
1. Where the minor, who acted with discernment, was over 9 but below 15 at the
time of the commission of the crime because under Art 68 No. 1, in such case the penalty

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shall be lower by two degrees, and so, under the latter law, it is reclusion temporal. Art 68
No. 1 being favorable to the accused, it is believed that it is the said law which prevails.
2. Where the death penalty is imposed by a special law. In People vs Legasca
(L-73818, Feb. 27, 1987, First Div., 148 SCRA 264) and in People vs Mangusan (L-77832,
Sept 14, 1990, First Div. 189 SCRA 624), it was, in effect, held: Arts. 68 and 80 of the RPC
do not apply where the capital penalty (death) is imposed by a special law. Reason:
Privileged mitigating circumstance of minority cannot be appreciated because the penalty
imposable does not have minimum, medium and maximum periods. Neither is the accused
entitled to the benefit of the Indeterminate Sentence Law. In Legasca, the accused was 17
years, 6 months and 21 days, while in Mangusan, the accused was 15 years and five months
old, at the time they, respectively, committed the crime in violation of RA 6425 (The
Dangerous Drugs Act), as amended, a special law. In Legasca, the only thing that the SC did
in view of the presence of the privileged mitigating circumstance of minority was to
recommend to the President, through the Minister of Justice that clemency be extended to the
accused. In Mangusan, the SC did not even make such recommendation. Instead, it said:
Subject only to the Bill of rights, all efforts should be taken against the spread of drug
addiction, which has already taken a heavy toll on the lives and future of our people,
especially the youth. The campaign must continue with relentless resolve, that the innocent
and the weak maybe spared from the misery of this malignant affliction.
VERY IMPORTANT. In Legasca and Mangusan, the issue of whether or not the
death penalty shall be imposed in crimes punished by special laws where the accused was
below 18 years at the time of the commission of the crime as provided for in Art. 47 was not
resolved by the Supreme Court because the penalty imposed by the trial courts in both cases
was life imprisonment which the Supreme Court affirmed on appeal.
However, the issue here (Art. 47) is not whether the privileged mitigating
circumstance of minority should be appreciated or that the accused be entitled to the benefit
of the ISL. The issue here is whether the mandatory provision of Art 47 that the death
penalty shall not be imposed where, among others, the guilty person is below 18 years of age.
In this connection, it is believed, that where the death penalty is imposed by a special law,
following the applicable rule of statutory construction and reasoning by analogy so as to
interpret the law in favor of the accused, the death penalty shall be commuted by the courts to
life imprisonment. And this is regardless of whether the minor is over 9 but below 15 or over
15 but below 18 at the time of the commission of the crime because where the crime is
punished by a special law there is no way for us to reduce the penalty by two degrees lower.
Of course, if the SC would take a hard stance on this issue, then, the proper recourse would
be an applicable law enacted by Congress of the Philippines.
There is, however, a silver lining in this legal dilemma. In People vs. Tsang Hin Wai
(L-66389, Sept. 8, 1986, EN BANC, 144 SCRA 22), applying Art. 63 No. 2 in relation to
Art. 10 of the RPC, it was, in effect, held that where there are neither mitigating nor
aggravating circumstances present and the penalty imposable for a crime punished by a
special law is life imprisonment to death, life imprisonment shall be imposed upon the
accused. The pertinent portion of the decision reads:

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We find no merit in appellees contention. true, this Court in several cases has laid
down the doctrine that offenses which are punishable under special laws are not subject to
the provisions of the Revised Penal Code regarding application of penalties. However, the
doctrine is not controlling in the present case.
The cases which spawned the above doctrine involved special laws which, while
prescribing the penalties for the offense, explicitly granted to the court the discretion to
determine the penalty to be meted out within the range of the prescribed penalties. The
rationale of the doctrine was clearly explained in People vs. Ramos, which involved
prosecution for illegal possession of firearms punishable under the Revised Administrative
Code. The penalty prescribed under the said Code was imprisonment for a period of not
exceeding one year, or both imprisonment not exceeding such period and a fine not
exceeding One Thousand Pesos, in the discretion of the Court (Section 2692). Pointing out
that as provided in Article 10 the provisions of the Revised Penal Code shall be
supplementary to special laws, this Court held that where the special law expressly grants
to the court discretion in applying the penalty prescribed for the offense, there is no room for
the application of the provisions of the Code. Said this Court:
(Portion in Spanish omitted)
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the court is the application of the penalty prescribed by the law.
In such case, the court must be guided by the rules prescribed by the Revised Penal Code
concerning the application of penalties which still the deep legal thought and centuries of
experience in the administration of criminal laws.
Applying the provisions of Article 63, paragraph 2, of the Revised Penal Code, the
penalty that should be imposed on the convicted accused is life imprisonment and a fine of
P120,000.00.

Hence, reasoning by analogy from the Tsang Hin Wai case, it is believed that where the
accused was below 18 years of age at the time of the commission of the crime punishable
with a death penalty, pursuant to Art. 47 of the RPC, such penalty may be reduced to life
imprisonment.
Q. In the case of a person over 70 years of age; at what time must the person be over
70?
It is noted that the law is silent as to whether said age shall be the age of the guilty
person at the time of the commission of the crime or at the time the judgment of conviction
imposing the death penalty is to be executed (that is, after the mandatory review by the

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Supreme Court). It is believed that the guilty person need not be over 70 years of age at the
time of the commission of the crime. Thus, in People vs Alcantara, L-16832, Nov. 18, 1967,
21 SCRA 906, the Supreme Court applied Art. 47 to the accused who was 64 years old at the
time the trial court rendered its decision but he was already over 70 years of age at the time
his conviction was reviewed by the Supreme Court. Take note that even if the death penalty
is imposed upon him, under Art 83, such penalty shall be suspended and commuted to the
penalty of reclusion perpetua with the accessory penalties provided in Article 40 (perpetual
absolute disqualification and that of civil interdiction during 30 years following the date of
sentence).
ART. 48. Penalty for complex crimes.
Plurality of crimes, explained.
It consists in the successive execution by the same individual of different criminal
acts upon any of which no conviction has yet been declared.
Kinds:
1. Formal or ideal plurality (Art 48):
a. Compound crime - when a single act constitutes two or more grave or less grave
felonies;
b. Complex crime proper - when an offense is a necessary means for committing the
other.
Note: Special complex crime (a.k.a. composite crime) - a crime which in substance is
made up of more than one crime but in the eyes of the law is regarded as a single
indivisible offense. (Art. 294). Examples: (1) Robbery with homicide; (2) Robbery
with rape. These crimes are not complex under Art. 48.
2. Real or material plurality - there are different crimes in law as well as in the
conscience of the offender.
When two crimes produced by a single act are respectively within the exclusive
jurisdiction of two different trial courts, the court of higher jurisdiction shall try the
complex crime (Angeles vs Jose, 96 Phil 151).
This must be so because, although two or more crimes are actually committed, they
constitute only one crime in the eyes of the law (P vs Hernandez, et al, 99 Phil 515).
Consequently, only one information/complaint shall be filed. If the case would be split, the
accused could have one of the cases dismissed (quashed) in a motion to quash after he shall
have entered his plea in one of the cases.

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Q. Which court has jurisdiction where physical injuries and damage to property result
from reckless imprudence.
There may be cases, x x x where the imposable penalty for the physical injuries
charged would come within the jurisdiction of the town court (MTC/MCTC) while the fine
for the damage to property (three times the value of the damage under Art. 365), would fall
on the RTC. As the information cannot be split into two, one for damages and another for
the physical injuries, the jurisdiction of the court to take cognizance of the case must be
determined not by the corresponding penalty for the physical injuries charged but by the fine
imposable for the damage to property resulting from the reckless imprudence (P vs
Malabanan, 2 SCRA 1185, cited in Cuyos vs Hon. Garcia, L-46936, April 15, 1988).
Very Important. The Cuyos case, citing Malabanan, was promulgated in 1988, that
is, before SC Adm. Cir. No. 09-94 was adopted by the Supreme Court on June 14, 1994.
The said circular implemented RA 7691 which was approved by the President on March 25,
1994. Pertinent to the Cuyos and Malabanan cases is No. 4 of the Circular, which states the
following rules:
1. If the offense is punishable by imprisonment and/or fine, the amount of the fine is
disregarded in determining the jurisdiction of the court;
2. In cases where the only penalty provided by law is fine, the amount thereof shall
determine the jurisdiction of the courts. If the amount is P4,000 or less - the town or city
courts. If more than P4,000 - the RTC;
3. Damage to property through criminal negligence - under the exclusive jurisdiction
of the town and city courts irrespective of the amount of the imposable fine. (Note:
However, qualified reckless imprudence resulting in homicide [Art. 365, last par.] is
cognizable by the regional trial court).
Applying Sec. 4 of the abovementioned SC Circular to an incident similar to the
Cuyos and Malabanan cases, it will be the town or city courts which have jurisdiction to try
the case considering that where the imposable penalty is imprisonment and/or fine, for the
purpose of determining jurisdiction, we will have to disregard the fine. And so, it is the
penalty for physical injuries which is controlling. It must be emphasized that even assuming
that the offense committed, in additional to damage to property, is serious physical injuries
(resulting from criminal negligence), the case is still cognizable by the town or city court.
The exceptional case of People vs Miraflores (115 SCRA 57).
Facts:
Here, the accused delivered a bomb with vegetables which exploded
resulting in the death of one victim and serious injuries to seven persons. The Prosecutor
filed two informations, one for Murder and another for Multiple Frustrated Murder. The SC
denied the motion to quash one of the cases on the ground of double jeopardy on a finding
that the information for Murder did not mention the names of the victims in the Multiple
Frustrated Murder case and the names of the victims in the latter case were not mentioned in

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the information for Murder. Strictly legally, however, and in accordance with the rule of
criminal procedure, only one information for the complex crime of murder with
multiple frustrated murder should have been filed. And, there shall only be one penalty,
that for murder to be imposed in the maximum period (death). Thus, the holding of the SC in
Angeles vs Jose, 96 Phil. 151, a prosecution for reckless negligence resulting in damage to
property and less serious physical injuries, wherein it was held: Apply Art 365 and impose
an additional penalty for the physical injuries is wrong. The error was pointed out by the
SC in the later case of Castillo vs Judge Donato (l37 SCRA 210) wherein it was held that
there shall only be one penalty for a complex crime (P vs Penas, 66 Phil 682).
Q. May the offense of slight physical injuries be included in the same complaint or
information for homicide or damage to property where the said offenses are the
results of reckless negligence?
Ans. The decisions of the Supreme Court are apparently conflicting:
1. People vs Silva (L-15974, Jan. 30, 1962, EN BANC, 4 SCRA 95), People vs
Lizardo (L-22471, Dec. 11, 1967, EN BANC, 21 SCRA 1225), and P vs Cao (17 SCRA
237). Held: Yes, slight physical injuries must be filed together with homicide and/or
damage to property through reckless imprudence, otherwise, the accused may invoke double
jeopardy.
2. Lontok, Jr. vs Gorgonio (L-37396, April 30, 1979, Second Div., 89 SCRA 632).
Held: Slight physical injuries cannot be complexed with homicide and/or damage to
property through reckless imprudence because Art 48 applies only to grave and less grave
felonies. (Citing P vs Turla, 50 Phil 1001, and P vs Benitez, 73 Phil 671).
In Lontok, the SC reasoned as follows: Reckless imprudence is not a crime in
itself but is simply a way of committing a crime and it merely determines a lower degree
of criminal liability. Negligence becomes a punishable act when it results in a crime. x x x
There is a complex crime when a single act constitutes two or more grave or less grave
felonies or when a grave or less grave offense is a means of committing another grave or less
grave offense. Thus, the light felonies of damage to property and slight physical injuries,
both resulting from a single act of imprudence, do not constitute a complex crime. They
cannot be charged in one information. They are separate offenses subject to distinct
penalties.
Note: The Lontok case was impliedly abandoned in Buerano vs CA, et al (L-30269,
July 19, 1982, First Div., 115 SCRA 82) reiterating People vs Buan (L-25366, March 29,
1968, EN BANC, 22 SCRA 1382), which is similar to P vs Silva, supra. . Also refer to P
vs Declaro, 170 SCRA 142 and Mayo vs People, 204 SCRA 642. Hence, Lontok, a mere
decision of a division of the SC, may thus be considered as a stray decision and the same is
not controlling on the issue.
The prevailing doctrine therefore is that slight physical injuries, although it is a light
felony, may be filed in the same complaint (information) with damage to property

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and/or homicide where
complexing here.

the offenses result from reckless negligence.

There is no

In Buan, supra, the SC held: Reason and precedent both coincide in that once
convicted or acquitted of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence of the quasi-offense of criminal
negligence under Art. 365 of the RPC lies in the execution of an imprudent or negligent act
that, if intentionally done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the consequence is only
taken into account to determine the penalty, it does not qualify the substance of the offense.
And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can
not be split into different crimes and prosecutions. This has been the CONSTANT
RULING of the Spanish Supreme Court, and is also that of this Court in its most recent
decisions on the matter.
Comment.
Technically, there is no complexing here of slight physical injuries
with homicide and/or damage to property according to Art 48. The correct approach here is
that homicide, damage to property and physical injuries are not distinct crimes but are simply
the results of the reckless negligence of the offender. It is the one act of reckless negligence
of the offender which is punished under the law. Consequently, considering that there is only
one act of reckless negligence, then there shall only be one complaint or information to be
filed against the offender in spite of the fact that his reckless negligence resulted in the
commission of two or more crimes, one or more of which if taken separately may be a light
felony as in the case of slight physical injuries.
BUT BE CAREFUL. The rule in intentional felony is different. Thus, if A, with
treachery and with intent to kill, shot and killed B, but the same bullet which hit B also hit
C, a by-stander, inflicting a slight injury upon the latter, there are two crimes committed,
namely, murder, with B as the victim and slight physical injuries with C as the victim. The
crimes cannot be complexed because, although the two crimes resulted from the single act of
A in shooting B, slight physical injuries, a light felony cannot be complexed with murder for
the reason that, under Art. 48, RPC, only grave, e. g. murder, and less grave felonies can be
complexed.
Rule on compound crime is applied in the following case.
The single impulse test. When in obedience to an order several accused
simultaneously shot many persons without evidence how many each killed, there is only a
single offense - complex crime of multiple homicide - there being a single criminal impulse.
(P vs Lawas, 97 Phil 975). The Lawas case is now known as the single impulse test in
applying Art. 48. In this case, the SC emphasized that there was no intent on the part of the
accused to fire at each and everyone of the victims separately and distinctly from each other.
In P vs Pineda, et al (20 SCRA 748), the SC itself criticized its decision in Lawas and Held:
What the law (Art 48) contemplates is singularity of criminal act; singularity of criminal
impulse is not written into the law. Finally, in P vs Mision (194 SCRA 432, 434), the SC

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took occasion to explain its decision in Lawas, as follows: In the Lawas case, there were
several accused and about 50 victims but there was no evidence at all showing the identity or
number of persons killed by each accused. Instead of holding each accused responsible for a
specific death or deaths or for 50 deaths, the Court (SC) was forced to find all the accused
guilty of only one offense of multiple homicide (a complex crime). Note: The SC was
therefore forced to apply the single criminal impulse test in Lawas, although the same is
not countenanced in Art 48.
Compare the Lawas case with the following cases:
1. P vs De Leon (49 Phil 437). A thief who takes from the yard of a house two game
roosters commits only one crime of theft - not a complex crime. The fact that the roosters
belong to two different persons is immaterial. Reason: There is a unity of thought in the
criminal purpose of the offender.
2. P vs Gallardo, et al (CA, 52 O. G. 3103). Where the accused falsified 17 money
orders placed inside a letter all in one envelope to commit the crimes of estafa (he presented
the 17 money orders on one occasion for encashment), there is only one crime committed the complex crime of estafa thru multiple falsification.
3. P vs Emit (CA, No. 13477-R, Jan 31, 1956). Where the accused and his
companion ran amok killing eleven persons. Held: Since the killings were the result of a
single impulse and that they did not have in mind any particular individual, the acts
complained of should be considered as resulting from a single criminal impulse and
constituting a single offense, not even complex.
4. The complex crime of forcible abduction with rape. There are two lines of SC
decisions where the victim is raped two or more times on the issue of what to do with the
rapes in excess of one.
1st Line. Held: Treat the 2nd, etc rapes as separate and distinct crimes (P vs
Bohos, 98 SCRA 353, P vs Bacalso, June 22, 1992, P vs Tani, May 2, 1995, P vs Julian,
April 14, 1997). In Bohos, the Supreme Court declared that where the accused, with lewd
designs, abducted the victim and raped her two or more times, he is guilty of forcible
abduction with rape and for separate crimes of rape for the second and third rapes. In said
case, Justice Ramon Aquino dissented and opined that the second and third rapes are
absorbed by the complex crime of forcible abduction with rape, because the crime of
abduction, like kidnapping, was a continuous crime and the rapes committed after the first
rape are absorbed by the complex crime.
2nd Line. Held: The 2nd, etc rapes are absorbed in the complex crime of forcible
abduction with rape (P vs Claudio Bulaong, 106 SCRA 344, P vs Sunpongco, June 31,
1988, P vs Fernandez, Sept 12, 1988, P vs Villorante, July 1, 1992).
In these cases, the
dissenting opinion of Justice Aquino in the Bohos case became the majority opinion.

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In People vs Aurelio Delovino, L-116132, Aug. 23, 1995, First Division of the
Supreme Court, through Justice Davide, followed the doctrine in People vs Bulaong (2nd
Line of SC decisions). Hence, the doctrine in Delovino is: regardless of the number of
rapes committed by the offender, there is only one complex crime of forcible abduction with
rape.
Then in People vs. Julian, L-113692-93, April 4, 1997, 3rd Div., 270 SCRA 733, the
Supreme Court, with Justice Panganiban as the ponente, reverted to the doctrine set in
Bohos and Bacalso (First Line), citing the case of People vs. Jose, et al. People vs. Julian
was reiterated in the same year in People vs. Fortich, L-L-80399-404, Nov. 13, 1997, Third
Division.
But, in People vs. Reynaldo Velasquez (L-137383-84, Nov. 23, 2000, Third Div.),
following the First Line of decisions, it was held: Considering that the prosecution was able
to prove beyond reasonable doubt that Velasquez forcibly abducted Karen and then raped her
TWICE, he should be convicted of the complex crime of forcible abduction with rape (under
Art. 48, RPC) and simple rape. (P vs Bacalso, 210 SCRA 206, [1992]). x x x The
subsequent (second) rape committed by Velasquez can no longer be considered as a separate
complex crime of forcible abduction with rape but only as a separate act of rape punishable
by reclusion perpetua (P vs Fortich, supra, P vs Julian, supra).
Then, FINALLY in an EN BANC decision of the Supreme Court in People vs.
Jeffrey Garcia, et al., L-141125, Feb. 28, 2002, wherein the victim was forcibly abducted
by four persons who (each one) raped her one after the other, it was held: However, as
correctly held by the trial court, there can only be one complex crime of forcible
abduction with rape. The crime of forcible abduction was only necessary for the first
rape. Thus, the subsequent acts of rape can no longer be considered as separate
complex crimes of forcible abduction with rape. They should be detached from and
considered independently of the forcible abduction. Therefore, accused-appellant
should be convicted of one complex crime of forcible abduction with rape and three
separate acts of rape. Consequently, it is the FIRST LINE of decisions on forcible
abduction with rape which is sustained by the Supreme Court in an EN BANC decision. It
must be emphasized here that Chief Justice Davide, who was the ponente in People vs.
Delovino which followed the SECOND LINE of Supreme Court decisions participated in
the deliberation of the Supreme Court when it rendered its decision in the RULING CASE of
People vs. Jeffrey Garcia, et al. , which followed the FIRST LINE of SC decisions. It must
be stated here that there was no DISSENTING opinion in the Garcia case.
Rule applicable to killings involving prisoners.
In People vs Jose Pincalin, et al., 102 SCRA 136, which involved the killing of
prisoners in Muntinlupa by other prisoners, the Supreme Court, through then Chief Justice
Ramon C. Aquino, declared that when in the attainment of a single purpose, which
constitutes an offense, various acts are executed, such acts must be considered as one
offense, a complex one, citing People vs Peas, 66 Phil. 682. Various acts committed under a
single criminal impulse may constitute a single complex crime.

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However, Justice Makasiar dissented for the reason that, what Art. 48 provides is a
single act not single purpose or single impulse and hence, there are as many crimes as are
persons killed or injured.
In response, Justice Aquino declared: In other cases where several killings on the
same occasion were perpetrated but not involving prisoners, that is to say, the killings would
be treated as separate offenses, as opined by Mr. Justice Makasiar and as held in some
decided cases.
Jurisprudential rules where the offender used a firearm in the killing of two or more
victims:
1. Where there is no evidence that two persons were killed by only one bullet.
a. General rule. It should be understood that they were killed by separate bullets or
different acts and that the killings are separate, not complex (P vs de los Reyes, et al, 86 Phil
355, P vs Macaso, et al, 86 Phil 272, P vs Basarain, 97 Phil 955, P vs Adly Hubilo, L101741, March 23, 1993, 3rd Div., 220 SCRA 389).
b. Contra. As it is possible that the two victims were killed by one bullet, there shall
be only one crime of double murder, a complex crime (P vs Bersamin, 88 Phil 292, P vs
Herson Maghanoy, et al, L-67170-72, Dec. 15, 1989, First Div., 180 SCRA 111).
Note: The Bersamin ruling (Contra) seems to be in line with the Lawas doctrine. It
is believed that this is the better doctrine because it is in line with the settled rule that where
there is doubt in the evidence, the doubt shall be resolved in favor of the accused.
2. If two or more persons are killed by just one bullet, there is a complex crime.
Actually, a compound complex crime.
3. If four bullets are discharged from the firearm and four persons are killed, it is not
a complex crime. Here, there are four separate crimes of murder/homicide. In Hubilo,
supra, it was held: When the evidence presented by the prosecution did not show that a
single shot slain three (3) different persons, appellant is properly held liable for three (3)
separate murders. In the case at bar, separate and distinct acts (or shots) were directed at
each of the deceased victims. As earlier noted, Casario had suffered eight (8) bullet wounds,
Regelio three (3); and Hermogenia two (2). Moreover, the evidence showed that, after the
wounded Ferdinand had escaped, accused Hubilo went back to the stalled tricycle and fired
multiple shots at the three (3) victims on the road, presumably to make sure all three (3)
were dead.
4. If the firearm used is an automatic firearm, it is presumed that SEPARATE
bullets killed SEPARATE persons, hence, there is no complex crime here, unless proven
otherwise. In People vs Desierto (CA, 45 O. G. 4542), it was held: Although each burst of
shots was caused by one single act of pressing the trigger of the sub-machine gun, in view of
its special mechanism the person firing it has only to keep pressing the trigger with his finger

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and it would fire continually. Hence, it is not the act of pressing the trigger which should
be considered as producing the several felonies, but the number of bullets which actually
produced them.
Doctrines in connection with the number of TAKING in robbery or theft.
Single larceny doctrine. This doctrine disregards the number of offended parties
who were divested of their personal property. The offender is penalized for a single case
of larceny for as long as the same is committed in one place at about the same time.
Note: The Philippines follows the single larceny doctrine.
Separate larceny doctrine. There are as many crimes of robbery or theft as there are
offended parties. Each person divested of personal property brings about a separate count of
robbery/theft. If there arte five offended parties, there will be five informations which could
be filed, even if the crime was committed in one place at the same time.
Characterization of the crime of robbery with force upon things where the robber lays
hands upon persons; Art. 48 applied.
The doctrine laid down in previous cases whereby in case of robbery inside an
inhabited house, the thief, in addition, lays his hands upon any person without committing
any of the crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art
294 of the RPC, the imposable penalty decreases under par (5) thereof - is much lighter
defies logic and reason and is now expressly abandoned. It is more plausible to believe that
Art 294 applies only where robbery with violence against or intimidation of persons takes
place without entering an inhabited house, under the conditions set forth in Art 299 of the
RPC. When the elements of both provisions are present, the crime is a complex one, calling
for the imposition - as provided in Art 48 of the Code - of the penalty for the most (more)
serious offense, in its maximum period, which, in the case at bar, is reclusion temporal in its
maximum period (Napolis vs CA, 43 SCRA 301).
No complex crime where an offense is a direct means to commit a grave offense.
Thus, where the crime of trespass to dwelling is committed and, thereafter, the crime
of rape, homicide, murder, or robbery is/are committed. Here, the trespass to dwelling will
only be treated as an aggravating circumstance of unlawful entry or of breaking part of the
dwelling, like wall, roof, floor, door or window (Art 14, pars 18 & 19). In fact, in robbery by
force upon things, trespass is not even aggravating. It is inherent in the crime of robbery by
force upon things.
Art 48 does not apply to the following:
1. Light felonies produced by the same act should be treated and punished as
separate offenses or may be absorbed by the graver felony. (Except where, as discussed
earlier, the two or more light felonies are the results of one act of reckless negligence.)
Examples:

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a. In direct assault where the victim suffered slight physical injuries, the offense of
slight physical injuries is absorbed (P vs Benitez, 73 Phil 671).
b. In the crime of rape, slight physical injuries is absorbed (P vs Apia, 53 Phil 325).
However, where the physical injuries is serious or less serious, it is complexed with rape (US
vs Andaya, 34 Phil 690).
Follow this simple rule: In all cases where violence is an element of the crime,
slight physical injuries is always absorbed.
2. Where the Code provides a specific penalty for a complex crime. Example: Art
265, par.2. Whenever an act has been committed which inflicts upon a person less serious
physical injuries with the manifest intent to insult or offend the victim or under
circumstances adding ignominy to the offense. Here, the crime cannot be the complex crime
of slander by deed with less serious physical injuries. Only the less serious physical injuries
is punished but there is an additional penalty of fine.
3. When the law provides one single penalty for a special complex crime.
Example: Robbery with homicide (Art 294, par 1).
4. Where one of the offenses is punished by a special law. (Note: With more reason
if the two or more offenses are punished by special laws). Examples:
a. The crime of Simulation of Birth.
Simulation of birth is punished under Art 347, RPC, which provides: The simulation
of births and the substitution of one child for another shall be punished by prision mayor and
a fine of not exceeding 1,000 pesos. On the other hand, simulation of birth is likewise
punished under Sec 21(b) of RA 8552 (Domestic Adoption Act of 1998) which provides:
Any person who shall cause the fictitious registration of the birth of a child under the name(s)
of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth,
and shall be punished by prision mayor in its medium period and a fine not exceeding Fifty
thousand pesos (P50,000).
It is believed that, presently, one who commits the crime of simulation of birth may
be prosecuted under the RPC AND under RA 8552, because the pertinent portion of the 3rd
to the last par. of Sec 21 of RA 8552 reads as follows: x x x Penalties as are herein
provided, shall be in addition to any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders, and proclamations.
b. The crime of Illegal Possession of Firearm.
The present rules on illegal possession of firearms under Sec 1 of PD 1866 as
amended by RA 8294, June 6, 1997:

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(1) If homicide or murder is committed with the use of an unlicensed firearm, such
use of an unlicensed firearm shall be considered as an aggravating circumstance. Take note
that the law does not say qualifying or generic aggravating circumstance. Following the rule
that doubts shall be resolved in favor of the accused, it is believed that the use of an
unlicensed firearm shall be treated only as a generic aggravating circumstance. Besides, this
is implied in the law wherein such use of an unlicensed firearm is aggravating in the crime of
homicide. Otherwise, every intentional killing of a non-relative would be murder.
(2) If the homicide/murder is only attempted/frustrated, only the crime of
attempted/frustrated homicide/murder is punished even if such crime is committed with the
use of an unlicensed firearm.
The crime of illegal possession of firearm is no longer
punished. It is not even an aggravating circumstance. In fact, the law is absurd because if an
unlicensed firearm is used in the commission of the crime of slight physical injuries, or any
other light felony, only the slight physical injuries is punished - illegal possession of firearm
is no longer punished. This is because under Sec. 1 of PD 1866, as amended by RA 8294
approved on June 6, 1997, the penalty of imprisonment and fine shall be imposed Provided,
however, That no other crime was committed by the person arrested.
[a] Thus, in People vs. Walpan Ladjaalam y Mihajil alias Warpan (L-136149-51,
Sept. 19, 2002, Third Division), where the accused was charged in one information for
multiple attempted murder with direct assault and in another for illegal possession of
firearms and ammunitions under the provisions of PD 1866, as amended by RA 8294, it was
held: x x x A simple reading thereof (Sec. 1, PD 1866, as amended by RA 8294) shows
that if an unlicensed firearm is used in the commission of any crime, there can be no separate
offense of simple illegal possession of firearms. Hence, if the other crime is murder or
homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a
separate offense. Since direct assault with multiple attempted homicide was committed in
this case (as found by the trial court after trial), appellant can no longer be held liable for
illegal possession of firearms. x x x
The Court is aware that this ruling effectively exonerates appellant (accused) of
illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than
that for direct assault. While the penalty for the first is prision mayor, for the second it is
only prision correccional. Indeed, the accused may evade conviction for illegal possession of
firearms by using such weapons in committing an even lighter offense, like alarm and
scandal (Art. 155, RPC), or slight physical injuries (Art. 266), both of which are punishable
by arresto menor. This consequence, however, necessarily arises from the language of RA
8294, whose wisdom is not subject to the Courts review. Any perception that the result
reached here appears unwise should be addressed to Congress. Indeed, the Court has no
discretion to give statutes a new meaning detached from the manifest intendment and
language of the legislature. Our task is constitutionally confined only to applying the law
and jurisprudence to the proven facts (i.e., That penal laws should be liberally interpreted in
favor of the accused), and we have done so in this case.
[b] However, in Pablo Margarejo, et al. vs Hon. Adelardo Escoses, et al. (L-13725051, Sept. 13, 2001, EN BANC), where the accused were charged in two separate

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informations for Violation of PD 1866, as amended by RA 8294 and for Violation of
Comelec Resolution No. 3045 in relation to Sec. 261 of the Omnibus Election Code
(Violation of the Comelec Gun Ban) for which separate motions to quash filed by the
accused with the trial court were denied by the latter, the accused went to the Supreme Court
and raised the following issue: WHETHER OR NOT THE NON-COMMISSION OF
ANOTHER CRIME IS AN ESSENTIAL ELEMENT OF VIOLATION OF PD 1866 AS
AMENDED BY RA 8294, WHICH ELEMENT MUST BE ALLEGED IN THE
INFORMATION. In sustaining the action taken by the trial court, the Supreme Court held:
The first issue is resolved against the Petitioners. Their principal argument in support of
this issue is not only amiss but also deceiving. Contrary to what they point out, the
amendatory law (RA 8294) does not add to the existing elements of the crime of illegal
possession of firearms. What it does is merely to excuse the accused from prosecution of the
same in case another crime is committed.
In People vs Valdez (304 SCRA 611, 630-631 [1999]; promulgated almost two years
after RA 8294 took effect; and later reiterated in People vs Ringor, Jr., 320 SCRA 342, 354355 [1999]), this Court, under the ponencia of Justice Jose A. R. Melo, explained that the
dismissal of the second case against Valdez involving violation of PD 1866 did not mean that
there can no longer be any prosecution for the crime of illegal possession of firearm.
Consequently, all pending cases as well as subsequent violations of PD 1866, as
amended, will continue to be prosecuted and tried if no other crimes EXPRESSLY
INDICATED in RA 8294 (murder, homicide, rebellion, insurrection, sedition,
attempted coup detat) concur. Considering that the other offense charged in Crim.
Case No. 14354 - for Violation of Comelec Resolution No. 3045 - is not one of those
enumerated under RA 8294, the respondent judge was correct in not quashing the
information in Crim. Case No. 14353 (For Violation of PD 1866, as amended by RA
8294). Take note that the Margarejo case, being an EN BANC decision of the SC, is
therefore DOCTRINAL.
(3) If the violation of this Section (Sec 1) is in furtherance of or incident to, or in
connection with the crime of rebellion or insurrection, sedition, or attempted coup detat,
such violation shall be absorbed as an element of the crime of rebellion, or insurrection,
sedition, or attempted coup detat. In other words, the use of an unlicensed firearm is not
even an aggravating circumstance in such crimes.
5. Where the crimes are separate:
a. Art. 129. Search warrants maliciously obtained and abuse in the service of those
legally obtained. Take note that the penalty imposable is in addition to the liability attaching
to the offender for the commission of any other offense, like perjury or falsification.
b. Art.210 par. 1. Direct bribery. Take note that the penalty imposable is in addition
to the penalty corresponding to the crime agreed upon, if the same shall have been
committed. Example: In consideration for a sum of money, the court stenographer falsified
his stenographic notes taken during the trial of a case. Here, the crime agreed upon is
falsification of an official/public document.

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c. Art. 235. Maltreatment of prisoners. Take note that the penalty imposable under
this article is in addition to the physical injuries inflicted on the victim.
6. Where the other crime is a special qualifying aggravating circumstance. Example:
Art. 238. Abandonment of office or position. Any public officer who, before the acceptance
of his resignation, shall abandon his office to the detriment of the public service shall suffer
the penalty of arresto mayor. If such office shall have been abandoned in order to evade the
discharge of the duties of preventing, prosecuting or punishing any of the crimes falling
within Title One, and Chapter One of Title Three of Book Two of this Code, the offender
shall be punished by prision correccional in its minimum and medium periods, x x x .
Rules on complex crimes applicable to crimes committed by culpa (negligence).
Example: The accused accidentally discharged his firearm killing a girl and injuring
a boy requiring medical attendance for 30 days. Held: Guilty of the complex crime of
reckless negligence resulting in homicide and less serious physical injuries (P vs Castro, 40
O. G. 83). Reason: in view of the definition of felonies under Art 3 that is, Acts and
omissions punishable by law, committed either by means of deceit (dolo) or by means of
fault (culpa), it is clear that Art 48 which speaks of felonies is applicable to violations under
Art 365 which defines and penalizes criminal negligence, a felony by means of fault.
Complex crime proper.
The phrase necessary means in Art 48 does not mean indispensable means,
otherwise, it becomes an element of the offense. Necessary means simply means that the
offender resorts to the commission of another offense merely to facilitate and insure the
commission of the offense which he intended to commit. Thus, where a public official who
is not an accountable official intends to misappropriate government funds. What he does is
to falsify a voucher and with it gets government money from the accountable official and
misappropriates it. This is the crime of estafa through falsification of a public/official
document.
Different rule where subject of offense is a private fund or property.
However, where the subject of the offense is private funds or property, there is no
such crime as estafa through falsification of a private document. Reason for this is that both
the crimes of estafa and falsification of a private document have the common essential
element of damage or prejudice to a 3rd person. So, in this case, whichever is committed first
by the offender is the crime committed. Example: A house boy falsifies a private receipt for
P500 by making it appear therein that the same was signed by his master and brought it to
the friend of his master (from whom the master borrowed money in the past through the
house boy), who gave P500 to the house boy who misappropriated the amount, the crime
committed here is only falsification of private document. The misappropriation is absorbed in
the falsification. On the other hand, where a cashier of a private business establishment
misappropriates funds in his custody and, in an effort at cover up, he falsifies a private

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receipt purporting that the same was signed by a creditor of the establishment, the crime
committed is only estafa and the falsification is simply absorbed in the estafa.
Different rule where a public accountable official misappropriates funds in his custody
and, in an attempt at cover up, he falsifies a public/official document.
In this case, the public accountable official commits the two crimes of malversation
and falsification of public/official document. Reason for this is that malversation and
falsification of public/official document do not have a common element in that damage or
prejudice to a 3rd party is not required in the crime of falsification of public/official document
Falsification of a public/official document may be committed even if there is no damage or
prejudice caused to a 3rd person.
The complex crime of estafa through falsification of public document may be
committed where the petitioner (accused) makes a false statement in his petition filed in
court to secure another copy of his Torrens title upon the ground that the title was lost, when
in fact it is in the possession of the mortgagee of the property, and, once in possession of the
second title, sells the property by misrepresentation that he is the lawful and registered owner
thereof free from any lien and encumbrance of whatever kind (P vs Martizano, 74 O. G.
43, Oct 23, 1978, CA).
Distinguish continuous crime from continuing crime.
Continuous crime

Continuing crime

1. Continuous crime (or continued crime

or delito continuado) is a term used to
denote as only one crime a series of
felonious acts arising from a single
criminal resolution, not susceptible of
division which are carried out in the same
place, at about the same time, and violating
one and the same penal provision.;

1. A continuing offense (a.k.a. transitory

crime) is one whose essential ingredients
took place in more than one municipality or
city, so much so that the criminal
prosecution may be instituted and the case
be tried in the competent court of any one
of such municipality or city; and

2. The acts done must be impelled by one

criminal intent or purpose, such that each
act merely constitutes a partial execution of
a particular crime, violating one and same
penal provision;

2. The term continuing offense is more

pertinently used in criminal procedure
with reference to the VENUE where the
criminal action may be instituted.

3. It involves the concurrence of felonious

acts violating a common right, a common
penal provision, and impelled by a single
criminal impulse; and
4. Only one information should be filed
against the offender although a series of

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felonious acts were performed.
Note: Justice Reyes, citing 22 C.J.S., considers the terms continued crime,
continuous crime and continuing crime as the same and the explanation given for all the
three terms is the one applicable to continuous crime as explained above. (Reyes, the
Revised Penal Code, Bk. I, p. 671, 1998 ed.).
Justice Reyes likewise uses the term
transitory in lieu of continuing crime as explained above. (Ibid, p. 675). Likewise, the
3rd Division of the SC in Mallari vs People and CA, L-5886, Dec. 13, 1988, said: These
series of acts amount to what is known in law as a continued, continuous or continuing
offense., however, the explanation it gave to the terms is the one applicable to continuous
(or continued) crime.
Facts: Through a letter of introduction, the complainant accompanied the accused
who made purchases in different stores in different places on the same day. The purchases
were paid for by the complainant because the checks of the accused were not acceptable to
the sellers. In payment of the goods, the accused issued two checks in favor of the
complainant. The checks were dishonored for insufficiency of funds with respect to one
check and for closed account with respect to the other check. In two separate cases tried
jointly, accused was charged and convicted of estafa under Art. 315, par. 2, sub-par. (2) of
the RPC, as amended by RA 4885 and PD 818. He appealed.
Held: We find, however, that the crimes charged in these two cases really constitute
only one continuing offense set on foot by a single impulse and motivated by a single
fraudulent intent. A continuing crime is a single crime consisting of a series of acts but all
arising from one criminal resolution. It is a continuous, unlawful act or series of acts set
on foot by a single impulse and operated by an unintermittent force, however long a time
may occupy. Although there is a series of acts, there is only one crime committed, and hence
only one penalty shall be imposed. (Reyes, Revised Penal Code, 1974, ed., Bk. I, pp 581582; 22 CJS 6, 52). Although, there were three (3) purchases involved in the transactions
subject of these two cases, there was only one crime committed by defendant in issuing on
said occasion the two bouncing checks in question. Defendant therefore, can be convicted
only of one offense and only one penalty should be imposed (P vs Andrea Encila, Nos.
21191-92-Cr., July 5, 1979, 76 No. 33 O. G. 5820, Court of Appeals; P vs Mallari, Dec. 15,
1988).
Take note that a continuous crime is not a complex crime.
1. Facts: The accused sent an anonymous letter demanding P5,000 from the victim
otherwise the latter be killed and his house would be burned. Because the victim could only
send partial amounts, the accused had to send a total of five (5) letters embracing a period of
six (6) months before the accused could be apprehended.
Held: The different acts of sending letters of demand for money with threats to kill
and to burn the house of the offended party constitute only one and the same crime of grave
threats born of a single criminal impulse to attain a definite objective (P vs Moreno, CA, 34
O. G. 1767).

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2. Where the accused approved in one stroke of her pen the legalization of the stay of
32 aliens, there is a violation of Executive Order No. 324 prohibiting said legalization of
such stay. The crime committed is a violation of RA 3019, Sec. 3(e) which is only one
continuous crime or delito continuado. The same is applicable to crimes violative of special
laws (Santiago vs Garchitorena, et al., 228 SCRA 214).
The rule on continuous crime does not entirely apply to the following cases.
1. Although the acts were made pursuant to an identical design, the same took
place over a long period of time and of different situs.
Where the accused, the agent of a corporation, represented himself to seven lot buyers
that he was authorized to collect the payments from the buyers although he was not, but
collected the payments of the lot buyers, and failed to remit his collections to the corporation,
the accused committed seven crimes of estafa under Art. 315, par. 2(a) of the RPC, insofar
as the lot buyers were concerned, and one crime of estafa under Art. 315, par. 1(b) of the
RPC, insofar as the corporation is concerned. The series of acts of the accused in collecting
the payments from the lot buyers were not the product of a single criminal intent but
against each buyer and on different dates and in separate places. Hence, they originated
from separate criminal intents. Even assuming that the acts were made pursuant to an
identical design, the same took place over a long period of time and of different situs. There
was only one crime of estafa insofar as the corporation is concerned because the operative
act of the accused was his failure to turn over the collections. The crime was
consummated when the accused failed to turn over the collections within a reasonable time
from receipt of said payments. (Geruncio Ilagan, et al. vs CA, et al., 239 SCRA 575).
2. Libel and slander; Actions and prosecutions; As many crimes of libel/slander
as there are persons defamed.
Where the alleged slanderous utterances were committed on the same date and at the
same place, but against two different persons, the situation has given rise to two separate and
individual causes for prosecution, with respect to each of the persons defamed and as such, it
was error for the trial court to dismiss one of the informations pertaining to one of the
persons defamed and to treat the offenses charged in one information to avoid, in the opinion
of the lower court, multiplicity of prosecutions. (P vs Juan Gil, et al, L-20398, Oct. 31, 1968,
EN BANC).
We agree with the prosecution that our decision in People vs del Rosario (L-2254,
April 20, 1950,86 Phil. 163, First Div.) for libel is controlling. As in said case, there are in
the case before Us as many offenses of slander or libel as there were persons defamed. (P vs
Gil, et al., supra).
The salient features of the case of People vs del Rosario, et al.

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The question for decision is whether a libelous publication affecting more than one
person constitutes one crime or more. This is an appeal from an order of the Court of First
Instance of Cebu sustaining the first theory and dismissing a complaint for libel on a motion
to quash.
The alleged defamatory writing was printed in one sheet of paper in Visaya attacking
two persons, namely, Morelos and Espina, who were then candidates during an election.
The libelous imputations are to the effect that Morelos, as head of the PRRA wanted
to sell flour to the Chinese to the prejudice of the Cebuanos . . . that Morelos made money
out of the copra ordinance . . . that Morelos has a gang in which Zapanta, Seno and
companions are members, who, instead of serving the people are only serving for their own
good. That Espina was appointed by the City Mayor to act as a Herod to go after and dismiss
employees who are without guilt . . . that Espina is now transferred to the capitol in order to
be made Executioner (Berdugo) of employees whom they want to be executed ...
It will be seen that the leaflet attacked Morelos and Espina. Espina instituted a
criminal action against the herein defendants which was assigned to one branch of the court
presided by Judge Moscoso. The case at bar was later commenced by Morelos which was
assigned to Judge Felix Martinez, presiding another branch of the Court of First Instance of
Cebu. It was the latter case which was dismissed on motion of the defendants.
Judge Martinez, citing article 48 of the Revised Penal Code ruled that, although two
persons claimed to be aggrieved by the libel, yet, he said, "the two libels *** were the result
of a single act," "hence should be subject of a single information, the crime being complex
one." His Honor argued thus: "A written defamation becomes punishable the moment, and
only when, it is given publicity. Hence, the writing alleged to be defamatory on Espina and
Morelos has become punishable following its publication. And it is admitted that the leaflet
in question has been published by a single act." To bolster its opinion, the court also cited
State vs. Hoskins, 60 Minn. 168, in which it was held that "A libel on two or more persons
contained in one writing and published by a single act constitutes but one offense so as to
warrant a single indictment thereafter."
If the act of publishing the libel were the sole or main element of the crime, the
court's reasoning would be faultless. But is it?
In the case of State vs. Hoskins, supra, the ratio decidendi was that the gist of the
offense of libel at common law is the publication of something which tends to affect
injuriously the peace and good order of society regardless of its effect upon the person
concerned. We cull these thoughts from the decision: "The general policy of the law is to
leave the care of men's reputations to themselves. No damage done to a reputation (at least,
unless the further element of conspiracy enters into the act) is, at common law, in and of
itself, a foundation for a criminal prosecution." "The law makes the publication of libel
punishable as a crime, not because of injury to the reputation, but because the publication of
such articles tends to affect injuriously the peace and good order of society."

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So also was the interest of public peace and order given the controlling and private
interest secondary consideration in State vs. Hosmer (142 Pac., 581, 585, cited in 37 C. J.,
147). The court said: "When a libel has been committed, the State in its sovereign capacity
seeks to avenge the wrong, not because the commission of the act tends to affect injuriously
the good order of society and the dignity of the State," but "because it tends to produce a
breach of peace." "The number libelled in the article is immaterial, and the libeler is punished
for his own act of publishing a libel calculated to produce violence."
That is the common-law rule. Such rule has been discarded in many states of the
Union. Referring to State vs. Hoskins, supra, the footnote in 27 L. R. A., 412 says that "The
above decision is a rare one and almost without precedent as appears from the opinions of the
judges." American Jurisprudence (Vol. 33, p. 292) explains that "Under the common-law
theory, which is embodied in some of the statutory provisions on the subject, the criminality
of a defamatory statement consists in the tendency thereof to provoke a breach of the peace,"
but, it adds, "many of the modern enactments, *** ignore this aspect altogether and make a
libelous publication criminal if its tendency is to injure the person defamed, regardless of its
effect upon the public."
The present Philippine law on libel conforms to this modern tendency. For a little
digression on the present law of libel or defamation, let it be noted that the Revised Penal
Code has absorbed libel under Act No. 277 and calumny and insult under the old Penal Code.
(Commentaries on the Revised Penal Code, Guevara, p. 764.) The new Penal Code includes
"all kinds of attacks against honor and reputation, thereby eliminating once and for all the
idle distinction between calumny, insult and libel." (Idem, p. 765.)
The subject is treated in Chapter I, entitled "Libel" in the English text and
"Defamation" in the Spanish, under Title Thirteen entitled "Crimes Against Honor." Judge
Albert and Judge Guevara in their respective commentaries on the Revised Penal Code
criticize the use of the term "libel" in the English version, correctly observing that libel and
defamation are not synonymous terms and that the latter is the more appropriate of the two
and should have been adopted in both editions. They point out that libel is confined to
written insults while defamation includes insults both in written and oral forms.
However that may be, the prosecution for libel upon the initiative of the
prosecuting attorney, as was the practice under Act No. 277, has been abolished with
one exception. Now libel or defamation, like insults and calumny under the old Penal
Code, is prosecuted only at the instance of the offended party or parties, unless the
imputation constitutes a crime that should be the subject of prosecution de oficio.
(People vs. Martinez, 43 Off. Gaz., 1351) The last paragraph of article 360 of the
Revised Penal Code, thus provides:
"No criminal action for defamation which consists in the imputation of a crime which
cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint
expressly filed by the offended party."
Construing this rule in People vs. Martinez ante, this Court said:.

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(Portionswritten in Spanish omitted).

The libel or defamation under consideration does not fall within the class of cases
indictable without the concurrence of the aggrieved persons.
The requirement that prosecution for libel must be upon complaint of the
offended party amply illustrates the intendment and purpose to make injury to the
honor and reputation of the persons libeled the dominant factor in the offense. The
meaning of this requirement is that there are as many offenses of libel as there are
persons libeled, and the computation of the number is not the publication but the
writing or composing of the libel. From this point of view there can not be only one
defamation when more than one person are defamed. The inclusion of several persons
in a libel can not, in the nature of things, be the product of one and the same act.
The fusion of calumny, insult and libel in one definition and the adoption for the
resultant offense (defamation or libel) of the procedure indicated for the indictment for the
crimes of insult and calumny before the Penal Code was revised, make available for our
guidance decisions of the Spanish Supreme Court in the matter of multiplicity of action. Two
of such decisions, reported and digested by Viada, will suffice.
(Portions written in Spanish omitted).
The theory that only one prosecution may be instituted even though several
persons are affected would lead to injustice to the offended parties, defeat of some of the
law's aims, and great inconvenience. It would deprive of their right, offended parties
who were absent or for one reason or another were not ready to prosecute the libeler at
the time other offended parties commenced action. It would deprive them of their right
to vindicate their honor and reputation by proving the falsity or malice of the
defamatory imputation. It would bar them from recovering damages in the criminal
proceeding, right which is theirs under the penultimate paragraph of article 360 of the
Revised Penal Code.
Upon the foregoing considerations, the order appealed from is reversed and the case
is remanded to the court of origin for further proceeding according to law, with costs of this
appeal against the appellees.
Exception to the case of People vs. del Rosario. If the utterance is made but once
against a family of lawyers, designated by their common surname, not separately
mentioned, there is only one offense.
Facts: Corazon Aquino was accused before the CFI of Pangasinan, of the crime of
grave oral defamation for having allegedly uttered in public, words to this effect: You,
Merrera lawyers, are stealers * * * shameless * * * impolite.
Held: In line with this later decision (P vs Juan B. Santos, et al., L-7316-7317, Dec.
19, 1955, Second Div.), we have to hold that the utterance of the defamatory statement

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complained of in the present case should be regarded as only one offense and made the
subject of only one information, the utterance having been made but once and referring
apparently to a family of lawyers designated by their common surname but not separately
mentioned.
The SOLGEN, however, cites the case of People vs del Rosario, et al. (supra) where
this Court upheld the theory that a libelous publication affecting more than one person
constitutes one crime or more. That decision, it is to be noted, was predicated on the ruling
laid down in the case of People vs Luz Jose, L-50, prom. April 20, 1946, to the effect that
libel or defamation - of the nature of that committed in the present cases - cannot be
prosecuted de oficio but only at the instance of the offended party or parties, from which this
Court deduced the conclusion that in libel or defamation of that kind the policy of the law is
to redress the injury to the individual rather than the injury to the peace and good order of
society. But that conclusion is now without basis, for the said case of People vs Luz Jose has
already been overruled by the more recent cases of People vs Juan B. Santos, et al. (supra),
where this Court said: A libel is a public and malicious imputation of a crime that may be
prosecuted de oficio, or of a crime that may not be prosecuted de oficio, or of a vice or
defect, real or imaginary, or any act or omission , condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead. In libel imputing the commission of a crime that may be
prosecuted de oficio, the complaint of the offended party is not necessary, and the
information filed by the prosecuting officer is enough to confer jurisdiction upon the court to
try the defendant charged with the crime. A libel imputing the commission of a crime which
cannot be prosecuted de oficio, such as adultery, concubinage, seduction, abduction, rape (no
longer a private crime) and acts of lasciviousness, cannot be prosecuted except at the instance
of and upon complaint expressly filed by the offended party. x x x This is the only exception
provided for by law in which the instance and complaint of the offended party are required in
order to vest or confer jurisdiction upon the court to take cognizance of the crime of libel and
try the defendant charged with it. If this is the only exception, then it cannot be extended
beyond the import and terms of the law. x x x . (P vs Aquino, 53 No. 24 O. G. 8844, EN
BANC).
Q. If two or more persons are the victims of defamatory imputations, how many
offenses of libel/slander are committed?
Ans. It depends. If the defamatory imputation consists in the imputation of a crime
which cannot be prosecuted de oficio (concubinage, adultery, seduction, abduction, acts of
lasciviousness), then apply the ruling in People vs. del Rosario, et al. (supra), i. e., there are
as many offenses of libel/slander as there are offended parties. Reason for this is to allow
each offended party an opportunity to vindicate his honor and reputation by proving the
falsity or malice of the defamatory imputation.
However, if the defamatory imputation does not impute a crime which cannot be
prosecuted de oficio, is made but once and on a single occasion, and, with more reasons if
the offended parties are not mentioned individually, then apply the ruling in People vs.

156
Aquino (supra), i.e., there is only one offense of libel/slander which is committed. This
follows the continuous or continued theory in the commission of crimes.
Adultery (Art. 333, RPC) is not a continuing offense; but concubinage (Art. 334) is
continuing offense.
Adultery is a crime of result. Hence, each sexual act constitutes one offense. The
problem, however, is - who will count and then testify in court? It is therefore believed that
the offenders can only be convicted for the crimes of adultery in several counts if they enter a
plea of guilty to the charges.
On the other hand, concubinage is a continuing crime because habituality is an
essence of the crime.
Complex crime compared with transitory crime.
Transitory crime (some authors and Manila professors call it continuing crime) is
only for the purpose of the Criminal Procedure to determine the venue of the crime for the
purpose of filing the corresponding information. Example: Forcible abduction with rape
where the victim is abducted in Bohol and taken to Cebu where she is raped. Here, both the
Bohol and the Cebu RTCs have concurrent jurisdiction to try the case of forcible adduction
with rape. Reason: The essential ingredients of the offense took place in Bohol and in Cebu,
hence, pursuant to the rules of procedure, the criminal action may be brought in the RTC of
either province but not in both because the familiar rule in concurrent jurisdiction is that the
first court acquiring jurisdiction excludes the other.
A little twist to the problem (example). The information for forcible abduction with
rape was filed in the Bohol RTC. But, after trial, the court found that only the crime of rape
(which was committed in Cebu) was established by evidence. Q. In this case, can the Bohol
RTC convict the accused for the crime of rape? Ans. Yes, because, at any rate, the
jurisdiction of the court is determined by the allegations in the information (or complaint) not
by the evidence established after the trial.
Are mitigating circumstances to be appreciated in the imposition of the penalty for a
complex crime?
Ans. It depends.
1. No, if it is ordinary (P vs Ramos, 94 SCRA 843).
2. Yes, if privileged, like, minority (P vs Parba, 142 SCRA 158).
Note: Reyes believes that the penalty for a complex crime may be lowered by one
degree in case there are two or more mitigating circumstances without any aggravating
circumstances. Evidently, Reyes is applying Art. 64 No. 5 which provides to that effect.
Until now, however, the writer is not yet aware of a decision of the SC or of the CA which
supports Reyes opinion.

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ART. 49. Penalty to be imposed upon the principals when the crime committed is
different from that intended.
Case No. 1. A intended to kill B (a non-relative) without the attendance of any
qualifying aggravating circumstance. However, due to mistake in the identity of the victim
(error in personae), A instead killed F, his father.
Case No. 2. A intended to kill F (father) but due to error in personae he actually
killed B ( a non-relative) without any qualifying aggravating circumstance.
1st Q. What crime did A commit in case Nos. 1 and 2? Ans. In Case No. 1, A
committed the crime of parricide, while in Case No. 2, A committed the crime of homicide.
In other words, for the purpose of determining the crime committed where there is error in
personae, it is the crime which is actually committed which is controlling. The intention of
the offender is immaterial.
2nd Q. What penalty will be imposed upon A in case Nos. 1 and 2? Ans. In both
cases, the penalty for homicide (reclusion temporal) to be imposed in the maximum period.
Take note that for the purpose of imposing the penalty, what is now controlling is which
crime - the intended crime or the crime actually committed - is punished with the lower
penalty.
Note: If in Case No. 2 the killing was attended with a qualifying aggravating
circumstance so that the crime committed is murder, Art 49 does not apply because in such
case the penalty for murder (the crime actually committed) is the same as the penalty for
parricide (the crime intended to be committed), which, under RA 7659 is reclusion perpetua
to death. In other words, for Art 49 to apply, the intended crime and the crime actually
committed are punished with different penalties and that the crime committed befalls a
different person.
Although this article has reference to Art 4, par 1, from the decisions of the SC and
opinions of textwriters, it will be noted that the rules stated in pars 1 and 2 of this
article cannot apply to cases involving aberratio ictus or praeter intentionem. It applies
only to error in personae.
1. Thus, where the accused only wanted to inflict physical injuries to the victim but
actually killed the latter, the accused is liable for homicide, not only for physical injuries
which he intended to commit (P vs Alburquerque, 59 Phil 150).
2. The same ruling in P vs Tomotorgo (136 SCRA 238), where a husband only
intended to inflict physical injuries to his wife, but the wife died due to the said injuries.
Held: Husband liable for parricide.
It will be noted that the heading (epigraph) of this article is misleading. It reads:
Penalty to be imposed upon the principals when the crime committed is different from that

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intended. This seems to apply to a case of praeter intentionem. Needless to state, the claims
of the accused in the Alburquerque and Tomotorgo cases (that is, they only intended to
inflict physical injuries to the victims) were not sustained by the SC. However, they were
credited with the mitigating circumstance of no intent to cause so grave a wrong (Art. 13, No.
3) which is proper only when the result of the criminal act of the offender is greater than his
intention, which, actually is a case of praeter intentionem.
ART. 52. Penalty to be imposed upon accomplices in a consummated crime.
Q. In what cases does the law punish the accomplice with a penalty corresponding to
the principals?
Ans. In the following cases:
1. One who furnished the place for the perpetration of the crime of slight illegal
detention (Art. 268), and
2. Ascendants, guardians, curators, teachers, and any person who by abuse of
authority or confidential relationship, shall cooperate as accomplices in rape, acts of
lasciviousness, seduction, corruption of minors, white slave trade or abduction (Art. 346).
ART. 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible.
Q. Is the penalty for impossible crime proper?
Ans. No. The fixing of the penalty of arresto mayor or a fine of P200 to P500 is
subject to criticism, because this article uses the words offense and crime which include
light felony. So, he who attempts to commit a light felony of impossible materialization may
be punished by a penalty of arresto mayor which is higher than that prescribed for the
consummated light felony, which is arresto menor. (Albert).
ART. 62. Effects of the attendance of mitigating or aggravating circumstances and of
habitual delinquency.
Re par 5. Requisites of habitual delinquency:
1. That the offender had been convicted of any of the crimes of serious or less
serious physical injuries, robbery, theft, estafa, or falsification;
2. That after that conviction or after service of his sentence, he again committed,
and, within ten years from his RELEASE or first CONVICTION, he was again convicted
of any of the said crimes for the second time; and
3. That after his conviction of, or after serving sentence for, the 2nd offense, he again
committed, and, within ten years from his last release or last conviction, he was again
convicted of any of said offenses, the 3rd time or oftener.

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Rulings on habitual delinquency:

1. The subsequent crime must be committed after conviction for the former crime (P
vs Ventura, 56 Phil 1). In order that an accused may be legally deemed a habitual criminal, it
is necessary that he committed the 2nd crime after his conviction of, or after service of
sentence for, the first crime; that he committed the 3rd crime after his conviction of, or after
service of sentence for, the 2nd crime; the 4th crime, after his conviction of, or after service of
sentence for, the 3rd crime, etc P vs Santiago, 55 Phil 266).
2. In People vs Venus (63 Phil. 435), the SC laid down the requirements to be
alleged in the complaint/information so as to sufficiently allege habitual delinquency:
a) The dates of the commission of the previous crimes. Purpose: To show that the
present offense was committed after accuseds last conviction or release.
b) The date of the last conviction or release.
c) The date of the other previous convictions or releases.
3. Effect of plea of guilty when allegations are insufficient. A plea of guilty to an
information which fails to allege the dates of commission of previous offenses, of
convictions and of releases is not an admission that the offender is a habitual delinquent (P vs
Flores, 63 Phil 443).
4. Ten-year period computed either from the last conviction or last release.
(Take note that the law does not consider the dates of the COMMISSION of the crimes).
The law does not contemplate the exclusion from the computation of prior convictions those
falling outside the ten-year period immediately preceding the crime for which the defendant
is being tried, provided each conviction is followed by another transgression within ten years
from one conviction to another (P vs Lacsamana, 70 Phil 517, P vs Rama, 55 Phil 981).
5. Ten-year period is counted not to the date of commission of subsequent offense,
but to the date of the conviction thereof in relation to the date of his last release or last
conviction. (P vs Morales, 61 Phil 222).
6. Convictions on the same day or about the same time are considered as one only (P
vs Kaw Liong, et al, 57 Phil 839). Convictions on March 3 and March 5 (same year) are
considered one only (P vs Lopido, CA, 38 O. G. 1907). Reason: The additional penalties
fixed by law for habitual delinquency are reformatory in character and their application
should be gradual, and this can be carried out only when the 2nd conviction takes place after
the first or after the service of sentence for the first crime, etc (P vs Santiago, 55 Phil 266).
7. Crimes committed on the same date, although convictions on different dates are
considered only one (P vs Alburquerque, 69 Phil 608). Reason: Until the offender has
served the additional penalty provided in his case, and has committed or abstained from

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committing another crime, it cannot be known if said additional penalty has or has not
reformed him (P vs Santigao, supra).
8. The commission of any of the specified crimes need not be consummated (P vs
Abuyen, 52 Phil 722) nor must the participation of the accused be that of principal (P vs San
Juan, 69 Phil 347). Reason: Just the same the accused subjectively reveals the same degree
of depravity and perversity as one who commits a consummated crime or as that of a
principal.
9. If one crime was committed during the minority of the offender, general rule,
exception. If one crime was committed during the minority of the offender such crime,
should not be considered for the purpose of treating him as a habitual offender, provided that,
after the suspension of the sentence, the offender was released from criminal liability upon a
finding of the concerned authorities that the said offender has reformed (P vs Tanyaquin, 57
Phil 426, P vs Soler, 63 Phil 868), as modified by PD 603 and RA 8369 (Family court).
Otherwise, that is, if after the suspension of the judgment the same had to be executed
because it turned out that the minor was incorrigible, then the said crime may be considered
for the purpose of treating him as a habitual offender.
10. The imposition of the additional penalty prescribed by law for habitual
delinquents is mandatory (P vs Ortezuela, 51 Phil. 857, 860-861), not discretionary with the
courts (P vs Navales, L-40390, Feb. 14, 1934, Second Div., 59 Phil. 496, 497).
11. As to whether the modifying circumstances are to be considered in the
imposition of the additional penalty for habitual delinquency, there is a conflict in the
decisions of the SC.
a. In People vs Tanyaquin (L-37124, Oct. 28, 1932, EN BANC, 57 Phil 426),
People vs Sanchez (L-37054, Dec. 23, 1932, EN BANC, 57 Phil 496) and People vs Co
Chang (L-41308, Aug. 9, 1934, EN BANC, 60 Phil 293), the SC expressly said No and
held: The additional penalties prescribed in Art. 62 No. 5 of the RPC, should be imposed
upon habitual criminals according to the sound discretion of the trial court, without regard to
the modifying circumstances of criminal liability which surrounded the commission of the
offense for which the accused is prosecuted for the last time (Tanyaquin); The additional
penalty is determined by the rule of reasonableness, upon a just appreciation of all the facts
and circumstances of the case (Sanchez); and In imposing the penalty for habitual
delinquency the trial judge is not bound by the usual rules respecting the mitigating and
aggravating circumstances prescribed by the Code as to the principal penalty (Co Chang,
citing Tanyaquin).
b. However, in People vs de Jesus (L-45198, Oct. 31, 1936, EN BANC, 63 Phil
760), the SC said Yes and held: When the law has prescribed the additional penalty for
habitual delinquency in a manner susceptible of division into periods and has enumerated it
among the penalties that may be imposed by incorporating it into the RPC, it was for no other
purpose than that all the circumstances present in every case be taken into consideration in
order to avoid arbitrariness in the determination of the period in which said penalty should

161
be imposed. It would be arbitrary, in the absence of any circumstance, to impose the
maximum of the additional penalty upon a habitual delinquent, as it would also be arbitrary
to impose the minimum thereof upon him when there are circumstances justifying its
application in the maximum period.
Comments. It will be noted that the No and Yes doctrines are supported by no
less than EN BANC decisions of the Supreme Court. However, although de Jesus did not
expressly abandon the contrary SC En Banc decisions, it is believed that the Yes doctrine
is the controlling doctrine for the following reasons:
(1) De Jesus is the later decision; and
(2) The reason adduced in De Jesus is persuasive based on the nature of the
additional penalty (which follows the nomenclature of the RPC, prision correccional, prision
mayor and reclusion temporal) and which therefore allows the consideration of the modifying
circumstances.
VERY IMPORTANT. In the consideration of the mitigating and aggravating
circumstances for the purpose of the ADDITIONAL PENALTY for habitual delinquency,
those modifying circumstances which are already considered in the imposition of the
PRINCIPAL PENALTY for the present crime shall no longer be considered for the purpose
of the additional penalty for habitual delinquency.
12. The penalty for habitual delinquency is a real penalty that determines
jurisdiction (P vs de Jesus, supra). REMEMBER THE FOLLOWING. In spite of the
purpose of BP 129, as amended, which is to do away with the concurrent jurisdiction
between the first (MCTCs/MTCs) and 2nd level courts (RTCs) because it had spawned
several cases reaching the SC, it is believed that at present there is still a concurrent
jurisdiction between the first level court and the 2nd level court. But there is only one
instance and this is where the accused is a habitual offender.
Example: The accused is presently charged of theft where the value of the thing
involved is P10,000. Under Art 309 No. 2, the penalty imposable is prision correccional in
its medium and maximum periods, hence, the present case is cognizable by the first level
court. However, the accused is a habitual offender and should he be convicted for the present
charge, it will be the 4th conviction of any of the specified crimes covered by habitual
delinquency wherein the additional penalty under Art. 62 No. 5(b) is prision mayor. Hence,
cognizable by the RTC. Considering that the penalty for habitual delinquency is a real
penalty that determines jurisdiction, there is no question that the case could be filed with the
RTC. However, it must be noted that habitual delinquency is not a crime in itself. The
accused is charged with theft which is cognizable by the first level court. And so, the case
could also be filed with the proper MCTC/MTC. The first level court can impose the
additional penalty for habitual delinquency although the same is outside its jurisdiction as
long as the present offense is within the jurisdiction of the said court (P vs de Jesus,
supra). De Jesus is now codified in Sec 32(2) of BP 129, as amended, which reads: x x x
the Metropolitan Trial Courts, Municipal Trial Courts shall exercise: x x x (2) Exclusive

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jurisdiction over all offenses punishable with imprisonment not exceeding six years x x x
regardless of other imposable accessory or other penalties x x x . The additional penalty
for habitual delinquency is included in other penalties.
13. Q. Can a convict be a habitual delinquent without being a recidivist? Ans. Yes,
when no two of the crimes committed (like, falsification, a crime against public interest,
estafa, a crime against property, and physical injuries, a crime against persons) are embraced
in the same title of the Code which is required for recidivism (Art 14 No. 9). Consequently,
the ruling of the SC in P vs Tolentino, 73 Phil 643, that a habitual delinquent is necessarily a
recidivist is not accurate. The correct rule is - a habitual delinquent may be a recidivist.
Q. If the accused is a habitual delinquent and a recidivist at the same time, shall
recidivism be appreciated for the imposition of the principal penalty (that is, for the
present crime)?
Ans. Yes, otherwise, if in imposing the additional penalty, recidivism could not be
considered as an aggravating circumstance in the fixing of the principal penalty (for the
present crime), the imposition of the additional penalty would make the penalty lighter,
instead of more severe, contrary to the purpose of the law (P vs Tolentino, supra, p vs
Melendrez, 59 Phil 154).
Example: X was previously twice convicted of theft within ten years. Within ten
years after the service of his last sentence, he was convicted of robbery under Art. 294 No. 2
of the RPC, punished with reclusion temporal in its medium period to reclusion perpetua.
Being a habitual delinquent, X should suffer 2 years, 4 months, and 1 day of prision
correccional, as an additional penalty.
Without taking into consideration the aggravating circumstance of recidivism, the
principal penalty to be imposed would be 17 years, 4 months and 1 day of reclusion
temporal, the medium of the penalty prescribed for the crime. If we add 2 years, 4 months
and 1 day (additional penalty) to the principal penalty, the total would be 19 years, 8 months
and 2 days.
But if the additional penalty is not imposed and recidivism is taken into consideration
in the fixing the principal penalty, it would be reclusion perpetua, which is the maximum of
the penalty prescribed by law.
Of course, although the controlling doctrine is that the modifying circumstances are
to be considered in the imposition of the additional penalty for habitual delinquency,
recidivism shall no longer be considered in the imposition of such additional penalty for
the simple reason that it is inherent in habitual delinquency (P vs Espina, 62 Phil 607).
14. The imposition of additional penalty for habitual delinquency is
constitutional. It is neither an ex post facto law nor an additional punishment for former

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crimes. It is simply a punishment on future crimes, the penalty being enhanced on account of
the criminal propensities of the accused (P vs Montera, 55 Phil. 933-934).
15. This may be asked in REMEDIAL LAW (Criminal Procedure).
An
information may be validly amended even after the arraignment of the accused so as to allege
habitual delinquency or recidivism. Reason: The additional allegations of habitual
delinquency and recidivism do not have the effect of charging another offense different or
distinct from the charge of qualified theft (of motor vehicle) contained in the original
information. Neither do they tend to correct any defect in the jurisdiction of the trial court
over the subject matter of the case. The said new allegations relate only to the range of the
penalty that the court might impose in the event of conviction. They do not alter the
prosecutions theory of the case nor possibly prejudice the form of defense the accused has
or will assume (Almeda vs Villaluz, 66 SCRA 38).
ART. 63. Rules for the application of indivisible penalties.
When the penalty is composed of two indivisible penalties (reclusion perpetua to
death), the penalty cannot be lowered by one degree no matter how many mitigating
circumstances are present (P vs Formigones, 87 Phil 6588, P vs Amit, 32 SCRA 95, P vs
Ramos, 94 SCRA 843, P vs Takobo,224 SCRA 134). The rule applies to the complex crime
of direct assault with murder (Art 248 in relation to Arts l48 and 48, P vs Abalos, July 9,
1996).
Exception: When the mitigating circumstance is privileged (Arts 68 & 69, P vs
Martin, 89 Phil 18, p vs Parba, 142 SCRA 158), where the accused was 17 years of age at the
time of the commission of the crime.
The rule that the presence of two or more mitigating circumstances not offset by any
aggravating circumstances entitles the offender to a penalty next lower to that prescribed by
law applies only where the penalty imposable contains three periods, that is, the penalty is
divisible (Art 64 No. 5).
Under this article (63), when the crime is penalized with two indivisible penalties
(reclusion perpetua to death), reclusion perpetua, the lesser penalty should be imposed even
when there is no mitigating circumstance present (P vs Belarmino, 91 Phil 118). On the
other hand, where the penalty imposable is divisible and contains three periods, there shall at
least be one mitigating circumstance (not offset by an aggravating circumstance) so that the
penalty could be imposed in the minimum period (Art 64 Nos. 1 & 2).
Art 63 No. 2 (where there are neither mitigating nor aggravating circumstance
present) shall be applied even if the offense is punished by a special law, like, life
imprisonment to death (Art 10, P vs Tsang Hin Wai, 144 SCRA 22). Exception: Where the
special law explicitly grants to the court the discretion to determine the penalty to be meted
out within the range of the prescribed penalties (P vs Ramos, 78 Phil 392). Note: The text of
the case is in Spanish.

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ART. 64. Rules for the application of penalties which contain three periods.
Where there are only two mitigating circumstances (without any aggravating
circumstance) and they are the bases for lowering the penalty one degree lower, they shall no
longer be considered for the purpose of fixing the proper period of the penalty to be imposed.
Hence, the penalty one degree lower shall be imposed in the medium period (Basan vs
People, 61 SCRA 275).
Example: Where the offender who committed the crime of homicide voluntarily
surrendered to the authorities immediately after the commission of the crime and pleaded
guilty to the charge upon arraignment. The penalty for homicide is reclusion temporal in its
full extent. One degree lower is prision mayor which shall be imposed in its medium
period. This is the maximum term for the purpose of the Indeterminate Sentence Law.
And the minimum is anywhere within the range of prision correccional because, as an
exception to the general rule, in this case, our starting point for determining the penalty one
degree lower is prision mayor, not reclusion temporal, the same being already disregarded
in view of the presence of two mitigating circumstances not offset by any aggravating
circumstance.
Instances in which the modifying circumstances are not considered in the imposition of
the penalty:
1. When the penalty is single and indivisible (Art 63).
2. In felonies through negligence. Case. In crimes characterized by negligence,
the attendance of two mitigating circumstances without any aggravating circumstance, does
not warrant the application of Art 64, that is, impose upon the accused a penalty one degree
lower. Reason: The pertinent portion of Art 365 par 5 provides: x x x the courts shall
exercise their discretion without regards to the rules prescribed in Art 64 (P vs Medroso, Jr.,
62 SCRA 145).
3. The penalty to be imposed upon a Moro or other non-Christain inhabitants (Sec
106, Adm. Code of Mindanao & Sulu, P vs Disimban, 88 Phil 120).
4. When the penalty is only a fine imposed by an ordinance (P vs Kuan, 74 Phil 23).
(Note: Where the fine is imposed by the RPC, the court shall consider not only the
mitigating and aggravating circumstances but more particularly the wealth or means of the
culprit pursuant to the provisions of Art 66).
5. When the penalties are prescribed by special laws (P vs Respecia, et al, 58 O. G.
458). (Note: In spite of Respecia, however, there are now many SC decisions wherein the
modifying circumstances where considered in the imposition of the penalties).
Art. 64 No. 7 provides: Within the limits of each period, the courts shall determine the
extent of the penalty according to the number and nature of the aggravating and

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mitigating circumstances and the greater or lesser extent of the evil produced by the
crime.
In accordance with the foregoing provision, the CA in P vs Recto, et al, No. 11341R, Dec 13, 1954, cited by Reyes in his book, The Revised Penal Code, Book I, held: Where,
considering the modifying circumstances, the penalty of arresto mayor shall be imposed in
the maximum period (4 months and one day to 6 months), the court can impose an
intermediate (not the same as indeterminate) penalty between 4 mos. and 1 day to 6 mos.
It may impose 4 mos. and 1 day, 5 mos. or 6 mos.
ART. 65. Rule in cases in which the penalty is not composed of three periods.
Illustrate the computation of a penalty (without considering the Indeterminate Sentence
Law):
1. Which has three periods. Example: Prision mayor.
2.
Which is not composed of three periods.
minimum to prision correccional medium.

Example:

Prision correccional

Answers:
For No. 1. Prision mayor has a duration of 6 years and 1 day to 12 years.
a. The first step is to deduct the minimum excluding the one day (6 years) from the
maximum (12 years). The procedure gives us 6 years.
b. 2nd step. Considering that we have to divide prision mayor into three periods, we
therefore have to divide 6 years by three which gives us 2. 2 is our constant addend.
c. 3rd step. 2 being the constant addend, we add 2 to the minimum of the minimum
period disregarding the 1 day and we have the maximum of the minimum period (8 years);
add 1 day to the maximum of the minimum period (8 years) and we have the minimum of
the medium period (8 years and 1 day); add 2 (the constant addend) to the minimum of the
medium period disregarding the 1 day and we have the maximum of the medium period (10
years); add 1 day to the maximum of the medium period (10 years) and we have the
minimum of the maximum period (10 years and 1 day); then add 2 (the constant addend) to
the minimum of the maximum period disregarding the 1 day, then we have the maximum of
the maximum period (12 years).
To recapitulate:
Minimum - 6 yrs and 1 day to 8 yrs
Medium - 8 yrs and 1 day to 10 yrs
Maximum - 10 yrs and 1 day to 12 yrs

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Very Important. It will be noted that the one (1) day is always added to the
maximum of the next preceding period to distinguish it from the minimum of the next
succeeding period.
For No. 2. This is quite complicated.
a. 1st step. We have to find out what is the duration of prision correccional
minimum to prision correccional medium by dividing prision correccional in its full extent
into three periods. Since prision correccional has a duration of 6 months and one day to 6
years, we deduct the minimum disregarding the one day (6 months) from the maximum (6
years) and we have 5 years and 6 months. Divide 5 years and 6 months by three and we have
1 year and 10 months which is our constant addend. Thus, following what we did in the
computation of the three periods of prision mayor, we have the following periods for prision
correccional:
Minimum - 6 mos. and 1 day to 2 yrs and 4 mos.
Medium - 2 yrs, 4 mos. and 1 day to 4 yrs. and 2 mos.
Maximum- 4 yrs. 2 mos. and 1 day to 6 yrs.
Note: Since our interest is simply to determine the duration of prision correccional
minimum to prision correccional medium, we could stop after finding out the medium
period. In the illustration, however, we continued up to the maximum period for the purpose
of checking whether our computation is correct.
b. 2nd step. From our computation we find that the duration of prision correccional
minimum to prision correccional medium is 6 months and 1 day to 4 years and 2 months.
This is the duration of the penalty which we have to divide into three periods.
c. 3rd step. Then we deduct the minimum of the period disregarding the 1 day (6
months) from the maximum of the imposable penalty (4 years and 2 months) and we have 3
years and 8 months. Divide 3 years and 8 months by 3 and we have 1 year, 2 months and
20 days which is our constant addend. Following the procedure outlined above, the
duration of the periods of the penalty imposable (prision correccional minimum to prision
correccional medium) is as follows:
Minimum - 6 mos & 1 day to 1 yr, 8 mos. & 20 days
Medium - 1 yr. , 8 months & 2l days to 2 yrs 11 mos. & 10 days
Maximum- 2 yrs, 11 mos. & 11 days to 4 yrs & 2 mos.
ART. 68. Penalty to be imposed upon a person under 18 years of age.
Case. A minor, 17 years of age at the time of the commission of the offense of the
special complex crime of attempted rape with homicide (Art 335) was entitled to a penalty of
one degree lower in spite of the language of Art 63 par 1, the penalty of death being single
and indivisible (P vs Parba, 142 SCRA 158).

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Case. Accused was convicted of parricide punished with reclusion perpetua to death
(Arty 246). There were two mitigating circumstances of (1) incomplete self-defense
(privileged mitigating under Art 69) and (2) lack of instruction. Held: Accused entitled to a
penalty one degree lower (P vs Martin, 89 Phil 19).
Par 1 of Art 63 provides: In all cases in which the law prescribes a single
indivisible penalty (reclusion perpetua or death), it shall be applied by the courts regardless
of any mitigating or aggravating circumstances that may have attended the commission of
the deed. In spite of the foregoing provision, the privileged mitigating circumstance of
minority (Art 68) and of incomplete justifying and incomplete exempting (Art 69) shall be
taken into consideration so as to lower the penalty by one or two degrees, the provisions of
Arts 68 & 69 being favorable to the accused (P vs Galang, L-70713, June 29, 1989).
However, Art 68 does not apply where the capital penalty (death) is imposed by a
special law, for the reason that the privileged mitigating circumstance of minority
cannot be appreciated because the penalty imposable does not have minimum, medium
and maximum periods (P vs Legasca, 148 SCRA 264, P vs Mangusan, Sept 14, 1990).
Thus, where the crime committed is Large Scale Illegal Recruitment (defined and
penalized by the Labor Code) and the penalty imposed (should be imposable) is life
imprisonment, the minor offender is not entitled to the following:
1. Privilege mitigating circumstance of minority under this article (68),
2. Suspension of penalty (judgment). Reason: Under the law, suspension of
sentence is not available to the following:
a. A youthful offender who has once enjoyed suspension of sentence under its
provisions, or
b. One who is convicted for an offense punishable (although not actually imposed)
by death or life imprisonment, or
c. One who is convicted for an offense by the Military Tribunals.
(Art 192, last par, PD 603, as amended by PDs 1179 and 1210),
3. Indeterminate sentence. Reason: Among others, persons convicted of offenses
punished (actually imposed) with death or life imprisonment (reclusion perpetua, included)
are not entitled to the benefits of the Indeterminate Sentence Law pursuant to Sec 2, Act No.
4103 (P vs Simon, 234 SCRA 555, P vs Mary Rose Ondo, et al, 227 SCRA 562).
ART. 69. Penalty to be imposed when the crime committed is not wholly excusable.
Prob. X killed Y in (incomplete) self-defense. Immediately thereafter, X surrendered
to the authorities and entered a plea of guilty upon being arraigned for the crime of
homicide. Impose the proper penalty considering the Indeterminate Sentence Law.

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Ans. The penalty imposable is arresto mayor in its full extent and there is even no
need to consider the Indeterminate Sentence Law. Reason: The privilege mitigating
circumstance of incomplete self-defense will be the basis to lower the penalty two degrees
lower from reclusion temporal. So, we have prision correccional. The two ordinary
(generic) mitigating circumstances of voluntary surrender and plea of guilty not offset by any
aggravating circumstance will be the bases to lower the penalty by another (one) degree (Art
64 No. 5). Consequently, the penalty imposable is arresto mayor. And, since the maximum
period for arresto mayor is six months, i. e., below one year, the Indeterminate Sentence
law does not apply (P vs Nicolas, CA 50 O. G. 2133).
Note: There is a sour note in another decision of the CA (P vs Roblan, 38 O. G.
3379), reported by Acquino in his book wherein it was held: The accused who is given the
benefit of Art 69 cannot claim a further reduction of his penalty under Art 13 (in relation to
Art 64 No. 5). At any rate, Nicolas is later than Roblan, so we consider Nicolas as the
prevailing doctrine. Besides, the doctrine therein is favorable to the accused.
Rules where not all the requisites under Arts. 11 and 12 are present:
1. Where there are only two (2) requisites for the application of a justifying or
exempting circumstance (Arts. 11 and 12) and only one requisite is present, the penalty is
one degree lower (Bernardo Lacanilao vs CA, l-34940, June 27, 1988, P vs Oanis, et al., L47722, July 27, 1943, 1st Div. ).
2. For the rules under this article to apply, a majority of the conditions as required
under Arts. 11 and 12 must be present. Take note, however, that in People vs Cabellon (L29221, Aug. 8, 1928, EN BANC, 51 Phil. 846), a prosecution for homicide where the
accused invoked defense of a relative in his defense, the SC held that the penalty next
lower may be imposed, although only ONE element, that of unlawful aggression, was
present. According to Justice Reyes, this decision is contrary to Art. 69 which says
provided, the majority of such conditions be present, considering that for the justifying
circumstance of defense of a relative to be successfully invoked, the following elements
must be present:
a. Unlawful aggression (on the part of the victim);
b. Reasonable necessity of the means employed to prevent or repel it; and
c. In case the provocation was given by the person attacked, (that) the one making
the defense had no part therein.
ART. 70. Successive service of sentences.
Q. What is the three-fold rule in the service of sentences? Discuss fully.

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Ans. Par. 4 of Art. 70, RPC, provides: Notwithstanding the provisions of the rule
next preceding, the maximum duration of the convicts sentence shall not be more than
threefold the length of the time corresponding to the most severe of the penalties imposed
upon him. x x x . This is the three-fold rule which applies only when the convict has to
serve at least four sentences. Reason: if there are only three, three times the most severe is
either equal to the sum of the three penalties or the sum is less than three times the most
severe (Reyes). In fact, even if the convict has to serve four sentences or more, the three-fold
rule does not apply if the sum total of all the penalties does not exceed the most severe
penalty multiplied by three. In other words, if the product of the penalties arrived at in
applying the rule is higher than the sum total of the sentences added together, the rule should
not be applied. This must be so since the purpose of the rule is clearly to favor the accused.
Another thing, the rule should only be applied when the sentences imposed upon the convict
cannot be served simultaneously. In any case, the maximum term of imprisonment should be
40 years. For the purpose of applying the three-fold rule, the penalty of reclusion perpetua
shall be given an equivalent of 30 years since Art. 70 of the RPC was not amended by RA
7659.
If the sentence is indeterminate, the basis of the three-fold rule is the maximum term
of the sentence (P vs Desierto, CA, 45 O. G. 4542).
Take note that subsidiary imprisonment forms part of the penalty. The rule is to
multiply the highest penalty by three and the result will be the aggregate principal penalty
which will be the basis for the application of Art 39, that is, the subsidiary imprisonment for
failure to pay the fine, shall not exceed one-third of the aggregate principal penalty.
Remember that the convict cannot be made to undergo subsidiary imprisonment if the
aggregate principal penalty exceeds six years (Art 39 No. 3, Bagtas vs Dir, 84 Phil 692).
Does the three-fold rule apply to penalties for different crimes in one and the same
proceeding or to every case although the penalties were imposed in different
proceedings?
Ans. Different proceedings. Under existing procedural rules, each information must
charge only one crime (Sec. 13, Rule 110, 2000 Rules of Criminal Procedure). It prohibits
the charging of several crimes in one proceeding. Considering this procedural requirement,
the three-fold rule and the forty-year limit can only be applied to penalties imposed in
different proceedings.
Courts are not concerned with the three-fold rule.
Hence, they shall impose all the penalties for all the crimes of which the accused is
found guilty. It is in connection with the service of the sentences imposed that the three-fold
rule comes into play. Consequently, it is the prison officials who shall observe the three-fold
rule (P vs Escares, L-11128-33, Dec. 23, 1957, 102 Phil 677, EN BANC).

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In fact, in spite of human nature, the courts shall impose two or more death penalties
upon the accused when proper. The imposition of such penalties far from being a
useless formality, serves the following purposes:
1. It is an indelible badge of the accuseds extreme criminal perversity, which may
not be accurately projected by the imposition of only one death sentence irrespective of the
number of capital felonies of which he is liable.
2. Showing thus the reprehensible character of the convict in its real dimensions, the
possibility of a grant of executive clemency is justifiably reduced in no small measure.
Hence, the imposition of multiple death penalties could effectively serve as a deterrent to an
improvident grant of pardon or commutation. Faced with the utter delinquency of such a
convict, the proper penitentiary authorities would exercise judicious restraint in
recommending clemency or leniency in his behalf.
3. Granting, however, that the Chief Executive deems it proper to commute multiple
death penalties to multiple life imprisonments, then the practical effect is that the convict has
to serve the maximum of forty years of multiple life sentences. If only one death penalty is
imposed, and then it is commuted to life imprisonment, the convict will have to serve a
maximum of only thirty years corresponding to a single life sentence (P vs Jose, 37 SCRA
450).
RA No. 7659 (The Heinous Crimes Law), reimposing the death penalty on heinous
crime took effect on Dec. 31, 1993, that is, 15 days after its publication in the Dec. 16,
1993 issue of the Manila Bulletin, Philippine Star, Malaya and Philippine Times
Journal (P vs Danny Godoy, Dec. 6, 1995). .
Q. What are the different systems of penalty under the RPC? Explain each.
1. The material accumulation system. Here, all the penalties for all the violations
are imposed even if they reach beyond the natural span of human life. This is followed in
pars 1, 2 and 3 of Art 70.
2.
The juridical accumulation system. The service of the several penalties
imposed on one and the same culprit is limited to not more than three-fold the length of time
corresponding to the most severe and in no case to exceed 40 years. Pars 4, 5 and 6 of Art 70
follow this system.
3. The absorption system. This is observed in the imposition of the penalty in
complex crimes (Art 48), continuing crimes, and special complex crimes like robbery with
homicide, etc.
ART. 75. Increasing or reducing the penalty of fine by one or more degrees.
Q. Illustrate the following:

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1. Reducing fine by one or two degrees. Example: Fine of P200 to P2,000.
2. Increasing fine by one degree. Example: Fine of P200 to P6,000.
Ans. For No. 1. To find each degree, get one-fourth (1/4) of P2,000 which is P500.
The minimum of P200 is not changed. For each degree, take P500 from the maximum of the
next higher degree. Hence:
a) Fine one degree lower - P200 to P1,500.
b) Fine two degrees lower - P200 to P1,000
Note: In reducing the fine two degrees lower (for the attempted felony or the penalty
for the accessory), the 2nd reduction by one-fourth should be based on the penalty imposable
(P2,000), not on the penalty as already reduced by one degree (P1,500), so that the maximum
fine as reduced by two degrees would be P1,000 (De los Angeles vs People, 103 Phil 297).
Ans. For No. 2. Take one-fourth of the maximum (P6,000) which is P1,500 and add
this to the maximum fine imposable (without changing the minimum). Thus, the penalty of
fine one degree higher is P200 to P7,500.
This article does not apply when the law does not fix the minimum of the fine. When
only the maximum of the fine is fixed, the determination of the amount to be imposed is left
to the sound discretion of the courts, without exceeding the maximum authorized by law (P
vs Quinto, 60 Phil 351).
ART. 77. When the penalty is a complex one compose of three distinct penalties.
Q. What is a complex penalty?
Ans. It is a penalty prescribed by law composed of three distinct penalties, each
forming a period, the lightest of them shall be the minimum, the next the medium, and the
most severe the maximum.
Example: The penalty of reclusion temporal to death (imposable upon a resident
alien who commits the crime of treason under Art. 114, par 3). Here, reclusion temporal is
the minimum, reclusion perpetua is the medium and death is the maximum.

THE INDETERMINATE SENTENCE LAW (ISL).

Q. Define an indeterminate sentence.
Ans. An indeterminate sentence is a sentence with a minimum term and a maximum
term to the benefit of a guilty person who is not disqualified therefor, when the maximum
penalty of imprisonment exceeds one (1) year. It applies to both violations of the RPC and
special penal laws.

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The court must determine two penalties; Rules.

1. When the crime is punished by the RPC.
a. The maximum term shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the RPC, that is, within the proper period of the
penalty that may be imposed were the sentence is a straight penalty (Basan vs People, 61
SCRA 275).
Note: Each penalty imposed by the RPC forms a degree; the degree is divided into
periods and the period is in turn divided into ranges. But, from the minimum of the
minimum term to the maximum of the maximum term, we call that within the range of the
penalty.
b. The minimum term shall be within the range of the penalty next lower to that
prescribed by the Code for the offense, without considering in the meantime the modifying
circumstances, such as the mitigating or aggravating circumstances (P vs Gonzales, 73 Phil
549).
Note: In determining the minimum term, it is left entirely within the discretion of the
court to fix it anywhere within the range of the penalty next lower without reference to the
periods into which it may be subdivided (P vs Ducosin, 59 Phil 109). However, in Ramirez
vs Sandiganbayan (123 SCRA 709), the SC reduced the minimum penalty of the
indeterminate sentence although the said minimum penalty was within the range of the
penalty next lower in degree than the imposable penalty (maximum penalty of the
indeterminate sentence). In other words, the SC changed the minimum although the trial
court was correct in imposing the minimum term. In the Ramirez case, the accused was a
lawyer asking for leniency he being a first offender charged with the crime of malversation.
Note: The mitigating or aggravating circumstances are considered only in the
imposition of the maximum term of the indeterminate sentence (P vs De Joya, et al, 98 Phil
238). But, only after fixing the minimum term. When there is a privileged mitigating
circumstance so that the penalty has to be lowered by one degree, the starting point for
determining the minimum term of the indeterminate penalty is the penalty next lower from
that prescribed by the Code for the offense (P vs Gonzales, 73 Phil 549). Thus, where the
crime committed is homicide (punishable with reclusion temporal) and the accused is
entitled to a privileged mitigating circumstance of minority he being 17 years of age at the
time of the commission of the crime (Art 68 No. 2) and, hence, under the RPC, the penalty
has to be lowered by one degree (prision mayor), the starting point for determining the
minimum term is prision mayor (not reclusion temporal). Consequently, the minimum term,
for the purpose of the Indeterminate Sentence Law, is anywhere within the range of prision
correccional.
2. When the crime is punished by a Special Law.
a. The maximum term shall not exceed the maximum fixed by law; and

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b. The minimum term shall not be less than the minimum prescribed by the said law.
Guide for the court in fixing the minimum penalty of an indeterminate sentence.
In any case, x x x the minimum penalty should not be so short as not to give the
Board of Pardons & Parole or the officials concerned sufficient time to study and observe the
conduct of the accused and his progress or the changes he has undergone during his
imprisonment for the purpose of properly determining his fitness to return to society without
being a menace to the welfare thereof. Neither should it be too long that the penalty imposed
upon him would fail to serve as a deterrent to the commission of another crime or as a lesson
for his guidance thereafter (P vs Mallari, 60 Phil 400).
The considerations, which should guide the court in fixing the term or duration of the
minimum period of imprisonment, have reference to the offender, first, as an individual, and
2nd, as a member of society. This opens up an almost limitless field of investigation and
study which it is the duty of the court to explore in each case as far as is humanly possible,
with the end in view that penalties shall not be standardized but fitted as far as possible to the
individual, with due regard to the imperative necessity of protecting the social order.
Considering the offender as an individual, the Supreme Court, in People vs Ducosin (59
Phil 109, 118), laid down
some factors that would be considered in determining the
minimum sentence of the indeterminate penalty, as follows:
1. his age, especially with reference to extreme youth or old age;
2. his general health and physical condition;
3. his mentality, heredity, and personal (and criminal record, if any);
4. his previous education, both intellectual or moral;
5. his proclivities and aptitudes for usefulness or injury to society;
6. his demeanor during trial and his attitude with regard to the crime committed;
7. the manner and circumstances in which the crime was committed;
8. the gravity of the offense.
In considering the offender as a member of society, his relationship, first, toward his
dependents, family and associates and their relationship with him; and second, his
relationship towards society at large and the State are important factors. (P vs Ducosin,
supra, at 118).
Examples of the application of the ISL under the RPC:

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1. Indeterminate penalty when the crime committed is complex under Art. 48.
Case. A was convicted of the complex crime of frustrated homicide with direct
assault upon an agent of a person in authority under Art 249 in relation to Art 6, Art 148 and
Art 48 of the RPC. Here, the penalty for frustrated homicide being prision mayor while that
of direct assault is prision correccional medium and maximum, frustrated homicide is
therefore the graver offense. Hence, the maximum of the indeterminate penalty is prision
mayor maximum and the minimum is prision correccional in its maximum period (P vs
Dosal, 92 Phil 877).
2. Indeterminate penalty when the accused is convicted of a complex crime and there
are two mitigating circumstances without any aggravating circumstance.
a) For purposes of the ISL, the penalty next lower should be determined without
regard as to whether the basic penalty provided by the Code should be applied in its
maximum or minimum period as circumstances modifying liability may require. However,
and this may be the only exception to the rule, when the number of the mitigating
circumstances is such as to entitle the accused to the penalty next lower in degree, this
penalty in the application of the ISL should be the starting point for the determination of the
penalty next lower in degree (the minimum of the indeterminate penalty).
b) Case. The accused, who was 17 years on the date of the commission of the crime,
pleaded guilty and was convicted of the crime of direct assault upon a person in authority
with homicide. This being a complex crime, the penalty for the more serious crime should
be imposed, the same to be applied in its maximum period (Art 48). The more serious crime
is homicide punishable by reclusion temporal. The proper method, as held by the Supreme
Court in People vs Gonzales (73 Phil 549), is to start from the penalty imposed by the RPC,
that is, reclusion temporal; then apply the privileged mitigating circumstance of minority and
determine the penalty immediately inferior in degree, that is, prision mayor; and finally apply
the same in its maximum period but within the minimum range thereof because of the
ordinary mitigating circumstance of the plea of guilty, hence, 6 years and one day to 6 years
and 8 months. Prision mayor being the maximum of the indeterminate sentence, the
minimum of the indeterminate sentence is within the range of the penalty next lower to it as
prescribed by the RPC, i. e., prision correccional (P vs Co Pao, 58 Phil 545).
3. Indeterminate sentence when there are privileged mitigating and ordinary
mitigating circumstances.
a) When there is a privileged mitigating circumstance (such as minority or incomplete
defense) and ordinary mitigating circumstance, the rule is: lower first the penalty prescribed
by the Code for the offense by one degree (because of the privileged mitigating
circumstance), using the scale in Art 71, and make the penalty next lower as the starting point
for determining the minimum of the indeterminate penalty. Once the minimum is
determined, by lowering by another degree, the penalty next lower, the penalty, which is

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made the starting point, should be imposed in the proper period. That penalty in the proper
period will be the maximum of the indeterminate penalty.
b) Example: Where a 17-year old minor committed the crime of homicide and
pleaded guilty to the charge during arraignment. The penalty imposable under the RPC is
reclusion temporal. Because of the privileged mitigating circumstance of minority, the
penalty will be reduced by one degree (prision mayor) which is the starting point for the
purpose of determining the minimum penalty pursuant to the ISL. Hence, the minimum
penalty will be anywhere within the range of prision correccional which is one degree lower
to prision mayor. Then apply prision mayor in the minimum period because of the
mitigating circumstance of plea of guilty and this is the maximum term of the penalty. Thus,
the penalty imposable is anywhere within the range of prision correccional as the minimum
term to prision mayor minimum as the maximum term.
The application of the ISL is mandatory (P vs Yu Lian, CA, 40 o. g. 4205). Reason:
The law uses the phrases convicts shall be sentenced and the court shall sentence the
accused to an indeterminate sentence. Exception: Where its application is unfavorable to
the accused (P vs Nang Kay, 88 Phil 519).
Reason for the exception. The law on
Indeterminate Sentence is intended to favor the defendant particularly to shorten his term of
imprisonment depending upon his behavior, etc. It is one of the purposes of the ISL to
prevent unnecessary and excessive deprivation of personal liberty and economic usefulness.
While the rationale in Nang Kay is quite sound, in P vs Ramos (186 SCRA 184,
reiterated in P vs Viente, 225 SCRA 361), it was held: It is not proper merely to impose a
straight penalty. The decisions in these cases is based on the ruling of the SC that the
application of the ISL is mandatory whether the crime committed is punished by the RPC or
by a special law.
Comments. In the Nang Kay case, the accused was convicted of the crime of Illegal
Possession of Firearm, which was then punishable with a penalty of five years to ten years.
The trial court appreciated in favor of the accused two mitigating circumstances.
Consequently, the trial court did not apply the ISL because, under the RPC, there was no
question that the court could impose the minimum of five years and one day considering the
two mitigating circumstances in favor of the accused. Had the trial court imposed an
indeterminate sentence pursuant to the ISL, the penalty would have been for a longer period
because then the trial court had to fix the minimum and the maximum. The penalty imposed
by the trial court which was five years and one day (the minimum of the penalty imposable
without considering the ISL) was approved by the SC. Although the decision in Nang Kay
is not En Banc, it was approved by six justices and the ponente was no less than then Chief
Justice Paras. The Ramos case is a conviction for Illegal possession of marijuana in violation
of RA 6425 wherein the penalty then imposable was six years to 12 years. The trial court
imposed a straight penalty of six years and one day. On appeal, the SC, applying the ISL,
modified the penalty to 6 years and 1 day, as the minimum term to 9 years as the maximum
term. Viente is a case involving (simple) carnapping where the penalty imposable is not less
than 17 years and 4 months to not more than 30 years. The trial court imposed a straight
penalty of 30 years. Applying the ISL, the SC modified the penalty to 17 years and 4 months

176
as the minimum to 30 years as the maximum. The Ramos and Viente cases are, likewise, not
decisions En Banc of the SC. Ramos is decided by the 3rd Div, while Viente, the 1st Div.
Upon a closer look at the Nang Kay case on the one hand and the Ramos and the
Viente cases on the other hand, it is believed that there is no conflict between the two
apparently conflicting decisions and that, therefore, the Nang Kay case is not abandoned.
The reconciliation is this - if the crime is punished by a special law and there is/are
mitigating circumstance(s) in favor of the accused, then apply Nang Kay. However, where
there are no mitigating circumstances in favor of the accused, then apply Ramos and Viente.
Remember, the application of the ISL is mandatory even if the crime committed by the
offender is punished by a special law.
Examples:
1. Where the penalty imposed is less or exactly one (1) year, the ISL is not
applicable. In P vs Hernandez (97 Phil 3), the accused was convicted of reckless imprudence
resulting to homicide, which was punished with prision correccional medium to prision
correccional maximum.
Considering, however, that there were two mitigating
circumstances, the penalty was reduced by one degree to arresto mayor maximum to prision
correccional minimum, that is, 4 months and 1 day to 2 years and 4 months. The trial court
imposed on him a straight penalty of one (1) year. The accused contended that he should be
given the benefits of the ISL. Held: The application of the ISL is based upon the penalty
actually imposed in accordance with law and not upon that which may be imposed in the
discretion of the court (Citing P vs Dimasalanta, 92 Phil 239).
Note: Rule in crime characterized by negligence. Lowering the penalty by one
degree because of the presence of two mitigating circumstances as done in Hernandez is not
in accordance with P vs Medroso, Jr. (62 SCRA 245) which is to the effect that in crimes
characterized by negligence, the attendance of two mitigating circumstances does not warrant
the application of Art 64. Reason: In negligence cases, x x x the courts shall exercise their
discretion without regard to the rules prescribed in Art 64 (Art 365, par 5).
2. Case. A was convicted of illegal possession of high-powered firearm then
punishable with a penalty of imprisonment from 5 years to 10 years. The accused pleaded
guilty. If the ISL will not be applied, considering the plea of guilty (by analogy), the trial
court could well and lawfully impose upon the accused a prison sentence of 5 years. But, if
we apply the ISL, the prison term would have to be more than 5 years, as the minimum
could not be less than 5 years and the maximum could not be more than 10 years.
Note: Under RA 8294 which amended PD 1866, the penalty imposable for illegal
possession of a high-powered firearm is prision mayor in its minimum period and a fine of
P30,000.
Consequently, and considering that the penalty imposable follows the
nomenclature of the RPC, the application of the ISL shall now follow the rules applicable to
crimes punished by the RPC.

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It is believed that the doctrine in Nang Kay (supra) applies only where the crime is
punished by a special law and the penalty imposable does not follow the nomenclature of the
RPC. Reason for this is that the minimum term can in no case be lower than the minimum
fixed in the law. However, where the crime is punished by the RPC, the application of the
ISL is always favorable to the accused because the minimum term of the penalty to be
imposed is always lower by one degree than the penalty prescribed by the RPC.
The ISL is not applicable to the following:
1. Persons convicted of offenses punished with death or life imprisonment.
a) Reclusion perpetua is included although what the law states is life imprisonment
(P vs Simon, 234 SCRA 555).
b) Here, it is the penalty actually imposed which is to be considered, not the penalty
prescribed by law. Thus, where a person is charged and convicted of the crime of murder
(punishable under Art 248, as amended by RA 7659 with the penalty of reclusion perpetua to
death), but the penalty imposed is not death or reclusion perpetua (due to the presence of a
privileged mitigating circumstance), the accused is entitled to the benefits of the ISL (P vs
Moises, et al, 66 SCRA 151), expressly overruling the contrary ruling in P vs Coleman, et al
(103 Phil 6). VERY IMPORTANT. On the other hand, take note, that the minor offender is
not entitled to the benefits of a suspended sentence under PD 603, that right being not
available to one who is convicted of a crime punishable by death or life imprisonment
(reclusion perpetua, included) (Art 192, last par, PD 603), even on the assumption that he is
still below 18 years of age at the time of the promulgation of the judgment of conviction.
2. Those convicted of treason, conspiracy or proposal to commit treason.
3. Those convicted of misprision of treason, rebellion, sedition or espionage. (Note:
Coup detat under Art. 135, as amended, is not included).
4. Those convicted of piracy (under Arts. 122-123). Note: Those convicted of
Piracy in Philippine waters punished under PD 532 could not have been contemplated by the
ISL for the simple reason that the ISL was approved and effective on Dec. 5, 1933, while PD
532 was issued only on Aug. 8, 1974.
5. Those who are habitual delinquents. Note: Recidivists are entitled to the benefits
of the ISL (P vs Arellano, 69 Phil 678, P vs Dimalanta, 92 Phil 239). And so are quasirecidivists likewise entitled (P vs Dimalanta, supra).
6. Those who shall have escaped from confinement or evaded sentence.
Notes: This includes evasion of the penalty of (a) destierro (P vs de Jesus, 80 Phil 748). But,
one who is an (b) escapee from a correctional institution is entitled to the benefits of the
law. Reason: Confinement in that institution is not an imprisonment (P vs Soler, 63 Phil
868).

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7. Those who violated the terms of conditional pardon granted to them by the Chief
Executive.
8. Those whose maximum term of imprisonment does not exceed one year.
9. Those who, upon the approval of the law (Dec 5, 1933), had been sentenced by
final judgment.
10. Those sentenced to the penalty of destierro or suspension. Reason: In view of
the nature of the penalty of destierro, the convict is not entitled to the provisions of the ISL,
since the benefits of the law are expressly granted to those who are sentenced to
imprisonment exceeding one year (P vs Almeda, CA, June 8, 1938). Note: One serving the
sentence of destierro may commit the crime of Evasion of Service of Sentence (Art. 157).
A prisoner who has already served the minimum of his sentence, but not fitted for
release on parole, shall continue to serve the imprisonment until the end of the
maximum.
In other words, while it is mandatory on the part of the court to apply the provisions
of the ISL, on the part of the proper officials of the Dept of Justice (Board of Pardons &
Parole), the application of the ISL is discretionary.
Q. Compare the ISL with Probation Law and Suspended Judgment:
1. As a rule, the application of the ISL is mandatory, except where the result is
unfavorable to the accused; the benefit of the law on suspended judgment is mandatory and
the same shall be included in the judgment; but, the benefits of the Probation Law is subject
to the application of the convict and subject to the approval of the trial court.
2. There is no limit for the accused to be entitled to the benefits of the ISL; the
benefits to the Probation Law and Suspended Judgment can only be enjoyed once.
Q. What are the four basic rules of the Indeterminate Sentence Law (ISL)?
Ans. They are as follows:
1. It applies mandatorily if the maximum of the prison sentence exceeds one (1) year,
whether the offense is punished by the RPC or by a special law;
2. It has a minimum term and a maximum term. If the crime is punished by the RPC,
the minimum shall be within the range of the penalty next lower to that prescribed by the
Code and the maximum term shall be the proper penalty considering the attending
(mitigating/aggravating) circumstances;
3. If the offense is punished by a special law, the minimum term shall not be less
than the minimum fixed by that law and the maximum shall not exceed the maximum
prescribed therein; and

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4. Exception: Where the special law (like PD 1612, PD 533) provides for penalties
as technically named and understood in the RPC, i. e., using the nomenclature of the
penalties provided for in the Code, e. g., prison correccional, prision mayor, etc., in such
cases, the ISL may be applied as if the offense were punished under the RPC which has a
suppletory effect. Thus, the minimum will be one degree lower.
Note: The rules can just be reduced to TWO (2). Nos. 3 and 4, above can just be
included in No. 2 thereof. But, we cannot help it - that is the question asked in the BAR.

THE PROBATION LAW (PD 968,

as amended by PD 1257, BP 75 and PD 1990).
SEC. 3. Probation, meaning.
A disposition under which a defendant after conviction and sentence is released
subject to conditions imposed by the court and to the supervision of a probation officer.
Probation and pardon, not coterminous.
Probation and pardon are not coterminous; nor are they the same. They are actually
distinct and different from each other, both in origin and in nature. In probation, the
probationer is in no true sense, as in pardon, a freeman. He is not finally and completely
exonerated. He is not exempt from the entire punishment, which the law inflicts. Under the
Probation Law, the probationers case is not terminated by the mere fact that he is placed on
probation. The probationer, during the period of probation, remains in legal custody - subject
to the control of the probation officer and of the court; he may be rearrested upon the nonfulfillment of the conditions of probation and, when rearrested, may be committed to prison
to serve the sentence originally imposed upon him. (P vs. Jose O. Vera, L-45685, Nov. 16,
1937, First Div.).
Sec. 4. Grant of Probation.
The application for probation shall be filed with the trial court within 15 days from
promulgation of the judgment of conviction of the accused. (That is, before the accused
begins to serve his sentence).
Under PD 1990, probation is no longer available once the appeal is perfected.
Reason for this is that probation and appeal are mutually exclusive remedies, that is, an
application for probation is a waiver of the right to appeal and perfecting an appeal is a
waiver of the right to probation. The rule applies even if, thereafter, the appeal is withdrawn
in the appellate court.

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In fact, waiver of the right to the Probation Law still applies even if the maximum
penalty imposed by the trial court is higher than six years (and hence, the convict is initially
disqualified or does not have the right to avail of the benefits of the Probation law), but,
although the judgment of conviction is affirmed on appeal, the penalty is reduced by the
appellate court so that the maximum thereof is already six years or less. (Bernardo vs Judge
Balagot, et al, Nov 10, 1992, Edwin de la Cruz vs Judge Callejo, et al, April 18, 1990).
IMPORTANT. Do not be mislead by the decision of the Court of Appeals in Alipio
Alzate vs Hon Pedro Cacho, SP No. 19640, June 22, 1990, 80 No. 45 O. G. 6520, Nov 8,
1993, wherein it was held: The foregoing rule (waiver of the right to avail of the benefits of
the Probation Law) does not apply to a situation where the accused under the original
sentence was not eligible for probation.
Case. The accused was convicted by the RTC of Frustrated Homicide. He appealed
to the Court of Appeals, which affirmed the conviction but modified the penalty to within the
probationable limits. He filed a Petition for Probation with the Court of Appeals but the
latter did not act on said petition. The case was remanded to the RTC for the execution of the
Decision. In the RTC, the accused filed a Petition for Probation. The RTC gave due course
to the petition, claiming that the accused, not having appealed from the decision of the Court
of Appeals, he was entitled to probation.
Held: The RTC was wrong. The Supreme Court said that the appeal referred to in
the law is the appeal from the trial court (RTC or the town/city courts), and not from the
decision of the Court of Appeals, as an appellate court. (P vs. Judge Antonio C. Evangelista,
et al., 253 SCRA 714).
Question: Suppose the penalty imposed by the trial court (RTC) is wrong. Although
the accused intended initially to avail of the Probation Law, he could not do so because
the maximum of the penalty imposed upon him is higher than six (6) years. For the
purpose of having the wrong penalty corrected so that the same be reduced to six years
or less, and so that, thereafter, he could avail of the Probation Law, the accused
appealed to the Court of Appeals only for the purpose of having the penalty reduced.
Suppose the penalty is reduced to within the probationable limits, may the accused be
entitled to the benefits of the Probation Law?
Ans. The foregoing question has raised serious contentions in at least two (2) cases
decided by the Supreme Court, both of which are to be cited hereunder. In both cases,
petitioners raised the issue that they appealed their respective cases precisely to lower the
erroneous penalties imposed by the trial judge, the same being bloated.
In affirming the denial of the petition for probation in the decision of the trial court
and of the Court of Appeals in the case of Pablo C. Francisco vs. Court of Appeals, et al.,
G.R. No. 108747, April 6, 1995, the Supreme Court En Banc, voting 8 to 5, held that the
law expressly requires that an accused must not have appealed his conviction before he can
avail of the probation and consequently, probation should be availed of at the first

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opportunity by convicts who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse. The Supreme Court went on to say that, the law,
simply, does not allow probation after an appeal has been perfected considering that, as
mentioned above, prevailing jurisprudence treats appeal and probation as mutually
exclusive remedies.
Admittedly though, the case should be decided thus because of the other issues raised
that militate against the granting of the application for probation, e.g. the penalties imposed
by the MeTC were already probationable but only that it is believed by the petitioner to be
not within the probationable limit. It thus negates the need to appeal the decision if only to
reduce the penalties to within the probationable limit.
In the more recent case of Domingo Lagrosa, et al., vs. Pp and CA, G.R. No. 152044,
July 3, 2003, petitioners ask not to apply to the letter the provision of Section 4 of the
Probation Law, as amended by PD 1990, claiming that their situation should be considered as
an exception to the rule that no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction. Their main
contention is that what prompted them to appeal the decision of the trial court was the
erroneous penalty imposed therein. However, petitioners also put the merits of their case in
issue. On this score, the Supreme Court held in this wise:
The fact that petitioners put the merits of their conviction in issue on
appeal belies their claim that their appeal was prompted by what was
admittedly an incorrect penalty. Certainly, the protestations of petitioners
connote a profession of guiltlessness, if not complete innocence, and do not
simply assail the propriety of the penalties imposed. For sure, petitioners
never manifested that they were appealing only for the purpose of correcting a
wrong penalty to reduce it to within probationable range. Hence, upon
interposing an appeal, more so after asserting their innocence therein,
petitioners should be precluded from seeking probation.
Indeed, petitioners in both the Francisco and the Lagrosa cases raised issues other
than to precisely question the propriety of the penalties imposed upon them. These have led
to their undoing.
Q. But had the petitioners (Francisco and Lagrosa) questioned only the propriety of
the penalties imposed upon them, could the Supreme Court have stretched the law a bit
more and rendered an equitable decision in their (petitioners) favor?
Let us consider the following.
While we take relief on the telling pronouncement of the Supreme Court in the
Francisco case when it said that:
While the proposition that an appeal should not bar the accused from
applying for probation if the appeal is solely to reduce the penalty to within

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the probationable limit may be equitable, we are not yet prepared to accept
this interpretation under existing law and jurisprudence
and in the obiter dictum in the Lagrosa case to the effect that:
Had the petitioners appeal from the decision of the trial court raised
the impropriety of the penalty imposed upon them as the sole issue, perhaps
this Court would have been more sympathetic to their plight,
it is believed that the Supreme Court cannot be prepared to accept this interpretation when
a case of similar import is pending with the said Court. This is because Section 4, as
amended by PD 1990 is explicit when it provides that:
Section 4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions as
it may deem best (bold italics supplied for emphasis);
xxx

xxx

xxx

Considering, however, that the time for filing the application for probation is within
the period for perfecting an appeal, it necessarily follows that if the convicted accused
appeals his conviction, even if only for the sole and precise purpose of reducing an erroneous
penalty imposed by the trial court to within the probationable limit, he would nevertheless be
precluded from applying for probation. Naturally, there is no instance where the law may be
interpreted liberally to afford equity to the aggrieved petitioner because the law is clear on
this respect. It is a settled rule that equity comes in only when there is no provision of law
applicable to a certain situation.
There is, therefore, an urgent and pressing need to further amend Section 4 of the
Probation Law, as amended by PD 1990, if only to give justice to our convicts who are
erroneously meted out a bloated sentence due to the gross ignorance of the trial judge. Failure
to do so would be tantamount to punishing an accused for the erroneous sentence, nay gross
ignorance of the trial judge. Moreover, the amendment would also give substance to the
beneficent purpose of the Probation Law.
In view hereof, the writer respectfully suggests to our Senators and Congressmen to
make a further amendment of Section 4 of PD 968 so that the same should read as follows:
Section 4. Grant of Probation. - Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions as
it may deem best; Provided, that no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the

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judgment of conviction; Provided, however, that if the defendant perfects an
appeal solely for the purpose of correcting an erroneous penalty imposed by
the court a quo so that the same may be within the probationable limit, and
the appellate court, although it affirms the conviction, reduces the assailed
penalty to within the probationable range, the appeal shall not preclude the
defendant from applying for probation. In this case, the defendant shall file
his application for probation within fifteen (15) days from receipt of a copy of
the decision of the appellate court, failing which, he is deemed to have waived
his right to the probation law.
XXXXXXXXXXXXXXX
The convict who filed an application for probation cannot appeal from the order
denying his application; proper remedy.
Under Sec. 24 of the Rules on Probation, the order of the court granting or denying
probation is not appealable. Since there being no appeal, private respondent (accused) has no
other plain, speedy and adequate remedy in the ordinary course of law against the denial of
his application for probation except for the special civil action of certiorari with preliminary
mandatory injunction and restraining order which he timely filed before the respondent
appellate court (Court of Appeals). With the filing of the original petition for certiorari, it is
clear that the denial of probation has not become final and executory.
Indeed, private respondents commitment to prison would have rendered his petition
before the Court of Appeals moot and academic if the same is implemented and private
respondent started to serve his sentence of conviction. Precisely, to forestall such an
eventuality, the Court of Appeals issued its order restraining the enforcement and/or
continuance of private respondents sentence of imprisonment. A restraining order may be
utilized not only to enjoin the commission of an act but also the continuance thereof, if the
same has already started. Its essential function is to preserve the status quo during the
pendency of the suit. Accordingly, the timely action of the Court of Appeals precluded the
rendering of the case moot and academic. (Heirs of the late Francisco Abueg vs Hon. Court
of Appeals, et al., L-96803, Feb. 17, 1993, 2nd Div.).
The same remedy (under Rule 65) is available to the prosecution where it believes
that there was grave abuse of discretion on the part of the trial court in granting the
application.
Q. After the accused filed his application for probation, may the court allow him to
withdraw the same and at the same time file a notice of appeal so that he could appeal
from the judgment of conviction?
Answer. The Supreme Court rendered two apparently conflicting decisions in answer
to the foregoing question, as follows:

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1.
Facts: On June 22, 1982, when the decision dated May 20, 1982 was
promulgated, the petitioners (accused) appeared in court without their counsel of record. The
respondent court appointed a certain Cesar Villar who happened to be in court to act as
petitioners counsel de oficio during the promulgation. On that occasion, the petitioners,
through their counsel de oficio, manifested that... they are going to avail of the benefits of
the Probation Law and prayed that they be released under the same bond. The court
immediately granted the petitioners prayer...
On June 23, 1982, the petitioners filed with the respondent court an application for
probation under Presidential Decree No. 968 as amended by Presidential Decree No. 1257.
Acting on the petitioners application for probation, the respondent court on the same day,
June 23, 1982, issued an Order directing the probation officer to conduct an investigation on
the application for probation and to submit his report on the matter within sixty days (60)
days from receipt in accordance with Sections 5 and 7 of Presidential Decree No. 968 as
amended.
On June 28, 1982, or seven (7) days from the date of promulgation of the decision
and within the reglementary period to file an appeal, the petitioners filed with the respondent
court their Notice of Appeal (With a Prayer To Withdraw Their Application For Probation).
On July 6, 1982, the respondent court issued an Order denying the notice of appeal on
the ground that the petitioners waived their right to appeal the decision when they filed their
application for probation.
On July 16, 1982, Atty. Antero Torres filed with the court an appearance as counsel
in collaboration with the petitioners counsel of record, and on behalf of the petitioners, filed
a motion for reconsideration of the July 6, 1982 order. On July 24, 1982, the petitioners filed
a supplemental motion for reconsideration.
On August 19, 1982, the respondent court issued an order denying both the motion
for reconsideration and the supplemental motion for reconsideration.
Hence, this petition was filed to set aside the above orders.
Issue: And now, the question before us is whether or not such a waiver or withdrawal
is irrevocable.
Held: We rule that it is not. We find the strict and unyielding application of the
waiver rule under the Probation Law unwarranted.
Under the factual circumstances of the instant case, the respondent court in granting
the application for probation and denying the prayer to withdraw, failed to take into account
the fact that the petitioners counsel of record was not present when the petitioners applied
for probation. True, they were represented by a counsel de oficio appointed by the court on
the spot but the counsel de oficio was not fully acquainted with their case. He could not have
considered fully the strength of a possible appeal when he advised them about the effects of

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the application for probation. More so when we consider the thin line that divides a criminal
case for estafa and a civil case for collection of a debt.
And this fact surfaced when, on June 28, 1982 after the petitioner discussed their case
with a brother-in-law, Judge Eladio C. Sequi of the Municipal Court of Carranglaan, Nueva
Ecija, the petitioners filed their notice of appeal upon the Judges advice. It must be noted
that the notice of appeal was filed just seven (7) days after the promulgation of the decision.
Considering that the application for probation is an admission of guilt on the part
of an accused for the crime which led to the judgment of conviction and that the
application for probation is considered a waiver upon his part to file an appeal, it is in the
best interest of justice that the court should take the necessary steps to insure that the
accused has been fully appraised of the full import of his application before the court acts
on it.
In the case at bar, the respondent court hastily granted the manifestation and
application for the probation on June 22, 1982, the same day that the decision was
promulgated and approved the formal application the following day without taking steps to
be informed that the petitioners were aware of the full import of their application.
Furthermore, Presidential Decree No. 968 which established the Probation System was
envisioned among other things, to provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a prison sentence (Section 2(b),
Presidential Decree No. 968).
Under the facts of this case, the petitioners cannot be considered penitent offenders.
They appeared to have improvidently filed their application for probation and should be
allowed to withdraw it and to appeal the decision.
We agree with the Solicitor General when he observes that:
xxx

xxx

xxx

xxx

xxx

There can be no real reformation of a wrongdoer which is the reason for probation
unless there is a willingness on his part to right the wrong he has committed. Probation is
envisioned for the accused. He may or may not avail of its benefits. Although probation is
founded on consent, waiver and/or contract, public policy requires that interpersonal
objectives set forth in Section 2 of Presidential Decree No. 968 be given full effect.
Probation cannot therefore be forced or compelled on a convict. To permit this would only
serve to invite its violation. Instead, a greater emphasis should be exerted in securing the
probationers effective participation in societys major social institution.
Since probation is an island of technicalities surrounded by sea of discretion, it
should, therefore, be liberally construed in favor of the accused (herein petitioners).
Having opted to discontinue with the application for probation in its initial stages and
prior to the submission of a post sentence investigation report and within the period

186
interposed an appeal from the adverse decision, petitioners should be allowed to withdraw
their application for probation and pursue their right to appeal therefrom.
The underlying philosophy of probation is indeed one of liberality towards the
accused. It is not served by a harsh and stringent interpretation of the statutory provisions.
Probation is a major step taken by our Government towards the deterrence and minimizing of
crime and the humanization of criminal justice. In line with public policy behind probation,
the right of appeal should not be irrevocably lost from the moment a convicted accused files
an application for probation. Appeal and probation spring from the same policy
considerations of justice, humanity, and compassion. ACCUSED (PETITIONERS)
ALLOWED TO WITHDRAW THEIR APPLICATION FOR PROBATION AND THEIR
NOTICE OF APPEAL GIVEN DUE COURSE. (Yusi vs. Morales, First Division, L-61958,
April 2, 1983, 121 SCRA 853).
2. Facts: The decision was promulgated in the presence of the accused (petitioner).
Although the accused was out on bail, after the promulgation of the decision, the court right
away issued a commitment order so that the accused was committed to jail. On the following
day, instead of questioning the issuance of the commitment order against him, the accused,
assisted by his counsel, filed with the trial court (court a quo) an application for probation, an
affidavit of recognizance and an application for release on recognizance. Also on the same
day, the trial court issued an order directing the accused to report to the Provincial Probation
and Parole Officer, and for the latter to conduct an investigation of the applicant and submit
his report and recommendation within sixty days. Two weeks later, the accused filed with
the trial court a Motion to Withdraw application for Probation and Notice of Appeal
alleging that he hastily filed his application for probation because of the threats employed
upon him by the authorities and that he was not able to intelligently consult with his lawyer
and reflect on the legal consequences and effects of his application for probation under the
law, so that he may not be considered to have waived his right to appeal the decision.
However, the trial court denied the accuseds motion to withdraw his application for
probation, etc. when it was determined, after a hearing, that the accusations were baseless,
and that the accuseds counsel did in fact properly advise him as to the effects and
consequences of appeal and of probation, and that, notwithstanding such advice, in the words
of the trial court - x x x the accused chose the easy way out which was to apply for
probation in order that he will not be detained because he could not post his bail bond. But
later he went to talk to his employer in Manila who induced him to appeal. Understandably
so because in the decision it was also found out that the recruitment activities of the employer
and his placement agency (the one manned by the accused) did not have a license to recruit.
x x x What simply happened here was that the accused decided to apply for probation
because it was an easy way to avoid being detained in jail, to avoid the trouble of putting up a
bailbond; to avoid further expenses of counsel and to end the case once and for all without
suffering incarceration. But after his employer induced him to appeal, helped him to post his
bailbond and perhaps even provided him with another counsel, the accused changed his
mind. He was fully aware and he knew what he was doing. He was properly advised by his
lawyer who told him that if he will file his application for probation, he would lost his right
to appeal although he was given contrary advice by his employer in Manila. It would be a

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dangerous precedent to allow the accused to make a mockery of the Probation Law.
The case of Yusi vs. Morales cannot apply to him.:
Held: Now, in this case, since the trial court immediately after the promulgation of
judgment (and without waiting for the finality thereof), issued a commitment order despite
petitioners (accuseds) being out on bail, petitioner should have challenged the legality of
such commitment order. However, instead of doing so, petitioner, after having been
properly advised by counsel on the effects and consequences of probation, voluntarily - and
with the assistance of counsel - filed an application for probation, along with an affidavit of
recognizance and an application for release on recognizance of his counsel. Petitioners
actuations thus foreclosed his right to appeal.
Thus, in this case, the petitioners application for probation had the effect of a final
determination of his case, and the cancellation of his bail bond. Therefore, the respondent
Court of Appeals could not have done otherwise than to affirm the trial courts order for
petitioners immediate confinement after promulgation of judgment, in view of the
subsequent application for probation which rendered the said judgment final and immediately
executory. (Angelo Cal vs CA, et al., L-114343, Dec. 28, 1995, 3rd Division).
Reconciliation.
Take note that both the Yusi and Cal cases are not doctrinal, neither of them being
decided by the Supreme Court En Banc. Actually, there is no conflict between the Yusi and
Cal cases. What is determinative of the issue of whether or not the accused, after filing an
application for probation, but within the period for perfecting an appeal, may be allowed to
withdraw his application and file a notice of appeal, would depend upon whether or not the
filing of his application for probation was done by the accused intelligently. Efforts must be
exerted by the trial court to let the accused-convict understand the implication of the filing of
an application for probation. It is believed that the best way for the court to do this is to set
the application for hearing for this precise purpose. In such hearing, the court shall endeavor
to determine whether or not the accused was assisted with counsel in studying the decision
and in determining whether there was the possibility of having the same reversed on appeal.
If after a study, the accused, assisted with his counsel, filed an application for probation, the
filing thereof is irrevocable because it amounted to a waiver of his right to appeal.
Certainly, it can only be presumed that the accused, assisted with counsel, filed his
application for probation because of a realization that the judgment would be affirmed on
appeal. (Apply Cal vs CA). If otherwise, the filing of the application for probation is not
irrevocable (Apply Yusi vs Morales).
.
An application for probation renders the judgment final but not executory pending the
resolution of the application for probation.
Consequently, the court could no longer allow the withdrawal of an alleged
improvident plea of guilty and be substituted with a plea of not guilty, the judgment being
already final (Palo vs Militante, supra). However, the court cannot, in the meantime (before
it denies the application) order the execution of the judgment because, although it is already

188
final it is not yet executory until the court disposes of the application either by granting it or
denying the same. (Heirs of Late Francisco Abueg vs CA, 219 SCRA 78).
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only.
However, if the judgment does not require the convict to undergo subsidiary
imprisonment in case of insolvency, there is no basis for an application for probation
where the penalty of the accused is only a fine. Reason: The accused cannot be required to
serve subsidiary imprisonment if the same is not expressly provided in the judgment and it is
the subsidiary imprisonment which is the basis for an application for probation (Sec 14-b).
REMEMBER. Although the imposition of a subsidiary penalty is mandatory upon the court
where the principal penalty imposed upon the offender is not higher than prision correccional
(Art. 39), the same must be expressly included in the judgment it being a real penalty. It is
not an accessory penalty (Art. 73).
SEC. 5. Post-sentence Investigation.
Where the probation officer recommends the grant or denial of the application for
probation, can the court act otherwise?
Ans. Yes, the authority of the probation officer is only recommendatory and not
binding on the court (Sec 7).
Due process is denied an applicant for probation where her application was denied
before she was given a chance to be heard and to present evidence in support of her
application (Cabatingan vs Sandiganbayan, 102 SCRA 187).
The denial of an application for probation based merely on the probation report
without preliminary investigation may be set aside (Cabatingan vs Sandiganbayan, supra).
Take note, however, that the law does not expressly require a preliminary investigation
before the court could either grant or deny the application.
SEC. 7. Period for Submission of Investigation Report.
Disposition of the accused after conviction and the filing of an application for
probation but pending the submission of the post sentence investigation report (PSIR) of the
probation officer:
1. The defendant may be allowed on temporary liberty under his bail filed in the
criminal case; or
2. Where no bail was filed or that the defendant is incapable of filing one, the court
may allow the release of the defendant on recognizance to the custody of a responsible
member of the community who shall guarantee his appearance whenever required by the
court.

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Note: Under Sec 15 where the court issues a warrant for the arrest of the accused for
violation of conditions, mandatory or discretionary, the law only mentions bail for the
release of the accused pending hearing which follows his arrest. Recognizance is not
mentioned implying that, under the said Sec 15, recognizance is not available to the accused.
Legal effects of the grant of the application for probation:
1. Probation affects only the criminal aspect of the case.
The suspension of sentence imposed on the accused who is granted probation has no
bearing on his civil liability. So that, where the accused pleads guilty upon arraignment and
at the same time applies for probation, the court must hear the civil aspect of the case
(Budlong vs Apalisok, 122 SCRA 935).
2. However, the accessory penalties are deemed suspended once the application
for probation is granted (Baclayon vs Mutia, 129 SCRA 149).
Held: An order placing defendant on probation is not a sentence but is rather in
effect a suspension of the imposition of sentence (Commonwealth ex rel. Paige vs. Smith,
198 A. 812, etc.). It is not a final judgment but is rather an interlocutory judgment in the
nature of a conditional order placing the convicted defendant under the supervision of the
court for his reformation, to be followed by a final judgment of discharge, if the conditions of
the probation are complied with, or by a final judgment of sentence if the conditions are
violated.
Because petitioner (accused) was granted probation, the imposition of her sentence of
imprisonment was thereby suspended and necessarily, the imposition of the accessory
penalties was likewise thereby suspended (Baclayon vs Mutia, supra).
Hence, even if suspension is an accessory penalty, the accused, a public officer,
cannot be suspended where his application for probation is granted. The proper remedy of
the offended party if he is aggrieved is to file an administrative case against the probationer
because the Probation Law does not bar the filing of an administrative case against a public
official who is granted probation. In the administrative case, the probationer may be
suspended.
3. Conviction for an offense involving moral turpitude stands even if the
candidate was granted probation for the same crime.
Held: As to the contention of the petitioner (accused) that his probation had the effect
of suspending the applicability of Sec. 40(a) of the Local Government Code, suffice it to say
that the legal effect of probation is only to SUSPEND THE EXECUTION OF THE
SENTENCE. (Sec. 4, PD 968, as amended). Petitioners conviction of fencing which we
have heretofore declared as a crime involving moral turpitude and thus falling squarely under
the disqualification found in Sec. 40(a), subsists and remains totally unaffected
notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case

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ipso facto attains finality when the accused applies for probation, although it is not executory
pending resolution of the application of the application for probation. (Rolando P. Dela
Torre vs COMELEC, et al., L-121592, July 5, 1996, EN BANC).
Reconciliation between accessory penalty and conviction of an offense involving moral
turpitude (Nos. 2 & 3, above).
Under the law (Art. 73, RPC), accessory penalties do not have to be expressly
imposed in the judgment of conviction. The moment the principal penalties are imposed, it
must be understood that the accessory penalties [as provided in Arts. 40 to 45 of the RPC] are
also [deemed] imposed upon the convict. (P vs Baltazar, CA-GR No. 14882-R, May 25,
1956). Consequently, if the principal penalty (the sentence) is suspended because of the
grant of probation to the convict, the accessory penalty to the said principal penalty is
likewise suspended (Baclayon vs Mutia). On the other hand, conviction for an offense
involving moral turpitude which is a ground for disqualification of a candidate under Sec.
40(a) of the Local Government Code is not an accessory penalty - rather, it is a consequence
of the conviction. Take note that, although the grant of probation suspends the
EXECUTION of the judgment of conviction (the sentence itself), it does not suspend the
conviction of the accused for an offense involving moral turpitude. Hence, the
disqualification stands. (Rolando P. Dela Torre vs COMELEC, et al., supra).
SEC. 8. Criteria for Placing an Offender on Probation.
What are the discretionary grounds for the denial of an application for probation?
Ans. They are:
1. The offender is in need of correctional treatment that can be provided most
effectively by his commitment to an institution;
2. There is an undue risk that during the period of probation the offender will
commit another crime; and
3. The probation will depreciate the seriousness of the offense committed.
(Tolentino vs Alconcel, 121 SCRA 92).
SEC. 9. Disqualified Offenders.
Q. Who are the disqualified offenders (the mandatory grounds for the denial of an
application for probation)? Ans. They are:
1. Those sentenced to serve a maximum term of imprisonment of more than six (6)
years;

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2. Those convicted of subversion or any crime against the national security or the
public order (Take note Alarms and scandals punished under Art. 155 is included in this
number);
3. Those who have previously been convicted by final judgment of an offense
punished by an imprisonment of not less than one month and one day and./or a fine of not
less than P200;
4. Those who have been once on probation under the provisions of this Decree; and
5. Those who are already serving sentence at the time the substantive provision of
this Decree became applicable pursuant to Sec 33 hereof.
Disqualified offenders under other special laws:
1. A person convicted of an election offense (Sec. 264, Omnibus Election Code).
2. Those convicted under Rep. Act No. 9165 for drug trafficking or pushing (Sec.
24).
TAKE NOTE. Any person charged under ANY provision of this Act (RA 9165)
regardless of the imposable penalty shall not be allowed to avail of the provision on plea
bargaining. (Sec. 23).
BE CAREFUL OF THIS CATCHING QUESTION. Q. Is a recidivist entitled to
probation?
Ans. It depends upon the penalty previously imposed upon the convict. If the
previous penalty is not higher than arresto menor, or a fine not higher than P200, then he can
avail of the benefits of the Probation Law. Otherwise, then he is disqualified. (You may
include in your answer a little discussion on what is a recidivist).
Re those disqualified under Sec. 9 (a).
imprisonment of more than six years.

Sentenced to serve a maximum term of

1. PD 1990 (which amended BP 76 granting those whose maximum term of

imprisonment of six years and one day the privilege to avail of the benefits of the Probation
Law) prevails over BP 76, the former, a legislative enactment of the President, being of a
later issuance (Amandy vs People, 161 SCRA 436).
2. Rule on multiple prison terms imposed against an accused found guilty of
several offenses in one decision.
They are not, and should not be, added up. And, the sum of the multiple prison terms
imposed against an applicant should not be determinative of his eligibility for, nay his
disqualification from, probation. The multiple prison terms are distinct from each other, and
if none of the terms exceeds the limit set out in the Probation Law, i. e., not more than six (6)
years, then he is entitled to probation, unless he is otherwise specifically disqualified. The

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number of offenses is immaterial as long as all the penalties imposed, taken separately, are
within the probationable period. For Sec 9, par. (a) PD 968, as amended, uses the word
maximum, not total, when it says that the benefits of this Decree shall not be extended to
those x x x sentenced to serve a maximum term of imprisonment of more than six years.
Evidently, the law does not intend to sum up the penalties imposed but to take each penalty
separately and distinctly with the others. Consequently, even if petitioner was supposed to
have served his prison term of one (1) year and one (1) day to one (1) year and eight (8)
months of prision correccional sixteen (16) times as he was sentenced to serve the prison
term for each crime committed on each date of each case, as alleged in the information(s),
and in each of the four (4) informations, he was charged with having defamed the four (4)
private complainants on four (4) different, separate days, he was still eligible for probation,
as each prison term imposed on petitioner was probationable. (Francisco vs CA, et al., L108747, April 6, 1995, 243 SCRA 384, 392-393, En Banc).

Rationale of Francisco vs. CA.

Fixing the cut-off point at a maximum term of six (6) years imprisonment for
probation is based on the assumption that those sentenced to higher penalties pose too great a
risk to society, not just because of their demonstrated capability for serious wrongdoing but
because of the gravity and serious consequences of the offense they might further commit.
The Probation Law, as amended, disqualifies only those who have been convicted of grave
felonies as defined in Art 9 in relation to Art 25 of the RPC, and not necessarily those who
have been convicted of multiple offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is principally the gravity of the offense
committed and the concomitant degree of penalty imposed. Those sentenced to a maximum
term not exceeding six (6) years are not generally considered callous, hard core criminals,
and thus they may avail of probation.(Francisco vs CA, supra).
.
Re No. 3 (Sec 9-c), interpreted.
The applicant for probation is not disqualified for probation where he had no previous
convictions by final judgment; word previous in Sec 9-c of the Probation Law relates to the
date of conviction, not to the date of the commission of the crime. In other words, a pending
case against the applicant for probation for a crime allegedly committed by him previous to
the filing of his application for probation does not disqualify him to avail of the benefits of
the Probation Law (Rura vs Lopena, 137 SCRA 121).
Question: In the exercise of its discretion whether or not to grant the application for
probation, what is to be given importance, the accused or the organized society?
Ans. There is a conflict of SC decisions, thus:
1. For the purpose of probation, what the law gives more importance is the offender,
not the crime. The inquiry is more on whether probation will help the offender along the

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lines for which the probation system has been established, such as giving the first-time
offender a second chance to maintain his place in society through a process of reformation,
which is better achieved at least as to one who has not committed a very serious offense,
when he is not mixed with hardened criminals in an atmosphere not conducive to soulsearching as within prison walls (Pedro Santos To vs Hon Ernani-Cruz Pao, et al, 120
SCRA 8-9, Jan 17, 1983, 2nd Div composed of Js Makaisiar, Concepcion, Jr. Guerrero &
Abad Santos).
2. However, the potentiality of the offender to reform is not the sole, much less the
primordial factor, that should be considered in the grant or denial of an application for
probation. Equal regard to the demands of justice and public interest must be observed.
Probation is a mere privilege and its grant rests solely upon the discretion of the court. This
discretion is to be exercised primarily for the benefit of organized society and only
incidentally for the benefit of the accused (Tolentino vs Alconcel, 121 SCRA 92, March 18,
1983, 2nd Div, Js Makaisiar, Concepcion, Jr., Guerrero and De Castro).
Although in an early case (Balleta vs Leviste, 92 SCRA 719, Aug 21, 1979, also
decided by the SC 2nd Div, it was held: An accused must fall within any one of the
disqualifications stated in Sec 9 of PD 968 in order to be denied probation, the case of
Tolentino vs Alconcel, supra, was reiterated in Bala vs Martinez, 181 SCRA 459, also
decided by the SC 2nd Div composed of Js Melencio-Herrera, Paras, Padilla and Regalado.
Finally, the conflict in the SC decisions was laid to rest in Francisco vs CA (243 SCRA
384, EN BANC, reiterating Bala vs Martinez, supra. Hence, in the exercise of its
discretion as to whether the application for probation would be granted or denied, the
courts discretion is to be exercised primarily for the benefit of organized society and
only incidentally for the benefit of the accused (Tolentino vs Alconcel, supra).
SEC. 10. Conditions of Probation.
Sec. 10(c). The probationer shall devote himself to a specific employment and not to
change said employment without the prior written approval of the probation officer.
Court may not impose as a condition for the grant of probation that the probationer
should not continue her teaching profession. x x x The law requires that she devote herself to
a lawful calling and occupation during probation. Yet, to prohibit her from engaging in
teaching would practically prevent her from complying with the terms of the probation
(Baclayon vs Mutia, supra, Sec 10-c). Note: The remedy of the aggrieved party (private
complainant) is to file an administrative case against the convict-probationer. The decision
in that case could be dismissal from the service or suspension, that is, if it is the desire of the
private complainant that the convict should not continue her teaching profession. This is,
however, on the assumption that the convict-probationer is a teacher in the public schools.
Whether or not the trial court may impose as a condition of probation the manner in
which a probationer may settle his civil liability to the offended party during the period
of probation. Example: Among the conditions of the probation order is the following:

194
4. Indemnifying the victim in a monthly installment of P2,000 during the period of
probation.
Ans. Yes, the condition is tenable. We do not believe that the order, dated April 15,
1987 granting the application for probation and imposing some conditions therein altered or
modified the decision dated Oct 16, 1986. The April 15, 1987 order of the trial court x x x
did not increase or decrease the civil liability adjudged against petitioner but merely provided
for the manner of payment by the accused of his civil liability during the period of probation
(Salgado vs CA, 189 SCRA 304).
But, considering that the grant of probation does not affect the civil aspect of the case
and that with the filing of an application for probation (even before it is granted or denied),
the judgment becomes final although not executory insofar as the criminal aspect of the case
is concerned, in the separate opinion of Justice Cruz in the same case of Salgado vs CA, he
said that the condition imposed by the court on the manner by which the accused should
satisfy his civil liability does not prevent the offended party from filing a motion for
execution of judgment, the same having already become final and executory (insofar as the
civil aspect of the case is concerned). In other words, the offended party may demand full
and complete payment at one instance instead of by installment as imposed by the trial court
in one of the conditions granting the application for probation. 7
SEC. 14. Period of Probation.
What are the periods of probation?
Ans. It depends.
1. Where the defendant is sentenced to a term of imprisonment:
a. Where it is not more than one year - the period of probation shall not exceed two
years;
b. in all other cases - the period of probation shall not exceed six years.
2. When the sentence imposes a fine only and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period of probation shall not be less than
nor be more than twice the total number of days of subsidiary imprisonment as computed at
the rate established in Art 39 (Art. 39 No. 2) of the RPC, as amended.
Re No. 2. Q. Where the penalty imposed upon the accused is a fine, is there an instance
wherein the period of probation will exceed one year?
Ans. No. Under Art 39 of the RPC, the subsidiary imprisonment shall not exceed
(a) 6 months - for grave or less grave felony, or
(b) 15 days - for light felony.

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Considering the rule provided for in Sec 14 (b), and considering that the period of
probation shall not be more than twice the number of days of subsidiary imprisonment
which, in Art 39 No. 2, is six (6) months, it can therefore never happen that, where the
penalty imposed upon the accused is only a fine, the probation period exceeds one (1) year.
The maximum can only be one year.
SEC. 16. Termination of Probation.
Mere expiration of
probationer.

probation period does not by itself terminate

probation of

Upon report of the probation officer after the expiration of the probation period, the
court may order the final discharge of the probationer upon finding that he has fulfilled the
terms and conditions of his probation. Take note that the mere expiration of the probation
period does not by itself terminate the probation of the probationer. There is still a need for
the probation officer to submit the required report to the court and for the latter to order the
final discharge of the probationer. After the expiration of the probation period but before
the court issues the order of final discharge, the court may still revoke the probation and
execute the judgment of conviction against the probationer should the latter violate any of
the conditions (mandatory or discretionary) imposed upon the probationer. (Bala vs Judge,
et al., L-67301, Jan. 29, 1990).
Note: From Bala, this is IMPORTANT. To the question Is Probation still
revocable despite expiration of the probation period?, the answer is YES.
Legal effects of the final discharge:
1. It shall operate to restore to the probationer all civil rights lost or suspended as a
result of his conviction. (Note: The law could not have referred to civil interdiction since,
pursuant to Art 41, RPC, this incapacity attaches only when the principal penalty is reclusion
temporal or higher. Neither could the law have referred to the other accessory penalties
considering that the grant of the probation, according to the SC in Baclayon vs Mutia, supra,
stays the execution of the penalty including the accessory penalties. What civil rights lost or
suspended referred to in the law are, indeed, difficult to comprehend.
2. It shall fully discharge his liability for any fine imposed as to the offense for
which probation was granted.
ART. 79. Suspension of the execution and service of the penalties in case of insanity.
Question: What are the different legal effects of the insanity of the accused?
Answer: It depends.
1. If it existed at the time of the commission of the offense - exempting circumstance
(Art 12 No. 1);

196
2. If it existed after the filing of the complaint or information - suspension of the
arraignment (Sec 11, Rule 116, 2000 Rules on Criminal Procedure); and
3. If it existed after final sentence has been pronounced - execution of the sentence is
suspended with regard (only) to the personal penalty (Art 79).
Note: The pecuniary liabilities (Art 38) and the civil liabilities (Art 104) of the convict
may already be executed in spite of his insanity. Of course, for the purpose of due
process, the insane accused shall be assisted with a guardian ad litem.

THE CHILD AND YOUTH WELFARE CODE

(PD 603, AS AMENDED BY RA 8369).
ART. 192. Suspension of Sentence and Commitment of Youthful Offender.
Suspension of sentence of youthful offenders under three different laws; compare.
Under Art 80, RPC

Under PD 603, Arts 189 to

204

Under RA 8369 (Law

creating the Family
Court).

a. The youthful offenders a. For the first time, the a. The law uses the term
were referred to as minor term youthful offenders minors and youthful
delinquents;
was used.;
offenders;
b. Under 16 years of age
(but over nine [9]) at the
date of the commission of a
grave or less grave felony;

b. Over nine years but under

18 years at the time of the
commission of any offense
provided that the offense
committed is not punishable
with
death
or
life
imprisonment
(reclusion
perpetua, included). In other
words, even light felonies
are included.

b. Not less than nine (9) but

below eighteen (18) years
of age at the time of the
commission of the offense;

c. Suspension of sentence c. Suspension of sentence c.

The sentence shall be

197
was mandatory.

requires the application of

the youthful offender and
even where such application
was filed it was not
mandatory upon the court
which may approve the
application only if it finds
that the best interest of the
public as well as that of the
offender will be served
thereby.

suspended without need of

application pursuant to PD
No. 603, otherwise known
as the Child and Youth
Welfare Code.

d. The court could not fix

the penalty and the civil
liability of the minor. But
the offended party could
bring a separate civil action
for damages (Magtibay vs
Tiongco, 74 Phil 576).

d.
The court shall
determine the imposable
penalty, including any civil
liability chargeable against
him (youthful offender).

d.
The court shall
promulgate sentence and
ascertain any civil liability,
which the accused may
have incurred.

e. The commitment of the

minor delinquent to the
custody or care of a public
or private, benevolent or
charitable
institution,
established under the law
for the care, correction or
education of orphaned,
homeless, defective, and
delinquent children, or to
the custody or care of any
other responsible person in
any other place subject to
visitation and supervision
by the Director of Public
Welfare or any of his agents
or representatives, if there
be any, or otherwise by the
superintendent of public
schools
or
his
representatives, x x x until
such
minor shall have
reached his majority (21

e. The commitment of a
minor to the custody or care
of the Dept of Social
Services and Development
or to any training institution
operated by the government
or any other responsible
person until he shall have
reached twenty-one years of
age, or for a shorter period
as the court may deem
proper.

e. The commitment of a
minor to the custody or care
of the Dept of Social
Services and Development
or to any training institution
operated by the government
or any other responsible
person until he shall have
reached twenty-one years of
age, or for a shorter period
as the court may deem
proper. The judge of the
Family Court shall have
direct
control
and
supervision of the youth
detention home, which the
local government unit shall
establish to separate the
youthful offenders from the
adult criminals.

198
years) or for such less
period as the court may
deem proper.
Take note that Art. 80, RPC was expressly repealed by PD 603 and that the present
practice (procedure) is that provided for by PD 603 as modified by RA 8369.
Mandatory suspension of sentence under RA 8369 could be unfavorable to the youthful
offender.
It is believed that where the felony committed by the youthful offender is a light
felony, the mandatory suspension of sentence under RA 8369 could be unfavorable to the
youthful offender. For example, he committed the crime of slight physical injuries, a light
felony, with discernment at the time when he was only ten years of age. Because he
committed the crime in the presence of the authorities, he was arrested and detained for five
days before the judgment of conviction sentencing him to ten days imprisonment was
promulgated by the court. Although the judgment is promulgated, the execution thereof is
suspended and the minor will be committed to the DSWD, etc. until he reaches the age of
21, although the court may reduce the period if it deems proper. Under PD 603, the minor
could just opt to serve the balance of five days in jail rather than be committed to the DSWD,
etc. until he reaches the age of 21. Under Art 80, RPC, before it was repealed by PD 603,
the mandatory suspended sentence thereunder could not result in something unfavorable to
the minor because light felonies were not included in the mandatory suspended sentence.
The pertinent portion of Art 80, RPC, reads: x x x the court, after hearing the
evidence in the proper proceedings, instead of pronouncing judgment of conviction, shall
suspend all further proceedings and shall commit such minor x x x . In P vs Sardoma, et al
(79 Phil 609), it was held: What is really suspended is the imposition of the penalty. More or
less the same language is expressed in Art 192 of PD 603. Thus, x x x however, instead of
pronouncing judgment of conviction, the court x x x may suspend all further proceedings and
commit such minor x x x .
Q. What is the meaning of the phrase instead of pronouncing judgment of conviction
under Art 80, RPC as amended, which is more or less the same language as Art 192 of
PD 603? Does it mean that the court shall not promulgate the judgment?
Ans. Although in P vs Butler (120 SCRA 281), where the judgment of conviction
was promulgated by the trial court the SC held that the trial court should not have
pronounced the judgment convicting the accused; it is believed that even under Art 80 and
Art 192, the judgment of conviction should have to be promulgated. It must be stated here
that the law on suspended sentence does not deprive the youthful offender of the right to
appeal from the judgment of conviction. In fact there are several decisions of the SC under
Art 80 and PD 603 wherein the accused appealed from the judgment of conviction. But if the
judgment of conviction will not be promulgated, then the right to appeal cannot be availed of
by the youthful offender considering that such right could only be availed of after the

199
promulgation of the judgment of conviction. Finally, under RA 8369, it is now clear that the
judgment shall be promulgated because the law provides: Sec. 5(a). x x x Provided, that if
the minor is found guilty, the court shall promulgate sentence x x x .Q. Within what time may the youthful offender (now, an adult) file his application for
probation under PD 968? (THIS IS A VIP QUESTION).
Under Art 197, PD 603, if the youthful offender, whose sentence was earlier
suspended, is returned to the court for the execution of the judgment against him because he
is found by the authorities to be incorrigible, he may apply for probation under the provisions
of PD 968. Considering that under Sec 4 of PD 968, as amended, the application for
probation is to be filed within the period for perfecting an appeal (that is, within 15 days from
the promulgation of the judgment of conviction), the pertinent question is - within what time
may the youthful offender (now, an adult) file his application for probation under PD 968?
Considering that the trial court shall have to suspend all proceedings after the
promulgation of the sentence, it is therefore clear that the fifteen-day period from
promulgation within which to file the application for probation did not run while the
minor was committed to the DSWD, or etc.. Hence, it is believed that the fifteen-day period
within which to file the application for probation shall be counted from the time the
youthful offender is returned to the court.
When youthful offender must be below 18 years of age for entitlement to suspended
sentence.
Art 80, RPC cannot be applied to the accused who is already 18 years old at the time
of the trial (P vs Capistrano, 92 Phil 127, citing P vs Estefa, 86 Phil 104). Reason: To give
him suspended sentence would defeat the object of Art 80 of segregating juvenile offenders
from adult criminals. (P vs Estefa, supra). Take note that SC decisions under PD 603 follow
the Capistrano and Estefa rulings (P vs Casiguran, 94 SCRA 2445) and, in fact, the SC
declared that for a youthful offender to be entitled to the benefits of suspended sentence
under the law, he must be below 18 years of age not only at the time of the commission of
the crime but also at the time of the trial, not necessarily at the time of the rendition of the
final judgment of conviction (P vs Doria, 55 SCRA 435, P vs Espejo, 36 SCRA 400, P vs
Estefa, 86 Phil 104). Where the youthful offender was already 21 years at the time when the
judgment of conviction was rendered, the judgment of conviction can no longer be
suspended. The same rule applies where the accused was already 21 years of age or over at
the time his conviction was affirmed by the SC. It is believed that the Capistrano and Estefa
rulings are still good even upon the effectivity of RA 8369.
Court order denying application for suspension of sentence under the provisions of Art
192 not appealable; remedy.
The order of the court denying an application for suspension of sentence under the
provisions of Art 192 shall not be appealable (Art 192, PD 603). Here, the proper remedy of
the aggrieved minor was the special civil action for certiorari under Rule 65. However,
considering that under RA 8369 suspension of sentence is now mandatory upon the trial

200
court, should the court refuse to suspend the sentence of a qualified youthful offender, his
proper remedy is the special civil action of mandamus under Rule 65.
The records concerning the youthful offender shall be privileged.
The youthful offender concerned shall not be held under any provision of law to be
guilty of perjury or of concealment or misrepresentation by reason of his failure to
acknowledge the case or recite any fact related thereto in response to any inquiry made to
him for any purpose (Art 200, PD 603).
Civil liability of youthful offenders.
It shall devolve upon the offenders father and, in case of his death or incapacity,
upon the mother, or in case of her death or incapacity, upon the guardian (Art 20l, PD 603).
This is referred to as the vicarious liability of parents similar to the provisions of Art 2180,
NCC.
Note: It must be recalled that there was an opinion that the vicarious liability of
parents under Art 2180, NCC, applies only to tortious acts of their minor children who live in
their company. This opinion is based on the observation that Art 2180 is included in the
chapter on quasi-delicts or torts. But, even before the effectivity of the PD 603, the SC
already ruled that the civil liability of the parents under Art 2180 extends to their obligations
arising from criminal offenses committed by their minor children (Paleyan vs Bangkili, 40
SCRA 132). With the provision of Art 201, PD 603, whatever doubt in this regard has now
been laid to rest.
The case of Elcano vs Hill (77 SCRA 98).
The case has to do with the civil liability of parents for the civil liability of their
minor children who commit crimes where the latter are already emancipated by marriage.
The Elcano case was decided before Aug 3, 1988 when the Family Code took effect and
before the effectivity of RA 6809 (reducing the age of majority from 21 to 18). Recall that,
under the old law, the marriageable ages were: 16 for the male and 14 for the female and the
age of majority was 21 years. Under the old law, marriage was one cause for the
emancipation of children. And so, where a minor male, 16 years of age, married a minor
female, 14 years of age, we had what we call cases of married minors emancipated by reason
of marriage although they were below 21 years of age. It was under this legal milieu that the
Elcano case was born. The accused was a married minor and the issue was whether his
father could be held civilly liable for the civil liability of the accused who committed the
crime. Before going to the ruling in Elcano, let us first refer to Art 399, NCC, because this is
one of the legal provisions upon which the ruling in Elcano was based. The law provides:
Art 399. Emancipation by marriage x x x shall terminate parental authority over the
childs person. It shall enable the minor to administer his property as though he were of age,
but he cannot borrow money or alienate or encumber real property without the consent of his

201
father or mother, or guardian. He can sue and be sued in court only with the assistance of his
father, mother or guardian.
In holding that the father of the youthful offender, although emancipated by marriage,
is civilly liable for the civil liability of the said offender, the SC emphasized that, although
the offender was emancipated by his marriage, his emancipation was not complete. In fact,
under Art 399, he can only sue or be sued in court with the assistance of his father, mother or
guardian. Further, at the time of the incident, the youthful offender was living in the
company of his parents which is an important requirement under Art 2180 for the parents to
be civilly liable for the crimes or quasi-delicts committed by their minor children. Take note,
however, that although the liability of the parents under Art 2180 is primary, they have a
defense - the defense that they observed all the diligence of a good father of the family to
prevent the damage (Art 2180, last par). The father was held civilly liable because the SC
found him to have failed to observe the diligence of a good father of the family in preventing
the damage caused by the accused (his son) on the victim.
Legal effect of Art. 236 of Family Code on civil liability of emancipated children.
Under Art 236 of the Family Code, parents are no longer civilly liable for the acts or
omissions of there emancipated children (by marriage) although below 21 years of age and
although living in their company.
Effect of Sec 3, RA 6809, approved on Dec 13, 1989, amending Art 236 of Family Code.
Sec 3, RA 6809, approved on Dec 13, 1989, amending Art 236 of the Family Code
and which is now the 3rd par thereof, reads: Nothing in this Code shall be construed to
derogate from the duty or responsibility of parents and guardians for children and wards
below twenty-one years of age mentioned in the second and third paragraphs of Art 2180
of the Civil Code.
In effect, therefore, RA 6809 has revived Elcano vs Hill and the settled rule now is The civil liability of the parents and guardians as provided for in Art 2180, NCC, still
exists in spite of the emancipation of their children by reaching the age of 18 (or by
marriage) for as long as they are still below 21 years of age and are living in the company
of their parents/guardians.

Title Four. EXTINCTION

OF CRIMINAL LIABILITY
ART. 89. How criminal liability is totally extinguished.
Re No. 1. Death of the convict. .

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Criminal liability is totally extinguished by the death of the convict, as to the personal
penalties; and as to pecuniary penalties, namely, fine and costs (Art. 38 Nos. 3 & 4 in relation
to Art. 89 No. 1), liability therefor is extinguished only when the death of the offender occurs
before final judgment. (P vs Badeo, 204 SCRA 122). However, the civil liability of the
accused (Art. 104), namely, restitution, reparation, and indemnification for consequential
damages, survive him and can be recovered against his estate (P vs Tiu, 216 SCRA 140,
145).
What is the meaning of final judgment?
Ans. There are two accepted meanings of the term final judgment, first, it means
that it is a judgment of the trial court which is final in the sense that it could already be the
subject of appeal. So, it means that the judgment had already been promulgated and any
motion for reconsideration, for modification of judgment or for new trial, if any, had already
been disposed of by the trial court. To avoid confusion, this judgment is aptly referred to as a
judgment, which is final and appealable. The second concept of final judgment is a
judgment, which is ripe for execution in that the appeal of the accused had already been
wholly disposed of by the appellate court or that no appeal is taken within the fifteen-day
period from the promulgation of the judgment. In other words, it is a judgment, which is
beyond recall as distinguished from a mere interlocutory order. This judgment is aptly
referred to as final and executory judgment.
Final judgment as used in the law refers to the second concept of a final judgment.
Of course, it is with more reason that the personal penalties and pecuniary liabilities of the
accused are extinguished if he dies during the pendency of the case in the trial court. In fact,
before the promulgation of the judgment of the trial court, there is no such thing as personal
penalties and pecuniary liabilities because these could only be determined by the trial court in
the judgment of conviction.
Take note that the term pecuniary penalties is not synonymous to pecuniary liabilities
(Art 38) which, in addition to fine and costs, include (a) the reparation of the damage caused
and (b) Indemnification of consequential damages. (P vs Alison, 44 SCRA 523. P vs Satorre,
72 SCRA 439, p VS Tirol, 102 SCRA 558, P vs Badeo, 204 SCRA 122, 130-131).
Although the civil liability of the accused referred to in Art l04 (namely, [a]
restitution, [b] reparation of the damage caused, and [c] indemnification for consequential
damages, are not included in Art 89 No. 1, the issue of whether or not the civil liability of the
accused is extinguished if he dies before final judgment is always involved in cases reaching
the Supreme Court. In this connection, take note of Art 100, RPC, which provides: Every
person criminally liable for a felony is also civilly liable. The logic here is that if a person
charged with a crime (felony) dies before final judgment and, therefore, the presumption of
innocence could still be invoked in his favor, he or his estate could not be held civilly liable
for his act or omission subject of the crime. In other words, his civil liability is extinguished,
but this is true only if his civil liability is predicated solely on the crime committed, like the
crime of rape (P vs Bayotas, EN BANC, L-102007, Sept. 2, 1994, 236 SCRA 239). Take
note that under the Civil Code (Art 1157), in addition to acts or omissions punished by law

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(crimes), there are other sources of civil obligations, as follows: (a) law, (b) contracts, (c)
quasi-contracts, and (d) quasi-delicts. Stated differently, if the civil liability of the accused
for the crime committed could be based on a source other than the criminal act (or omission),
then his civil liability is not extinguished even if his death occurs during the pendency of the
criminal case filed against him or even before any case is filed against the accused. This is
so because under Art 1231 of the NCC, death is not a ground for the extinguishment of a
civil obligation except where the obligation is personal like the obligation to give support or
there is a contrary stipulation by the parties (Art 1178, NCC).
Take note that under the rule on criminal procedure, if the civil aspect of the case is
not waived, reserved, or filed ahead of the criminal case, then it is deemed impliedly filed
with the criminal case. Remember that under Sec. 1, Rule 111, 2000 Rules of Criminal
Procedure, this civil liability refers to one arising SOLELY from the offense charged. The
question is - what is the legal effect where the accused dies before final judgment on the civil
aspect of the case? Ans. The civil case does not survive, meaning, it shall have to be
dismissed. The civil liability is likewise extinguished together with the criminal liability of
the accused.
This ruling expressly abandoned contrary previous decisions of the
Supreme Court notably P vs Sendaydiego, et al, 81 SCRA 120 (P vs Bayotas, supra).
Lest the reader hereof would be mislead, there is a need to state here the pertinent
portion in People vs Sendandiego, et al., supra, where it was held: Notwithstanding the
dismissal of the appeal of deceased appellant insofar as his criminal liability is concerned, the
appellate court may continue to exercise appellate jurisdiction over his possible civil liability
for the money claims of complainant arising from the alleged criminal acts complained of, as
if no criminal case had been instituted against him, thus making applicable, in determining
his civil liability Art. 30 of the Civil Code. For that purpose, the heirs or the administrator of
the deceaseds estate will be substituted for the deceased insofar as the civil action for the
civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of Court); and the title of the
criminal case should be amended to show its civil aspect.
State the SALIENT PORTIONS of the SC DECISION (En Banc) in P vs Bayotas:
1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based SOLELY thereon. As opined by Justice
Regalado, in this regard, the death of the accused prior to final judgment terminates his
criminal liability and only the civil liability directly arising from and based solely on the
offense, committed, .i. e., civil liability ex delicto in senso strictiore.
2. Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicted on a source of obligation other than delict.
Article 1157 of the Civil Code enumerates these other sources of obligation from which the
civil liability may arise as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) Quasi-delicts.

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3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action and subject
to Section 1, Rule 111 of the 1985 (now, 2000) Rules on Criminal Procedure, as amended.
This separate civil action may be enforced either against the executor/administrator or the
estate of the accused, depending on the source of obligation upon which the same is based.
If the same act or omission complained of also arises from quasi-delict or may, by provision
of law, result in an injury to person or property (real or personal), the separate civil action
must be filed against the executor or administrator of the estate of the accused pursuant to
Sec. 1, Rule 87 of the Rules of Court. Conversely, if the same act or omission complained of
also arises from contract, the separate civil action must be filed against the estate of the
accused, pursuant to Sec. 5, Rule 86 of the Rules of Court. Stated differently, if the civil
action is against a PROPERTY of the accused, the claim (case) shall be filed against the
EXECUTOR or ADMINISTRATOR of the estate of the accused; if the civil action is a
money claim, the claim (case) shall be filed against the ESTATE of the deceased accused.
a. Example where the civil liability arises from quasi-delict. Case. Accused in
this case was a driver. After trial on the merits in the RTC for reckless imprudence resulting
in homicide and damage to property, he was convicted and condemned to indemnify the heirs
of the victim in the total sum of almost P2M (the victim was an RTC Judge). The accused
filed a notice of appeal but he could not prosecute his appeal because he died. However, his
employer continued his appeal because of his subsidiary civil liability under Art 103 of the
Revised Penal Code. In his appeal, the employer contended that his subsidiary civil liability
was already wiped out with the death of the accused whose conviction by the trial court did
not become final and executory. Because of his death, the presumption of innocence in his
favor stands.
Held: Employers contention that his subsidiary civil liability is already wiped out
because of the death of the driver is correct. By its nature, a subsidiary civil liability cannot
be established unless a writ of execution against the driver-employee is returned unsatisfied.
This is already impossible because of the death of the accused. Needless to state, a writ of
execution cannot be issued against the driver-accused because the judgment against him
could no longer become final.
However, the civil liability of the driver may likewise be based on quasi-delict and
such liability is solidary with his employer under Art 2180 of the Civil Code. Under the said
article of the Civil Code, the civil liability of the driver under the Civil Code is not
extinguished by his death, death not being among the grounds for the extinguishment of a
civil obligation.
The fact that the driver already died is not an obstacle to prosecute the civil action
against the employer, the liability of the latter being solidary with his driver, it being wellsettled that in solidary obligation, the creditor may opt to file the case against one or more or
all of the solidary debtors. And so, the offended party may file a civil action for damages
against the employer alone or he may implead the executor or administrator of the estate of

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the employee (Rufo Mauricio Construction v IAC, et al, L-75357, Nov 27, 1987, 155 SCRA
712).
b. Example where the civil liability arises from contract.
S sold to B a parcel
of land. S received the price of the sale at the date of the contract - delivery to be effected
later. Instead of delivering the land to B on due date, S resold and delivered the same land to
C. Held: S committed the crime of estafa. Even if he dies before final judgment in the
estafa case, his civil liability to B which arises from a civil obligation (and not from the crime
of estafa) is not extinguished because death is not a valid cause for the extinguishment of a
civil obligation (Torrijos vs CA, 67 SCRA 394).
THE BIG QUESTION. Suppose the civil action has not been reserved by the offended
party in the criminal case, can he still file that civil action after the criminal case is
dismissed due to the death of the accused?
Ans. Yes. This is so because under Sec. 1 of Rule 111, 2000 Rules of Criminal
Procedure what the rule requires to be reserved is the civil action for the civil liability of the
accused ARISING FROM THE OFFENSE CHARGED. The present rule no longer requires
a reservation to file a civil action based on quasi-delict (Art. 2176) and for damages under
Arts. 32, 33, and 34, as heretofore required in Sec. 1, Rule 111 of the 1985 Rules on Criminal
Procedure. Take note that, whether under the 1985 Rules or under the 2000 Rules, there is
no need to make a reservation in the criminal case where the civil liability of the accused is
based on a contract.
NOTE: The examples are not included in the Bayotas case.
4. Finally, the private offended party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution of the criminal
action and prior to its extinction, the private-offended party instituted together therewith the
civil action. In such case, the statute of limitations on the civil liability is deemed interrupted
during the pendency of the criminal case conformably with provisions of Article 1155 of the
Civil Code that should thereby avoid any apprehension on a possible privation of right by
prescription.
VERY IMPORTANT. People vs. Bayotas is an EN BANC decision of the Supreme
Court. The same is therefore doctrinal. Decisions even of the Supreme Court which are
contrary thereto shall no longer be followed they being expressly abandoned by the SC. One
such ruling is to the effect that where the accused dies during the pendency of his appeal,
only the criminal aspect of the case will be dismissed, but the civil aspect of the case shall
continue. What was to be done before was to implead the estate of the accused through his
heirs, executor or administrator.
Legal effect of death of the offended party.
Death of the offended party does not extinguish the criminal liability of the offender
because the offense is committed against the State (P vs Misola, 87 Phil 830). Otherwise,

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murder, homicide, parricide, infanticide cannot be prosecuted. However, considering Art.
344, RPC and our rules on criminal procedure, there are private crimes wherein only the
offended parties could file the required complaint against the offenders, namely, adultery and
concubinage. Consequently, should the offended party in said cases die before he/she could
file the required complaint, then the death of the offended party produces the effect of the
extinguishment of the criminal liability of the offenders.
BE CAREFUL OF THIS QUESTION. Does death of the offended party extinguish the
criminal liability of the offender?
The answer is always No, as above explained. However, do not forget the legal
effect of death of the offended party prior to the filing of the required complaint (affidavitcomplaint) in the private crimes of ADULTERY and CONCUBINAGE. Although the death
produces the legal effect of extinguishment of the criminal liability of the offender, it is
believed that the better approach is that there is now a procedural impossibility of complying
with the legal requirement by reason of the death of the offended party.
Amnesty, defined.
An act of the sovereign power granting oblivion or a general pardon for a past
offense, and is rarely, if ever, exercised in favor of a single individual, and is usually exerted
in behalf of certain classes of persons, who are subject to trial but have not yet been
convicted (US authority).
Pardon, defined.
An act of grace proceeding from the power entrusted with the execution of the laws
which exempts the individual on whom it is bestowed from the punishment the law inflicts
for the crime he has committed.
A pardon, whether absolute or conditional, is in the nature of a deed for the validity of
which delivery is an indispensable requisite. Until accepted, all that may have been done is a
matter of intended favor and may be cancelled. But once accepted by the grantee (convict),
the pardon already delivered cannot be revoked by the authority which granted it.
In an adultery case, pardon by the offended husband to be effective must include both
the wife and her paramour; in pardon by the President of a wife convicted of adultery, the
same is valid and effective although it is extended only to the wife. Here, the paramour is not
benefited by the pardon (US vs Guarin, 30 Phil 85).
Pardon of the accused for the crime of murder after evasion of service of sentence
does not have the effect of remitting the penalty for evasion of the service of the sentence
committed prior to the said pardon (Alvarez vs Dir of Prisons, 80 Phil 43). Reason: The
evasion of the service of sentence is an offense distinct from the murder.
Amnesty; legal effect of availment thereof.

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An accuseds petition for amnesty before the trial court had decided the case is an
admission of guilt on his part (P vs Salig, 133 SCRA 59, 60).
Pardon, legal effect of the grant.
The (absolute) pardon granted to petitioner resulted in removing her disqualification
from public employment. However, it does not mean that the pardonee will be restored to his
former position. To regain it, he must re-apply and undergo the usual procedure required for
a new appointment.

Pardon and Amnesty , distinguished:

Pardon

Amnesty

1. Includes any crime and is exercised 1. A blanket pardon to classes of persons

individually by the President;
who may be guilty of political offenses;
2. Exercised by the President when the 2. May be exercised even before trial or
person is already convicted in a final and investigation is conducted, although it may
executory judgment;
likewise be granted even after conviction;
3. Looks forward and relieves the offender
from the consequences of the offense of
which he has been convicted, that is, it
abolishes or forgives the punishment, and
for that reason it does not work the
restoration of the rights to hold public
office or the right of suffrage, unless such
rights be expressly restored by the terms of
the pardon. Thus:
3.1. Does not alter the fact that the
accused is a recidivist, because it produces
the extinction only of the personal effects
of the penalty (US vs Sotelo, 28 Phil 147);

3. Looks backward and abolishes and puts

into oblivion the offense itself; it so
overlooks and obliterates the offense with
which he is charged that the person
released by amnesty stands before the law
precisely as though he had committed no
offense. Thus:
3.1. Makes an ex-convict no longer a
recidivist because it obliterates the last
vestige of the crime (US vs Francisco, 10
Phil 185);

4. Does not extinguish the civil liability of 4. Does not extinguish the civil liability
the offender (Art 113, RPC);
of the offender (Art 113, RPC);

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5. Being a private act of the President, 5. Being by Proclamation of the Chief

must be pleaded and proved by the person Executive with the concurrence of
pardoned.
Congress, is a public act of which the
courts should take judicial notice
(Barrioquinto, et al vs Fernandez, et al, 82
Phil 642).
ART. 90. Prescription of crime.
Question. Where the 60th day for the filing of a complaint for slight physical injuries (a
light felony) falls on a Sunday/holiday, can the period be extended to the next
succeeding business day?
Ans. No. Although Sec 31, Revised Administrative Code of 1917, provides: Where
the day, or the last day for doing any act or required or permitted by law falls on a holiday,
the act may be done on the next succeeding business day, the said section does not apply,
otherwise, it will have the effect of lengthening the period of prescription of light felonies.
(Yapdiangco vs Buencamino, 122 SCRA 713).
Case. Three months after the incident giving rise to the case, the Chief of Police filed a
complaint for attempted homicide against A. After trial, the court found that the crime
committed was only slight physical injuries (a light felony). Can the court legally
convict A for slight physical injuries?
Ans. No. Where the accused has been found to have committed a lesser offense
includible in the offense charged, he cannot be convicted of the lesser offense if, at the time
the complaint (information) is filed, the lesser offense had already prescribed. To hold
otherwise would be to sanction the circumvention of the law on prescription by the simple
expedient of accusing the defendant for a graver offense (Francisco, et al vs CA, et al, 122
SCRA 538).
Take note that, although under the 1985 Rules on Criminal Procedure, the filing of a
complaint with the Provincial/City Prosecution Office stops the running of the prescriptive
period of the offense, it is expressly provided for in the said rule (Sec 1, Rule 110), that the
same does not include crimes subject to the Rule on Summary Procedure.
The pertinent portion of Sec. 1 of the 2000 Rules on Criminal Procedure, reads: The
institution of the criminal action shall interrupt the running of the period of prescription of
the offense charged unless otherwise provided in special laws. Under the present rule,
therefore, the filing of a complaint with the Provincial/City Prosecution Office now
stops the running of the prescriptive period of the offense even if the same is covered by
the rule on Summary Procedure, unless the offense is punished by a special law and
such law provides to the effect that it is only the filing of the complaint/information with
the court which stops the running of the period of prescription.

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Subsidiary penalty for non-payment of fine, legal effect on period of prescription.

The subsidiary imprisonment (penalty) for the non-payment of the fine should not be
considered (i., e., should not be added) in determining the period of prescription of such
crime (P vs Basalo, 101 Phil 57).
Sec. 22(b) of RA 1161 (Social Security Act), as amended by Sec. 15 of PD 1636.
Case. The section does not deal with penal sanction for violations of provisions of the
Act nor of the rules and regulations promulgated by the Social Security Commission.
A 20-year statute of limitation if made applicable in respect of criminal liability of an
employer for failure to remit contributions to the SSS would constitute a disproportionately
long statute of limitations if one compared it with either applicable prescriptive period in
respect of crime punishable under the RPC or under special laws.
To apply a single uniform 20-year prescriptive period to both civil action for
collection of unremitted SSS premiums and to criminal prosecution for violations of the
provisions of the Social security Act and rules and regulations promulgated by the Social
Security Commission would be both grossly disproportional and too simplistic.
The Court (SC) holds that the statutory crime here charged had prescribed, the
prescriptive period here applicable being four (4) years (Sec. 1, Act No. 3326, as amended by
Act No. 3763, Benedicto vs Abad Santos, Jr., 183 SCRA 434-436).
Rules on prescription.
Prescription, although not invoked during the trial, may be invoked for the first time
on appeal (P vs Balagtas, July 29, 1959). Prescription does not divest the court of its
jurisdiction; it is a ground for the acquittal of the accused.
ART. 91. Computation of prescription of offenses.
The period of prescription commences to run from the day on which the crime is
discovered by the offended party, the authorities or their agents.
1. It commences to run from the date of the commission of the crime if it is known at
the time of its commission.
a. The constructive notice rule.
(1) If there was nothing that was concealed or needed to be discovered, because the
entire series of transactions was by public instruments, duly recorded, the crime of estafa
committed in connection with said transactions was known to the offended party when it was

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committed and the period of prescription commenced to run from the date of its commission
(P vs Dinsay, CA, 40 O. G. No. 12, p 50).
(2) Where the forged document was registered at the office of the Register of Deeds,
under the constructive notice rule, the commission of the crime was discovered at the date of
the registration of the document at the Register of Deeds (Cabral vs Puno, 70 SCRA 597,
598-599).
(3) This presumption may not be rebutted by evidence of good faith on the part of the
offended party who had no knowledge of the registration (record). (Encarnacion Gatioan vs
Sixto Gaffud, 27 SCRA 706).
(4) The constructive notice rule does not apply to bigamy. In the felony of
bigamy, the date of registration of the 2nd marriage with the LCR does not constitute
constructive notice to the offended party of said marriage. Reason: Sec 52 of PD 1529, the
Land Registration Law (which is applicable to documents registered at the Office of the
Register of Deeds) has no counterpart in Act 3753 (the Act to Establish the LCR). It would
be asking too much if the offended party will have to go to every LCR and the Census Office
to find out if the accused contracted a second marriage (Jose Sermonia vs CA, et al, 233
SCRA 155).
b. The discovery rule.
(1) The discovery of the crime should not be confused with the discovery of the
offender. The fact that the culprit is unknown will not prevent the period of prescription
from commencing to run. It is not necessary that the accused be arrested (P vs Joson, 46 Phil
380).
(2) Prob. Jun was only five (5) years old when one evening he witnessed his
playmate Jane, also five years old, being killed by Cita, her stepmother. The following
day, Cita made it known that Jane had gone to her grandparents in the mother side
who were then living in another province.
Twenty-one years after, when Jun was
already a teacher, he reported the incident to the NBI authorities. Considering the
tender age of Jane at the time she was killed, treachery can therefore be presumed.
Hence, the crime committed by Cita was murder. In this case, is it still tenable to
prosecute Cita?
Ans. Yes. Under Art. 91 of the RPC, the period of prescription commences to run
from the day on which the crime is discovered by the offended party, the authorities or their
agents. In the case at bar, the commission of the crime was known only to Jun, who is not
the offended party and neither is he neither an authority nor an agent of an authority. The
NBI authorities only discovered it when Jun revealed to them the commission of the crime.
Hence, the period of prescription, which is twenty years, murder being punishable by death
(Art. 90, RPC) commenced to run only from the time Jun revealed the same to the NBI
authorities.

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(3) RA 3019 (Anti-Graft & Corrupt Practices Act) being a special law, the
prescriptive period of the violations thereof is governed by Act No. 3326, Sec. 2. Although
Sec. 11 of RA 3019, as amended by BP 195, provides that offenses committed thereunder
shall prescribe in fifteen (15) years, prior to such amendment which took effect on March 16,
1982, the prescriptive period for violations of said law was only ten (10) years. Where the
offenses punishable under RA 3019, as amended, were committed before March 16, 1982,
the longer prescriptive period of fifteen (15) years does not apply for the reason that the
amendment, not being favorable to the accused, cannot be given retroactive effect. And the
prescriptive period as to behest loans would start to run only upon discovery of the alleged
illegality of the transactions, i. e., after the investigations thereon were conducted (P vs
Arturo Pacificador, March 13, 2001).
3. Period of prescription of continuous crime never runs.
The period of prescription cannot begin to run because there could be no termination
of continuity and the crime does not end. (Arches vs Bellasillo, et al, 81 Phil 190).
Q. When does the period of prescription of the crime of false testimony begin to run?
Ans. It depends.
1. If the false testimony is against the accused (Art 180), considering that the
penalties provided therefor are made to depend upon the conviction or acquittal of the
accused in the principal case, the act of testifying falsely does not therefore constitute an
actionable offense until the principal case is finally decided. And before an act becomes a
punishable offense, it cannot possibly be discovered as such by the offended party, the
authorities or their agents (P vs Maneja, 72 Phil 256).
2. When the false testimony is in favor of the accused (Art 181), the prescription of
the offense begins to run at the time of the commission since the penalty therefor does not
depend on the principal case.
Q. When does the period of prescription of the following offenses commence to run?
1. Perjury.
Where an accused in the principal case for theft is charged in the Prosecutors Office
and he brings in his own witnesses to blunt said charge and to affirm his innocence, orderly
procedure dictates that such witnesses should not be charged let alone convicted, of perjury
even before, the principal case for theft is terminated. If such witnesses are harassed, an
accused could be effectively deprived of witnesses to testify in his behalf; and should the
principal case result in an acquittal, the conviction of the accused in the secondary case for
perjury would appear to be baseless and incongruous (P vs Perucho, et al, No. 22352-CR,
Aug 22, 1980, 76 No. 35 O. G. 6258; Sept 1, 1980 issue, CA).

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2. Other cases of evasion of service of sentence (Art 159).
(This is committed by a convict who, having been granted conditional pardon by the
Chief Executive, shall violate any of the conditions of such pardon). It must be noted that
one of the conditions imposed by the President in a conditional pardon is that the grantee
(convict) shall not again violate any of the penal laws of the Philippines. This includes
crimes punished by special laws. Consequently, Violation of Art 159 commences to run only
from the time of the finality of the judgment in the new case.
Q. What is the effect of the filing of an amended complaint/information upon the
period of prescription?
Ans. It depends.
1. Where the amendment is merely a correction of a formal defect, the date of the
original complaint/information should be considered (LTB vs Ramos, L-41399, Aug 9,
1934).
2. Where the complaint or information is substantially defective as where an essential
element of the offense is not alleged (e. g., in a complaint for oral defamation, the element of
malice is not alleged), the date of the filing of the amended complaint or information shall be
considered for the purpose of prescription.
Legal effect on the rule on prescription where, during the trial, it is found out that the
case was filed with the court, which does not have jurisdiction (territorial) over the case.
Settled is the rule that the jurisdiction of a court is determined in criminal cases by the
allegations of the complaint or information, and not by the result of proof. It follows that the
Batangas court was vested with lawful jurisdiction over the criminal complaint filed with it,
which expressly alleged that the offense was committed in the Municipality of Batangas,
Province of Batangas, and that the proceedings therein were valid and before a competent
court, until the same court issued its order, dismissing the case and declaring itself without
territorial jurisdiction on the basis of the evidence presented to it by both the prosecution and
the accused. Hence, the prescriptive period of the offense charged was interrupted upon the
filing of the complaint in the Batangas court and it only ran again after the order of the court
dismissing the case became final and executory. (P vs Galano, L-42925, Jan. 31, 1977, 75
SCRA 193).
Q. Does Art. 91 apply when the law involved is a special law?
Ans. Yes, if the special law, while providing for a prescriptive period, does not
prescribe any rule for the application of that period. This is authorized under Art 10, RPC (p
VS Tamayo, CA, 40 O. G. 2313 - involving a usury case).
Penalty subject of prescription must be imposed by final judgment.

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The penalty, to be subject of prescription must be imposed by final judgment. Thus,
if the accused, after conviction by the trial court, appealed the decision, and escaped from jail
during the pendency of his appeal, 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 Service of Sentence. From the day he escaped, the prescription of penalty
commences to run.
ART. 92. When and how penalties prescribe.
Q. Do the prescriptive periods provided for in this article apply to offenses punished by
special laws?
Ans. No, because this article (Art 92) applies only to classified penalties (i. e.,
reclusion perpetua, arresto mayor, etc, which are provided for by the RPC) and not to
unclassified simple imprisonment (Luna vs Warden of Batangas, 44 Phil 565).

ART. 93. Computation of the prescription of penalties.

The period of prescription that run during the evasion is not forfeited.
The period of prescription that run during the evasion is not forfeited, so that, if the
culprit is captured and evades again the service of his sentence, the period of prescription that
has run in his favor should be taken into account (Albert).
Whether or not the evasion of the service of the sentence, being itself a crime (Art 157),
interrupts the running of the period of prescription of penalties.
It must be noted that the clause should commit another crime before the expiration
of the period of prescription refers to the crime committed when the period of prescription
has already commenced to run. On the other hand, Art 93 specifically provides that the
period of prescription of penalties shall commence to run from the date when the culprit
should evade the service of his sentence. Hence, this evasion of the service of the sentence,
which is a requisite in the prescription of penalties, must necessarily take place before the
running of the period of prescription and cannot interrupt it.
Effect of conditional pardon on prescription of penalty.
Although a conditional pardon is not mentioned in this article, it likewise interrupts
the prescription of the penalty. It is like flight to a foreign country with which the
Philippines has no extradition treaty (P vs Pontillas, 65 Phil 659).
Take note that, under PD 1067, promulgated on Jan 13, 1977, the Philippines has
extradition treaty with Indonesia, United States and Thailand (Gregorio).

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Compare Prescription of Offenses (Art. 91) with Prescription of Penalties (Art. 93).
Prescription of Offenses

Prescription of Penalties

1. Prescription of offense is the forfeiture

or loss of the right of the State to prosecute
the offender after the lapse of a certain time
fixed by laws; and

1. Prescription of the penalty is the loss or

forfeiture of the right of the State to execute
the final sentence after the lapse of a
certain fixed by law; and

2. Under Art. 91, the term (period) of 2. Under Art. 93, the law expressly
prescription of the offense shall not run provides that the period for prescription of
(meaning, it shall be interrupted) when the the penalty shall be interrupted, among
offender is absent from the Philippine others, only if the offender (defendant)
Archipelago. Take note that the law does should go to some foreign country with
not distinguish whether or not the foreign which the Philippine Government has no
country to where he may go has an extradition treaty.
extradition treaty with the Philippines.
ART. 94. Partial extinction of criminal liability.
Conditional pardon, its nature.
Conditional pardon delivered and accepted is a contract between the sovereign power
of the executive and the convict that the former will release the latter upon compliance with
the conditions.
Commutation of sentence, its nature.
It is a change of the decision of the court made by the Chief Executive by reducing
the degree of the penalty inflicted upon the convict, or by decreasing the length of the
imprisonment or the amount of the fine.
Specific instances where commutation of sentence is provided for by the RPC:
1. When the convict sentenced to death is over 70 years of age (Arts. 47 & 83), and
2. When eight justices of the SC shall fail to reach a decision for the affirmance of
the death penalty (Art 47). Here, the intervention of the Chief Executive is not even
required.
In either case, the degree of the penalty is reduced from death to reclusion perpetua.
Commutation of sentence and conditional pardon, compared.
In commutation of sentence, consent of the offender is not necessary. The public
welfare, not his consent, determines what shall be done (US authority). The rule in

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conditional pardon is different because it requires the acceptance (consent) of the pardonee
(accused).
Good conduct allowances, their nature.
They are deductions from the term of the sentence for good behavior (Art 97).
Note: This is different from that provided for in Art 29 which is an extraordinary
reduction of full time or 4/5 of the preventive imprisonment from the term of the sentence.
A prisoner is also entitled to a special time allowance for loyalty (Art 98) which is
1/5 of the period of his sentence who, having evaded the service of his sentence under the
circumstances mentioned in article 148 of the RPC, gives himself up to the authorities within
48 hours following the issuance of a proclamation announcing the passing away of the
calamity or catastrophe referred to in said article. Take note that those prisoners who would
not evade the service of their sentence under the same circumstances are not entitled to the
special time allowance for loyalty under Art 98.
Parole, defined.
It consists in the suspension of the sentence of a convict after serving the minimum
term of the indeterminate sentence (penalty), without granting a pardon, prescribing the terms
upon which the sentence shall be suspended.
Parole should be added as No. 4 in the enumeration of causes of partial extinction of
criminal liability under this article.
The mere commission, not conviction by the court, of any crime is sufficient to
warrant the parolees arrest and reincarceration (Guevara). Take note that among the
conditions imposed upon a parolee is that he shall not commit any crime during the parole
period. This is a similar condition imposed upon a probationer.
Conditional pardon distinguished from parole:
Conditional pardon

Parole

1. Which may be given at any time after

final judgment, is granted by the Chief
Executive under the provisions of the
Revised Administrative Code (RAC);

1. Which may be given after the prisoner

has served the minimum penalty, is granted
by the Board of Pardons and Parole under
the provisions of the ISL;

2. For violation of the conditional pardon,

the convict may be ordered re-arrested or
re-incarcerated by the Chief Executive, or
he may be prosecuted under Art. 159 of

2. For violation of the terms of the parole,

the convict cannot be prosecuted under Art
159.
He can be re-arrested and reincarcerated to serve the unserved portion

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the RPC (Other cases of evasion of service of his original penalty.
of sentence)
Authority of President to order the arrest and re-incarceration of convict granted
conditional pardon and his prosecution under Art. 159, RPC, not mutually exclusive.
The prosecution and conviction of the accused under Art. 159, RPC, does not
preclude the President from ordering (authorizing) the arrest and re-incarceration of the
convicted person who, in his judgment, shall fail to comply with the condition of the pardon
(Tesoro vs Dir, 68 Phil 154). The authority of the President is based on Sec 64(1) of the
RAC. Nor will the arrest and re-incarceration of the accused upon order of the President
prevent the accuseds prosecution and conviction under Art 159, RPC (Sales vs Dir, 87 Phil
492). Hence, conviction of the accused for the new offense is indispensable to his charge and
conviction under Art. 159, RPC. It will therefore be noted that the authority of the President
to order the arrest and re-incarceration of the convict who is granted a conditional pardon and
the latters prosecution under Art 159, RPC are concurrent, not mutually exclusive, remedies
against the convict.
Q. What is the venue for Violation of Art 159?
Ans. The first level court (considering that the penalty imposable is only prision
correccional minimum) of the place where the violation of the condition is committed (that
is, where the new offense is committed), not that of the court which imposed the original
sentence (P vs Martin, 68 Phil 122).
ART. 95. Obligation incurred by person granted conditional pardon.
The conditions of the conditional pardon are limited in their duration to the unserved
portion of the sentence, unless an intention to extend them beyond that time is manifest.
Reason: pardon is an act of grace; interpreted otherwise, it becomes an act of oppression and
an injustice. (Infante vs Warden, 92 Phil 310).
ART. 97. Allowance for good conduct.
Q. What are the legal effects of a conditional pardon?
Answer:
1. It interrupts the prescription of penalty (P vs Pontillas, supra).
2. The accused is not entitled to a good conduct allowance. Reason: The good
conduct time allowance is given in consideration of the good conduct observed by the
prisoner while serving his sentence. In this case, the accused was enjoying liberty under a
conditional pardon (P vs Martin, supra).
ART. 99. Who grants time allowances.

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The allowance for good conduct is not automatic.

It must be granted by the Director of Prisons. This authority is exclusively vested in
the Director of Prisons. There is no justification for the provincial wardens usurping the
authority of the Director of Prisons in crediting the prisoner with good conduct allowance (P
vs Tan, Feb 25, 1967, 19 SCRA 433).

Title Five. CIVIL LIABILITY

ART. 100. Civil liability of a person guilty of felony.
Legal effect of the filing of the criminal action on the civil action arising from the same
offense:
1. Unless the civil aspect of the case is waived, reserved or filed ahead of the filing
of the criminal action, the civil aspect of the case is deemed impliedly filed together with the
filing of the criminal action (Sec 1 Rule 111, 2000 Rules on Criminal Procedure). Where
the case is cognizable by the Sandiganbayan, it is mandatory that the civil aspect of the case
be filed together with the criminal action. No exception.
2. Where the civil case is filed ahead of the criminal case, the filing of the criminal
action suspends the civil case at whatever stage. There are two exceptions:
a. Where the civil action is an independent civil action (under Arts. 32, 33, 34 and
2176 of the New Civil Code) even without a reservation in the criminal case such reservation
not being required in the 2000 Rules of Criminal Procedure (Sec. 3, Rule 111); and
b. Where, although the civil action is not an independent civil action, but the
judgment therein had already been promulgated, although not yet executed at the time of the
filing of the criminal action. Reason: If the rule as contended by the appellant (complainant
in the criminal case and losing party in the civil action) were correct, the losing party could
stop the course of any judgment in a civil action by the simple expedient of doing what the
appellant has done in this case - file a criminal case against the prevailing party of having
allegedly introduced false documentary evidence during the trial of the civil case. The other
corollary of such a theory, even if the fiscal (now, prosecutor) should file an information,

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would indirectly be to subject the validity or effectiveness of a civil judgment to the scrutiny
of another court or another judge in another proceeding (Tanda vs Abaya, 89 Phil 497). In
the Tanda case, the criminal action did not arise from the same act giving rise to the civil
case.
c. If the civil case is not yet filed, then it could not be filed until the termination of
the criminal case, except if the said civil case is an independent civil action. In the meantime
that the civil case could not as yet be filed during the pendency of the criminal case, the
prescription of action of the civil case will be interrupted (Lanuzo vs Sy Bon Ping, 100
SCRA 205).
Allegation of damages in the complaint/information not necessary.
The court may sentence the accused to pay the offended party moral and material
damages even if there is no specific allegation of such damages in the information, provided
the offended party has not expressly waived such liability or reserved his right to have civil
damages determined in a separate civil action (P vs Gerodias, et al, 51 O. G. 4614). Reason:
Under Art 100, RPC, when an information or complaint is filed, even without any allegation
of damages and the intention to prove them, it is to be understood that the offender is liable
for them (P vs Oraza, 83 Phil 633).
Under the Rules on Criminal Procedure, where, in a criminal complaint or
information, the amount of damages, other than actual, are alleged, the required filing fee
must be paid, otherwise, the clerk of court can refuse the filing of the said criminal complaint
or information.
Violation of PD 1612, the Anti-Fencing Law.
The law authorizes the award of damages to the offended party. Hence, the latter
may actively prosecute the case with the assistance of a private counsel (Sec. 16, Rule 110,
Lim vs CA, 222 SCRA 279).
Judgment of conviction becomes final and executory where accused, after
promulgation, manifests that he is waiving right to appeal.
Nonetheless, within the 15-day period to perfect the appeal, the court can still order
the accused to indemnify the offended party (P vs Rodriguez, 97 Phil 349).
The foregoing rule is good only if the offended party had already presented his
evidence before the judgment of conviction was promulgated. In a case where, upon
arraignment, the accused pleaded guilty to the charge, the judgment was immediately
promulgated and the accused waived his right to appeal, then the proper remedy within the
15-day period after the promulgation of the judgment is for the court, upon motion of the
offended party, to reopen the case so as to allow the latter to establish by evidence the civil
liability of the accused. Take note that, because of the waiver of the accused of his right to
appeal, the judgment had already become final and executory. But this is true only insofar as

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the criminal aspect of the case is concerned. As required by the principles of due process,
the offended party is given 15-days from the promulgation of judgment to have the case
reopened so that he could present his evidence regarding the civil aspect of the case. (By
analogy to Budlong vs Apalisok, supra).
Q. What are the exceptions to the rule that acquittal from a criminal case extinguishes
the civil liability of the accused?
Ans. They are as follows:
1. When the acquittal is based on the ground that the guilt of the accused has not
been proven beyond reasonable doubt (Art. 29, NCC).
2. Acquittal due to an exempting circumstance, e. g., insanity.
3. Where the judgment states that the case merely involves a civil obligation.
4. Where there was proper reservation for the filing of a separate civil action.
5. Where the civil liability is not derived or based on the criminal act of which the
accused is acquitted (Sapiera vs CA, 314 SCRA 370), e.g., quasi-delict.
6. a. In cases of independent civil actions provided for in Arts. 31, 32, 33 and 34 of
the NCC.
b. When the civil action is based on obligations not arising from the act complained
of as a felony, e.g., contractual obligation.
Award of damages in same judgment of acquittal justified; legal implication of Art. 29,
NCC. THIS IS VERY IMPORTANT.
There appears to be no sound reasons to require a separate civil action to still be filed
considering that the facts to be proved in the civil case have already been established in the
criminal proceedings where the accused was acquitted. Due process has been accorded the
accused. He was, in fact, exonerated of the criminal charge. The constitutional presumption
of innocence called for more vigilant efforts on the part of prosecuting attorneys and defense
counsel, a keener awareness by all witnesses of the serious implications of perjury, and a
more studied consideration by the judge of the entire records and of applicable statutes and
precedents. To require a separate civil action simply because the accused was acquitted
would mean needless clogging of court dockets and unnecessary duplication of litigation
with all its attendant loss of time, effort, and money on the part of all concerned.
Art. 29 of the NCC clearly and expressly provides a remedy for the plaintiff in
case the defendant has been acquitted in a criminal prosecution on the ground that his
guilt has not been proved beyond reasonable doubt. It merely emphasizes that a civil
action for damages is not precluded by an acquittal for the same criminal act or omission.
The Civil Code provision does not state that the remedy can be availed of only in a separate

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civil action. A separate civil case may be filed but there is no statement that such separate
filing is the ONLY and EXCLUSIVE permissible mode of recovering damages. There is
nothing contrary to the Civil Code provision in the rendition of a judgment of acquittal
awarding damages in the same criminal action. The two can stand side by side. A judgment
of acquittal operates to extinguish the criminal liability. It does not, however, extinguish
the civil liability unless there is a clear showing that the act from which the civil might
arise did not exist.
The old rule that the acquittal of the accused in a criminal case also releases him from
civil liability is one of the most serious flaws in the Philippine legal system. It has given rise
to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to guilt of the accused. The reasoning followed is that
inasmuch as the civil responsibility is derived from the criminal offense, when the latter is
not proved, civil liability cannot be demanded.
This is one of those cases where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of demarcation between
criminal liability and civil responsibility, and to determine the logical result of the
distinction. The two liabilities are separate and distinct from each other; one affects the
social order and the other, private rights. One is for the punishment or correction of the
offender while the other is for reparation of damages suffered by the aggrieved party.... It is
just and proper that, for the purposes of the imprisonment of or fine upon the accused, the
offense should be proved beyond reasonable doubt. But for the purpose of indemnifying the
complaining party, why should the offense also proved beyond reasonable doubt? Is not the
invasion or violation of every private right to be proved only by preponderance of
evidence? Is the right of the aggrieved person any less private because the wrongful act is
punishable by the law? (Code of Commission, pp 45-46).
A separate civil action may be warranted where additional facts have to be
established or more evidence must be adduced or where the criminal case had been fully
terminated and a separate complaint would be just as efficacious or even more expedient
than a timely remand to the trial court where the criminal action was decided for further
hearings on the civil aspects of the case. The offended party may, of course, choose to file a
separate action. These do not exist in this case. Considering moreover the delays suffered by
the case in the trial, appellate, and review stages, it will be unjust to the complainants in this
case to require at this time a separate civil action to be filed.
In the case before us, the petitioners (accused) were acquitted not because they did
not commit the acts stated in the charge against them. There is no dispute over the forcible
opening of the market stall, its demolition with axes and other instruments, and the carting
away of the merchandize. The petitioners were acquitted because these acts were
denominated coercion when they properly constituted some other offense such as threat or
malicious mischief. (Roy Padilla, et al., vs CA, L-39999, May 31, 1984, EN BANC).
Q. Is there civil liability arising from the crime if the accused can prove a justifying
circumstance? What about if he can prove an exempting circumstance?

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Ans. As a general rule, if the accused proves a justifying circumstance, there is no

civil liability. Reason for this is that, under the law (Art. 100, RPC), Every person
criminally liable for a felony is also civilly liable. Conversely, and considering that where
the accused proves a justifying circumstance, his act subject of the charge is not a crime and
neither is he a criminal, the accused does not therefore incur any civil liability. However, if
the justifying circumstance proved is avoidance of greater evil or injury under Art. 11 No. 4,
RPC, there is a civil liability here, but the ones liable therefor are the persons for whose
benefit the harm has been prevented in proportion to the benefit they have received (Art. 101,
RPC).
On the other hand, there is civil liability even where the accused can prove an
exempting circumstance. Reason for this is that, although law does not consider the accused
a criminal, the law still considers his act as a crime. There are only TWO (2) exceptions, i.
e., (a) if the accused, while performing a lawful act with due care, causes an injury by mere
accident without fault or intention of causing it (Art. 12 No. 4) and (b) if the accused fails to
perform an act required by law when prevented by some lawful or insuperable cause (Art. 12
No. 7). See Art. 101, RPC.
ART. 101. Rules regarding civil liability in certain cases.
Duty of court trying insane person.
In rendering judgment against an insane person, the courts, even when they hold the
accused exempt from criminal liability because of his insanity, must fix the civil liability of
the person charged with the watching over and caring for him or the liability of the insane
person himself with his property (US vs Baggay, 20 Phil 142).
The Baggay case is in accordance with par 3, Sec 2, Rule 120 of the 1985 Code on
Criminal Procedure, as amended, which provides: In case of acquittal, unless there is a clear
showing that the act from which the civil liability might arise did not exist, the judgment
shall make a finding on the civil liability of the accused in favor of the offended party. Take
note, however, that the foregoing provision is no longer found in Sec. 2, Rule 120 of the
2000 Rules of Criminal Procedure.
Rules on the civil liability of parents, guardians, or persons having legal control of
insane persons or minors:
1. Under Art. 101 (First), the civil liability for acts committed by an imbecile or an
insane person or a minor exempt from criminal liability (under 9 or 9 or over but under 15
who acted without discernment) shall devolve upon the persons having legal authority or
control over them (i. e., parents or legal guardians, etc.), if the latter are at fault or negligent.
Under the RPC, when the persons civilly liable for the criminal acts of an insane person or
one who is a minor could prove that there was no fault or negligence on their part, they can
avoid their primary liability therefor. Here, it is the insane /minor who would respond with
their own property. The idea is not to leave the act entirely unpunished but to attach certain

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civil liability to the person who has the delinquent minor under his legal authority or control
(Paleyan vs Bangkili, L-22253, July 30, 1971, 40 SCRA 132, 135).
2. If the minor be over 9 but under 15 years who acted with discernment or 15 years
or over but under 21 years of age, the liability of the parents is premised on Art. 2180 of the
New Civil Code, if the minor lives in their company. However, the parents can exempt
themselves from responsibility (civil liability) by proving that they observed all the diligence
of a good father of the family to prevent the damage. (Art 2180, NCC, 2nd & last par, Art
221, Family Code; Paleyan vs Bangkili, supra).
The liability of parents, legal guardians, etc. in Nos. 1 and 2 are what is now known in
legal jurisprudence as vicarious liability, or the liability of persons for the acts or
omissions of another.
Case. On Dec. 10, 1981, spouses H and W, filed a Petition for the Adoption of A, a
10-year old child, who was then staying with his natural parents, F and M. On Oct. 20, 1982,
during the pendency of the petition, A committed a crime with discernment. On Nov. 18,
1982, the petition of H and W for the adoption of A was granted by the Court.
Question. Who is liable for the civil liability of A - the adopters or the natural
parents?
Ans. The natural parents. The crime was committed while the minor was in the
custody of the natural parents. Even if, after the commission of the crime the petition was
approved, the same will not be given retroactive effect as to render the adopters liable
(Macario Tamano, et al, vs. CA, et al, 209 SCRA 518). Take note that the liability of the
natural parents of A is based on the principle of IMPUTED NEGLIGENCE.
IMPORTANT THINGS TO REMEMBER IN THE TAMANO CASE.
1. Take note that from the Tamano case, what is determinative of the liability of the
adopting parents is the date when the petition for adoption was granted, not when the petition
therefor was filed. Thus, there is no retroactive effect as to the civil liability of the adopting
parents.
2. The pertinent portion of Rep. Act No. 8552 (Domestic Adoption Act of 1998)
which was approved by the President on Feb. 25, 1998 provides to the effect that a decree
of adoption x x x shall be effective as of the date the original petition was filed. This
provision shall also apply in case the petitioner(s) dies before the issuance of the decree of
adoption to protect the interest of the adoptee. (Sec. 13).
3. Q. Does RA 8552 affect, or at least modify, the doctrine in the Tamano case?
Ans. It depends. If at the time the minor (adoptee) committed a crime with
discernment, he was already placed in the Supervised Trial Custody of the adopting parents
(H and W), which is for a period of at least six (6) months (but which may be reduced by the

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court if it finds that it be in the best interest of the adoptee), it is believed that H and W are
already liable for the civil liability instead of the natural parents. Reason for this is that,
under Sec. 12 of the law, during the supervised trial custody, temporary parental authority
shall be vested in the adopter(s), meaning that the minor (adoptee) must be living in the
company of the future adopters. Otherwise, no.
ART. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of
establishments.
Take note that the liability of the innkeepers, etc. under this article is only civil and not
criminal. And, the civil liability is ONLY subsidiary, that is, the innkeepers are entitled
to the benefit of exhaustion of the properties of the actual offenders.
Conditions for the civil liability of the innkeepers, etc.
1. The guest must have notified the management in advance of the deposit of such
goods (aside from the usual personal belongings of a guest) within the inn.
2. The guest must have followed the directions given by the management with
respect to the care and vigilance over the goods.
Applicable decisions.
a. Facts: The owner of a hotel disclaimed liability because the plaintiff (guest) did
not deposit his properties with the manager despite a notice to that effect posted in the hotel.
Held: Actual delivery to him (owner) or his employee (the manager) of the effects of the
guest is not necessary; it is enough that they were within the inn (De los Santos vs. Tam
Khey, C.A., 58 O. G. 7693, citing 29 Am.Jur. 89-90).
b. Held: The SC ruled that even though the guest did not obey the rules and
regulations prescribed by the management for the safe-keeping of the valuables, the
management is not absolved from its subsidiary civil liability. Non-compliance with such
rules and regulations by the guest will be regarded only as CONTRIBUTORY
NEGLIGENCE which does not absolve the management from civil liability.
ART. 103. Subsidiary civil liability of other persons.
Industry, meaning.
1. Any department or branch of art, occupation or business; especially, one which
employs so much labor and capital and is a distinct branch of trade. Hence, a person who
owns a truck and uses it in the transportation of his own products is engaged in industry
(Telleria vs Garcia, CA, 40 O. G. No. 12, p 115).
2. An enterprise for gain or for profit (Clemente vs Foreign Mission Sisters, CA, 38
O. G. 1594).

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Hospital not engaged in industry; nurses not servants.

A hospital is not engaged in industry; hence, not subsidiarily liable for acts of nurses.
Nurses, in treating a patient, are not acting as servants of the hospitals, because they are
employed to carry out the orders of the physicians, to whose authority they are subject
(Clemente vs Foreign Mission Sisters, supra).
Note: While it may be conceded that a hospital is not engaged in industry, it is,
however, believed that it can be held civilly liable under the provision of Art 2180 of the
Civil Code, which reads: Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry (par 5). Here, the liability is primary,
although the defense of diligence of a good father of the family in the selection and
supervision of employees is available as a defense. (Aquino, RPC).
What are the requisites to enforce the subsidiary civil liability of the employer, etc?
Ans. In Joaquin vs Aniceto, Oct 31, 1964, 12 SCRA 308), the SC enumerated said
requisites as follows:
1.
industry;

That the employer, teacher, person or corporation is engaged in any kind of

2. That the servant, pupil, workman, apprentice, or employee committed the offense
in the discharge of his duties; and
3. That the employee, etc is insolvent.
Subsidiary civil liability.
Under the present jurisprudence, the subsidiary civil liability of the employers for
the criminal acts of their servants or employees are limited only to crimes committed by the
latter which are related to the discharge of their duties (Baza Marketing Corp vs Bolinao
Security & Investigation Service, Inc, 117 SCRA 156). It does not include all criminal acts
of the employees while performing their assigned tasks.
There is no need on the part of the offended party to file a separate civil action against
the said employers. The latters subsidiary civil liability can be enforced in the form of a
motion (for the issuance of an alias writ of execution against the employer) as an incident in
the criminal case against the servant/employee (Pajarito vs Seeris, 87 SCRA 275, Paman vs
Seeris, 155 SCRA 709). This abandoned the contrary ruling of the SC in Jamelo vs
Serafino, 44 SCRA 464, wherein it was held: No automatic subsidiary civil liability of the
employer under Art 103. A direct and separate civil action against the employer under Art
2180, NCC is required.

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For the subsidiary civil liability of the employer to be enforced against him, there is
no need for it to be expressly provided for in the decision of the trial court or of the appellate
court. Although the decision is silent about such liability, it could be enforced the moment
the pre-condition is satisfied, i. e., the writ of execution is returned unsatisfied because the
employee is insolvent.
In other words, the rule to enforce a subsidiary civil liability is the same as the rule
for accessory penalties, which are deemed imposed (together with the principal penalty)
although the judgment of conviction is silent about them (Art. 73, RPC).
The rule for subsidiary penalty (subsidiary imprisonment, included [Art. 39, RPC]) is
different. It being a real penalty, the same must be expressly provided for in the decision,
otherwise, the convict cannot be compelled to suffer a subsidiary penalty.
Under Art 103, the employer cannot avail of the defense of a good father of a family.
In other words, the criminal guilt of the servant/employee is at once the civil guilt of
the employer should the former be insolvent. However, the employer, during the hearing of
the motion for the issuance of an alias writ of execution against him, can still raise the
following defenses:
1. That he is not engaged in any kind of industry, and/or
2. That the crime committed by his servant/employee is not related to the discharge
of his duties.
Q. Is the certificate of registration of a motor vehicle controlling to ascertain who is
subsidiarily liable for the civil liability of his employees?
Ans. Yes. Justice Aquino, in his Book, opined that the Certificate of Registration of
a motor vehicle is not controlling. However, the Supreme Court declared that regardless of
who the actual owner of a motor vehicle might be, the registered owner is the operator of the
same with respect to the public and third persons and is solely primarily and directly
responsible for the consequence of its operation. The owner/operator of the motor vehicle on
record is the employer of the driver, the actual operator and employer being considered
merely as his agent (First Malayan Leasing, et al., vs CA, et al., 209 SCRA 660).
The registered owner is precluded from adducing evidence that he had already sold
the motor vehicle at the time of the vehicular incident. If the registered owner were allowed
to do so, it would be easy for him to avoid his liability by transferring the vehicle to an
indefinite person or to a financially distressed person (BA Finance Corp. vs CA, et al., L98275, Nov. 13, 1992).
The employer is subsidiarily liable for indemnities even if his driver was convicted
under the provisions of the Revised Motor Vehicle Law because Art 103 is applicable
pursuant to Art 10, RPC (Copiaco vs Luzon Brokerage, 66 Phil 184).

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Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments

under Art 102 and of other persons (employers, teachers, etc) under Art 103 not
repealed by Art 2177, NCC.
In fact, Art 2177 expressly recognizes the civil liabilities arising from the provisions
of the RPC, only that it provides that the plaintiff can not recover damages twice for the same
act or omission of the defendant (Manalo, et al vs Robles Trans Co, Inc, 52 O. G. 5797).
Example: Pedestrian killed due to reckless negligence of driver. Two cases filed criminal case against driver based on culpa criminal and a civil case against the driver and
the operator (employer) of the vehicle based on culpa aquiliana. The two cases were jointly
tried. After the trial, the operator was absolved of any liability in the civil case, while the
driver was held civilly liable in said case. The driver was likewise convicted in the criminal
case, but his civil liability arising from the crime was no longer fixed because the same had
already been fixed in the civil case. The driver is insolvent. Question. Can the writ of
execution be enforced against the operator?
Ans. Yes. Take note that the liability of the employer based on culpa aquiliana (Art
2180, NCC) is separate and distinct from his subsidiary civil liability under the RPC.
Consequently, his being absolved in the civil case is immaterial in connection with his
subsidiary civil liability under the RPC. Although the civil liability of the driver (employee)
in the criminal case was not fixed by the court, it is understood that the amount fixed in the
civil case was the same amount, which should have been fixed for his civil liability in the
criminal case. And so, the basis of the subsidiary civil liability of the employer (operator) is
the amount fixed against the driver in the civil case. (Padua, et al vs Robles, et al, 66 SCRA
485).
The 1914 case of Chapman vs Underwood (Yusay vs Adil, L-56612, Aug. 18, 1988, 164
SCRA 494).
An owner who sits in his automobile, or other vehicle, and permits his driver to
continue in a violation of the law by the performance of negligent acts, after he has had
reasonable opportunity to observe them and to direct that the driver cease therefrom,
becomes himself responsible for such acts. The owner of an automobile who permits his
chauffeur to drive up the Escolta, for example, at the speed of 60 miles an hour, without any
effort to stop him, although he has had a reasonable opportunity to do so, becomes himself
responsible, both criminally and civilly for the results produced by the acts of the chauffeur.
On the other hand, if the driver, by a sudden act of negligence, and without the owner having
reasonable opportunity to prevent the act or its continuance, injures a person or violates the
criminal law, the owner of the automobile, although present therein at the time the act was
committed, is not responsible, either criminally or civilly, therefor. The act complained of
must be continued in the presence of the owner for such a length of time that the owner, by
his acquiescence, makes his drivers acts his own.

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The Chapman case was not held applicable in the case of Reynato Manlangit vs Judge
Melito L. Urgel, Adm.Matter No.MTJ-95-1028, Dec. 4, 1995), wherein it was held:
It is a basic postulate in criminal law that the criminal act of one person cannot be
charged to another without a showing that the other participated directly or constructively in
the act or that the act was done in furtherance of a common design or purpose for which the
parties were united in intention. In cases of employer-employee relations, an employer is not
criminally liable for the criminal acts of his employee or agent unless he, in some way,
participates in, counsels or abets his employees acts or omission. In such case, the employer
himself becomes a participant to the criminal act of his employee. His liability under the
circumstances is direct and criminal. However, under Art. 102, in relation to Art. 103 of the
RPC, the employers liability for the criminal negligence of his employee is subsidiary in
nature and is limited only to civil indemnity. (Fernando vs Franco, L-27786, Han. 30, 1971,
37 SCRA 311). Thus, an employer is a party to a criminal case for the criminal negligence of
his employee only by reason of his subsidiary civil liability under the law.
Compare with the civil liability of the owner of the motor vehicle in Art. 2184, NCC.
The civil liability of the owner of the motor vehicle is provided for in Art. 2184,
NCC, which reads: In motor vehicle mishaps, the owner is solidarily liable with his driver,
if the former, who was in the vehicle, could have, by the use of due diligence, prevented the
misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty
of reckless driving or violating traffic regulations at least twice within the next preceding two
months.
If the owner was not in the motor vehicle, the provisions of article 2180 are applicable.
Death benefits in lieu of subsidiary civil liability.
Where an employer had already paid death benefits to the heirs of an employee who
is killed by another employee, the employer is no longer subsidiarily liable to the civil
liability of the accused. Reason: Art 173, Labor Code, provides: The liability of the SIF
(State Insurance Fund) x x x shall be exclusive and in place of all other liabilities of the
employer to the employee/dependents (Generoso vs UTEP Mills Inc, 95 SCRA 128).
In the said case, the SC held: We hold that in view of the textile corporations
payment of Workmens compensation, its obligation to pay, in a subsidiary capacity (or in
default of the killer), the civil indemnity adjudged against him in the criminal case, was
extinguished. The instant case is an exception to the rule in Art 103 of the RPC.
Generosos heirs could have chosen to claim workmens compensation or any other remedy
under the Civil Code or other laws. Their remedies were alternative and could not be
claimed simultaneously. Having opted for workmens compensation, they are bound by that
election of remedy and are estopped to claim other remedies. x x x Election of remedies is
the adoption of one of two or more coexisting remedies, with the effect of precluding a resort
to the others x x x .

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And in case he is paid workmens compensation, there is the further consequence
that the employer succeeds to the injured employee to the right to recover from the person
responsible for the personal injury what the employer paid to the injured employee, subject
to the proviso that any excess in the recovery would be paid by the employer to the injured
employee or any other person entitled thereto, after deduction of the expenses of the
employer and the costs of the proceedings.
The instant case is different from Vda. De Clemente vs Workmens Compensation
Commission, 88 SCRA 68, where it was held that the payment of damages to the heirs of a
policeman who died in a vehicular accident, which payment was an amicable settlement of
the criminal action, did not preclude the heirs from asking for workmens compensation from
the City of Manila, the policemans employer. That claim did not make the employer liable
for any double indemnity.
Employer not engaged in business or industry and uses his car for personal purposes
and, moreover, was not present in the car when driver committed negligent act,
employer not subsidiarily liable for drivers civil liability (Art 2184, NCC, Steirmetz vs
Valdez, 72 Phil 92).
But, the employer may be liable under Art 2180, NCC if he did not exercise due
diligence to prevent the damage. Under the said article, it is not necessary that the employer
be engaged in business, a rule which revokes the holding in Diuquino vs Araneta, 74 Phil 690
(Aquino, RPC).
If the employers subsidiary civil liability cannot be diminished, neither can it be
increased.
Where the civil liability of the employee as adjudged in the criminal case was P1,000,
the employer should be held liable for that amount only and not for the additional sum of
P300 as alleged funeral expenses, which were not claimed in the criminal case (Arambulo vs
Manila Electric Co, 55 Phil 75, Bantoto vs Bobis, 18 SCRA 690).
Instance where subsidiary civil liability of employer is less than that adjudged against
employee.
Under Art 2230, NCC, the trial court could only award exemplary damages against
the accused if the crime be committed with one or more aggravating circumstances.
Considering that there could be no aggravating circumstance where a crime is committed by
negligence, it would be error for the court to impose exemplary damages against a driver
charged with reckless imprudence resulting in homicide. Consequently, when the trial court
in the criminal case acted without or in excess of its jurisdiction in the adjudication of
exemplary damages as part of the civil liability of the employee (driver), this part of the
decision may be ignored as void. The employer would not be subsidiarily liable for the said
exemplary damages (Rotea Halili, 109 Phil 495).

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Another thing, the court may be said to have acted without or in excess of its
jurisdiction if it awards damages against the accused (employee) in the criminal case
although the offended party either waived his right to the civil liability of the accused or he
reserved his right to file a separate civil action.
ART. 104. What is included in civil liability.
Examples of:
1. Restitution - in theft, the culprit is duty bound to return the property stolen.
2. 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
caused would consist in the payment of hospital bills and doctors fees to the offended party.
3. Indemnification for consequential damages - damages for the loss of the offended
partys salary or earning during all the time that he could not report for work or was
prevented from engaging in his habitual work due to the injuries he suffered from the
accused.
ART. 105. Restitution.
Re the accuseds obligation for restitution.
The convict cannot, by way of restitution, give to the offended party a similar thing of
the same amount, kind or species and quality on the theory that the thing is fungible (Art
1953, NCC). Reason: The civil liability of the accused is not governed by the NCC but by
Arts 100-111 of the RPC which require the return of the very thing taken (restitution), or, if it
cannot be done, for the payment of its value (reparation). The purpose of the law is to place
the offended party as much as possible in the same condition as he was before the offense
was committed against him (P vs Mostasesa, et al, 94 Phil 243).
The general rule is that the owner (offended party) of the property unlawfully taken by
the offender can recover it from a 3rd person who acquired it from the offender
regardless of his (3rd persons) good faith, subject to the following qualifications:
1. Without the obligation to reimburse the price paid therefor by the 3rd person if the
latter acquired the property at a private sale (Art 559, NCC).
2. With the obligation to reimburse the 3rd person for the price paid therefor if the
latter acquired it in a public sale (that is, where the general public is allowed to bid). (Art
559, NCC).
3. Where the doctrine of ostensible ownership applies, that is, the 3rd person acquired
it in a merchants store, or in a fair, or market, in accordance with the Code of Commerce
and special laws, the owner cannot recover the property even if he is willing to reimburse the

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3rd person for the price which he paid therefor. (Art 1505, No. 3, NCC). Under this rule, the
good or bad faith of the 3rd person appears to be immaterial.
Procedure where the thing subject of offense (theft, robbery, estafa) is pawned.
The court, which convicted the accused of estafa, may summon the owner of the
pawnshop and, after hearing him, order the return of the jewels pawned to him without
reimbursement of the amount of the pledge. The pawnshop owner may seek his remedy from
the person who pawned the jewels (Reyes vs Ruiz, 27 Phil 458).
Procedure for victim to recover his property object of offense.
The victim does not have to file a separate civil action for the recovery of his property
(Reyes vs Ruiz, supra), although the property (thing) may be in the possession of a 3rd person
who acted in good faith. However, should the victim decide to file a civil action to recover
his property from a possessor in good faith, he (victim) does not have to wait for the
conviction of the accused in a final judgment. The fact of unlawful deprivation may be
established in the civil suit (Santos vs Vitug, et al, 65 No. 3 O. G. 556, Jan 20, 1969 issue,
CA). There is therefore an advantage on the part of the victim who files a civil action against
the 3rd person, because where he would depend on the criminal case, the restitution cannot be
ordered before final judgment (Chua Hai vs Kapunan, Jr., June 30, 1958). Thus, where the
things involved in an estafa case are in the custody of a possessor in good faith, the court
cannot order the possessor to return them to the alleged offended party before final judgment
is rendered in the estafa case. That would be premature because the mere filing of a criminal
action for estafa is no proof that estafa was committed (Yu vs Honrado, 99 SCRA 273).
Besides, under Art 559, par 1, NCC, the possession of movable property acquired in
good faith is equivalent to a title, and hence, in the meantime that his possession is not yet
established to be unlawful by a competent court, his possession shall be respected. Stated
differently, a search warrant is not available where the thing subject of the offense (theft,
robbery, estafa, etc.) be in the possession of a 3rd party who acted in good faith while the
case is pending.
Restitution may be ordered, even if accused is acquitted provided offense is proved and
shown that thing belongs to offended party.
This is a case where the thing stolen (ring) was pawned but the accused could not be
identified during the trial as the thief (P vs Alenajo, 54 Phil 987).
Prob. A stole the cow belonging to V and, thereafter, sold it to B. Assume that in a case
for cattle rustling A is convicted. In this case, may the court at the same time order A
to indemnify B for the price, which the latter paid to A?
Ans. No, because the theft of the animal (cow) and its subsequent sale by the thief
(A) to a 3rd person (B) constitute distinct crimes of theft and estafa and the offended parties

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are different, being the owner and purchaser, respectively (US vs Barambangan, 34 Phil
645).
Salary of the acquitted accused may not be ordered paid in the criminal case (P vs
Manego, 69 Phil 496).
Neither the RPC nor the Rules of Court on criminal procedure vests in the court the
authority to grant such relief. No issue was joined on whether the accused was entitled to the
payment of his salary during his suspension (MRR Co vs Baltazar et al, 93 Phil 715).
Exception: Where the accused who is acquitted is charged of a violation of RA
3019 (Anti-Graft & Corrupt Practices Act). Sec 13 of the law provides: Any incumbent
public officer against whom any criminal prosecution under a valid information under this
Act or under Title 7, Book II of the RPC or for any offense involving fraud upon government
or public funds or property whether as a simple or as a complex offense and in whatever
stage of the execution and mode of participation, is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him. (P vs Consigna, 14 SCRA 962).
ART. 107. Indemnification - What is included.
Art. 106 (reparation) and Art. 107 (indemnification) compared:
Reparation

Indemnification

1.
Reparation is ordinarily the remedy 1. Indemnification is a remedy granted to
granted to the victim of crimes against victims of crimes against persons; and
property; and
2. Indemnification includes unearned
2. Unearned income of the thing subject salaries/wages of the offended party
of the offense cannot be included in resulting from the offense committed
reparation (e. g., rental of the stolen vehicle (Guevara).
should be recovered in a civil action).
Indemnity for medical services still to be rendered and still to be paid may be recovered
(Araneta, et al vs. Arreglado, et al, 104 Phil 531).
However, the necessity for medical services and the amounts, which would be spent
therefor, must have to be established by medico legal experts.

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Art 2206, NCC, provides: The amount of damages for death caused by crime or quasidelict shall be at least three thousand pesos (increased by the SC to P75, 000), even
though there may have been mitigating circumstances. In addition:
1. The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case
be assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;
2. If the deceased was obliged to give support according to the provisions of article
291 (now, Art 195, Family Code), the recipient who is not an heir called to the decedents
inheritance by the law of testate or intestate succession, may demand support from the person
causing the death, for a period not exceeding five years, the exact duration to be fixed by the
court. Example: Where the deceased was compelled to support his parents or ascendants but
at the time of his death he had legitimate children - here the parents are not compulsory or
legal heirs. Hence, they are entitled to demand support from the offender;
3. The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of the
deceased.

Re: No. 1.

Formula for computing loss of earning capacity of the deceased:

2/3 x (80 minus age of the victim at time of death) x annual net income. 80 is
constant, the same being computed as the average age of a person before he dies. (P vs
Suitor, 220 SCRA 419; Davila vs CA, 28 SCRA 497).
Q. What is annual net income?
Ans. Annual net income is arrived at by deducting 50% from the annual gross income
for reasonable and necessary living expenses of the (deceased) victim (P vs Guillermo
Aringue y Amoguis, et al, 283 SCRA 291).
Q. May the bail in the form of cash or bond be applied for the indemnification of the
offended party?
Ans. It depends:
1. Yes, if the cash or bond is put up by the accused himself.
2. No, if put up by a 3rd person. Reason: The bond is executed in favor of the State,
which is interested only in the fine and costs (Esler vs Ledesma, 52 Phil 114).
ART. 111. Obligation to make restitution in certain cases.

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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.
The person referred to in this article must not be an accessory, otherwise, his liability
is not only civil but also criminal. The fortune of the innocent person must be augmented by
his participation in the proceeds of the crime, that is, he acquired material benefits from such
participation. If he merely participated in the eating of the stolen property, he is not obliged
to make restitution, because his fortune was not enhanced thereby (Viada, cited by Reyes).
ART. 112. Extinction of civil liability.
Connect with Art 1268, NCC.
When the debt of a thing certain and determinate proceeds from a criminal offense,
the debtor shall not be exempted from the payment of its price, whatever may be the cause
for the loss (including fortuitous causes), unless the thing having been offered by him to the
person who should receive it, the latter refused without justification to accept it.